This Briefing has been produced with the support of a grant from the Ford Foundation
Indigenous peoples throughout the world continue to suffer serious abuses of their human rights. In particular, they are experiencing heavy pressure on their lands from logging, mining, roads, conservation activities, dams, agribusiness and colonization. Although many states have laws which recognize and protect Indigenous peoples’ rights, to varying degrees, these laws are often violated. In other cases, adequate laws are not in place. Also, in many states, national laws are inconsistent with the binding obligations of these same states under international human rights law. The United Nations human rights system has mechanisms designed to address these very real problems. The system places binding obligations on states to comply with ratified human rights instruments, such as the International Covenant on Civil and Political Rights. The UN has put in place a procedure to allow individuals to complain if they believe that their state is not fulfilling these obligations. The UN Human Rights Committee has been empowered to receive and review these complaints. It has looked at a number of cases involving Indigenous peoples in the past, which have resulted in jurisprudence recognizing Indigenous rights. This jurisprudence includes the rights of Indigenous peoples, among others: q To lands, territories and resources traditionally occupied and used, and to a healthy environment; q To protection of sites of cultural and religious significance; q To cultural and physical integrity; q To meaningful participation in decisions that affect them; q To maintain and use their own cultural, social and political institutions; q To be free from discrimination and to equal protection of the law. This Briefing paper sets out in detail how the Human Rights Committee’s procedure works. It summarizes what rights are protected, with a focus on those of particular importance to Indigenous peoples. It also provides guidance on how to submit reports and petitions to the Human Rights Committee. Summaries of relevant cases and judgments that have already passed through the system are also included. These cases and decisions show how the system deals with Indigenous rights and provide concrete examples of how a case can be moved through the system as a way of illustrating some of the points made in the section on how to submit a petition. We hope that this Briefing will provide Indigenous peoples with a better understanding of their rights and encourage them to use these international procedures to gain redress. We also hope it will help spur states throughout the world to reform their domestic laws and judicial procedures so that they provide effective and meaningful protections for the rights of the Indigenous peoples within their jurisdictions.
Indigenous peoples’ rights have assumed an important place in international human rights law and a discrete body of law confirming and protecting the individual and collective rights of Indigenous peoples has emerged and concretized in the past 20 years. This body of law is still expanding and developing through Indigenous advocacy in international fora; through the decisions of international human rights bodies; through recognition and codification of Indigenous rights in international instruments presently under consideration by the United Nations and Organization of American States; through incorporation of Indigenous rights into conservation, environmental and development-related instruments and policies; through incorporation of these rights into domestic law and practice; and through domestic judicial decisions. Taken together, this evolution of juridical thought and practice has led many to conclude that some Indigenous rights have attained the status of customary international law and are therefore generally binding on states. [1] International bodies mandated with protection of human rights have paid particular attention to Indigenous rights in recent years. These bodies have contributed to progressive development of Indigenous rights by interpreting human rights instruments of general application to account for and protect the collective rights of Indigenous peoples. [2] Even the African Commission on Human and Peoples’ Rights, by far the weakest human rights body, has begun to address Indigenous peoples’ rights by taking the important step of establishing a working group on Indigenous peoples in Africa. [3] The UN Committee on the Elimination of Racial Discrimination, the UN Human Rights Committee, the International Labour Organization’s Committee of Experts and the Inter-American Commission on Human Rights all stand out in this respect. Despite these advances in international law, violations of Indigenous rights are all too common. Much of this abuse is associated with heavy pressure to exploit the natural resources in Indigenous peoples’ territories. Indigenous peoples in tropical forest areas have suffered especially severely from this intensifying pressure on their lands, which is resulting in rapid deforestation as a