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SUB-COMMISSION CONTINUES REVIEW ON PREVENTION OF DISCRIMINATION
30 July 2004
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Sub-Commission on the Promotion
and Protection of Human Rights 30 July 2004
Experts Discuss Reports on Discrimination Based on Work and
Descent, Indigenous Peoples Sovereignty over Land, and Minorities
The Sub-Commission on Human Rights this morning continued its discussion on the prevention of discrimination, hearing its Experts and other speakers discuss reports on discrimination based on work and descent, indigenous peoples permanent sovereignty over natural resources, and the work of the Working Group on Minorities.
The expanded working paper by Yozo Yokota and Asbjorn Eide on discrimination based on work and descent was introduced to the Sub-Commission at the end of its afternoon meeting yesterday. This morning, Experts asked questions on various points in the paper, including the extent to which awareness-raising measures were effective in combating this scourge, the reasons for discrimination based on descent, the double form of discrimination undergone by vulnerable groups such as women and children, and hidden discrimination against minorities in Latin America. Several Experts said a Special Rapporteur should be appointed on the topic.
Erica-Irene Daes, Special Rapporteur on indigenous peoples’ permanent sovereignty over natural resources, introduced her final report, saying the principle of permanent sovereignty over natural resources for indigenous peoples was a principle that had caused significant debate, in particular in the discussion of the draft Declaration on the Rights of Indigenous Peoples. What should guide the study of this matter was first the human rights principles enshrined in international treaties and conventions, especially the principles of equality and non-discrimination. The relationship with the land, natural resources and all living things lay at the core of indigenous societies, and the problems they faced could be traced to the non-recognition of this fact, she said.
In the inter-active dialogue that followed, Experts asked various questions and made comments, including on the development of international law concerning indigenous peoples, the need for consent by indigenous peoples for the development of their lands, proposed amendments to the Draft United Nations Declaration on the Rights of Indigenous Peoples, the nature of sovereignty, whether the right over land and natural resources was a pre-requisite for cultural, economic and social rights, and issues related to the concepts of sovereignty and ownership.
Jose Bengoa, Chairperson-Rapporteur of the Working Group on Minorities presented the report of the Group at its tenth session, and the report on its visit to Finland. The Working Group had been defining its issues bit by bit, he said, and important issues such as the Roma, nomads and pastoralists had been dealt with, as had the issues of religious intolerance, forced displacement and linguistic minorities. There was no doubt that the discussion of self-determination and sovereignty was important. The Working Group had reached a level of maturity, and was dealing with issues that were significant; unfortunately it could not remit to the Sub-Commission the full extent of its discussions.
Members of the Working Group and Experts then made comments and asked questions, among other things noting that the Working Group had adopted for the first time a general comment in which it expressed its views on existing international law on minorities, the need to avoid redundancies such as repeated Decades, how to deal with issues of self-determination, the nature of the definition of the term “minority”, and the issue of mainstreaming minority rights within the work of the United Nations.
Sub-Commission Experts speaking this morning were Chin Sung Chung, El Hadji Guisse, Francoise Jane Hampson, Janio Ivan Tunon Veilles, Antonanella-Iulia Motoc, Halima Embarek Warzazi, Yozo Yokota, Vladimir Kartashkin, Gudmundur Alfredsson, Shiqiu Chen, Emmanuel Decaux, Kalliopi Koufa, and Marc Bossuyt.
Representatives of Nigeria and Sudan also spoke, as did representatives of the non-governmental organizations World Peace Council and Women’s Sports Foundation.
The Sub-Commission will meet at 10 a.m. on Monday, 2 August to continue its debate under its agenda item on the prevention of discrimination, including racism, racial discrimination and xenophobia; prevention of discrimination and protection of indigenous peoples; and prevention of discrimination and protection of minorities.
Inter-Active Dialogue on Expanded Working Paper on Discrimination Based on Work and Descent
Chin Sung Chung (Sub-Commission Expert) praised the expanded working paper by Yozo Yokota and Asbjorn Aide on discrimination based on work and descent (a summary of the report E/CN.4/Sub.2/2004/31 can be found in HR/SC/04/5 of 29 July), saying it represented excellent and precise work. Following the previous year’s report, much material had been collected. This year’s paper included legal, judicial, educational and administrative measures taken by various Governments for the abolition of such discrimination. These measures should be continued, given that discrimination was deeply rooted in tradition and culture. It would be desirable to collect more information on awareness-raising measures, and to what extent these measures were effective. He supported the recommendation that the Sub-Commission appoint a Special Rapporteur for a more extensive survey on the issue. In addition to the measures taken by Governments and the private sector, there were actions initiated by groups which were discriminated against, and these should also be taken into account, as they were also actors, and not just victims.
AL-HADJI GUISSE (Sub-Commission Expert) praised the two Experts on the work they had done on discrimination based on descent and the information in the report which they had presented. They had also included discriminatory practices in some parts of Africa. The authors had tried to understand the causes of the discrimination against the minorities in that continent. In advanced societies, minorities doing a certain occupation were not discriminated against. In Africa, particularly in West Africa, discrimination based on descent and occupation existed in many forms.
FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the evidence in the report showed the range of countries affected by the problem of discrimination based on work and descent, including diaspora communities. The impact of this discrimination on particularly vulnerable groups such as women and children needed to be further considered. A Special Rapporteur should be appointed to consider the nature of this problem and how it could best be tackled. In order to understand a situation, information was needed, and this required disaggregated information gathering, but this itself was not without problems. It was hoped that the next report would take account of the complexity of this issue. The Sub-Commission had for years had an example before it of how to tackle this kind of sensitive issue. The issue of female circumcision had been treated in a way that avoided direct confrontation with Governments, and instead had created dialogue and debate within countries and societies. This should be emulated in the treatment of this issue.
JANIO IVAN TUNON VEILLES (Sub-Commission Expert) acknowledged the problem in collecting information on the issue of discrimination based on descent and work and appreciated the efforts of the two Experts in that regard. In Latin America, hidden discrimination continued against Afro-Latin Americans and other minorities. He encouraged non-governmental organizations to continue their efforts in exposing the problem of discrimination against such groups of minorities.
Presentation of Final Report on Indigenous Peoples’ Permanent Sovereignty over Natural Resources
ERICA-IRENE DAES, Special Rapporteur on Indigenous Peoples’ Permanent Sovereignty over Natural Resources (summary of the report E/CN.4/Sub.2/2004/30 and Add.1 can be found in HR/SC/04/5 of 29 July), said one of the most important situations facing indigenous peoples was that of their rights over land and natural resources. Reports were submitted on this topic from all over the world to the United Nations from indigenous peoples, and it had been made clear that indigenous land use and misuse was a problem of the most urgent and fundamental nature. Because of the historical treatment of indigenous peoples, and the complexity of past and present legal and political issues, such matters would have to be reviewed by both indigenous peoples and States in order to resolve issues of rights over natural resources.
What should guide the study of this matter was first the human rights principles enshrined in international treaties and conventions, especially the principles of equality and non-discrimination, Mrs. Daes said. The values contained in the draft United Nations declaration on the rights of indigenous peoples should also be taken into account, as should the elimination of poverty, justice, and the rule of law. Indigenous peoples had repeatedly emphasized the urgent need for understanding of non indigenous societies of the significance to indigenous societies of their lands and resources for their continued survival and vitality, on many different levels, including economic and spiritual. There was a need to recognize cultural differences, and indigenous peoples had urged the world community to recognize this distinct relationship. The relationship with the land, natural resources and all living things lay at the core of indigenous societies, and the problems they faced could be traced to the non-recognition of this fact.
The principle of permanent sovereignty over natural resources for indigenous peoples was a principle that had caused significant debate, in particular in the discussion of the Draft Declaration on the Rights of Indigenous Peoples. There was a growing and positive trend in international law and practice to extend the concept of self-determination to peoples and groups within existing States, and it could be useful to examine this further as to how it could help to identify the principle of sovereignty over natural resources for indigenous peoples. The term sovereignty was not an absolute, nor an abstract, but referred to governmental authority, and the use of the term in relation to indigenous peoples did not place them on the same level as States or place them in conflict with State sovereignty. Thus, there could be no objection to using the term sovereignty when referring to the acts of indigenous peoples acting in their governmental nature, even though this governmental nature was limited within the State.
Inter-Active Dialogue on Report on Indigenous Peoples’ Permanent Sovereignty over Natural Resources
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said she endorsed the work done by Mrs. Daes, particularly her concept of sovereignty for indigenous people. The report had dealt with all aspects of the principles applying to the indigenous people. She had also indicated the financial problem faced by the indigenous people in participating in various forums concerning them. Ms. Motoc asked about the development of the international law concerning indigenous peoples, which Mrs. Daes had referred to.
HALIMA EMBAREK WARZAZI (Sub-Commission Expert) said the doctrine of tribal sovereignty led with undeniable logic to the conclusions of Mrs. Daes. The recommendations of the Special Rapporteur were whole-heartedly supported, and her limitless devotion to indigenous peoples was recognized and applauded. Thanks to her, problems had seriously disturbed the consciences of those who had ignored the plight of indigenous peoples.
YOZO YOKOTA (Sub-Commission Expert) said the work of Mrs. Daes on the promotion and protection of the rights of the indigenous peoples was excellent. It was appreciated by all, including the indigenous peoples. He encouraged her to continue to develop her work. The indigenous heritage of the indigenous peoples had a close relation with the permanent sovereignty of the indigenous peoples with their natural resources. The natural resources of the indigenous people could only be developed under the free and prior consent of the indigenous peoples.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the report set forth the situation of indigenous peoples, but also raised a number of interesting questions, to many of which interesting answers had been provided. The main contents of the report were agreed with, in particular the interpretation of the right to self-determination, which was both internal, within the framework of State borders, and external in nature. The value of the report was contained in the main conclusions and recommendations, as they showed the way to the future, and how work should be done on issues concerning indigenous peoples. The principles of international law had emerged both through treaties and through ordinary practice, and this was the case with indigenous peoples and their rights over land and natural resources. In contemporary international law there was an emerging customary standard which provided for this right, and this right should be recognized as a collective right, and not as an individual right. An amendment should be made to the draft Declaration on the Rights of Indigenous Peoples to recognize their rights to permanent sovereignty over natural resources.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said the work of Mrs. Daes was remarkable. In her report, she continued to use the concept of “permanent sovereignty”, which could be renamed as “inalienable sovereignty”.
