Adequate Protection of Indigenous Peoples - Essay Example

? Indigenous peoples are adequately protected by the international human rights law framework Introduction Indigenous people are also called tribal people or cultural minorities. According to the definition by the World Council of Indigenous People in its declaration, indigenous people are such population or groups, who historically settled the place that majority of the people now lives, who have a character of their own, with social traditions and means of expression that are linked to the country inherited from their ancestors, and have certain important and unique characteristics bestowed upon them the strong conviction of belonging to people. They have an identity as themselves and should be regarded as themselves (Streich 2009). In other words, indigenous communities, peoples and nations are those who have long occupied this world even before invasion or pre-colonial societies. They are distinct from other sectors of the society that dominates in those territories. They are now minorities but they still have their ancestral territories and their ethnic identity as the basis of their continued existence as people. They live in accordance with their cultural mould, social institutions and legal systems. They are considered to be the caretakers of the most various biologically territories in the world. World’s linguistic and cultural diversity all originated from them and their traditional knowledge has been the source of invaluable benefits of mankind (United Nations 2009). To date, there are about three hundred ninety million indigenous people in ninety countries. However, indigenous peoples continue to endure racial discrimination, they are greatly marginalized and live in extreme poverty and usually conflict. The situation of the indigenous people in different parts of the world continues to be problematic. Systematic discrimination ranging from political and economic power continues to burden their peaceful way of existence. They are often victimized by invasion of their ancestral lands destroying their livelihood. Worse, they have been victimised by development aggression. In most less developed countries, they are being uprooted from their communities to pave the way for development such as mining activities. Not only that governments have abandoned them, but most of the time, governments work in connivance with big foreign capitalists to invade and take over to their ancestral lands. They have fallen victims of wars, militarisations which have led to massive displacement. The indigenous peoples depend on land for their lives, culture and identity. They live in a system that the whole community lord over the lands, territories and natural resources and that they only manage them. However, since the period of colonisation, the indigenous peoples have been constricted, deprived and driven away from their lands. In extreme cases, they have even been completely extinct or assimilated. Their belief systems, cultures, languages and ways of life are usually either being ridiculed, threatened or extricate. Rape and sexual humiliations, especially in times of armed conflict had afflicted to women for ethnic cleansing and demoralization of tribal communities. Indigenous women are particularly at risk to sexual violence. Access to the right to education has been has been a perennial problem. And to some ho can have the access to education, the prevailing culture within the educational institutions is oftentimes harsh ethnic and cultural differences. It has caused poor performance and higher dropout rates. Thus, the sector of the indigenous people was pushed back lower and lower to extreme level of poverty and hunger. International Human Rights Law, hereafter referred to as IHRL has recognized these threats, these serious problems and have provided various and different forms of solution in protecting and preserving the indigenous people. But are these enough to say that IHRL do protect the plight of the indigenous people? Can they truly guarantee protection, from the truest sense of the word, to the indigenous people? This paper will delve on these matters by providing inputs on the existing international human rights conventions, declarations and resolutions that concerns the indigenous people. The International Human Rights Law International human rights law are composed of series of international human rights treaties, declarations, guidelines, principles and other instruments adopted since 1945. These treaties and instruments bestowed the legal form to the inherent principles of human rights (Offce of the High Commission for Human Rights n.d.). Although inherent, respect for human rights will not be possible without the establishment of the rule of law both at the national and international levels. Thus, it requires in-depth understanding, implementation and development. Thus IHRL provides commitments and obligations through international treaties wherein member State or State parties are expected to comply by respecting, protecting and fulfilling human rights. Thus, human rights become a responsibility of the State. Respect for human rights means that the State would not interfere nor would initiate any action curtailing the full enjoyment of human rights. To protect human rights means that the State is required to shield its people from any form of human rights abuses. And the fulfilment of human rights obliges the State to take all necessary actions to ensure that the people enjoy their basic human rights (Offce of the High Commission for Human