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Indigenous Peoples: An Emerging Object of International Law

Published online by Cambridge University Press:  27 February 2017

Russel Lawrence Barsh
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Extract

The Working Group on Indigenous Populations, an organ of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, ended its fourth annual session last August by distributing seven “draft principles” to governments and nongovernmental organizations (NGOs) for comment as the first step in preparing “a draft declaration on indigenous rights, which may be proclaimed by the General Assembly.” For the first time since indigenous organizations took their concerns to the international level in 1977, a formal commitment has been made to the development of new law, probably in time for the “cinquecentennial” in 1992 of the “discovery” of the Americas and a proposed international indigenous year.

Type
Current Developments
Information
American Journal of International Law , Volume 80 , Issue 2 , April 1986 , pp. 369 - 385
Copyright
Copyright © American Society of International Law 1986

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References

1 Report of the Working Group on Indigenous Populations on its Fourth Session, UN Doc. E/CN.4/Sub.2/1985/22, Ann. II. The full text of the draft principles is set out in the text at note 47 infra.

2 Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1983/2 l/Add.8, para. 633.

3 Commission on Human Rights Resolution [hereinafter cited as Comm’n Res.] 1982/19 (Mar. 10). Brazil called for the vote and abstained, together with Poland, the USSR, Bulgaria, the Byelorussian SSR, Cuba and the Philippines. Cuba has subsequently taken an interest and now has a member on the working group.

4 Comm’n Res. 1985/21 (Mar. 11).

5 GA Res. 275 (III) (May 11, 1949).

6 11 UN ESCOR (397th mtg.) at 191, UN Doc. E/SR (1949).

7 Arts. 11–13, Convention (No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi–Tribal Populations in Independent Countries, International Labour Organisation, International Labour Conventions and Recommendations, 1919–1981, at 858 (1982).

8 Id., Art. 1(b).

9 UN Doc. E/CN.4/Sub.2/1983/21/Add.8.

10 Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution [hereinafter cited as Sub-Comm’n Res.] 1984/35A, 4th preambular para. (Aug. 30).

11 Sub-Comm’n Res. 1985/22, para. 4(a) (Aug. 29).

12 UN Doc. E/CN.4/Sub.2/1983/21/Add.8, paras. 624, 625, 628.

13 Id., para. 580.

14 Id., para. 581.

15 Id., para. 513.

16 The report of the conference is reprinted in the November 1977 issue of the American Indian Journal.

17 UN Doc. A/CONF.92/40, at 14 (1978).

18 The report of the conference was published by the World Federation of Democratic Youth (1981).

19 Sub-Comm’n Res. 2 (XXXIV) (Sept. 8, 1981); Comm’n Res. 1982/19 (Mar. 10); ECOSOC Res. 1982/34 (May 7).

20 Sub-Comm’n Res. 1984/35B (Aug. 27).

21 Comm’n Res. 1985/21 (Mar. 11).

22 Sub-Comm’n Res. 1985/22 (Aug. 29).

23 Article 22 of the Covenant of the League of Nations uses the terms “peoples not yet able to stand for themselves” and “indigenous population” interchangeably.

24 UN Charter, ch. XI.

25 7 UN GAOR C.4 (253d mtg.) at 22–23, UN Doc. A/C4/SR.253 (1952).

26 Id. at 55.

27 See generally Barsh, , Indigenous North America and Contemporary International Law, 62 Or. L. Rev. 73, 84–90 (1983)Google Scholar.

28 Similarly, the Sub-Commission’s agenda refers to “Discrimination against indigenous populations.” See Sub-Comm’n Res. 1984/35B, para. 11 (Aug. 30).

29 UN Doc. E/CN.4/Sub.2/1982/33, para. 42.

30 UN Doc. E/CN.4/Sub.2/AC.4/1983/CRP.2. The author was A. Willemsen-Diaz, who also wrote most of the Martinez Cobo report.

31 Sub-Comm’n Res. 1984/35C, final operative subpara. (d) (Aug. 30).

32 Comm’n Res. 1985/21 (Mar. 11), and 1985/38 (May 30). Although this traditionally has been an issue between the United States, on the one hand, and the USSR and India, on the other, at the working group’s fourth session the Holy See pointedly referred to “indigenous peoples of all continents.”

33 For an academic version of India’s position, see, e.g., Sinha, , A Special Deal for Tribals in India: A Historical Appraisal, TRIBE, No. 4, 1970, at 1 Google Scholar (published by Tribal Research Institute).

34 A point also raised, inter alia, in UN Docs. E/CN.4/Sub.2/AC.4/1983/CRP.3, and E/CN.4/Sub.2/1985/NGO/9, and in a recent intervention on the question of minorities summarized in UN Doc. E/CN.4/Sub.2/1985/SR.15, paras. 18–23.