result of logging, mining, agricultural expansion, colonization and infra-structure projects. Environmental conservation initiatives also often do not account for Indigenous rights. Further, many of the international developments related to Indigenous rights have yet to be translated into concrete changes at the national and local levels. National laws in many countries, for instance, continue to be substantially at odds with international human rights standards. This Briefing on Indigenous Peoples’ Rights and the United Nations Human Rights Committee, one of a series produced by the Forest Peoples Programme, aims to provide Indigenous peoples and organizations with practical information to support their effective use of United Nations human rights mechanisms and procedures for the vindication of their rights. [4] While these procedures are far from perfect and certainly will not remedy all human rights problems, their use by Indigenous peoples has led to concrete gains at the national and local level in the past and can be expected to continue to do so in the future. Their use also further reinforces and develops Indigenous rights norms at the international level, which provides additional strength to local and national advocacy and reform efforts. Part II of the Guide provides an overview of the International Covenant on Civil and Political Rights (ICCPR), the primary instrument used by the UN Human Rights Committee and discusses the Human Rights Committee itself. Part III briefly discusses Optional Protocol I to the ICCPR, which permits the Committee to receive complaints from individuals concerning violations of their rights under the ICCPR. Part IV provides an overview of the procedures and requirements for filing complaints with the Committee and Part V discusses and summarizes the jurisprudence of the Committee pertaining to Indigenous rights. Throughout the text links are made to web sites containing relevant documents and the full text of cases or reports discussed.
II. The International Covenant on Civil and Political Rights Traditionally, how a state treated its population was generally considered to be an internal affair, which other states, and the international community in general, were not to interfere with. However, this situation changed in the aftermath of World War II and the discovery of extensive, human rights violations committed by the Axis powers. At this time, it was decided that the protection of human rights was much too important to be left solely to individual states and that some form of collective international action was necessary if these rights were to be effectively protected in the future. Consequently, Article 1(3) of the 1945 Charter of the United Nations, the organization’s constitution, defines one of the primary purposes and principles of the UN to be “promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.” Other references to human rights include:
In 1946, the UN Commission on Human Rights was created as a subsidiary body of the Economic and Social Council (ECOSOC) to supervise the protection of human rights in UN member-states. This was followed in 1948, by the adoption of the Universal Declaration of Human Rights by the UN General Assembly. This Declaration was not legally binding on UN member-states at the time of its adoption; it simply recommended standards that should be followed by states. [5] Therefore, the UN decided to develop a legally binding treaty based upon the Universal Declaration for its members to sign. In the end, two international covenants on human rights were drafted and approved by the UN General Assembly in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. [6] Together with the Universal Declaration, the two Covenants are known as the International Bill of Rights as they set out the basic fundamental rights pertaining to all persons. The Human Rights Committee (HRC) was established under Article 28 of the ICCPR. It is composed of 18 independent experts in the field of human rights, elected by the states parties to the ICCPR (see, Arts. 28-34, ICCPR). Although they are nominated and elected by the states parties to the ICCPR, the members of the HRC “serve in their personal capacity,” meaning that they are independent and do not represent the states that nominated them (Art. 28(3), ICCPR). The HRC is the body authorized to oversee state compliance with the rights set forth in the ICCPR. It normally meets three times a year at the UN offices in New York (only the March-April session) and Geneva. The HRC has two primary functions that are relevant to this Briefing: 1. State party Article 40 Reports State reports: Article 40 of the ICCPR requires states parties to submit reports on measures taken to give effect to the rights defined therein. An initial report is required, which is submitted one year after the state ratifies the ICCPR, as well as periodic reports (normally every five years). [7] Government delegations usually attend the sessions of the HRC at which their report is considered and are questioned by members of the HRC. The HRC reviews these state reports