DOCUMENT: INTCONV.TXT THE NEED FOR INTERNATIONAL CONVENTIONS A World Council of Indigenous Peoples Concept Paper April 1981 In an era of decolonization and the attainment of independence for formerly subjugated peoples, indigenous populations in more than 30 states around the world remained dominated, oppressed, colonized and subjected to genocide. Indigenous groups fighting for their physical and cultural survival include such diverse populations as Indians, Eskimos and Inuits of the Americas, the Polynesians and Micronesians of the South Pacific, the Maoris of New Zealand and the Aborigines of Australia, the Lapps of the Nordic countries and the Soviet Union and the Ainu of Japan.[1] ------------ 1. The WCIP had adopted the following statement as its working definition of indigenous peoples: The term indigenous people refers to people living in countries which have a population composed of differing ethnic or racial groups who are descendants of the earliest populations living in the area and who do not as a group control the national government of the countries within which they live. In 1972, the Sub-commission on the Prevention of Discrimination and Protection of Minorities in its preliminary report on indigenous populations defined such groups as: ...the existing descendants of the people who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin arrived here from other parts of the world, overcame them and, by conquest settlement or other means reduced them to a non- dominant or colonial condition; who today live more in conformity with their particular social, economic and cultural customs of traditions than with the institutions of the country of which they now form part, under a State structure which incorporates mainly the national, social and cultural characteristics of other segments of the populations which are predominant. "Study of the Problem of Discrimination Against Indigenous Populations: Preliminary Report," E/CN.4/Sub.2/L566, 29 June 1972, p. 10. ------------ Wherever their location, indigenous peoples share a history of invasion, displacement, slavery, exploitation, racism, ethnocide and cultural and physical genocide. As early as 1580, reports to the King Ferdinand of Spain estimated that 1/3 of the Indian population of South America and all of the Caribbean had been exterminated through warfare, disease brought by Europeans and the conditions of slavery. Entire tribes in North America have become extinct through similar circumstances. Over and over, indigenous populations have been dispossessed of their aboriginal lands and forcibly relocated to smaller and increasingly poorer areas of land. Though once in control of the entire continent, tribes in the United States today possess less than 3% of their former homeland. In all, the 500-year process of colonization and extermination resulted in the decimation of 90% of the world's indigenous populations. The process continues unabated today, as does the struggle of indigenous groups for their physical, cultural and spiritual survival. Native peoples of first-world nations continue to struggle against displacement, deculturalization, racism, the expropriation of their lands, and the exploitation of their resources by dominant governments and multinational corporations. Canadian tribes are currently engaged in a struggle to obtain confirmation of their inherent aboriginal rights of sovereignty and property in the Canadian constitution. Natives of the Arctic circle region face a dwindling food supply due to the depletion and wastage of their traditional food sources by Japan, the Soviet Union and the United States. In the Nordic countries, the installation of hydroelectric plants and the curtailment of traditional herding rights are forcing the Lapps out of their traditional homelands and dissolving Lappish culture. Likewise, in the United States, the expropriation of tribal lands continues. Between 1934-1974, almost 2 million acres of tribal lands were extinguished despite governmental legislation providing for the enlargement of tribal land bases. Tribes in North America who possess aboriginal or unrecognized title have no protection against appropriation of their land and no right to compensation for the taking of lands they have held since time immemorial. Thus far, efforts by the Lakota Nation to regain possession of the sacred Black Hills which the government admitted they had illegally taken from the Nation has proved futile. The Shoshones continue in their efforts to prevent the United States government from using their sacred grounds for MX missile sites. Invariably, what hampers the struggle of indigenous populations in the richest nations of the world is that they remain overwhelmingly at the poverty level, caught in a cycle Of inferior education, health care and unemployment. In developing countries, the plight of indigenous populations not only entails a struggle against sophisticated legal and