Rights n.d.). These obligations of the State parties must be sealed by integrating human rights in their domestic laws such as the constitution or through legislation. The Universal Declaration of Human Rights (UDHR) is the mother of all declaration and treaties as far as human rights are concerned. This is the very declaration that guided the creation and establishment of the United Nations as an institution. Proving that one of the top priorities of international human rights law is the indigenous people, UDHR provides in its Article 7 that all is equal before the law and are entitled without any discrimination to equal protection of the law. Advocacy of indigenous peoples’ rights within the United Nations came belatedly. It was only during the recent years that United Nations was able to put up several mechanisms aimed to uphold, respect and protect the rights of the indigenous people (UNPFII n.d.). Meanwhile, the United Nations’ Convention on Economic, Social and Cultural Rights provides in its Article 1 the Right to Sell-determination. The right to self-determination guaranteed that all people can freely determine their political status and can freely pursue their economic, social and cultural development. This right is also expounded in the United Nations’ International Convention on Civil and Political Rights. Artcle27 of the said Convention guarantees that persons belonging to ethnic, religious or linguistic minorities can enjoy their own culture to profess and practice their own religion, enjoy their on culture and use their own language. With the overview of the previously described rights of the indigenous peoples, the last basic right which needs to be discussed is the right to indigenous laws and customs. This means the recognition that all cultures are equal and no one is superior to other. Standards of development must be re-assessed for development is a relative concept. Again, international law makes a direct reference to customary law. The International Labour Organization Convention declares in Article, No. 107, that high regard on the customary laws must be given in defining the rights and duties of the populations concerned; that indigenous peoples are entitled to retain their on customs and institutions where these are not incompatible with the national legal system or the objective of integration programmes; and in no way that members of the population of the indigenous people be prevented in exercising the rights granted to all citizens and from assuming their corresponding duties, according to their individual capacity. The Commission on Human Rights The Commission on Human Rights is the main policy-making body of the United Nations that deals with the issues of human rights. To date, the Commission is composed of 53 member Governments. Its functions include preparing for studies, making recommendations and drafting international human rights conventions. Also, the Commission receives reports and complaints on alleged human rights violations and investigates them. In line with this, the Commission handles communications between complainants and the State. The Sub-Commission on Prevention of Discrimination and Protection of Minorities  The Sub-Commission on Prevention of Discrimination and Protection of Minorities is a subsidiary body of the Commission on Human Rights that focuses on the prevention of discrimination against racial, religious and linguistic minorities. Its functions include conducting of studies and making recommendations available for the Commission. To the date, the Sub-Commission is composed of twenty six experts. Special Rapporteurs together with working groups has been established to broaden their scope of work. The United Nations Permanent Forum on Indigenous Issues The United Nations Permanent Forum on Indigenous Issues is an advisory body to the Economic and Social Council in relations to the issues and concern of the indigenous people. It provides expert guidance and recommendations on indigenous concerns to the Economic and Social Council. It is expected also to raise the consciousness by means of promoting the integration and coordination of indigenous issues within the UN system, thus is prepares and disseminate information and analysis concerning indigenous people. Human Rights Council The Human Rights Council is an inter-governmental body within the United Nations system. Its main mandate is to strengthen the promotion and protection of human rights around the world. The Council was created on 15 March 2006. It was established with the aim of addressing situations of human rights violations in the different parts of the globe and make recommendations for their resolutions (Ramcharan 2002). Among the Councils major accomplishments is the adoption of a program called institution-building package which provides elements that guide the Council in its future work. The Universal Periodic Review mechanism was conceptualised in order to assess human rights situations in all country members. Meanwhile, the Advisory Committee provides expert advice on issues concerning indigenous peoples concern. The Committee revised the Complaint Procedures, a process wherein individuals, groups or organization can file complaints of human rights violations to the attention of the Council. The Expert Mechanism on the Rights of Indigenous Peoples The Expert Mechanism on the Rights of Indigenous Peoples provides the Human Rights Council with specific suggestions and guidance through in-depth studies and researches on the rights of the indigenous people. It also submits proposals for