and issues comments and recommendations, known as Concluding Observations, that address the positive progress made by the state as well as areas in which it is falling short of its obligations under the ICCPR. [8] The HRC has recommended that states consult with NGOs and others during the writing of their reports. This is one way that Indigenous peoples may be able to influence the content of the state report. Counter-reports: Indigenous peoples may also submit reports (known sometimes as ‘counter-reports’) to the HRC describing how their state is complying with the ICCPR as well as proposing questions that HRC members can ask state representatives. Indeed, the HRC has stated that it is particularly interested in receiving reports from Indigenous peoples and NGO about actual country conditions. These reports will be reviewed by the HRC as part of its overall consideration of the state’s report and may lead to direct questions to government delegations. Indigenous peoples can also attend the HRC’s sessions when their state’s report is reviewed and can arrange to meet and brief members of the HRC. This occurs both a few days prior to the country review and during the morning and afternoon sessions of the HRC. How to prepare and present a counter-report: While a counter-report can be presented in any format, it is most useful to write a report which provides an article-by-article comment on the state report itself. In the case of Indigenous peoples, only a few articles may need to be compared (i.e., Articles 1, 26 and 27). Copies of laws and other documents believed to be relevant to the report can also be attached as annexes. It may also be useful to follow the same guidelines used by states for preparing their reports (these guidelines can be accessed at the web site in the footnote below). [9] Copies of the state’s report can be obtained either from the UN (from the web site below) or directly from the state itself. If the state refuses to provide a copy of the report, notify the HRC and this will be raised during the session. Finally, make sure that 20 copies of the counter-report are submitted to the Secretary of the HRC (at the address below) at least six weeks prior to the session at which the state in question will be reviewed. The following list contains a few suggestions on how to write a counter-report and what to include therein.
Counter-reports and other information should be sent to: Secretary, Human Rights Committee Room D-204 Support Services Branch Office of the High Commissioner for Human Rights Palais des Nations 1211 Geneva 10 SWITZERLAND Tel: 41. 22. 917. 3965 Fax: 41. 22. 917. 0099 E-mail: etistounet.hchr@unog.ch Concluding Observations: While excerpts of some of the HRC’s Concluding Observations are included below, two examples are given here, the first on Australia concerning self-determination, participation and land rights, the second on Guyana concerning land rights, participation, discrimination and failure to adopt legislation concerning minority rights. In its Concluding Observations on Australia’s Third and Fourth Periodic reports, the HRC said the following (the recommendations are italicized): [10]
On Guyana’s Second Periodic report, the HRC stated that it
State party Article 40 reports, the HRC’s Concluding Observations and reports to be reviewed at upcoming sessions of the HRC can be found at the following web site: English, French & Spanish: http://www.unhchr.ch/html/menu2/6/hrc/hrcs.htm 2. Individual Communications/Complaints Under Article 1 of the First Optional Protocol to the ICCPR (see Section III below), the HRC is competent to receive and examine complaints, known as communications, from individuals or groups of individuals that allege violations of rights defined in the ICCPR. The HRC is also authorized to reach and publish decisions on the status of human rights violations alleged in the complaints, however, these decisions are not legally binding (discussed in greater detail in Section IV below). C. Rights set out in the International Covenant on Civil and Political Rights The ICCPR contains civil and political rights such as: rights to vote and participate in the political life of the state; prohibitions of torture and inhumane treatment; the right to self-determination; equal protection and non-discrimination; rights to life, liberty and security; fair trial standards; rights to commune with family, religious, linguistic, social and cultural communities; and freedom of expression and thought. Of particular relevance to Indigenous peoples are Article 1, the right to self-determination and Article 27, the rights of persons belonging to minorities (these are discussed in greater detail below). 1. Implementation of the rights in the ICCPR The rights recognized in the ICCPR must be given effect in national law and individuals must be able to enforce those right in domestic courts and administrative bodies. This is explicitly stated in Article 2 of the ICCPR, which reads:
The HRC has explained what this means in its General Comment No. 3 of 1981 entitled, Implementation at the National Level:
