Introduction

1.    This Briefing paper on Indigenous peoples’ rights and draft OP/BP 4.10 has been divided into two parts: Part I (this one) provides a short overview of the rights of Indigenous peoples in international law; Part II directly deals with three provisions of OP 4.10 in the context of international human rights standards.

2.    World Bank staff have made two main arguments in relation to the content of indigenous peoples’ rights:

       a)    these rights are evolving and, with the exception of ILO 169 which has only been ratified by 16 states, are not established in international law and, therefore, it is difficult for the Bank to address these rights; and

       b)    there is a substantial amount of disagreement among states and intergovernmental bodies about the content of indigenous rights and the jurisprudence developed by UN and regional human rights bodies is not authoritative, and therefore, does not have to be followed.

3.    Prior to discussing these issues, we will briefly mention a few philosophical and conceptual issues of importance to Indigenous peoples’ rights.

4.    Indigenous peoples’ rights in international law have four main interrelated philosophical/juridical bases:

       a)    The right of “All peoples” to self-determination, as defined in common article 1 of the International human rights covenants adopted by the United Nations in 1966. The United Nations Human Rights Committee (HRC) applies this right to Indigenous peoples when examining state-party reports under article 40 of the International Covenant on Civil and Political Rights. Although arguably redundant, this right was also explicitly applied to Indigenous peoples by the United Nations Working Group on Indigenous Population and the UN Sub-commission on the Prevention of Discrimination and Protection of Minorities in 1993 and 1995, respectively, when these bodies approved the draft UN Declaration on the Rights of Indigenous Peoples.  The Organization of American States’ Proposed Declaration on the Rights of Indigenous Peoples also recognizes this right, although it explicitly limits its exercise to autonomy and self-government.

       b)    Indigenous rights are aboriginal rights or rights that predate and survive alien or colonial intervention. As noted by Osvaldo Kreimer of the Inter-American Commission on Human Rights: “Indigenous peoples, because of their preexistence to contemporary States, and because of their cultural and historical continuity, have a special situation, an inherent condition that is juridically a source of rights.”[i]

       c)    Indigenous rights are also founded on the principle of equal protection of the law and on prohibitions of racial discrimination. Read together, these fundamental principles of international human rights law require substantive equality rather than mere formal equality (the former requires equality in fact, whereas the latter requires equality on paper).

       d)    Finally, Indigenous rights are grounded in the right to cultural integrity, which is a fundamental right recognized in a range of international instruments.

5.    Three important conceptual issues are:

       a)    Indigenous peoples’ rights are qualitatively and quantitatively distinct from minority rights, although there is some overlap in practice;

       b)    Indigenous peoples’ rights are both individual and collective rights, although the latter are of most relevance;

       c)    There is no accepted international definition of the legal concept ‘indigenous’, nor is there an accepted international definition for the legal concepts ‘people’ and ‘minority’.  While various attempts have been made to define Indigenous peoples, these have all been unsatisfactory, leading UN experts bodies to declare that Indigenous peoples have the right to define themselves and membership in their communities according to their own traditions and customs. Others have stated that self-definition as Indigenous or Tribal is a fundamental criterion in defining who is Indigenous or Tribal.

6.    It is often stated that Indigenous peoples’ rights are addressed only under International Labour Organization Convention No. 169. However, this is incorrect; Indigenous peoples’ rights are recognized and there is well established jurisprudence under a variety of United Nations and Inter-American human rights instruments and procedures. The Inter-American Commission on Human Rights explained this point in detail in the 2001 Mary and Carrie Dann Case.[ii] The rights recognized in these global and regional instruments relate to, among others, ownership, possession and use of lands and resources (historically or traditionally) occupied and used, cultural integrity, equal protection/non-discrimination, self-development, self-determination, autonomy and self-government, participation in decision-making and the right to consent to activities, and to health and a healthy environment. 

