Global trends in policy development show an increase in concern for indigenous peoples’ rights to land and resources. International human rights instruments and other international conventions may provide the substantive and procedural requirements for addressing land rights and land tenure concerns. This body of law can influence, and has influenced, domestic policy and legislation. For example, Bolivia has adopted the UN Declaration on the Rights of Indigenous Peoples as national law. In addition, new international standards on the rights of indigenous peoples have influenced the work of human rights institutions and other international bodies including financial institutions such as the World Bank. Indigenous rights’ complaints are being prosecuted in domestic and regional courts, contributing to domestic jurisprudence and international law. Still, the international community lacks comprehensive international instruments that address the links between indigenous peoples and land.
Below is a list of international instruments which may be used to ensure the rights of indigenous peoples. Some of the recommendations of the treaty bodies below are not binding on states; nonetheless, the recommendations should be considered controlling interpretations of signatory state obligations.
UN Declaration on the Rights of Indigenous Peoples
2007 - Citation: A/RES/61/295 - Articles 3-7, 8(2), 10, 11(2), 28
The Declaration sets out the collective and individual rights of indigenous peoples and emphasizes their rights to maintain their culture, identity, and territories. It can be used as a framework for implementing other international human rights and environmental agreements such as the CBD, UNFCCC, and ICESCR.
Authorities and Precedents in International and Domestic Law for the Proposed American Declaration on the Rights of Indigenous Peoples
2002 - Citation: OEA/Ser.L./V/II.110 Doc. 22 - Article XVIII http://cidh.org/Indigenas/Indigenas.en.01/index.htm
Article XVIII pertains to traditional forms of ownership and rights to land, territories and resources. The article recognizes the right to legal recognition, inter alia, of indigenous lands which indigenous peoples have historically occupied or have historically had access to for their traditional activities and livelihood. The article also includes the right to restitution of lands that have been confiscated or otherwise occupied.
Council Resolution on Indigenous Peoples within the Framework of the Development Cooperation of the Community and Member States 1998 - Articles 5-6
This resolution provides guidelines for the European Union in supporting indigenous peoples. It calls for the support of partnerships with indigenous peoples, especially in the management of natural resources. It also encourages enhancing the right to self-development.
UN Convention to Combat Desertification
1994 - Citation: A/AC.241/27 - Articles 2, 3(a), and 17(c) - Ratification
The convention seeks to combat desertification and mitigate the effects of drought in partnership with local communities and to build a spirit of international partnerships for the sustainable use natural resources.
Vienna Declaration and Programme of Action
1993 - Citation: A/Conf.157/24 - Article 31
This declaration recommended a permanent forum on indigenous issues within the UN framework. Article 31 calls on member states to ensure full and free participation of indigenous peoples in all aspects of society.
Convention on Biological Diversity
1993 - Citation: 1760 UNTS 79; 31 ILM 818 - Articles 8(j), 10(c), 26.3, 26.4, 26.6 - List of Parties
Includes provisions for the preservation and maintenance of indigenous and local knowledge and lifestyles and for the protection of customary use of biological resources in accordance with traditional practices. Articles include provisions for empowerment of communities through recognition of territories.
UN Framework Convention on Climate Change 1992
1992 - U. N. Doc. A/AC.237/18 (Part II) (Add. 1) - Ratification
This Convention should include provisions recognizing the effects of climate change on indigenous peoples living in highly variable environments. Indigenous peoples should be empowered to participate in FCCC activities.
International Labour Organization Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169)
1989 - 72 ILO Official Bull. 59 - Part II, Articles 13-15 - List of Parties
The first international convention to address the sui generis obligation to secure indigenous peoples’ rights in lands and natural resources. Through broad directives, it outlines member states’ obligation in protecting the rights of indigenous peoples. Part II, Articles 13-15 address protections for land and territories. Article 14 recognizes property and natural resource ownership in lands which indigenous people have traditionally occupied. Article 15 recognizes indigenous peoples’ ownership interests in natural resources and requires states to protect these interests.
Convention on the Rights of the Child
1989 - Citation: A/44/49 - Articles 1-4 - Ratification
Contains regulations on the non-discrimination of children, protects the broadcasting of media in minority languages, protects the right to education, cultural identity and language. Children of indigenous origin shall not be denied the right to their own culture.