A complete set of the HRC’s General Comments can be accessed at the following web site: All languages: http://www.unhchr.ch/tbs/doc.nsf/Documentsfrset?OpenFrameSet Positive and negative rights: Civil and political rights are often referred to as negative rights meaning that they do not require action by states to be respected: all that is required is that the state refrain from acting. For example, the prohibition of torture requires only that the state not torture someone or the right to religious freedom requires only that the state not interfere with the effective enjoyment of religious activities. In practice, however, civil and political rights may require both positive and negative measures to ensure their effective enjoyment. For instance, the UN Secretary-General, in discussing Article 27 of the ICCPR (the rights of persons belonging to minorities), states that
Reservations: As with other treaties, states may register reservations and declarations to the application of certain provisions in the ICCPR by the HRC. This means that a state may declare that it rejects the application of, or interprets an article or articles in a certain way and the HRC is normally bound to follow the terms of the reservation in rendering a decision either on admissibility or on the substance of the petition. For instance, France has registered a reservation to the ICCPR stating that Article 27 on minority rights is inapplicable to France as it conflicts with the French Constitution (see, Hopu & Bessert v. France in Section V, below). Therefore, it should be ascertained whether the state in question has registered a reservation that may have some bearing on the submission of a petition. States of emergency: Finally, the rights recognized in the ICCPR must always be respected except in exceptional periods of national emergency “that threaten the life of the nation” (Art. 4(1) ICCPR). [14] Even then, certain rights – the rights to life, freedom from torture or inhumane treatment, freedom from slavery and servitude, to recognition before the law, freedom of thought conscience and religion, among others – are non-derogable, meaning that they can not be violated at any time or under any circumstances. With this brief introduction in mind, I will now turn to Articles 1 (self-determination) and 27 (rights of persons belonging to minorities). The text of the ICCPR may be found at the following web site: English: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm French: http://www.unhchr.ch/french/html/menu3/b/a_ccpr_fr.htm Spanish: http://www.unhchr.ch/spanish/html/menu3/b/a_ccpr_sp.htm Article 1 of the ICCPR contains the right to self-determination. It reads:
Recognition of Indigenous peoples’ right to self-determination within the UN has been (and still is) contentious and is resisted by many states. These states argue either that Indigenous peoples are not peoples, and therefore not entitled to the right, or that self-determination only applies to the entire population of a state or to peoples in non-self-governing territories rather than peoples within existing states. However, the jurisprudence of the HRC has confirmed that Indigenous peoples do have the right to self-determination and that states are obligated to respect that right. [15] In its Concluding Observations on Canada’s Fourth Periodic report, for instance, the HRC stated that
The HRC reached similar conclusions – that the State implement and respect the right of Indigenous peoples to self-determination, particularly in connection with their traditional lands – in its Concluding Observations on the reports of Mexico and Norway issued in 1999 and Australia in 2000 (quoted above). [17] In its complaints-based jurisprudence, the HRC has also related the right to self-determination to the right of Indigenous people to enjoy their culture under Article 27 of the ICCPR – this case is described in Section V below. [18] The HRC’s 1984 General Recommendation on self-determination also illustrates that Article 1 applies to peoples within existing states. Therein the HRC stated that Article 1(3) “imposes specific obligations on States parties, not only in relation to their own peoples but vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self-determination” (emphasis added). [19] The full text of this General Recommendation is contained in Annex C below. Article 27 is the ICCPR’s so-called minority rights provision. It states that “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of the group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” This article protects linguistic, cultural and religious rights and, in the case of Indigenous peoples, includes, among others, land and resource, subsistence and participation rights. [20] These rights are held by individuals, but exercised “in community with other members of the group,” thereby providing some measure of collectivity. As similar language is found in article 30 of the UN Convention on the Rights of the Child, the points made here are also relevant to the rights of Indigenous children, and by implication the larger community, under that