economic means of dispossession and assimilation, but is also an issue of sheer physical survival. In 1900, there were more than 1 million Indians in Brazil. Today there are approximately 100,000. In the last 50 years, more than 80 tribes have been wiped out. In just the four years between 1974-1978, the Yanomamo Indians of Brazil decreased in numbers from 12,000 to 9,000. In the late 1970s, the International League for Human Rights issued reports detailing the Paraguayan government's involvement in the systematic extermination of the Ache Indians through torture, starvation and slavery. Of the 2500 Ache Indians estimated to exist in 1962, less than 400 remain today. The Cuiva Indians of Colombia and Surui Indians of Brazil share similar threats of extinction. In Guatemala, where Indians comprise a majority of the population, yet receive a meager share of the economic benefits, the government is engaged in such forms of repression as arrest without warrant and execution without trial, against members of Indian organizations seeking to unionize workers and prevent the further expropriation of Indian lands by multinational corporations. But despite invasion, war, slavery, and disease, the fabrication of legal doctrines of discovery and wardship; and governmental policies and programs designed to assimilate and destroy tribal identity, indigenous peoples have survived. Resistance against cultural and physical genocide and the struggle to obtain recognition of political and economic rights continues at the local, national and international levels. Weapons of resistance range from primitive bows and arrows to the submission of petitions before the International Court of Justice. The question of indigenous rights had a profound impact on the development of international law in the 16th century. When the European nations began settling the Americans, no principles existed by which they could lay claim to the lands. In a report commissioned by the Spanish King, Franciscus de Vittoria, the noted legal philosopher, theologian and legalist confirmed the rights of the native populations to their sovereignty and lands and counseled that title could only be obtained through a treaty process.[2] Despite Vittoria's theories which were legislated by Spain into the Laws of the Indies, the colonizing powers formulated concepts of discovery, occupation and wardship to disenfranchise peoples of their property and inherent sovereignty. ------------ 2. See: Franciscus de Vittoria, DE INDIS AND DE JUR BELLI REFLECTIONES, translated by Ernest Nys, Washington, 1971. In 1975, the International Court of Justice in the Western Sahara case upheld Vittoria's view on the rights of indigenous populations. In a separate opinion added to the proceedings by the Vice-President of the World Court, Judge Fouad Ammoun stated: The concept of res nullius employed at all periods, to the brink of the 20th century, to justify conquest and colonization, stands condemned. It is well known that in the 16th century, Francisco de Vittoria protested against the application to the American Indians in order to deprive them of their lands, of the concept of res nullius. This approach by the eminent Spanish jurist and canonist, which was adopted by Vattel in the 19th century, was hardly echoed at all at the Berlin Conference in 1885. It is, however, the concept which should be adopted today. (pp. 86-87). ------------ Since the last century, indigenous populations have been conducting legal battles before national and international courts and forums to win recognition and protection of their inherent aboriginal rights. In the 1930s, the Iroquois Confederacy succeeded in having a resolution introduced before the League of Nations. Numerous petitions concerning the plights of indigenous populations have been forwarded to the United Nations Human Rights Commission, the Inter-American Commission on Human Rights and the International Court of Justice. Most importantly, indigenous groups across the world have developed organizations to seek the recognition and protection of indigenous rights. Both the World Council of Indigenous Peoples and the International Indian Treaty Council have received consultative status as Nongovernmental Organizations with the United Nations. Numerous international conferences under various auspices have been held in recent years to collect and publicize information and to formulate strategies for obtaining international recognition of indigenous rights.