Final Act of the Conference on Security and Cooperation in Europe / Helinski Final Act/ Helinski Accords
1982 - Citation: OAU Doc. CAB/LEG/67/3 rev.5 - Ratification http://www.diplomacy.edu/africancharter/
Covers third generation rights and rights for both individuals and for peoples. Treaty Article 20(1) guarantees the right to existence and the inalienable right to self-determination. Article 21 protects the rights of people to their wealth and natural resources and prohibits dispossession without adequate compensation. Addresses the importance of people’s dominion over property and natural resources in terms of the ability to develop. It does not address the idea of environmental rights as a means of protecting cultural identity.
International Covenant on Civil and Political Rights 1966 - Citation: G.A. res. 2200A (XXI) 21 U.N. GAOR Supp. (No. 16) at 52 U.N. Doc. A/6316 (1966) 999 U.N.T.S. 171 - Articles 1 and 27 - Ratification
A treaty-based convention enforcing the monitoring and review of convention obligations by states. See Article 1 granting all people the right to self-determination and the freedom to dispose of their natural wealth and resources. A People may not be deprived from their own means of subsistence. See Article 27 which contains provisions for collective rights.
Part IV empowers the Human Rights Committee to monitor and ensure state compliance with the covenant. ICCPR First Optional Protocol gives the HRC the competence to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of state violation of the Covenant. General comments made by the HCR are not binding, it is an official interpretation of a norm which binds all state parties to the ICCPR.
International Covenant on Economic, Social and Cultural Rights 1966 -Citation: G.A. res. 2200A (XXI) 21 U.N.GAOR Supp (No. 16) at 49 U.N. Doc. A/6316 (1966) 993 U.N.T.S. 3 - Ratification
Details the rights enumerated in the Universal Declaration on Human Rights and has provisions for collective rights. Addresses second generation rights, including the rights of a people to pursue their economic, social and cultural development. These secondary rights are closely associated with indigenous peoples’ relationship with the environment
International Convention on the Elimination of all Forms of Racial Discrimination
1965 - Citation: 5 I.L.M. 350 660 U.N.T.S. 195 - Articles 1, 2(1)(a) and 5(d)(v) - Ratification
Principles of commitment toward the elimination of all forms of racial discrimination, including groups of persons. Defines the right to own property in both individual and collective terms. Allows for special measures to be taken to secure the advancement of certain groups to ensure equal enjoyment.
UN Declaration on the Granting of Independence to Colonial Countries and Peoples
1960 - Citation: A/Res/15/1514 - Article 2
Self-determination becomes a legal principle
Universal Declaration of Human Rights
1948 - Citation: U.N. Doc. A/810 at 71 (1948) U.N. G.A. Res. 217A (III) - Articles 1-2
The first international instrument to state that all humans are equal. Does not focus on the significance of the environment or land in indigenous peoples’ cultural traditions nor does it make self-determination one of its primary goals.
Resolution on Permanent Sovereignty over Natural Resources
1973 - Citation: U.N.G.A. Res. 1803 (XVII), U.N. Doc. A/5217 (1962), 17 U.N. GAOR Supp. (No. 17) at 15 - Articles 4-6 http://www.wfrt.net/humanrts/instree/c2psnr.htm
Resolution reflects a formal recognition of the interconnectedness among a peoples’ culture, its natural environment, and self-determination. States should recognize rights of people to sovereignty over natural resources as it effects their economic independence.
World Bank Operational Directive 4.20: Indigenous Peoples
Directive recognizes that development can threaten indigenous peoples’ cultural identity. Its main objective is to ensure that indigenous peoples are not adversely affected by World Bank development projects. The Bank is directed to address indigenous peoples’ issues based on their informed participation. Includes a provision that all World Bank development plans contain an assessment of the legal status of the indigenous peoples that might be impacted by the project and whether the legal system will actually protect them. Furthermore, if the legal system is deemed weak, the provisions suggest that the Bank should work to strengthen or establish legal recognition of the customary or traditional land tenure systems of indigenous peoples. The Bank should offer governments advice on establishing legal recognition of traditional tenure systems.
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