instrument. [21] Article 27 expresses the protection of minority rights in the negative – “shall not be denied” – nonetheless, the HRC has recognised that Article 27 does require some measure of positive action by states if the rights found therein are to be respected and enjoyed. Furthermore, this article is limited in its scope, protecting only cultural, linguistic and religious rights, although the scope of these rights has been somewhat increased or elaborated upon in HRC decisions. [22] The HRC has decided six cases involving Indigenous Peoples under Article 27 (see, Lovelace, Kitok, Ominayak, I. Lansman, J. Lansman, Apirana Mahuika and, Äärelä and Näkkäläjärvi discussed in Section V, below): in two cases it found violations and recommended that the state take remedial measures. [23] A number of these petitions originally alleged violations of the right to self-determination under Article 1, however, the HRC declared that individuals could not raise claims based upon that article as the right of self-determination only applies to, and can only be invoked by, peoples. [24] It then proceeded to examine the complaints under Article 27. The HRC has interpreted article 27 to include the “rights of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong.” In reaching this conclusion, the HRC recognized that Indigenous peoples’ subsistence and other traditional economic activities are an integral part of their culture, and substantial interference with those activities can be detrimental to their cultural integrity and survival. By necessity, the land, resource base and the environment thereof also require protection if subsistence activities are to be safeguarded. Many of the cases brought by Indigenous peoples under Article 27 challenge state- or corporate-directed resource exploitation. In this context, the HRC has observed that a state’s freedom to encourage economic development is limited by the obligations it has assumed under Article 27. [25] However, the rights guaranteed by that article are not absolute. The HRC employs a threshold test to determine if the complained of activity constitutes a denial of the rights protected or merely an infringement of those rights. An activity that amounts to a denial of the right to enjoy culture, for Indigenous peoples this includes land, subsistence and other rights, is prohibited under Article 27. Such activities include forcible relocation, severe environmental degradation and denial of access to subsistence areas and areas of cultural and religious significance. In its 1999 Concluding Observations on Chile, for instance, the HRC stated that
In a 1994 General Comment (No.23; see, Annex B for full text), the HRC further elaborated upon the scope of, and state obligations under, Article 27 by stating that
In July 2000, the HRC added that article 27 requires that “necessary steps should be taken to restore and protect the titles and interests of indigenous persons in their native lands …” and that “securing continuation and sustainability of traditional forms of economy of indigenous minorities (hunting, fishing and gathering), and protection of sites of religious or cultural significance for such minorities … must be protected under article 27….” [28] While Article 27 has been of some use to Indigenous peoples in the past, the HRC’s jurisprudence, although it has evolved in a positive direction in recent decisions, has generally been disappointing. The extent of collective rights recognized under Article 27 is minimal and in no way sufficient to accord the level of protection required for the effective enjoyment of Indigenous peoples’ rights. Moreover, Indigenous peoples have gone to great lengths to distinguish themselves from minorities and to have their inherent rights as peoples recognized. This distinction is also recognized by the UN, which has separate procedures and separate legal instruments concerning Indigenous peoples and minorities. This, coupled with the limited scope of the rights protected under Article 27, leads to the conclusion that Article 27 should only be used, if (as is often the case) no other more appropriate approach is available. In particular, for Indigenous peoples with access to Inter-American human rights bodies, which have developed substantial and positive jurisprudence on Indigenous rights, it is recommended that those bodies be approached in preference to the HRC. A more extensive summary of HRC jurisprudence on Article 27, identifying the important features and tests, is contained in Section V(K), below.
III. Optional Protocol I to the ICCPR Optional Protocol I (OP I) to the ICCPR allows individuals or groups of individuals to submit complaints to the HRC alleging violations of the rights found in the ICCPR. OP I is a separate treaty that must be ratified by states parties to the ICCPR in order for the HRC to receive communications or petitions concerning alleged violations of the ICCPR’s rights. As its title implies, ratification of OP I is not mandatory. Nevertheless, as of November 2001, 100 of the 147 states parties to the ICCPR have ratified OP I.