SHIQIU CHEN (Sub-Commission Expert) said the report provided an excellent analysis. It was a new contribution to the rights of indigenous peoples to natural resources and land, and was an important foundation for their ability to enjoy other economic, cultural and social rights. Without enjoying rights over natural resources and land, these other rights could not be obtained. To promote implementation of these rights, the means of implementation were very important, and required further discussion. The Sub-Commission and the Commission on Human Rights should continue to study this subject, and should set up an interim ad-hoc committee on this topic.
FRANCOISE JANE HAMPSON (Sub-Commission Expert) asked about the rights of indigenous peoples on the space over their territories with regard to over flight rights. She also asked if informed consent of the indigenous peoples in the development of their resources was equal to “consultation”, which had no similar effect as “consent”. The issue of collective rights and individual rights to which some governments did not want to make distinction should also be given a thought. Some governments did not recognize collective rights of indigenous peoples.
EMMANUEL DECAUX (Sub-Commission Expert) said with regard to paragraph 46 of the report, it brought important clarifications, with a substantive distinction between sovereignty and ownership, the first being the prerogative of the State. There could be a contradiction between this and the concept of collective ownership, with the management of resources in the interest of certain peoples, and it was important to respect the economic, cultural and even sacred dimension of the relationship of indigenous peoples with their lands. The importance of the development of solidarity should be stressed, and this was an idea which the Commission on Human Rights had put forward for the Sub-Commission to consider. There were collective needs, and the Sub-Commission should be attentive to political and democratic issues in this respect.
KALLIOPI KOUFA (Sub-Commission Expert) said the report of Mrs. Daes was monumental within the work of the Sub-Commission. The report was convincingly elaborated. The Secretariat should give special attention to the contents of the report and call for an expert meeting to further consider it.
LAZARO PARY, of World Peace Council, said the work of Mrs. Daes was to be commended, and it had been proposed and accepted that she be a lifetime Special Rapporteur on this issue. Permanent sovereignty over natural resources was an issue that had been disputed with regard to indigenous peoples, and it appeared that the Special Rapporteur still had doubts that indigenous peoples were not like other people and could not be subject to international law. International law recognized permanent sovereignty for all peoples without discrimination, as well as the right to self-determination: none were excluded. Basic rights could not be refused to indigenous peoples. The work of Mrs. Daes was food for thought, as it was founded on historical facts and legal principles
WILDA SPALDING, of Women’s Sports Foundation, said the work of Mrs. Daes was an historical achievement. She supported the recommendations of Special Rapporteur for the organization of an expert seminar, which would include the representatives of indigenous peoples themselves.
ERICA-IRENE DAES, Special Rapporteur on indigenous peoples’ permanent sovereignty over natural resources, expressed her gratitude to all those who had taken the floor to express moving words on her work. She emphasized that the problem that existed with the indigenous and non-indigenous societies should be solved, for the sake of peace and security. During her mandate, she had met with a number of indigenous peoples around the world. Every indigenous people was working for his or her community. The right to self-determination was not a concept that States should fear. The right should be exercised with the sovereignty of a State. The concept did not imply an act of secession. The demands and requests of indigenous peoples should be studied carefully. The way and the sense she used sovereignty did not mean that the State and the indigenous peoples were on equal footings.
Mrs. Daes expressed regret that the draft Declaration on the Rights of Indigenous Peoples was still pending. Some governments were complaining that they did not have money to implement the Declaration. Within the framework of respecting the rights of indigenous peoples, efforts should be made to improve the situation. She fully supported the principle of solidarity with indigenous peoples. She recalled that she was shocked to witness a military exercise in a beautiful island inhabited by indigenous peoples, which had a devastating effect on the environment.
Presentation of Report of Working Group on Minorities
JOSE BENGOA (Sub-Commission Expert) presented the report of the Working Group on Minorities at its tenth session and the report the Working Group’s visit to Finland (a summary of the report E/CN.4/Sub.2/2004/029 and Add.1 can be found in HR/SC/04/5 of 29 July 2004). The Working Group had been defining its issues bit by bit, and, as could be seen in the report, important issues such as the Roma, nomads and pastoralists had been dealt with, as had the issues of religious intolerance, forced displacement and linguistic minorities. The agenda of the next meeting would contain these issues and others, with the aim of discussing them in a more focused manner. Debates had been held on the issue of minorities and self-determination, which was an issue requiring much intellectual effort and was one of the most important issues in the world debate at present. There was no doubt that the discussion of self-determination and sovereignty was important.
The debates on education, integration and multiculturalism were also important, as it was important to determine, for example, the nature of education that was provided, whether it would be bilingual, disintegrated, or mono-lingual and integrated. Work would continue to be done on this topic, and seminars would be held that would go beyond the borders of the European Union. The Working Group had reached a level of maturity, and was dealing with issues that were significant; unfortunately it could not transmit to the Sub-Commission the full extent of its discussions.