7.    Global Instruments:  Under the International Covenant on Civil and Political Rights, articles 1 and 27 are especially relevant, the latter being the basis for much of the UN Human Rights Committee’s jurisprudence.[1]  Article 1 sets out the right to self-determination, which is defined as the right of all peoples to freely determine their political status, to freely pursue their economic, social and cultural development and to be secure in their means of subsistence. This right has been applied to Indigenous peoples by the HRC when examining state reports under the article 40 of the ICCPR.[iii] and in its complaints-based jurisprudence, under Article 27 of the ICCPR.[iv] 

8.    Article 27 protects linguistic, cultural and religious rights and, in the case of Indigenous peoples, includes, among others, land and resource, subsistence and participation rights.[v]  The HRC has found that the right of minorities to enjoy their culture under article 27 represents a principle of customary international law. [vi] As such it is binding on the World Bank as a subject of international law.

9.    Article 30 of the UN Convention on the Rights of the Child explicitly mentions Indigenous children and utilizes language consistent with article 27 of the ICCPR.[2]  It protects cultural rights and, in the case of Indigenous children (and by implication, the Indigenous people in general), land, resource and participation rights.

10.  Articles 1(4) and 5 are most relevant under the Convention on the Elimination of All Forms of Racial Discrimination.[3]  Read together these articles provide for, among others, special measures to protect Indigenous ownership and control of historically occupied lands and resources and for Indigenous consent with regard to matters that may affect them. [vii] 

11.  International Labour Organisation Convention No. 169, together with its predecessor ILO No. 107, is the only binding international treaty to exclusively deal with Indigenous and Tribal peoples’ rights.[4]  It recognizes that Indigenous and Tribal peoples “have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development” (Art. 7(1)).  It also contains six articles on Indigenous and Tribal land and resource rights, basing these rights on traditional occupation and use of land and resources rather than on grants from the state.

12.  ILO 169’s predecessor, ILO 107 adopted in 1957, provides in Article 11 that “The right of ownership, collective or individual, of the members of the population concerned over the lands which these populations traditionally occupy shall be recognized.”  Interpreting this article in a complaint involving Tribal people in India, the ILO Committee of Experts held that the rights that attach under Article11 also apply to lands presently occupied irrespective of immemorial possession or occupation.[5]

13.  Regional Instruments:  The jurisprudence of the Inter-American Commission of Human Rights (IACHR) pertaining to Indigenous peoples is considerable. This jurisprudence is based on the American Convention of Human Rights and the American Declaration of the Rights and Duties of Man.[6]  First, it is well recognized in the inter-American system that Indigenous peoples have been historically discriminated against and disadvantaged and therefore, that special measures and protections are required if they are to enjoy equal protection of the law and the full enjoyment of other human rights.[viii]  These special measures include protections for Indigenous languages, cultures, economies, ecosystems and natural resource base, religious practices, “ancestral and communal lands,” and the establishment of an institutional order that facilitates Indigenous participation through their freely chosen representatives.[ix]

14.  Directly on the issue of rights to lands, territories and resources, the IACHR has found that Indigenous peoples’ property rights derive from their own forms of land tenure and traditional occupation and use.[x]  It has related these rights on a number of occasions to cultural integrity, thereby recognizing the fundamental connection between Indigenous land tenure and resource security and the right to practice, develop and transmit culture free from unwanted interference.  It has also found violations of the right to property, judicial protection and due process of law caused by grants of logging concessions on Indigenous lands issued without taking steps to title and demarcate those lands and without the consent of the affected community.[xi]

15.  Most recently, the IACHR found that Indigenous peoples’ ownership rights over lands traditionally occupied and used are guaranteed both under inter-American human rights law and a part of general international law.[xii]  Similarly, the Inter-American Court on Human Rights, the highest human rights tribunal in the Americas, held in The Mayagna (Sumo) Indigenous Community of Awas Tingni v. the Republic of Nicaragua Case that, “possession of land should suffice to entitle indigenous communities without title to their land to obtain official recognition and registration of their rights of ownership;”[xiii] and ordered, among others, that “the State must adopt measures of a legislative, administrative, and whatever other character necessary to create an effective mechanism for official delimitation, demarcation, and titling of the indigenous communities’ properties, in accordance with the customary law, values, usage, and customs of these communities.”[xiv]