The full text of the Optional Protocol can be found at the following web site: English: http://www.unhchr.ch/html/menu3/b/a_opt.htm French: http://www.unhchr.ch/french/html/menu3/b/a_opt_fr.htm Spanish: http://www.unhchr.ch/spanish/html/menu3/b/a_opt_sp.htm
IV. Filing a complaint with the HRC: procedures and considerations OP I sets out the procedure for the HRC to follow when receiving complaints from individuals. The HRC has adopted Rules of Procedure that further elaborate how it examines and processes complaints. [29] Only persons living within states that have ratified both the ICCPR and OP I may make use of this complaints procedure. Special care is required to ascertain if the state in question has registered a reservation or declaration to an article(s) at issue (see, Section IIC(1) above, for discussion on reservations and declarations). [30] The HRC’s Rules of Procedure can be found at the following web site: English: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.3.Rev.6.En?Opendocument Spanish: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9111eab585a8efbbc1256a5b0050f292?Opendocument French: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/d39c6e1b3498077cc1256a5b0050dfd1?Opendocument
The procedure for examining and processing complaints under OP I can be divided into two main components: the admissibility phase and the merits phase. Prior to turning to the discussion on the admissibility phase, the following general requirements for submitting a complaint to the HRC need to be noted. The following information must be included in a petition to the HRC:
B. Admissibility (Rules 87-92, HRC Rules of Procedure) During the admissibility phase, the HRC determines if a complaint meets the requirements that allow it to formally consider the merits of the case and determine if a violation has occurred. The admissibility requirements for the HRC are much more stringent for petitions under OP I than they are in other intergovernmental procedures. The following are requirements for submitting a petition to the HRC. If these requirements are not met, the HRC will declare the petition inadmissible and will not examine the merits to determine if a violation has occurred. 1. In general, the petition must be submitted by an individual or a group of similarly affected individuals (the victims), subject to the jurisdiction of a state party to OP I. [31] A victim is someone directly and personally affected by a violation. The petition may also be submitted by a representative of the individual, or by a close family member, if circumstances preclude the victim personally submitting the petition. A representative should have some documentation showing that they are the lawful representative of the victim or be able to show that they are acting with the agreement of the victim. The petition may not be submitted anonymously, but the name of the petitioner need not be revealed by the HRC. If a lawyer submits the case, a signed power of attorney document should be submitted together with the petition. 2. The alleged violation must involve one or more of the rights defined in Part III of the ICCPR (Arts. 6-27). This limitation precludes alleging violations of the right to self-determination (Art. 1). This is not stated in the ICCPR or the OP I, but has been decided by the HRC in communications brought by Indigenous peoples complaining of violations of the right to self-determination and deprivations of their means of subsistence. [32] The HRC’s jurisprudence on this issue is summarized in R.L. et al v. Canada, which stated that
3. The HRC will not consider a petition concerning the same subject matter and petitioner if it is simultaneously being considered by another international procedure. For instance, if a petition is being considered by the Inter-American Commission on Human Rights, the HRC cannot examine the petition if it alleges the same violations committed against the same petitioners. This does not, however, preclude submitting a petition to the HRC after a decision has been reached under another procedure, provided that the other procedure has concluded its examination and the state in question has not registered a reservation, as some states have, denying this option. 4. With one exception, the petition may not complain of a violation that occurred before the ICCPR and Optional Protocol entered into force for the state in question. For example, if the ICCPR and the Optional Protocol entered into force for state A on 12 January 1966, a petition may not complain of an act that occurred before that date. The one exception to this rule is if the alleged violation occurred before entry into force, but continued or has a continuing effect after the relevant date. For instance, if a person was disappeared prior to entry into force and remains disappeared after the date of entry into force, the violation has continued or has a continuing effect and will be examined by the HRC (for example, see, Lovelace, below). · The ICCPR enters into force for each state 3 months from the date they became party to the Covenant (Art. 49); the same is also the case for OP I (Art. 9). See, Annex C for dates that states became party to these instruments. 