Inter-Active Dialogue on Report of Working Group on Minorities
VLADIMIR KARTASHKIN (Sub-Commission Expert) said that a number of Experts and observers had attended the last session of the Working Group on Minorities. During the fifth session, decisions and recommendations had been formulated. The Working Group had adopted for the first time a general comment in which it expressed its views on the existing international law on minorities. The Group decided to formulate comments on forced assimilation and discrimination against minorities. It also dealt with the question of citizenship of minorities, including the question of minorities and statelessness. A number of other issues had also been raised pertaining to minority’s rights. The establishment of a fund to assist representatives of minorities to participate in the work of the Working Group had also been suggested. The idea of an additional optional protocol to the International Covenant on Civil and Political Rights was also raised. A working paper on the issue would be useful in the future.
EMMANUEL DECAUX (Sub-Commission Expert) said the work of the Group had been very interesting, with many useful suggestions made. Three comments were added to the consideration of the document. On page 20, paragraph 5, there was a suggestion for a seminar to be held on the Roma. This should involve the Organization for Security and Cooperation in Europe (OSCE), among other organizations, as this would aid considerably in combating discrimination against the Roma. On page 22, paragraph 15, there was a reference to national institutions for the promotion and protection of human rights, and it should be remembered that these had their own rules, and this should be borne in mind. Thirdly, on page 23, paragraph 16, there was a reference to regional mechanisms, in particular African ones. Essential actors should not be forgotten, in particular the High Commissioner of the OSCE, who played a significant role in dealing with national minorities.
Certain redundancies should be avoided, for example a further Decade (page 27), for the repetition of Decades was unnecessary. Paragraph 13 was an impasse, and it was not useful to create an additional Protocol to the International Covenant on Economic, Social and Cultural Rights. Such an exercise would serve no purpose - existing standards should be applied in the context of specific situations; an abstract procedure would lead to a dead end.
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said that many references had been made in the report of Mr. Bengoa concerning the principle of self-determination. How would Mr. Bengoa deal with that problematic issue in the future?
MARC BOSSUYT (Sub-Commission Expert) said the nature of the concept of the definition of minorities required further elaboration, even though it already had received a significant quantity of attention. A definition had only very little importance when talking about civil liberties and fundamental freedoms, as it did not really matter in this context whether a person belonged to a minority or not. The problem was more subtle. Further, individuals did not have to be nationals of a country to require protection. The definition of the concept of minorities was of crucial importance when determining which persons had rights to certain benefits allowing them to promote and protect their identity. It was interesting to consider more closely, as an example, the situation regarding education, where a distinction had to be made between the freedom of education and the right to education. It should be stressed that recognition of minorities depended on the historic, socio-economic and even political contexts linked to the group in question. In the absence of a legally defined concept of the term, the definition of a group had to depend on the recognition of the State in question.
GUDMUNUR ALFREDSSON (Sub-Commission Expert) said the Working Group on Minorities was used as a facilitator for the promotion of dialogue between governments and minorities. The purpose was also to mainstream the rights of minorities by governments. In the decisions and recommendations, the issue of mainstreaming the issue of minority rights within the work of the United Nations had also been stressed.
MARTINS UHOMOBHI (Nigeria) said with regard to the report of the Chairperson-Rapporteur of the Working Group on Minorities, the report was very important with regard to promoting the rights of minorities all over the world. Therefore, it ought to be based on facts pertaining to the countries mentioned without reference to statements made by individuals, and free from generalized assertions. This had not been the case, and the report contained almost verbatim the statements made by one non-governmental organization, apparently with no efforts having been made to verify the facts of the issues raised. Nigeria was a large country, with various ethnic groups of different sizes, which required to be adequately represented in their own areas, with local governmental powers and representation at the national level, as was the case. The issues raised in the report were mostly humanitarian issues, instead of issues linked to specific abuses, and were unquantifiable. They should not be given credence without investigation.
ELSADIG MUSTAFA ALMAGLY (Sudan) said good practices of some countries should be highlighted in the work of the Sub-Commission. Sudan had done a good job concerning minorities in the countries. Six million minorities of African descent had been living in peace in the country. The concept of refoulement was not practised in Sudan. His delegation would suggest the holding of the proposed workshop on minorities in Sudan. The Government was willing to host such a meeting on minorities.
JOSE BENGOA (Sub-Commission Expert) said in response to the debate that the presence of certain indigenous delegates during the meetings of the Working Group was not the responsibility of the Working Group, and it was not possible to forbid entry to people who were entitled to speak in the different groups. The debate that had taken place over the last few years was well known, to the effect that there was a very fine dividing line between indigenous peoples and minorities. A more elaborate reply would be given on Monday to these questions (as the Experts were out of the room). With regard to the statements made by Nigeria and Sudan, the report presented matters that were discussed at the session, where representatives of minorities came to make their statements, followed by Governments who took the floor in the manner normal to the United Nations. Representatives of Nigerian minorities had raised various issues. To ensure these interventions be more reflective, each minority or NGO who spoke should transmit their submissions where possible prior to the meeting.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the comment by Mr. Alfredsson on the establishment of a Special Rapporteur on minorities had been already discussed during the session of the Working Group. The nomination of a representative of the Secretary-General on minority rights was supported. He proposed that countries should invite the Working Group to their respective countries to observe the positive experiences in their states.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said he had not proposed a Special Rapporteur, and was instead responding to the debate, and agreed with the comments made by Mr. Kartashkin.
and Protection of Human Rights 30 July 2004
Experts Discuss Reports on Discrimination Based on Work and
Descent, Indigenous Peoples Sovereignty over Land, and Minorities
The Sub-Commission on Human Rights this morning continued its discussion on the prevention of discrimination, hearing its Experts and other speakers discuss reports on discrimination based on work and descent, indigenous peoples permanent sovereignty over natural resources, and the work of the Working Group on Minorities.
