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Indigenous rights in international law over the last 10 years and future developments.

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CONTENTS



I Introduction II UN Bodies and Indigenous Rights III The Declaration on the Rights of Indigenous Peoples IV Regional Bodies V The Future of Indigenous Rights

I INTRODUCTION

Indigenous rights have been a prominent issue in the international arena in the past decade. Although the major development in this area has been the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (1) in 2007, other developments should not be underestimated: the establishment of ongoing mechanisms in the United Nations, specifically on the situation and concerns of indigenous peoples; the interpretation of general standards in a manner favourable to indigenous claims by international bodies; and the development of strong regional standards on indigenous rights are some of the most important. In all these developments, the transnational indigenous movement has been instrumental. Without overlooking differences--and at times tensions--between indigenous groups on claims and tactics, their common strategies have borne significant results.

II UN BODIES AND INDIGENOUS RIGHTS

In the last decade, indigenous matters have become more prominent in documents of UN monitoring mechanisms. The Human Rights Committee has continued to favour an interpretation of art 27 of the International Covenant on Civil and Political Rights* ('ICCPR') (2) that includes strong indigenous land rights. (3) In addition, the Committee on the Elimination of Racial Discrimination ('CERD') has intensified its monitoring of indigenous issues. Following its 1997 General Recommendation 23 on indigenous peoples, (4) CERD, through its monitoring process and interpretation of human rights standards, has positively contributed to indigenous rights, often promoting the collective element in indigenous rights. Importantly, it has 'intimated that a "hands-off', or "neutral" or "laissez-faire" policy is not enough'. (5) CERD comments have encouraged many states to review their policies concerning indigenous peoples. On several occasions, CERD has even used the 'Urgent Action Procedure' to push states to change discriminatory policies. For example, in 2004, when New Zealand was the subject of an early warning procedure for the Foreshore and Seabed Act (2004), (6) the fierce reaction by the state did not prevent the Committee from fulfilling its mandate. In March 2006, CERD issued a similar decision urging the United States to cease violation of Western Shoshone land rights. (7) The matter had already been raised in the Inter-American system in 2002. (8) Indeed, CERD often complements other international bodies in their quest for improving indigenous rights. For example, CERD often invites states that have not signed the International Labour Organization Convention (No 169) (9) to do so.

Other treaty bodies have addressed specific issues with respect to indigenous rights. In view of the great disparities between indigenous and non-indigenous health, the contribution of the Committee on Economic, Social and Cultural Rights ('CESCR') has been particularly important. In its General Comment No 14, (10) CESCR recognises the right of indigenous peoples to control their own health services and to have medical care delivered in a culturally appropriate manner. Importantly, CESCR asked for the protection of vital medicinal plants, animals and minerals necessary for indigenous peoples' health, and linked the deterioration of their health to forced displacement and a break in the symbiotic relationships with their lands. This comment facilitated the recognition of indigenous peoples' control over their health systems and the recognition of their intellectual property rights in the Declaration.

The UN has also placed particular emphasis on its machinery on the rights of indigenous peoples. The last decade has seen the establishment of several bodies on indigenous issues, including the Expert Mechanism, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, the Permanent Forum on Indigenous Issues and the UN Voluntary Fund for Indigenous Peoples. In 2007, the Expert Mechanism on the Rights of Indigenous Peoples replaced the Working Group as the body responsible for providing thematic assistance on indigenous issues to the Human Rights Council; this group's contribution may prove important in the post-Declaration era.

The International Labour Organization ('ILO') also intensified its efforts to disseminate and implement the provisions of Convention No 169. The last decade has seen virtually all Latin American states with substantial indigenous populations ratifying this Convention. It has also seen the ILO gaining indigenous peoples' trust by actively promoting their rights through national and regional projects. (11) On several occasions' the ILO has managed to reach indigenous groups that had not been active participants in the transnational indigenous movement and has raised awareness on their rights. (12) In addition, although the Convention has not in general attracted many signatories because of its progressive character, it has continued to provide important ammunition for indigenous claims around the world and is used in national systems. For example, in the Australian case of Police v Abdulla, Perry J referred to Convention No 169, which had not been ratified by the state, as 'an indication of the direction in which the international law is proceeding'. (13)

In addition, the last decade has seen the 2004 revision of the World Bank's Draft Operational Policy 4.10, which aims to contribute 'to the Bank's mission of poverty reduction and sustainable development by ensuring that the development process fully respect the dignity, human rights, economies and cultures of indigenous peoples'. (14)

III THE DECLARATION ON THE...

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