5. All domestic remedies must be exhausted prior to the HRC examining the petition. This means that the petitioner must have attempted to seek redress for alleged violations in the domestic legal system or under other available domestic procedures prior to submitting the petition to the HRC. Only when the petitioner has exhausted all available domestic options will the HRC examine the petition. This is required only in so far as the domestic remedies are effective, accessible and not of an excessive duration. Therefore, if a particular legal system is proved to be so corrupt or biased that the petitioner cannot receive a fair and impartial hearing, the domestic remedy would be deemed ineffective and exhaustion would not be required. Similarly, if the right which is alleged to have been violated is not guaranteed or recognized in a particular legal system, the remedy would be considered unavailable. [34] After the petition has been received, the HRC will forward the petition to the state in question to request information on admissibility. The state has two months to respond. The petitioner is then given the opportunity to respond to the information received from the state. Either a Working Group of at least five members of the HRC or the entire HRC will then examine the petition to determine whether it is admissible. Should the petition be declared inadmissible, the proceeding is terminated. If the HRC determines the petition to be admissible, the state has six months to respond to the merits of the petition, after which the petitioner has six weeks within which to respond to the information submitted by the state. Subsequent to receiving the requisite information, the HRC will examine the petition on its merits to determine if the alleged violations are substantiated. C. Merits (Rules 93-95, HRC Rules of Procedure) Once a petition has been declared admissible and the state and petitioner have had the opportunity to submit information about the petition, the HRC will examine the merits of the case to determine if a violation has occurred. The findings of the HRC are set forth in a report on the case that contains an overview of the facts, the decision on admissibility, the proceedings before the HRC, the HRC’s reasoning about the merits and (if a violation has been found) recommendations to the state party on how to remedy the violation(s). The decisions, or “views” as they are known, of the HRC are published in its Annual Report to the UN General Assembly, although some decisions regarding admissibility are not made public. The authority the HRC has to enforce and implement its decisions is limited. Its decisions are not legally binding and are frequently ignored by states. However, as of 1990, the HRC has required states to submit information concerning measures taken to remedy violations detailed in its decisions. It will publicly make known those states that fail to remedy violations or that fail to respond to requests for information. The HRC can also appoint a Special Rapporteur to work in cooperation with states and victims in an attempt to enforce the decisions of the HRC and remedy violations. More recently, the HRC has stated that states parties to the ICCPR and OP I do have an obligation to give effect to its recommendations. In two death penalty cases against Barbados, the HRC stated that
Similar language appears in almost all recent HRC reports. Rule 86 of the HRC’s Rules of Procedure states that
In cases where it appears that the victim may suffer irreparable harm, the HRC may request that the state involved suspend its activities, take preventative action or provide other remedial measures to protect the person or persons in question. These measures are non-binding. Generally, precautionary measures are only issued in cases where life or other fundamental rights are threatened. However, in the case of Indigenous peoples the HRC has employed an expansive interpretation of life and fundamental rights. In Ominayak, Chief of the Lubicon Lake Bank v. Canada, the HRC requested Rule 86 interim measures to protect the Lubicon Cree’s economic base and aboriginal way of life. The Lubicon Cree alleged that Canadian government policy caused and continued to cause irreparable harm to their traditional culture, religion, political structure and subsistence economy and threatened their very survival as a distinct people. [36]
V. Cases Involving Indigenous Peoples Reviewed by the Human Rights Committee A. Mikmaq Tribal Society vs. Canada [37] In Mikmaq Tribal Society vs. Canada, the Mikmaq Tribal Society (Mikmaq) alleged, among others, violations of Articles 1 (self-determination) and 25 (political participation) of the ICCPR because they were excluded from Canada’s constitutional reform process. Art. 25, in part, states that “[e]very citizen shall have the right and the opportunity … without reasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives.” The facts: From 1984-1987, Canada was engaged in a Constitutionalreform process. Part of this process involved matters of direct concern to Indigenous peoples. National Indigenous organizations, representative of Indigenous peoples in general, were asked to participate in the reform process, however, individual