The expanded working paper by Yozo Yokota and Asbjorn Eide on discrimination based on work and descent was introduced to the Sub-Commission at the end of its afternoon meeting yesterday. This morning, Experts asked questions on various points in the paper, including the extent to which awareness-raising measures were effective in combating this scourge, the reasons for discrimination based on descent, the double form of discrimination undergone by vulnerable groups such as women and children, and hidden discrimination against minorities in Latin America. Several Experts said a Special Rapporteur should be appointed on the topic.
Erica-Irene Daes, Special Rapporteur on indigenous peoples’ permanent sovereignty over natural resources, introduced her final report, saying the principle of permanent sovereignty over natural resources for indigenous peoples was a principle that had caused significant debate, in particular in the discussion of the draft Declaration on the Rights of Indigenous Peoples. What should guide the study of this matter was first the human rights principles enshrined in international treaties and conventions, especially the principles of equality and non-discrimination. The relationship with the land, natural resources and all living things lay at the core of indigenous societies, and the problems they faced could be traced to the non-recognition of this fact, she said.
In the inter-active dialogue that followed, Experts asked various questions and made comments, including on the development of international law concerning indigenous peoples, the need for consent by indigenous peoples for the development of their lands, proposed amendments to the Draft United Nations Declaration on the Rights of Indigenous Peoples, the nature of sovereignty, whether the right over land and natural resources was a pre-requisite for cultural, economic and social rights, and issues related to the concepts of sovereignty and ownership.
Jose Bengoa, Chairperson-Rapporteur of the Working Group on Minorities presented the report of the Group at its tenth session, and the report on its visit to Finland. The Working Group had been defining its issues bit by bit, he said, and important issues such as the Roma, nomads and pastoralists had been dealt with, as had the issues of religious intolerance, forced displacement and linguistic minorities. There was no doubt that the discussion of self-determination and sovereignty was important. The Working Group had reached a level of maturity, and was dealing with issues that were significant; unfortunately it could not remit to the Sub-Commission the full extent of its discussions.
Members of the Working Group and Experts then made comments and asked questions, among other things noting that the Working Group had adopted for the first time a general comment in which it expressed its views on existing international law on minorities, the need to avoid redundancies such as repeated Decades, how to deal with issues of self-determination, the nature of the definition of the term “minority”, and the issue of mainstreaming minority rights within the work of the United Nations.
Sub-Commission Experts speaking this morning were Chin Sung Chung, El Hadji Guisse, Francoise Jane Hampson, Janio Ivan Tunon Veilles, Antonanella-Iulia Motoc, Halima Embarek Warzazi, Yozo Yokota, Vladimir Kartashkin, Gudmundur Alfredsson, Shiqiu Chen, Emmanuel Decaux, Kalliopi Koufa, and Marc Bossuyt.
Representatives of Nigeria and Sudan also spoke, as did representatives of the non-governmental organizations World Peace Council and Women’s Sports Foundation.
The Sub-Commission will meet at 10 a.m. on Monday, 2 August to continue its debate under its agenda item on the prevention of discrimination, including racism, racial discrimination and xenophobia; prevention of discrimination and protection of indigenous peoples; and prevention of discrimination and protection of minorities.
Inter-Active Dialogue on Expanded Working Paper on Discrimination Based on Work and Descent
Chin Sung Chung (Sub-Commission Expert) praised the expanded working paper by Yozo Yokota and Asbjorn Aide on discrimination based on work and descent (a summary of the report E/CN.4/Sub.2/2004/31 can be found in HR/SC/04/5 of 29 July), saying it represented excellent and precise work. Following the previous year’s report, much material had been collected. This year’s paper included legal, judicial, educational and administrative measures taken by various Governments for the abolition of such discrimination. These measures should be continued, given that discrimination was deeply rooted in tradition and culture. It would be desirable to collect more information on awareness-raising measures, and to what extent these measures were effective. He supported the recommendation that the Sub-Commission appoint a Special Rapporteur for a more extensive survey on the issue. In addition to the measures taken by Governments and the private sector, there were actions initiated by groups which were discriminated against, and these should also be taken into account, as they were also actors, and not just victims.
AL-HADJI GUISSE (Sub-Commission Expert) praised the two Experts on the work they had done on discrimination based on descent and the information in the report which they had presented. They had also included discriminatory practices in some parts of Africa. The authors had tried to understand the causes of the discrimination against the minorities in that continent. In advanced societies, minorities doing a certain occupation were not discriminated against. In Africa, particularly in West Africa, discrimination based on descent and occupation existed in many forms.
FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the evidence in the report showed the range of countries affected by the problem of discrimination based on work and descent, including diaspora communities. The impact of this discrimination on particularly vulnerable groups such as women and children needed to be further considered. A Special Rapporteur should be appointed to consider the nature of this problem and how it could best be tackled. In order to understand a situation, information was needed, and this required disaggregated information gathering, but this itself was not without problems. It was hoped that the next report would take account of the complexity of this issue. The Sub-Commission had for years had an example before it of how to tackle this kind of sensitive issue. The issue of female circumcision had been treated in a way that avoided direct confrontation with Governments, and instead had created dialogue and debate within countries and societies. This should be emulated in the treatment of this issue.
JANIO IVAN TUNON VEILLES (Sub-Commission Expert) acknowledged the problem in collecting information on the issue of discrimination based on descent and work and appreciated the efforts of the two Experts in that regard. In Latin America, hidden discrimination continued against Afro-Latin Americans and other minorities. He encouraged non-governmental organizations to continue their efforts in exposing the problem of discrimination against such groups of minorities.
Presentation of Final Report on Indigenous Peoples’ Permanent Sovereignty over Natural Resources
ERICA-IRENE DAES, Special Rapporteur on Indigenous Peoples’ Permanent Sovereignty over Natural Resources (summary of the report E/CN.4/Sub.2/2004/30 and Add.1 can be found in HR/SC/04/5 of 29 July), said one of the most important situations facing indigenous peoples was that of their rights over land and natural resources. Reports were submitted on this topic from all over the world to the United Nations from indigenous peoples, and it had been made clear that indigenous land use and misuse was a problem of the most urgent and fundamental nature. Because of the historical treatment of indigenous peoples, and the complexity of past and present legal and political issues, such matters would have to be reviewed by both indigenous peoples and States in order to resolve issues of rights over natural resources.
What should guide the study of this matter was first the human rights principles enshrined in international treaties and conventions, especially the principles of equality and non-discrimination, Mrs. Daes said. The values contained in the draft United Nations declaration on the rights of indigenous peoples should also be taken into account, as should the elimination of poverty, justice, and the rule of law. Indigenous peoples had repeatedly emphasized the urgent need for understanding of non indigenous societies of the significance to indigenous societies of their lands and resources for their continued survival and vitality, on many different levels, including economic and spiritual. There was a need to recognize cultural differences, and indigenous peoples had urged the world community to recognize this distinct relationship. The relationship with the land, natural resources and all living things lay at the core of indigenous societies, and the problems they faced could be traced to the non-recognition of this fact.
The principle of permanent sovereignty over natural resources for indigenous peoples was a principle that had caused significant debate, in particular in the discussion of the Draft Declaration on the Rights of Indigenous Peoples. There was a growing and positive trend in international law and practice to extend the concept of self-determination to peoples and groups within existing States, and it could be useful to examine this further as to how it could help to identify the principle of sovereignty over natural resources for indigenous peoples. The term sovereignty was not an absolute, nor an abstract, but referred to governmental authority, and the use of the term in relation to indigenous peoples did not place them on the same level as States or place them in conflict with State sovereignty. Thus, there could be no objection to using the term sovereignty when referring to the acts of indigenous peoples acting in their governmental nature, even though this governmental nature was limited within the State.
Inter-Active Dialogue on Report on Indigenous Peoples’ Permanent Sovereignty over Natural Resources
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said she endorsed the work done by Mrs. Daes, particularly her concept of sovereignty for indigenous people. The report had dealt with all aspects of the principles applying to the indigenous people. She had also indicated the financial problem faced by the indigenous people in participating in various forums concerning them. Ms. Motoc asked about the development of the international law concerning indigenous peoples, which Mrs. Daes had referred to.
HALIMA EMBAREK WARZAZI (Sub-Commission Expert) said the doctrine of tribal sovereignty led with undeniable logic to the conclusions of Mrs. Daes. The recommendations of the Special Rapporteur were whole-heartedly supported, and her limitless devotion to indigenous peoples was recognized and applauded. Thanks to her, problems had seriously disturbed the consciences of those who had ignored the plight of indigenous peoples.
YOZO YOKOTA (Sub-Commission Expert) said the work of Mrs. Daes on the promotion and protection of the rights of the indigenous peoples was excellent. It was appreciated by all, including the indigenous peoples. He encouraged her to continue to develop her work. The indigenous heritage of the indigenous peoples had a close relation with the permanent sovereignty of the indigenous peoples with their natural resources. The natural resources of the indigenous people could only be developed under the free and prior consent of the indigenous peoples.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the report set forth the situation of indigenous peoples, but also raised a number of interesting questions, to many of which interesting answers had been provided. The main contents of the report were agreed with, in particular the interpretation of the right to self-determination, which was both internal, within the framework of State borders, and external in nature. The value of the report was contained in the main conclusions and recommendations, as they showed the way to the future, and how work should be done on issues concerning indigenous peoples. The principles of international law had emerged both through treaties and through ordinary practice, and this was the case with indigenous peoples and their rights over land and natural resources. In contemporary international law there was an emerging customary standard which provided for this right, and this right should be recognized as a collective right, and not as an individual right. An amendment should be made to the draft Declaration on the Rights of Indigenous Peoples to recognize their rights to permanent sovereignty over natural resources.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said the work of Mrs. Daes was remarkable. In her report, she continued to use the concept of “permanent sovereignty”, which could be renamed as “inalienable sovereignty”.