16.  Under the African Charter on Human and Peoples’ Rights (1986) property rights are guaranteed under Article 14.[7] The right to equal protection of the law, both for individuals and peoples (Articles 3 and 19) and the prohibition of discrimination (article 2) are also recognized.  If UN and IACHR jurisprudence are relied upon, these provisions read together will amount to a recognition of Indigenous property rights based upon traditional occupation and use.  Articles 19-24 of the African Charter set out the rights of peoples, including the right to self-determination, the right to freely dispose of natural wealth and the right to a satisfactory environment.  However, there is no jurisprudence in the African human rights system that squarely addresses the rights of Indigenous peoples.[8]

17.  Finally, in 1997, the Heads of State of the Caribbean Community adopted the CARICOM Charter of Civil Society, which provides in article XI that “The States recognise the contribution of the indigenous peoples to the development process and undertake to continue to protect their historical rights and respect the culture and way of life of these peoples.”

18.  Instruments Focused on Environment and Development: A number of instruments concerned with environment and development have incorporated Indigenous peoples’ rights and issues, particularly those adopted at the UN Conference on Environment and Development in 1992.  These include the Convention on Biological Diversity (CBD), the Rio Declaration and Agenda 21, Chapter 26 especially.  The CBD, a binding treaty ratified by 171 states, deals with Indigenous peoples’ rights and interests in a number of different ways, most notably in articles 10(c) and (d) and 8(j). Article 8(j) focuses on Indigenous traditional knowledge and intellectual property rights.  Article 10(c) protects the “customary use of biological resources in accordance with traditional cultural practices.”  This article has been interpreted to require recognition of and respect for Indigenous tenure over terrestrial and marine estates, control over and use of natural resources and respect for Indigenous self-determination and self-government. [xv]  

19.  Finally, the Final Declaration of the UN World Summit for Social Development (1995), provides that states “Will create a framework for action to: Recognize and support indigenous people in their pursuit of economic and social development, with full respect for their identity, traditions, forms of social organization and cultural values.” [xvi]   States committed themselves to “Recognize and respect the right of indigenous people to maintain and develop their identity, culture and interests, support their aspirations for social justice and provide an environment that enables them to participate in the social, economic and political life of their country”.  Additionally, states “Recognize and support the right of indigenous people to education in a manner that is responsive to their specific needs, aspirations and cultures and ensure their full access to health care.” [xvii]  

20.  This section very briefly notes the development of Indigenous peoples’ rights as typified by the UN draft Declaration on the Rights of Indigenous Peoples and the Proposed American Declaration on the Rights of Indigenous Peoples currently being developed by the UN and the Organization of American States. 

21.  While these instruments are placed here under the ‘emerging rights’ section, it is important to note that the distinction between rights recognized under instruments of general application (“established”) and “emerging” Indigenous rights is somewhat artificial as the majority of the so-called emerging standards either build upon existing human rights or are contextualized restatements or elaborations thereof.  With regard to the OAS Proposed Declaration, for instance, the IACHR has stated that it “considers that the basic principles reflected in many of the provisions of the Declaration [on Indigenous peoples’ rights] including aspects of Article XVIII [on land rights], reflect general international legal principles developing out of and applicable inside and outside of the inter-American system ….”[xviii]

22.  Both the UN Draft and OAS Proposed Declarations build upon existing standards and attempt to redefine prevailing political, economic and cultural relations between Indigenous peoples and states. They do so by recognizing rights in three main interrelated areas: 1) self-determination, autonomy and self-government; 2) lands, territories and resources; and; 3) political participation rights. These rights are all in some way related to fundamental guarantees of non-discrimination and cultural integrity, which are also elaborated upon by the instruments in question. 

23.  The World Bank has argued that much of the jurisprudence referred to above is not authoritative and therefore, it does not have to follow the rules stated therein.  With regard to the judgments of the Inter-American Court on Human Rights this is clearly incorrect. The Court’s judgments and opinions are authoritative statements on state obligations under inter-American human rights law.[xix]  

24.  The decisions, general comments/recommendations and concluding observations of the HRC, CERD and other UN Committees competent to oversee state compliance with the various human rights instruments are technically not authoritative.  With regard to these instruments, if there is a dispute between the parties about a particular interpretation that has not been resolved by the Committees, the dispute may be submitted to the International Court of Justice for an authoritative decision.[xx] 

