SUB-COMMISSION DISCUSSES INDIGENOUS ISSUES, HOLDS DIALOGUE WITH MEMBERS OF COMMITTEE AGAINST DISCRIMINATION

6 August 2004

Continues Debate on Specific Human Rights Issues




The Sub-Commission on the Promotion and Protection of Human Rights this afternoon debated issues affecting indigenous peoples and held a dialogue with members of the Committee on the Elimination of Racial Discrimination.

A number of non-governmental organizations praised the work of the Working Group on Indigenous Populations, saying that indigenous peoples used it to express their voice, show their face, and to alert with dignity and in all honesty their struggle for life and to survive on their ancestral grounds.

Miguel Alfonso Martinez, the Chairperson/Rapporteur of the Working Group on Indigenous Populations, said the response to the report of the Working Group had been beyond expectations. There should be no cover-up of issues facing indigenous peoples, and there was a clear need for a Second Decade for the World’s Indigenous Peoples. There were many situations facing indigenous peoples that were the direct offspring of the colonial legacy that threw such a long shadow. Indigenous peoples did not merely merit the effort made here, but were entitled to see much more work had been done, not just in the Working Group but in all other trenches where their cause, which was such a rightful one, was defended.

Sub-Commission Experts also exchanged views with the Chairperson and two members of the Committee on the Elimination of Racial Discrimination (CERD), stressing the need for mutual cooperation in the promotion and protection of human rights.

Sub-Commission Experts taking the floor were Marc Bossuyt, Paul Sergio Pinheiro, El-Hadji Guissé, Vladimir Kartashkin, Françoise Jane Hampton, Halima Embarek Warzazi, Miguel Alfonso Martinez and José Bengoa.
The Sub-Commission also continued with its debate on specific human rights issues, including women and human rights, contemporary forms of slavery, and new priorities, in particular terrorism. Under this agenda item, it heard from a series of non-governmental organizations whose representatives alleged violations concerning many of these issues.

The following non-governmental organizations contributed to the debate: International Association for Democratic Lawyers; Foundation for Aboriginal and Islander Research Action; International Organization of Indigenous Resource Development; International Human Rights Association of American Minorities; Union nationale de la femme tunisienne; Centre on Housing Rights and Evictions (COHRE); International Organization for the Elimination of all Forms of Racial Discrimination; Japan Civil Liberties Union; Worldwide Organization for Women; International Federation for the Protection of the National, Religious, Linguistic and other Minorities; Himalayan Research and Cultural Foundation; European Union of Public Relations; Afro-Asian Peoples’ Solidarity Organization; and Voluntary Action Network India. A statement was also made by a member of the UN Permanent Forum on Indigenous Issues.

China exercised its the right of reply.

When the Sub-Commission reconvenes at 10 a.m. on Monday, 9 August, it will continue its debate on specific human rights issues.

Dialogue Between Experts of the Sub-Commission and Members of the Committee on the Elimination of Racial Discrimination

MARIO JORGE YUTZIS, Chairperson of the Committee on the Elimination of Racial Discrimination (CERD), said the information conveyed to CERD by the Sub-Commission was appreciated. The building of a human rights framework was a collective enterprise and edifice, and was not just seen in speech but in fact, and this should be the vision forcing all to build together the edifice of human rights in the name of those suffering from various forms of vulnerabilities. What was really important was to find points of linkage that could help to strengthen the work towards the objectives of human rights, both for CERD and for the Sub-Commission. This had its scope and its limits, but the effort was towards strengthening the context in which all worked, and building bridges and creating synergies.

Recently, CERD had found itself in a position to formulate certain proposals which from a material point of view made it possible to find some joint elements that at the same time reflected very specific points related to the work being carried out together, and the reference here was to the two thematic debates held recently, the one on the issue of descent, and the one on discrimination against non-citizens. The decision on how to deal with these issues reflected the determination of CERD to bring to the surface the main issues related to human rights that were sometimes forgotten by Member States in their analysis of human rights violations. CERD had been able to develop a theoretical contribution in this respect which had allowed it to see how these two themes could be brought together. A General Recommendation had been issued as a result of the discussion on discrimination against non-citizens.

MORTEN KJAERUM, Member of the Committee on the Elimination of Racial Discrimination (CERD), said CERD had had discussions on the situation of non-citizens since 1997 and had dealt with the legal background that protected their rights. It had also carried out a study on discrimination based on descent. During its March session, CERD had adopted a General Recommendation on the rights of non-citizens. A number of recommendations were made to States parties so that they put in place the legal framework for the protection of that category of the population. The next step would be to make it work. It was hoped that States parties used the General Recommendation as a minimum set of legal provisions towards the protection of non-citizens.