SHIQIU CHEN (Sub-Commission Expert) said the report provided an excellent analysis. It was a new contribution to the rights of indigenous peoples to natural resources and land, and was an important foundation for their ability to enjoy other economic, cultural and social rights. Without enjoying rights over natural resources and land, these other rights could not be obtained. To promote implementation of these rights, the means of implementation were very important, and required further discussion. The Sub-Commission and the Commission on Human Rights should continue to study this subject, and should set up an interim ad-hoc committee on this topic.
FRANCOISE JANE HAMPSON (Sub-Commission Expert) asked about the rights of indigenous peoples on the space over their territories with regard to over flight rights. She also asked if informed consent of the indigenous peoples in the development of their resources was equal to “consultation”, which had no similar effect as “consent”. The issue of collective rights and individual rights to which some governments did not want to make distinction should also be given a thought. Some governments did not recognize collective rights of indigenous peoples.
EMMANUEL DECAUX (Sub-Commission Expert) said with regard to paragraph 46 of the report, it brought important clarifications, with a substantive distinction between sovereignty and ownership, the first being the prerogative of the State. There could be a contradiction between this and the concept of collective ownership, with the management of resources in the interest of certain peoples, and it was important to respect the economic, cultural and even sacred dimension of the relationship of indigenous peoples with their lands. The importance of the development of solidarity should be stressed, and this was an idea which the Commission on Human Rights had put forward for the Sub-Commission to consider. There were collective needs, and the Sub-Commission should be attentive to political and democratic issues in this respect.
KALLIOPI KOUFA (Sub-Commission Expert) said the report of Mrs. Daes was monumental within the work of the Sub-Commission. The report was convincingly elaborated. The Secretariat should give special attention to the contents of the report and call for an expert meeting to further consider it.
LAZARO PARY, of World Peace Council, said the work of Mrs. Daes was to be commended, and it had been proposed and accepted that she be a lifetime Special Rapporteur on this issue. Permanent sovereignty over natural resources was an issue that had been disputed with regard to indigenous peoples, and it appeared that the Special Rapporteur still had doubts that indigenous peoples were not like other people and could not be subject to international law. International law recognized permanent sovereignty for all peoples without discrimination, as well as the right to self-determination: none were excluded. Basic rights could not be refused to indigenous peoples. The work of Mrs. Daes was food for thought, as it was founded on historical facts and legal principles
WILDA SPALDING, of Women’s Sports Foundation, said the work of Mrs. Daes was an historical achievement. She supported the recommendations of Special Rapporteur for the organization of an expert seminar, which would include the representatives of indigenous peoples themselves.
ERICA-IRENE DAES, Special Rapporteur on indigenous peoples’ permanent sovereignty over natural resources, expressed her gratitude to all those who had taken the floor to express moving words on her work. She emphasized that the problem that existed with the indigenous and non-indigenous societies should be solved, for the sake of peace and security. During her mandate, she had met with a number of indigenous peoples around the world. Every indigenous people was working for his or her community. The right to self-determination was not a concept that States should fear. The right should be exercised with the sovereignty of a State. The concept did not imply an act of secession. The demands and requests of indigenous peoples should be studied carefully. The way and the sense she used sovereignty did not mean that the State and the indigenous peoples were on equal footings.
Mrs. Daes expressed regret that the draft Declaration on the Rights of Indigenous Peoples was still pending. Some governments were complaining that they did not have money to implement the Declaration. Within the framework of respecting the rights of indigenous peoples, efforts should be made to improve the situation. She fully supported the principle of solidarity with indigenous peoples. She recalled that she was shocked to witness a military exercise in a beautiful island inhabited by indigenous peoples, which had a devastating effect on the environment.
Presentation of Report of Working Group on Minorities
JOSE BENGOA (Sub-Commission Expert) presented the report of the Working Group on Minorities at its tenth session and the report the Working Group’s visit to Finland (a summary of the report E/CN.4/Sub.2/2004/029 and Add.1 can be found in HR/SC/04/5 of 29 July 2004). The Working Group had been defining its issues bit by bit, and, as could be seen in the report, important issues such as the Roma, nomads and pastoralists had been dealt with, as had the issues of religious intolerance, forced displacement and linguistic minorities. The agenda of the next meeting would contain these issues and others, with the aim of discussing them in a more focused manner. Debates had been held on the issue of minorities and self-determination, which was an issue requiring much intellectual effort and was one of the most important issues in the world debate at present. There was no doubt that the discussion of self-determination and sovereignty was important.
The debates on education, integration and multiculturalism were also important, as it was important to determine, for example, the nature of education that was provided, whether it would be bilingual, disintegrated, or mono-lingual and integrated. Work would continue to be done on this topic, and seminars would be held that would go beyond the borders of the European Union. The Working Group had reached a level of maturity, and was dealing with issues that were significant; unfortunately it could not transmit to the Sub-Commission the full extent of its discussions.
Inter-Active Dialogue on Report of Working Group on Minorities
VLADIMIR KARTASHKIN (Sub-Commission Expert) said that a number of Experts and observers had attended the last session of the Working Group on Minorities. During the fifth session, decisions and recommendations had been formulated. The Working Group had adopted for the first time a general comment in which it expressed its views on the existing international law on minorities. The Group decided to formulate comments on forced assimilation and discrimination against minorities. It also dealt with the question of citizenship of minorities, including the question of minorities and statelessness. A number of other issues had also been raised pertaining to minority’s rights. The establishment of a fund to assist representatives of minorities to participate in the work of the Working Group had also been suggested. The idea of an additional optional protocol to the International Covenant on Civil and Political Rights was also raised. A working paper on the issue would be useful in the future.