25.  However, absent an authoritative interpretation by the ICJ, the decisions, recommendations etc., of the Committee’s are the most authoritative interpretations of state obligations under the various instruments available and must be regarded as such.  In the first place, the Committee’s members are nominated by states and sit as experts charged with monitoring state compliance. In order to monitor, the Committee’s must have some authority to interpret the instruments. Second, states rarely submit cases to the ICJ for interpretation. In fact, only one case directly concerning interpretation of a human rights treaty has ever been submitted to the ICJ and this involved a technical question rather than a substantive issue.  In conclusion, it is somewhat disingenuous of the Bank to argue that the decisions etc., of UN human rights committee’s are not important and valid interpretations of state obligations; absent a decision to the contrary from the ICJ they are the most authoritative available.  This does not mean however that the decisions and recommendations themselves are legally binding; it is the provision(s) of the Conventions, as interpreted in the decisions etc., that are legally binding.

26.  That Indigenous rights are qualitatively and quantitatively distinct from minority rights has been widely accepted and incorporated into intergovernmental policy and practice.  The primary distinction involves the recognition of the collective rights of Indigenous peoples as, among others, a means to remedy historic and contemporary forms of colonial domination and discrimination.  This distinction is fundamental for, as expressed by a representative of the International Indian Treaty Council, “The ultimate goal of their colonizers would be achieved by referring to Indigenous peoples as minorities,” thereby, denying their equal rights and dignity as distinct peoples and further entrenching and legitimizing their colonization.[xxi]

27.  The right to self-determination, which may take many forms depending upon the wishes of the people in question, is the framework within which Indigenous rights and aspirations take form.  Subsumed within this framework are rights to give and withhold consent to activities, on whatever level, that may affect Indigenous rights and interests; the right to the full ownership and control of territory and resources, which includes protection of the various modalities of Indigenous interaction therewith; recognition of Indigenous legal systems and institutions of governance and; in general, respect for Indigenous cultural integrity and future development. 

28.  The contention that Indigenous rights are not established in international law put forth by certain World Bank staff is clearly and substantially incorrect.  Even a cursory overview of the jurisprudence of the various human rights bodies charged with oversight and compliance with international human rights instruments, both of general application and those exclusively dealing with Indigenous peoples’ rights, demonstrates otherwise.  While it is true that the two draft declarations have yet to be adopted, both incorporate and reflect existing international human rights norms and as such can only be regarded as evolving standards to the extent that they build upon these existing norms.

29.  Similarly, the contention by Bank staff that much of the international jurisprudence is not authoritative is largely without merit, except on narrow technical grounds and then only in the case of the UN committees.

ANNEXES

I.         General Recommendation XXIII (51) concerning Indigenous Peoples. 

Adopted at the Committee’s 1235th meeting, on 18 August 1997 (CERD/C/51/Misc.13/Rev.4)

1.    In the practice of the Committee on the Elimination of Racial Discrimination, in particular in the examination of reports of States parties under article 9 of the International Convention on the Elimination of All Forms of Racial Discrimination, the situation of indigenous peoples has always been a matter of close attention and concern. In this respect the Committee has consistently affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination.

2.    The Committee, noting that the General Assembly proclaimed the International Decade of the World’s Indigenous People commencing on 10 December 1994, reaffirms the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination apply to indigenous peoples.

3.    The Committee is conscious of the fact that in many regions of the world indigenous peoples have been, and are still being, discriminated against, deprived of their human rights and fundamental freedoms and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises. Consequently the preservation of their culture and their historical identity has been and still is jeopardized.

4.    The Committee calls in particular upon States parties to:

       (a)   recognize and respect indigenous distinct culture, history, language and way of life as an enrichment of the State’s cultural identity and to promote its preservation;

       (b)   ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

       (c)   provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

       (d)   ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent;

       (e)   ensure that indigenous communities can exercise their rights to practice and revitalize their cultural traditions and customs, to preserve and to practice their languages.

5.    The Committee especially calls upon States parties to recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

6.    The Committee further calls upon States parties with indigenous peoples in their territories to include in their periodic reports full information on the situation of such peoples, taking into account all relevant provisions of the Convention.