consideration and approval of the Council. The Expert Mechanism was established by the UN Human Rights Council in 2007. In 2009, it completed its first study on the indigenous people’s right to education and recommended various ways to realise the indigenous peoples’ right to education. The International Convention on the Elimination of All Forms of Racial Discrimination The International Convention on the Elimination of All Forms of Racial Discrimination promotes and encourages universal respect for the observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. It also upholds that all human beings are born free and equal in dignity and rights without distinction of any kind specifically in terms of race, colour or national origin. In effect, it affirms that any discrimination between human beings on the basis of race, colour or ethnic origin impedes friendly and peaceful relations among nations and threatens national and international security. The Convention defines the term racial discrimination as distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin that aims or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in terms of political, economic, social, cultural or any field of public life. The Convention further declared in Article 2 that State parties that racial discrimination would be condemned and that pursuit to eliminate racial discrimination in all its forms would be encouraged. In line with this, State parties were obliged to commit that they would not act or practice racial discrimination against persons, group of persons or institutions. All public authorities and institutions were obliged to conform to these commitments. Article 2 of the said Convention also guarantees that all State parties will take concrete steps to ensure that due development and protection of certain racial groups or individuals in terms of social, economic, cultural and other fields will be pursued. Conclusion Although belated, it is clear from the different structures and bodies within the United Nations that the voice of the indigenous people is definitely in place. But are they well-suited to adequately and comprehensively address the issues and concerns of the indigenous people? Over the last years, the United Nations claim that the interface between the UN mechanisms installed vis a vis the indigenous peoples concern has produced at least three major results. First, it has created a new awareness of indigenous peoples concerns and human rights. Second is the recognition of the important contribution to humanity’s cultural diversity and heritage of the indigenous people. Third, the United Nations was able to bring to the world’s attention the need to address the issues of the indigenous people through legislation, policies and budgets (United Nations 2009). Admittedly, these accomplishments were achieved principally because of the active involvement of civil society groups particularly from the ranks of the indigenous people. Although, the International Human Rights Law has several provisions for the protection of the rights of the indigenous people, the actual situation of the sector on the national level is still a glaring reality. In these cases, United Nations’ mechanisms could not intervene. As a matter of policy, UN is incapacitated to directly interfere to domestic concerns or internal affairs of any country. Thus, even if a State violated any provisions guaranteed by the International Human Rights Law, and it is not reflected no any domestic law in a particular State or country, no mechanism is available for reparation or justice. Thus, the adequacy of protection the International Human Rights Law provides becomes relative. International Human Rights Law may be adequate in terms of protecting the indigenous peoples, but it is still limited in securing and defending their rights against attacks and other vulnerabilities. Bibliography Akermark, Athanasia Spiliopoulou. Justifications of Minority Protection in Internatonal Law. Gothenburg: Graphic Systems, 1997. Garth Nettheim, Gary D. Meyers and Donna Craig. Indigenous Peoples and Governance Structure. Canberra: Aboriginal Studies Press, 2002. Offce of the High Commission for Human Rights. "International Human Rights LA." Offce of the High Commission for Human Rights. http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx (accessed July 28, 2011). Office of the United Nations for High Commissioner for Human Rights . Complaint Procedures (Fact Sheet No. 7). Geneva: Office of the United Nations for High Commissioner for Human Rights , 2002. Office of the United Nations High Commissioner for Human Rights. "International Convention on the Elimination of All Forms of Racial Descrimination." Office of the United Nations High Commissioner for Human Rights. http://www2.ohchr.org/english/law/cerd.htm (accessed July 28, 2011). Ramcharan, Bertrand G. The United Nations High Commissioner for Human Rights. The Hague: Kluwer Law International, 2002. Streich, Michel. Declaration on the Rights of Indigenous People. Crows Nest: Allen & Alwin, 2009. United Nations. The State of the World's Indigenous Peoples. New York: United Nations Publication, 2009. United nations. "The United Nations and Human Rights." United Nations. http://www.un.org/rights/dpi1774e.htm (accessed July 27, 2011). UNPFII. "Joint Brief The Right to Food and Indigenous People." UNPFII. http://www.un.org/esa/socdev/unpfii/documents/Right_to_food.pdf (accessed July 28, 2011). Xanthaki, Alexandra. Indigenous Rights and United Nations Standards. Cambridge: Cambridge University Press, 2007. Read More