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Critical Analysis Of The Role Of United Nations In Promotion Of Rights To Indigenous People Under International Law

In various parts of the world, indigenous people have suffered from various issues and it has a great history of discrimination, lack of women, children development, employment issues, problems related to land, territories and natural resources.

Under basic principles of universality, equality and non -discrimination indigenous people are entitled to various rights under international law. International law has provided them with a platform not only to protect their individual rights but the collective rights of these people which has led to the development of a separate body international instruments for the recognition and protection of the rights of indigenous peoples.

International developments over the last two decades provide opportunities for the United Nations Country Team and Agency to empower the partnerships with nation-states, indigenous people, and civil society as a whole. This includes the adoption of International Labour Organisation Convention No. 169 on Indigenous and Tribal Peoples in 1989 and the most recent is the adoption of United Nations and Declarations on the Rights to Indigenous Peoples by the General Assembly on September 2007.

Indigenous Peoples Rights under the United Nations

The Universal Declaration of Human Rights (UDHR) in 1948 is the first international document that recognizes the need to protect indigenous peoples. The ensuring International Covenant on Civil and Political Rights (ICCPR), as well as International Covenant on Economic, Social, and Cultural Rights (ICESCR), also apply to indigenous rights, but they do not contain any articles specifically on Indigenous peoples.

ILO was the first international convention which was made specifically on indigenous peoples. The most recent is the 2007 Declaration of Rights to Indigenous Peoples solidified the improves the status of these people in an international legal forum.
  • Right to Self-determination
  • Right to lands, territories and resources.
  • Economic, Social and Cultural Rights
  • Collective Rights
  • Right to Equality and non- discrimination

The United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly on 13 September 2007 with 144 votes in favor with 11 abstentions and 4 States (Australia, Canada, New Zealand and the United States of America) against the Declaration.

This Declaration is the comprehensive instrument detailing the rights of indigenous peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights. It does not have uniformity or it does not imply consistently.

In the Declaration, it is important to focus our attention on Article 4 dealing with autonomy and self-government. It can be argued that Article 4 specifies that indigenous people right to self-determination is limited to the right to autonomy or self-government which is often called as a right to internal self- determination which confines to existing states.

The United Nations Declaration on Human Rights defines the individual and collective rights to indigenous people including the ownership rights to cultural and ceremonial expression, unique identity, expressions, language, employment, health, education, and other issues. These Rights to Indigenous People are one of the essential components in international law and policy. It focuses on the development and strengthening of their own needs and aspirations.

It also prohibits discrimination against indigenous people and promotes their full and effective participation in all matters which are concerned on them and their right to being distinct and to have their own visions in economic and social developments.

The main goal of this declaration is to encourage countries to work along with indigenous people and solve global issues like- development, multicultural democracy, and decentralization. According to Article 31, there is a major emphasis that the indigenous people will be able to protect their cultural heritage and the aspects related to their culture and traditions that is to preserve their heritage from the over-controlling nation-states.

According to Article 41 and Article 42 of the United Nations, there are two important mechanisms on indigenous peoples issues have been created. The United Nations Permanent Forum on Indigenous Issues which discuss the indigenous issues related to economic, social development, culture, environment, education and health and human rights and make recommendations to the United Nation System through Economic and Social Council.

The other is the Special Rapporteur on the situation of human rights and fundamental freedoms were established by the Commission on Human Rights to ca take cases which violate human rights.

Who Are Indigenous People?

In the International Community, there is no adoption of any formal universal definition of indigenous people for the recognition and protection of their rights whereas several attempts are made to outline the definition for Indigenous peoples which are as follows:
According to the ILO Indigenous and Tribal Peoples Convention, 1989 applies to:
  • Tribal peoples whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.
     
  • Peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquests or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
     
  • The convention also states that self- identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.