JOSE LINDGREN ALVES, Member of the Committee on the Elimination of Racial Discrimination (CERD), said there was very obviously a lack of mutual knowledge between CERD and the Sub-Commission. The Sub-Commission did not know precisely how CERD worked, but the reverse was not true. This was the essential difference. This lay in the origin of the two bodies - one was a treaty body, the other a tactical body of the Commission on Human Rights. The other difference lay in method. The Sub-Commission had once addressed country issues, but this had been considered inappropriate, and it had been changed. The essence of the work of CERD was addressing the situation of States, and this had been determined by the Convention creating the body. It was recommended that those Experts who had never attended a meeting at CERD should do so in order to see how States could dialogue in a constructive way, without the aggression often displayed at the Commission. This proved to some extent that CERD’s system for the protection of human rights was not totally useless.

MARC BOSSUYT (Sub-Commission Expert) stressed on mutual cooperation between the Committee on the Elimination of Racial Discrimination and the Sub-Commission, saying that it would contribute to the advancement of the rights of those who were in need. He welcomed the General Recommendation on the rights of non-citizens. It would contribute to do justice to non-citizens who were not enjoying full citizenship.

PAULO SERGIO PINHEIRO (Sub-Commission Expert) said that when looking at the list of resolutions from the Committee on the Elimination of Racial Discrimination (CERD) this year, there were six recommendations on discrimination, and there were therefore clear bridges with what was being done by the Sub-Commission. Regarding methodology, it could have been hoped that the participation of Member States at the Sub-Commission would be similar to that at CERD. Discrimination figured on the agenda of the Sub-Commission, and Member States should be able to have the same talks that they currently had in the context of CERD. The comments of Mr. Lindgren Alves were agreed with, and there was a need to look at each other to carry out the respective tasks of the two bodies.

EL-HADJI GUISSE (Sub-Commission Expert) said he had had the opportunity to lead his country’s delegation that presented its report to the Committee on the Elimination of Racial Discrimination (CERD), and it had not been an easy job. It was important that the members of CERD, the Sub-Commission and the International Law Commission should sit down together and discuss matters in order to make better understand subjects among themselves and to make progress on many issues.

VLADIMIR KARTASHKIN (Sub-Commission Expert) said all those who took part in the elaboration of General Recommendation number 30 of the Committee on the Elimination of Racial Discrimination on the rights of non-citizens were to be commended. The issue of discrimination against non-citizens was a complex issue in jurisprudence, and in politics also. This recommendation addressed all matters, and pointed in the right direction towards a resolution. Regarding the preamble, there was a question - the second and third sections where non-citizens were listed including migrants, refugees, asylum-seekers, and stateless persons, the question was whether this was to be considered an exhaustive list covering each and every group of those discriminated against, as there was also the issue of minorities living in other countries. Had a definition of non-citizen been explored, he asked? This was an important issue in both practical and theoretical terms.

HALIMA EMBAREK WARZAZI (Sub-Commission Expert) said she had been a member of the Committee on the Elimination of Racial Discrimination in the 1980s and at that time they only considered reports submitted to them by States parties. They were not conducting studies nor making general recommendations. During that time, she remembered that there had been a problem when Uganda expelled Ugandans of British origin to the United Kingdom, those persons found themselves as non-citizens. With regard to access to citizenship, she asked who were those particular persons who were concerned by citizenship.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said there were significant areas where both the members of the Committee on the Elimination of Racial Discrimination (CERD) and the members of the Sub-Commission were interested in the same substantive issues, but possibly from slightly different angles. A discussion had been held recently at CERD on the issue of reservations international treaties and it would be interesting to hear what the decisions within CERD were on that issue.

MIGUEL ALFONSO MARTINEZ (Sub-Commission Expert) said the production of general guidelines was a topic for interest, as was the reasoning behind the need for these and how priorities were determined. With regard to the work of the Sub-Commission, the Office of the High Commissioner had arranged a technical seminar with regard to treaties, conventions and other constructive arrangements between States and other bodies, and indigenous peoples. It had been decided to recommend that the treaty bodies of the United Nations pay specific attention to the obligations held within treaties conventions and other constructive arrangements between States and other bodies and indigenous peoples. A dialogue should be held with States who had formal legal documents drawing up their relationship with indigenous peoples. How could CERD take the recommendations from that seminar for purposes of its future work in presenting cases where there was a two-fold level of relationship between States and indigenous peoples.

JOSE BENGOA (Sub-Commission Expert) said the joint meeting with the members of the Committee on the Elimination of Racial Discrimination (CERD) was important. The legal and social definition of citizenship should also be clear. The legal definition might be related to citizenship in a specific territory, while the social definition of citizenship might leave some vagueness. The issue of expulsion dealt with by CERD was also important in relation to citizenship.