Indigenous peoples were not accorded representation beyond their ability to participate through national organizations. The Mikmaq argued that this policy was racist in that it failed to recognize the distinct identities, histories and needs of Indigenous peoples as individual peoples, but rather classified all Indigenous peoples as one and the same along racial lines. The Mikmaq further argued that this policy violated their right to self-determination, in that it assumed that any Indigenous people could exercise the Mikmaq’s right to self-determination, which by definition is a right of peoples, not a right based upon race. The Canadian government rejected these arguments stating that it would be impractical for each individual people to be represented at the negotiations and that the national organizations adequately represented the interests of Indigenous peoples as a whole. The Mikmaq further alleged that exclusion from the reform process violated their right to participate in the political life of the state, because they were unable to directly participate in discussions that would determine their future relationship with the Canadian state. The decision: The HRC decided that it was incompetent to review the allegations under Article 1. It also stated that self-determination, as a right of peoples, could not be invoked by individuals. Consequently, the focus shifted to an examination of the alleged violation of Article 25. The HRC defined the issue to be resolved as “whether the right under Article 25(a) is available only to individual citizens, or to groups or representatives of groups also.” In finding that Canada had not violated Art. 25(a), the Committee stated, “article 25(a) of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens far beyond the scope of Art. 25(a).” [38] By virtue of this opinion it would appear that Art. 25(a) endorses a right to political participation only in its narrowest sense. Not only does it not accord Indigenous peoples a collective right to directly participate in matters of concern to them, but it also denies them a right to participate in excess of the rights of individuals in the political system. No doubt this is a reflection of the individualistic bias of the rights defined in the ICCPR and the reluctance of the HRC to recognize collective rights. This decision also reflects the limited utility of this procedure to Indigenous peoples and illustrates the failure of individual rights to protect the collective nature of the rights and needs of Indigenous peoples. ILO 169 and the UN Draft Declaration’s provisions are significantly more expansive than ICCPR Art. 25(a) and go far in addressing some of the problems revealed in the Mikmaq decision. Articles 19 and 20 of the Draft Declaration, for instance, do confer, to a certain extent, “the right to choose the modalities of participation.” These articles recognize the right to “participate fully through representatives chosen by [Indigenous peoples] in accordance with their own procedures” (Art. 19) and, through “procedures determined by them, in devising legislative and administrative measures” (Art. 20) (emphasis added). Clearly, the Draft Declaration is expressing a substantially higher standard than that of ICCPR Art 25(a). This is no doubt a recognition of the importance of these rights to the exercise of Indigenous peoples’ self-determination and autonomy rights. Web links: English: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6dc358635454e5fac12569de00492e1b?Opendocument French: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/ae3e6d12d92e5dbfc1256acd002c89bb?Opendocument Spanish: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4d7c76908effb1c6c1256acd002ebd82?Opendocument The Lovelace petition was submitted in 1977. It challenges the application of certain provisions of the Canadian Indian Act as discriminatory and alleges violations of the following articles of the ICCPR: 2(1), non-discrimination on the basis of race, sex, language, religion, national or social origin, property, political or other opinion, birth or status; 3, equal rights of men and women; 23(1) and (4), protection of family and equal rights of spouses, respectively; 26, equal protection of the law without regard to race, sex, language, religion, national or social origin, property, political or other opinion, birth or status and; 27, right of minorities to enjoy and use culture, language and religion in community with other members. The facts: Sandra Lovelace was born and registered, under Canadian law, as a Maliseet Indian. Registration entitles an Indigenous person to live on a designated reserve and to enjoy subsidized social benefits. However, after marrying a non-Indigenous man in 1970, she lost her official status as an Indian and the attendant benefits, including the right to live on the reserve, that attach to that status under section 12(1)(b) of the Indian Act. Section 12(1)(b) essentially states that an Indigenous woman who marries a non-Indigenous man loses her status under Canadian law, but an Indigenous man who marries a non-Indigenous woman retains his status. The decision: The HRC decided to review the allegations on the basis of Article 27, with refe |