According to the United Nations and Declarations on the Rights to Indigenous Peoples by the General Assembly in September 2007 indigenous people are defined as:

Indigenous People are the descendants of the original people or occupants of land before these lands were taken over or conquered by others. These people have maintained their traditional cultures, traditions, and identities. They have deep connections with their deep ancestry, traditions, and identities.

Right Of Self- Determination To Indigenous People

Self- determination of indigenous peoples is connected with the term- people. In international law, only peoples have the right to self- determination. Indigenous peoples see self-determination as a central right recognized at the international level.

Right to Self- determination is an inherent right derived from their political, cultural, economic, spiritual, historical, philosophical and social structures. Article 3 of Declaration explains the Right of self-determination which is as follows the right to freely identify their political status and freely pursue their economic, social and cultural development.

The implementation of the right to self-determination also complements the implementation of other rights. These Indigenous People have their old traditions of self-government, independent decision making and their independent self-reliance institution.

Indigenous people seek self-determination. The two variables that determine the scope of groups self-determination are the extent of its territory and the powers it wields over that territory. It has been defined as the principle through which individual human beings, comprised as a unit of people, take control of their own destiny.

However, the meaning of self-determination varies among various scholars, documents, organizations and nation-states. The most common meaning of self-determination is people with the common political and cultural organization. They have the right to self-government and territory.

The Declaration refers to self-determination as the full participation of indigenous people in a decision concerning them, and indigenous peoples making decisions about their own affairs or having some form of territorial autonomy. Article 4 provides that one way of exercising the right is through some form of autonomy or self- government for indigenous peoples in their internal affairs.

To discuss more on the Right to Self- determination of indigenous peoples, an analysis of the concept of peoples is worth mentioning here. Discussion is as follows:

Concept of Peoples and the Indigenous Peoples-

The notion of peoples in line with the terms- indigenous and minority has also not been defined in international law. Generally, indigenous peoples use the term peoples for themselves because of their association with the inherent recognition of a distinct identity. Those state who prefer the term tribes or populations to mean indigenous peoples. However, a wide definition by the United Nations to identify peoples is as follows:
  1. A group of individual human beings enjoy some or all of the common features:
    1. Common historical tradition;
    2. Racial or ethnic identity;
    3. Cultural homogeneity
    4. Linguistic unity;
    5. Religious or ideological affinity;
    6. Territorial connection;
    7. Common Economic life;
       
  2. The group must be of a certain number which need not be large but which must be more than a mere association of individuals within a state;
     
  3. The group as a whole must have the will to be identified as a people- allowing that group or some members of such groups, through sharing the foregoing characteristics may not have that will or consciousness;
     
  4. The group must have institutions or other means of expressing its common characteristics and will for identity.

    Identification of self- determination is greatly complex. The fact of self-determination may conceive both external and internal phenomena.
According to various authors like- Winona LaDuke, M. Annette Jaimes, Rudolp Ryser they have proposed the dichotomy between internal and external self-determination in the context of these peoples:
  1. External Self-determination, that is, the right of peoples to freely determine their international status, including the option of political independence;
  2. Internal Self- determination, the right to determine freely their form of government and their individual participation in the processes of power.

Thus, the term self- determination accepts two concepts: one is the political dimension with sovereign rights free from any outside interference, and the other is resource dimension which establishes the control over the resources attached to the territory.

As such, apparently, the indigenous peoples themselves upheld two approaches in their legal argumentation. Firstly, they claim the status of nations predating existing states and thus trumping the sovereignty of states. Secondly, they accept the sovereignty of states but argue for rights within the framework of international human rights law.

Therefore, the conclusion could be drawn, taking two arguments as inter-twined, that historic rights of indigenous peoples predating the existing states may strengthen their human rights arguments as special within the sovereign states.

The Exercise of the Right of Self-Determination: In describing the history of the right of self-determination this paper has focused primarily on who is regarded as the "self" entitled of "determination." Another important aspect of the right to self-determination is the exercise of the right - both the substantive and procedural aspects of such exercise.

This section describes these aspects and the problems created by their lack of precision.