MORTEN KJAERUM, Member of the Committee on the Elimination of Racial Discrimination (CERD), said that no definition had been determined for citizenship, so it had been decided not to name groups that were discriminated against, other than those mentioned during meetings. Regarding the questions of Mr. Alfonso Martinez, particularly that regarding priority of different issues and general recommendations, this had been determined during discussions on what were the issues facing States and non-governmental organizations and what issues had they raised over the last decade. Mr. Bengoa had said the main focus was targeting groups while remaining on the territory, and this was indeed a main concern, but not an exclusive one.

Statements on the Prevention of Discrimination and Protection of Indigenous Peoples

PELPINA SAHUREKA, of International Association for Democratic Lawyers, welcomed the decision of the Economic and Social Council for the proclamation of a second international decade of the world’s indigenous people, to begin in January 2005. In that regard, it was hoped for the continuation of the Voluntary Fund International Decade of the World’s Indigenous’ Peoples. The Decade and its Fund had facilitated representation of indigenous peoples from all over the world to participate freely and intensively in the deliberations of the Working Group on Indigenous Populations. Indigenous peoples through the United Nations had come to know the world and its mechanisms. Indigenous peoples had to use the opportunity to express their voice, to show their face, and to alert with dignity and in all honesty their struggle for life and to survive on their ancestral grounds and the preservation of their identity, customary law and culture.

LES MALEZER, of Foundation for Aboriginal and Islander Research Action, said the draft Declaration on Indigenous Rights was at a critical stage, and unless progress was made immediately, indigenous peoples could be faced with the lesser option of pursuing human rights standard-setting through existing conventions and human rights treaty bodies. It was disappointing to note that a core principle of the draft Declaration, collective rights, was still opposed so late in the negotiations. There had been uncertainty about the future of the Working Group on Indigenous Populations at the last session, although there was now more confidence, and thanks were due to the members of the Working Group who were clearly committed to the promotion and protection of the human rights of indigenous peoples. However, the onus remained upon States to apply immediately domestic remedies to situations of human rights abuses against indigenous peoples. The Sub-Commission was thanked for its continued conscientious attention to the rights of indigenous peoples.

JONATHAN BULL, of International Organization of Indigenous Resource Development, said his delegation was very encouraged by the Chairperson-Rapporteur and all members of the Working Group on Indigenous Populations in their innovative cooperation with indigenous peoples during the twenty-second session, which truly exemplified the international decade theme: “Partnership in Action”. It was very important to organize a seminar on the implementation of and enforcement of treaties, agreements and other constructive arrangements between States and indigenous peoples. It was also important to hold a historic United Nations seminar in an indigenous treaty territory and as representatives of signatories to Treaty No.6. On the issue of indigenous peoples’ permanent sovereignty over natural resources, the future would unfold the very great valuable contribution that Ms. Daes had made with her final report. He endorsed the call to convene an expert seminar.

RUDY JAMES, of International Human Rights Association of American Minorities, said numerous indigenous groups had attempted to bring to light the problems of racism and the legacy of colonialism and apartheid regarding the natives of Alaska, and it was hoped that the Governments of the world that were members of the Sub-Commission would help to avert this human tragedy. Thanking the Working Group on Indigenous Populations for their insightful reports, conflict remained with the United States regarding recognition of title to land and resources, the exercise of the right to self-determination, development projects undertaken by non-indigenous entities affecting traditional tribal lands, and non-recognition of indigenous peoples traditional sources of authority. The noble goals for all peoples as championed by the United Nations had proved elusive for indigenous peoples, and it was with regret that the Indigenous Nations had found it necessary to seek redress in another forum, called the United Native Nations.

WILTON LITTLECHILD, of UN Permanent Forum on Indigenous Issues, said the work of Ms. Daes and Mr. Alfonso Martinez were aimed at the improvement of conditions of and indeed the survival of indigenous peoples. As an indigenous person, he had been coming to the Sub-Commission since 1997 and words could not express the encouragement he had received by those Experts’ reports. Both reports referred to the United Nations Permanent Forum on Indigenous Issues. He would study further very carefully their recommendations and would want to discuss them with his colleagues in the Forum. On his side, he supported their conclusions and recommendations. He thanked the Indigenous Unit of the Office of the High Commissioner for Human Rights for having organized the United Nations Expert Seminar on Treaties, Agreements and Other Constructive Arrangements between States and indigenous peoples.

MIGUEL ALFONSO MARTINEZ (Sub-Commission Expert), Chairperson/Rapporteur of the Working Group on Indigenous Populations, said the response to the report of the Working Group had been beyond expectations. Comments had been received from Experts, a country and from non-governmental organizations with indigenous roots, which was very flattering. Regarding joint work between Working Groups, there were experiences which could be shared, provided that they all led to clear stress on the difference between problems on minorities and problems on indigenous matters, and treatment and visualization of these problems were very different and merited full support by the Sub-Commission. As for paragraph 17 in the report, this referred to one of the most frequent sources of conflict between States and non-indigenous communities and the almost inevitable shock and conflict emanating from culture shock, and this should be further explored.