35 For two views of the reorganization program, see Barsh, , When Will Tribes Have a Choice?, in Rethinking Indian Law 43 (National Lawyers Guild, Committee on Native American Struggles ed., 1982)Google Scholar; and Washburn, , A Fifty-Year Perspective on the Indian Reorganization Act, 86 Am. Anthropologist 279 (1984)CrossRefGoogle Scholar.

36 UN Doc. E/CN.4/Sub.2/1985/31, paras. 32–38.

37 UN Doc. E/CN.4/Sub.2/1985/SR.14.

38 Sub-Comm’n Res. 1985/22 (Aug. 29).

39 See, e.g., the Committee’s discussion of Brazil, paras. 253–255 of its 1983 report, 38 UN GAOR Supp. (No. 18), UN Doc. A/38/18 (1983), and of Ecuador in paras. 206 and 210 of its 1982 report, 37 UN GAOR Supp. (No. 18), UN Doc. A/37/18 (1982).

40 See, e.g., the discussion of Indian self-government in Canada’s most recent periodic report, UN Doc. CCPR/C/1/Add.62, at 94 (1983).

41 UN Doc. CCPR/C/SR.590 (1985) (discussion of draft general comment). Interestingly, however, the Committee noted the use of the phrase “aboriginal peoples” in Canada’s Constitution Act 1982, §35 (sched. B of UK Canada Act 1982, ch. 11), and “asked whether [this] did not cast a new light on the applicability of Article 1 of the Covenant.” UN Doc. CCPR/ C/25/CRP.1/Add.6 (1985).

42 For this reason, the phraseology “indigenous rights” has been preferred over “human rights of indigenous populations” in most recent resolutions, e.g., Sub-Comm’n Res. 1985/22 (Aug. 29).

43 At the second session in 1983, the working group adopted a “plan of action” calling for a discussion of land rights and definition in 1984, and listing eight other “preliminary priorities” for subsequent sessions, including “autonomy and self-determination.” UN Doc. E/CN.4/ Sub.2/1983/22, Ann. I. At the third session, it decided to proceed to culture, language, religion and education. UN Doc. E/CN.4/Sub.2/1984/22, Ann. I. The rights to “autonomy, self-government and self-determination,” and problems of health and housing are the topics for 1986. UN Doc. E/CN.4/Sub.2/1984/22, Ann. I.

44 UN Doc. E/CN.4/Sub.2/AC.4/1984/NGO/1 (Four Directions Council).

45 At the working group’s fourth session, aboriginal observers accused Australia of reneging on this commitment, on the basis of statements of the Government’s responsible minister that questioned the practicability of recognizing an aboriginal veto over mining. Australia assured the working group that the matter was still under review.

45a UN Doc. E/CN.4/Sub.2/AC.4/1984/WP.1.

46 The drafts are reproduced in Annexes III and IV of the report of the fourth session, UN Doc. E/CN.4/Sub.2/1985/22. The second draft grew out of a meeting of indigenous organizations at Geneva in July 1985, convened in part to discuss the first.

47 UN Doc. E/CN.4/Sub.2/1985/22, Ann. II. The Yugoslav member did not attend the drafting meetings.

48 Compare the text of the indigenous organizations’ proposal: “In addition to these rights, indigenous nations and peoples are entitled to the enjoyment of all the human rights and fundamental freedoms enumerated in the International Bill of Rights and other United Nations instruments. In no case shall they be subjected to adverse discrimination.”

49 The indigenous proposal read: “Indigenous nations and peoples have, in common with all humanity, the right to life, and to freedom from oppression, discrimination, and aggression.”

50 Compare the indigenous text, para. 14 at p. 381 supra.

51 Compare Article 7 of the Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, reprinted in 5 ILM 352 (1966).

52 Owing to delays in issuing the working group’s report and lack of time, there was no public debate, but these Governments’ views were discussed with each other and with members of the working group.

53 UN Doc. E/CN.4/1985/WG.1/NG0.1; UN Doc. E/CN.4/1985/WG.1/WP.3.

54 See, e.g., UN Docs. E/CN.4/1984/SR.56 (Four Directions Council), and E/CN.4/Sub.2/1984/SR.33 (Four Directions Council). Indigenous groups also participated in the Seminar on the Encouragement of Understanding, Tolerance and Respect in Matters relating to Religion or Belief, held at Geneva in 1984, UN Doc. ST/HR/SER.A/16 (1984).

55 See, e.g., UN Docs. E/CN.4/Sub.2/1985/SR.11 (Four Directions Council), E/CN.4/ Sub.2/1985/SR.15 (World Council of Indigenous Peoples and Four Directions Council), and E/CN.4/Sub.2/1985/SR.23 (Four Directions Council).