This description shows that, while the actual result of self-determination is flexible, this imprecision may provide an additional barrier to according to the present right of self-determination to indigenous peoples.

Issues Faced By Indigenous People

Indigenous Peoples believe they have existed for thousands of years before the present-day nation-states. Indigenous Peoples managed land, resources, spiritual relations, and human relations, as well as government-to-government relations long before the formation of nation-states. Indigenous Peoples usually believe they have a spiritual right to manage their affairs, provide stewardship over the land, maintain a cultural and political community, and uphold government-to-government relations with all other nations, including present-day nation-states. Self-determination is set out in the creation of teachings.

Only the creator can change the ways in which indigenous people govern themselves and maintain self-determination. Most Indigenous Peoples will find international expressions of self-determination in congruent, not fully acceptable, and will resist by upholding their own understandings of self-determination.

Key Terms and Issues faced by Indigenous Peoples:

Following are different terms and issues of indigenous people in international law:

  • Conservation
  • Human Rights, Land Rights
  • Child Labour
  • Discrimination
  • Climate Change
  • Discrimination
  • Dispossession of Lands
  • Poverty
  • Lack of Educational Infrastructure
  • Unemployment
  • Lack of health care facilities
  •  Self- determination
According to the author named Catherine J. Iorns, the common problems are political and economic operation as well as the loss of their lands, their cultural and ethnic traditions, and often they live. These problems can be said to stem from the basic attitude of non- indigenous peoples that they have their backward and inferior living of their life.

Because of their position they have been referred as the 'Fourth World these people have made repetitive cases for their protection of culture, traditions lands and at last for the recognition of their right to self-determination. These claims of indigenous people have received the worlds attention over the last 10 years many of these claims these people have been denied and rejected due to their inferior living

There were several issues faced by Indigenous people that are they were not included in the international expression of self-determination which is reserved for only recognized nations. According to recent international laws and declarations, these indigenous people did not receive any recognition as nation-states but they are subordinate to local surrounding nation-states.

The United Nations Declaration on the Rights of Indigenous peoples uses the expression of self-determination for Indigenous Peoples but qualifies the expression. The Declaration does not recognize the right of Indigenous People to seek recognition as a nation-state or to withdraw from the nation-state that is currently occupying indigenous territories.

Most Indigenous Peoples are not ready or do not want to take on nation-state status, since most indigenous nations are small, not market-based, and cannot compete politically, economically, or militarily with nation-states. Most Indigenous Peoples are not dreaming of taking over the nation-state, or even seceding from the nation-state, but they dislike that nation-states have considerable political, legal and economic control over their communities, territory, and cultural orientations.

The Declaration recognizes that Indigenous Peoples have the right to self-determination for local internal government matters, but are not part of the international government-to-government relations. For issues outside of local government, according to the Declaration, Indigenous peoples do not have the power to make decisions. Furthermore, the Declaration goes on to say that Indigenous Peoples have free, prior, and informed consent on issues of land use and minerals.

While Indigenous Peoples have the right to be consulted, Indigenous peoples do not have veto power over unwanted government or corporate land use, mineral extractions, and are not compensated for their land and mineral wealth losses. In effect, the Declaration and supporting international laws restrict indigenous self-determination to cultural and social issues but leaves the land, resources, and government-to-government relations firmly in the hands of nation-states.

Conclusion
The United Nations Declaration on Rights to Indigenous People is progressive in nature in international law. The ultimate goal of international law is to maintain peace in the world of sovereign states and encourage more groups to seek more power to organise their own affairs.

The great hopes of indigenous people have been dashed in the following ways- All the hard work have done to gain their right to self-determination that they too were colonized. In the Declaration it was mentioned that they can hope for the right to autonomy/ self-governance with existing states and how customary law develops to determine the extent to which the declaration has encouraged indigenous people to rely on their right to autonomy/ self-governance and the degree to which state accept this as a right guaranteed to those people by international law.