[3] One of the ultimate objectives of these organizations and conferences is to seek the drafting and adoption of an International Convention on the Status and Rights of Indigenous Populations. ------------ 3. See generally: "Resolutions of the Inuit," Circumpolar Conference, June 1977; "Resolutions of the World Council of Indigenous Peoples," August 1977: "The Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere," International NGO Conference on Discrimination against Indigenous Populations in the Americas, September 1977, "Final Document," Fourth Russell Tribunal on the Rights of the Indians of the Americas, November 1980. ------------ EXISTING INTERNATIONAL HUMAN RIGHTS PROTECTION The United Nations under pressure from assimilationist nations, has been reluctant to develop and apply a system of minority rights protections. The protection of minority groups, which includes indigenous groups as a special subcategory, requires positive actions and safeguards for the maintenance of group identity. Instead, the system of human rights protection developed by the United States is individualistically oriented and designed to protect against discrimination, i.e., "to prevent any act which might imply inequality of treatment on grounds of race, color, sex, language, religion, political or other opinion, national and social origin, property, birth or other status."[4] While important to the protection of all peoples, these documents generally have inadequately addressed the special needs of indigenous groups. ------------ 4. See the report of the Sub-commission on the Prevention of Discrimination and the Protection of Minorities, E/CN.4/Sub.2/40. ------------ Since the United Nations' establishment, more than 22 international documents relating to the protection of human rights have been drafted and submitted for ratification by the General Assembly and associated bodies. Despite their individualistic orientation a few of the instruments and isolated provisions of others are of particular relevance to indigenous peoples. Perhaps the most important existing document applicable to the struggle for indigenous survival is the Convention on the Prevention and Punishment of the Crime of Genocide which defines genocide as: any of the following acts committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. In 1966, the International Covenant on Political and Civil Rights and the International Covenant on Economic, Social and Cultural Rights came into force as international treaty law. Article I of both Covenants as well as Article 2 of the Declaration on the Granting of Independence to Colonial Countries and Territories states that: All people have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.[5] Unfortunately, the international community has been reluctant thus far to extend the provisions of the Declaration and the process of decolonization to indigenous communities, in spite of arguments that indigenous groups possess inherent sovereignty.[6] ------------ 5. See also articles 2, 6, 7, 9, 10, 12, 14, 17, 18, 26, 27 of the International Covenant on Political and Civil Rights and Articles 7, 8 and 11 of the International Covenant on Economic, Social and Cultural Rights and Paragraphs 1 and 6 of the Declaration on the Granting of Independence to Colonial Countries and Territories. 6. See Bennett, Gordon, International Commission of Jurist, ABORIGINAL RIGHTS IN INTERNATIONAL LAW. ------------ Other international human rights conventions which speak to the needs of indigenous communities include: UNITED NATIONS CHARTER (1945) Articles 1 (2) and 55; UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948) Article 3, 5, 6, 9, 10, 13, 15, 17, 18, 19, 21; INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (1965) Articles, 1, 2, 5, 7 (Ch. I, Para. 1, 2, 5, 7); AMERICAN CONVENTION ON HUMAN RIGHTS (1969) Articles 7, 9, 12, 20, 21, 22 Helsinki Final Act, 1975, Principle I, VII, VIII, X; DECLARATION OF THE PRINCIPLES OF INTERNATIONAL CULTURAL CO-OPERATION, UNESCO (1960); CONVENTION AGAINST DISCRIMINATION IN EDUCATION, UNESCO (1960), Article 5c.; SLAVERY CONVENTION (1926); UNITED NATIONS ANTI-SLAVERY CONVENTION (1956). The only existing international instrument which directly acknowledges the existence of and special attributes of indigenous populations is the International Labour Organizations' Convention 107 on the Protection of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries and the accompanying Recommendation, opened for ratification in 1957.(7) The Convention does recognize the central importance of land to the survival of indigenous cultures, and specifically states in Article 11 that: "The right of ownership, collective or individual, of members of the populations concerned over the lands which these populations traditionally occupy shall be recognized." The overall tenor of the Convention which has been signed by twenty-five states, however, has as its goal the protection of indigenous populations during their process of integration into the dominant society, a goal which contravenes the objectives of indigenous populations to retain their identities, and obtain full recognition as political entities and control over their lands. ------------ 7. The Convention has been ratified by Angola, Argentina, Bangladesh, Belgium, Volivia, Brazil, China, Columbia, Costa Rica, Cuba, Dominican Republic, Ecuador, El