____________________________________________________________________

II.   Human Rights Committee, General Comment 23, Article 27 (1994)

In, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 38 (1994)

1.    Article 27 of the Covenant provides that, in those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The Committee observes that this article establishes and recognizes a right which is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the Covenant.

2.    In some communications submitted to the Committee under the Optional Protocol, the right protected under article 27 has been confused with the right of peoples to self-determination proclaimed in article 1 of the Covenant. Further, in reports submitted by States parties under article 40 of the Covenant, the obligations placed upon States parties under article 27 have sometimes been confused with their duty under article 2.1 to ensure the enjoyment of the rights guaranteed under the Covenant without discrimination and also with equality before the law and equal protection of the law under article 26.

3.1.  The Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognizable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals as such and is included, like the articles relating to other personal rights conferred on individuals, in Part III of the Covenant and is cognizable under the Optional Protocol.

3.2.  The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article - for example, to enjoy a particular culture - may consist in a way of life which is closely associated with territory and use of its resources. This may particularly be true of members of indigenous communities constituting a minority.

4.    The Covenant also distinguishes the rights protected under article 27 from the guarantees under articles 2.1 and 26. The entitlement, under article 2.1, to enjoy the rights under the Covenant without discrimination applies to all individuals within the territory or under the jurisdiction of the State whether or not those persons belong to a minority. In addition, there is a distinct right provided under article 26 for equality before the law, equal protection of the law, and non-discrimination in respect of rights granted and obligations imposed by the States. It governs the exercise of all rights, whether protected under the Covenant or not, which the State party confers by law on individuals within its territory or under its jurisdiction, irrespective of whether they belong to the minorities specified in article 27 or not. Some States parties who claim that they do not discriminate on grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities.

5.1.  The terms used in article 27 indicate that the persons designed to be protected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone.

5.2. Article 27 confers rights on persons belonging to minorities which “exist” in a State party. Given the nature and scope of the rights envisaged under that article, it is not relevant to determine the degree of permanence that the term “exist” connotes. Those rights simply are that individuals belonging to those minorities should not be denied the right, in community with members of their group, to enjoy their own culture, to practise their religion and speak their language. Just as they need not be nationals or citizens, they need not be permanent residents. Thus, migrant workers or even visitors in a State party constituting such minorities are entitled not to be denied the exercise of those rights. As any other individual in the territory of the State party, they would, also for this purpose, have the general rights, for example, to freedom of association, of assembly, and of expression. The existence of an ethnic, religious or linguistic minority in a given State party does not depend upon a decision by that State party but requires to be established by objective criteria.

5.3.  The right of individuals belonging to a linguistic minority to use their language among themselves, in private or in public, is distinct from other language rights protected under the Covenant. In particular, it should be distinguished from the general right to freedom of expression protected under article 19. The latter right is available to all persons, irrespective of whether they belong to minorities or not. Further, the right protected under article 27 should be distinguished from the particular right which article 14.3 (f) of the Covenant confers on accused persons to interpretation where they cannot understand or speak the language used in the courts. Article 14.3 (f) does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings.

6.1.  Although article 27 is expressed in negative terms, that article, nevertheless, does recognize the existence of a “right” and requires that it shall not be denied. Consequently, a State party is under an obligation to ensure that the existence and the exercise of this right are protected against their denial or violation. Positive measures of protection are, therefore, required not only against the acts of the State party itself, whether through its legislative, judicial or administrative authorities, but also against the acts of other persons within the State party.

6.2.  Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language and to practise their religion, in community with the other members of the group. In this connection, it has to be observed that such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between the persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria.

7.    With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them.

8.    The Committee observes that none of the rights protected under article 27 of the Covenant may be legitimately exercised in a manner or to an extent inconsistent with the other provisions of the Covenant.

9.    The Committee concludes that article 27 relates to rights whose protection imposes specific obligations on States parties. The protection of these rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole. Accordingly, the Committee observes that these rights must be protected as such and should not be confused with other personal rights conferred on one and all under the Covenant. States parties, therefore, have an obligation to ensure that the exercise of these rights is fully protected and they should indicate in their reports the measures they have adopted to this end.