Right of Self- determination to the Indigenous People is regarded as one of the human rights in the International law. Thus, this right acts as an additional basis on the Individual right, separate from the inherent dignity and stems from the ethnic, religious or other identities.

While self-determination may be considered the fundamental basis for all other human rights, it does not actually mean that all peoples are entitled to a form of government of their choice where that is different from the form of government of the state in which they live. In the case of indigenous peoples within states (or other accepted political units), a right of separate self-determination is not currently recognized in positive international law because the ultimate goal of self-determination is independence, and includes the possibility of secession.

These goals are considered to be inappropriate for indigenous peoples, who are consequently deemed to not fit either of the requisite definitions of "self." Indigenous peoples are thus considered to be entitled to exercise self-determination only as part of the state as a whole. Their rights are trumped by the state's right to territorial integrity and to non-intervention with its internal affairs, and to other attributes of sovereignty such as sovereignty over natural resources.

In conclusion, the international law of self-determination may be an attempt to achieve human rights for peoples, but only within the existing system of state sovereignty. No right of self-determination is recognized where it clashes with the rules of the system.

Suggestions
The debate in the Working Group suggests that there are two possible bases for the right of self-determination without suggesting whether, or how, they might be linked.

The basis first stressed by indigenous peoples was instrumental: that the (group) right of self-determination was necessary in order to achieve other fundamental (individual) human rights. This justification was made through the linkage of the present denial of human rights to indigenous peoples and their lack of self-government, and therefore of their freedom from oppression and their self-determination.

As the debate progressed, the arguments began to also stress an apparently separate justification: that it was an inherent right of all peoples that could not be taken away. This second justification can be conceived in three ways.
  • It can be thought of as being inherent purely because its function is to guarantee inherent and inalienable individual rights. This conception makes the justification of inherency dependent on that of instrumentality.
     
  • Self-determination can be seen as being directly derived from the inherent dignity of the human person - i.e., not dependent on the instrumental justification.
     
  • The right of self-determination can be seen to be related to the claims that sovereignty is inherent in the group and thus cannot be denied. It is not specified whether this third conception of an inherent group right is also linked with the instrumental protection of inherent individual rights, or whether it is a wholly independent ground.

According to Kingsbury Self-determination to be acceptable to the Right of Indigenous People five important categories should be considered:
  1. Mandated/ trust territories;
  2. Distinct political geographic entities subject to a gross failure of the duties of the state;
  3. Other territories where self-determination is applied by the parties;
  4. Highest level constituent units of a federal state in the fact of dissolution;
  5. Formerly independent entities reasserting their independence with the tacit consent of the state, where the incorporation into the state was illegal or of dubious legality.

References:
  1. Guidelines on Issues of Indigenous People- A Report by United Nations for Indigenous People
  2. International Journal on Minority and Group Rights published by Brill
  3. United Nations Declaration on Human Rights
  4. United Nations Declaration on Rights to Indigenous People (UNDRIP)
  5. International Labour Organisation Tribal Peoples and Convention Report
  6. United Nations Declaration on Rights to Indigenous Peoples
  7. John Henriksen, Oil and gas operation in Indigenous peoples lands and territories in the arctic: A Human Rights perspective, Journal of Indigenous Peoples Rights (2006)
  8. Status of Indigenous People in International law- Kamrul Hossain Miskolc Journal of International law
  9. Indigenous Rights in International Law by- Cher Weixia Chen
  10. Three Ideas of Self -determination in International law by Vladislav Tolstykh
  11. The term "the Fourth World" was coined by George Manuel, in GEORGE MANUEL & MICHAEL POSLUNS, THE FOURTH WORLD: AN INDIAN REALITY (1974). It is now used to refer to aboriginal peoples who are in an inferior position to the dominant society with respect to culture, politics, and economics. Shih-Chung Hsieh, A New Voice of Self-Determination, in the territorial RIGHTS OF NATIONS AND PEOPLES 143 n.1 (John R. Jacobson ed., 1989)

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