Salvador, Ghana, Haiti, India, Malawi, Mexico, Pakistan, Paraguay, Peru, Portugal, Syrian Arab Republic, Tunisia, United Arab Republic. ------------ In 1971, the Economic and Social Council passed resolution 1589 (1) recommending that: ...the Governments of all States having indigenous populations take into account, in their policies of economic and social development, the special problems of indigenous populations with a view to eliminating prejudice and discrimination against such populations... The Council further directed the Sub-Commission to make a study, which is nearing completion of the "Problem of Discrimination against Indigenous Populations." Although the study represents an important acknowledgement by the United Nations that indigenous populations are a special minority group with unique needs and attributes, the Study, does not go far enough in recognizing that indigenous populations also have special claims to sovereignty. Like the previous ILO study, the UN study is predicated on the elimination of discriminatory practices against indigenous peoples so that they ultimately can be interpreted into the dominant society. THE NEED FOR AN INTERNATIONAL CONVENTION ON THE STATES AND RIGHTS OF INDIGENOUS POPULATIONS. As pointed out above the existing human rights conventions insufficiently address the special needs and claims of indigenous peoples. Indigenous populations have resisted more than 500 years of genocidal policies which have sought to extinguish their identities and land rights through physical extermination and assimilationist programs. Legal guarantees of individual DE JURE equality and policies to ensure DE FACTO equality, while important, are insufficient. Any form of human rights protection which seeks to promote the integration of indigenous societies into the dominant society against their wishes is unacceptable. Indigenous people demand and have a moral as well as a legal claim to the recognition of their rights as groups possessing a distinct and sovereign legal personality. It is imperative that the World Council of Indigenous Peoples work with international governmental organizations and other nongovernmental organizations in the drafting of an International Convention on the Rights and Status of Indigenous Peoples. The WCIP must ensure that such a convention contains: an adequate and well-defined definition of the populations to whom the conventional applies, recognition of the inherent sovereignty of indigenous peoples and their right to their own laws and government; recognition and protection of indigenous lands and control of resources; recognition of and adequate measures for the protection of cultural identity; and a workable mechanism by which violations can be investigated and enforcement proceedings established. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: :: -= THE FOURTH WORLD DOCUMENTATION PROJECT =- :: :: A service provided by :: :: The Center For World Indigenous Studies :: :: www.cwis.org :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: Originating at the Center for World Indigenous Studies, Olympia, Washington USA www.cwis.org © 1999 Center for World Indigenous Studies (All Rights Reserved. References up to 500 words must be referenced to the Center for World Indigenous Studies and/or the Author Copyright Policy Material appearing in the Fourth World Documentation Project Archive is accepted on the basis that the material is the original, unoccupied work of the author or authors. Authors agree to indemnify the Center for World Indigenous Studies, and DayKeeper Press for all damages, fines and costs associated with a finding of copyright infringement by the author or by the Center for World Indigenous Studies Fourth World Documentation Project Archive in disseminating the author(s) material. In almost all cases material appearing in the Fourth World Documentation Project Archive will attract copyright protection under the laws of the United States of America and the laws of countries which are member states of the Berne Convention, Universal Copyright Convention or have bi-lateral copyright agreements with the United States of America. Ownership of such copyright will vest by operation of law in the authors and/or The Center for World Indigenous Studies, Fourth World Journal or DayKeeper Press. The Fourth World Documentation Project Archive and its authors grant a license to those accessing the Fourth World Documentation Project Archive to render copyright materials on their computer screens and to print out a single copy for their personal non-commercial use subject to proper attribution of the Center for World Indigenous Studies Fourth World Documentation Project Archive and/or the authors. Questions may be referred to: Director of Research Center for World Indigenous Studies PMB 214 1001 Cooper Point RD SW Suite 140 Olympia, Washington 98502-1107 USA 360-754-1990 www.cwis.org usaoffice@cwis.org OCR Software provided by Caere Corporation