EMMANUEL DECAUX (Sub-Commission Expert) said the work of the Group had been very interesting, with many useful suggestions made. Three comments were added to the consideration of the document. On page 20, paragraph 5, there was a suggestion for a seminar to be held on the Roma. This should involve the Organization for Security and Cooperation in Europe (OSCE), among other organizations, as this would aid considerably in combating discrimination against the Roma. On page 22, paragraph 15, there was a reference to national institutions for the promotion and protection of human rights, and it should be remembered that these had their own rules, and this should be borne in mind. Thirdly, on page 23, paragraph 16, there was a reference to regional mechanisms, in particular African ones. Essential actors should not be forgotten, in particular the High Commissioner of the OSCE, who played a significant role in dealing with national minorities.
Certain redundancies should be avoided, for example a further Decade (page 27), for the repetition of Decades was unnecessary. Paragraph 13 was an impasse, and it was not useful to create an additional Protocol to the International Covenant on Economic, Social and Cultural Rights. Such an exercise would serve no purpose - existing standards should be applied in the context of specific situations; an abstract procedure would lead to a dead end.
ANTOANELLA-IULIA MOTOC (Sub-Commission Expert) said that many references had been made in the report of Mr. Bengoa concerning the principle of self-determination. How would Mr. Bengoa deal with that problematic issue in the future?
MARC BOSSUYT (Sub-Commission Expert) said the nature of the concept of the definition of minorities required further elaboration, even though it already had received a significant quantity of attention. A definition had only very little importance when talking about civil liberties and fundamental freedoms, as it did not really matter in this context whether a person belonged to a minority or not. The problem was more subtle. Further, individuals did not have to be nationals of a country to require protection. The definition of the concept of minorities was of crucial importance when determining which persons had rights to certain benefits allowing them to promote and protect their identity. It was interesting to consider more closely, as an example, the situation regarding education, where a distinction had to be made between the freedom of education and the right to education. It should be stressed that recognition of minorities depended on the historic, socio-economic and even political contexts linked to the group in question. In the absence of a legally defined concept of the term, the definition of a group had to depend on the recognition of the State in question.
GUDMUNUR ALFREDSSON (Sub-Commission Expert) said the Working Group on Minorities was used as a facilitator for the promotion of dialogue between governments and minorities. The purpose was also to mainstream the rights of minorities by governments. In the decisions and recommendations, the issue of mainstreaming the issue of minority rights within the work of the United Nations had also been stressed.
MARTINS UHOMOBHI (Nigeria) said with regard to the report of the Chairperson-Rapporteur of the Working Group on Minorities, the report was very important with regard to promoting the rights of minorities all over the world. Therefore, it ought to be based on facts pertaining to the countries mentioned without reference to statements made by individuals, and free from generalized assertions. This had not been the case, and the report contained almost verbatim the statements made by one non-governmental organization, apparently with no efforts having been made to verify the facts of the issues raised. Nigeria was a large country, with various ethnic groups of different sizes, which required to be adequately represented in their own areas, with local governmental powers and representation at the national level, as was the case. The issues raised in the report were mostly humanitarian issues, instead of issues linked to specific abuses, and were unquantifiable. They should not be given credence without investigation.
ELSADIG MUSTAFA ALMAGLY (Sudan) said good practices of some countries should be highlighted in the work of the Sub-Commission. Sudan had done a good job concerning minorities in the countries. Six million minorities of African descent had been living in peace in the country. The concept of refoulement was not practised in Sudan. His delegation would suggest the holding of the proposed workshop on minorities in Sudan. The Government was willing to host such a meeting on minorities.
JOSE BENGOA (Sub-Commission Expert) said in response to the debate that the presence of certain indigenous delegates during the meetings of the Working Group was not the responsibility of the Working Group, and it was not possible to forbid entry to people who were entitled to speak in the different groups. The debate that had taken place over the last few years was well known, to the effect that there was a very fine dividing line between indigenous peoples and minorities. A more elaborate reply would be given on Monday to these questions (as the Experts were out of the room). With regard to the statements made by Nigeria and Sudan, the report presented matters that were discussed at the session, where representatives of minorities came to make their statements, followed by Governments who took the floor in the manner normal to the United Nations. Representatives of Nigerian minorities had raised various issues. To ensure these interventions be more reflective, each minority or NGO who spoke should transmit their submissions where possible prior to the meeting.
VLADIMIR KARTASHKIN (Sub-Commission Expert) said the comment by Mr. Alfredsson on the establishment of a Special Rapporteur on minorities had been already discussed during the session of the Working Group. The nomination of a representative of the Secretary-General on minority rights was supported. He proposed that countries should invite the Working Group to their respective countries to observe the positive experiences in their states.
GUDMUNDUR ALFREDSSON (Sub-Commission Expert) said he had not proposed a Special Rapporteur, and was instead responding to the debate, and agreed with the comments made by Mr. Kartashkin.
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