There should be no cover-up of issues facing indigenous peoples, and there was a clear need for a Second Decade for the World’s Indigenous Peoples, as the First Decade had not succeeded in ending the feeling of alienation facing indigenous peoples. There were many situations facing indigenous peoples that were the direct offspring of the colonial legacy that threw such a long shadow, and the Working Group recommended further exploration of this colonial legacy. Indigenous peoples did not merely merit the effort made here, but were entitled to see much more work had been done, not just in the Working Group but in all other trenches where their cause, which was such a rightful one, was defended.

Statements on Specific Human Rights Issues, Including Women and Human Rights, Contemporary Forms of Slavery, and New Priorities, in Particular Terrorism

NAJOUA MILADI, of Union Nationale de la Femme Tunisienne, said the Tunisian Constitution of 2002 guaranteed fundamental freedoms and human rights as accepted universally. Tunisia had succeeded in reconciling universal and local rights on the one hand and private and public rights on the other. A right was considered as a means to develop a political and social culture. The transformation of the society through a right was an achievement in which tradition had opened to modernity, and modernity preserved traditional values. Prior to acceding to the different international conventions, Tunisia had already started, since its independence in 1956, on women’s emancipation and with efforts to eliminate discrimination against women. Women in Tunisia enjoyed special privileges and full rights, thanks to the political will of the State.

FRANCOISE JANE HAMPSON (Sub-Commission Expert) said the final report of the Special Rapporteur on Terrorism was welcomed, and it was hoped that she would be able to explore further some of the conceptual issues considered in the earlier reports. There was an urgent need to address two issues outside the scope of the mandate of the Special Rapporteur: the first was the issue of the causes of terrorist activity; the second, which was urgent because the problem was acute and widespread, was the question of the compatibility of State counter-terrorist measures with human rights law, refugee law, and where applicable international humanitarian law. States not only could but should take effective measures to protect those within their jurisdiction. When State measures violated human rights law, first they were not effective, and second they actually made the situation worse.

There were an increasing number of seriously disaffected people who had become potential recruits of organized groups engaging in political violence as the direct result of the measures States had adopted in the past three years and their impact, in particular, on certain groups in the population. A lesson shared by those States with previous experience of organized armed groups was that violation of human rights standards resulted in an increase in the active or passive support of the groups. Some suggested that human rights law could be respected when things were going well, but that exceptional situations required exceptional measures, but it was precisely in exceptional situations that one had to be most on one’s guard to ensure that exceptional measures were kept within limits and that their implementation was controlled by a vigilant judiciary.

Human rights law was particularly well suited as a framework for exceptional measures. However one could not start with the law: it was necessary to start with the situation on the ground and see the impact of counter-terrorist measures and their implementation, and only then to consider the law applicable to the situation. There was an urgent need for principles, precise guidelines and a commentary, and this existed in States the world over. The need was acute, urgent, and universal. Therefore the proposal to create a Working Group to draft principles, guidelines and a commentary on the compatibility of counter-terrorism measures with human rights law was fully supported.

COLETTE ROSE, of Centre on Housing Rights and Evictions, said women bore the brunt of the world’s housing crisis. Of the one and a half billion persons in the world who worked who were living with inadequate housing, 70 per cent were female. Denied security of tenure in their own right, women often had to rely on males for housing and land, thus becoming susceptible to exploitation or even violence. Indicative of that blatant denial of housing and land rights was the denial of the right to inherent land, housing and property. A denial of inheritance rights effectively denied women the right to tenure, food security, and any reliable type of livelihood. Thousands of women thus ended up destitute and homeless. There were many obstacles to women’s equal inheritance rights, including inadequate laws and lack of political will.

H. SHARAFEDDIN, of International Organization for the Elimination of all Forms of Racial Discrimination, said fair and just solutions were based on facts and should be presented to resolve the problems humanity faced. All of this was not possible without credible sources of information to report the events as they unfolded and the truth surrounding them. It was asked whether there was any media and press reporting committed to impartial investigating of facts, and if not what were the means to create such a credible and reliable international media. Media and presswork should be exercised within the boundaries of honesty, integrity, and higher conscience. All should firmly and strongly call upon all media to commit members to uphold the oath of honour and integrity in their work practice, as this would shed light on issues of concern to international cooperation and help reduce some of the negative and questionable effects of the media’s numbing tactics on the human mind.

YASUSHI HIGASHIZAWA, of Japan Civil Liberties Union, said he was a member of the counsel representing 46 women from the Philippines who were victimized in sexual slavery under the hands of the Japanese army during the Second World War. They had filed lawsuits in Japan against the Japanese Government in 1993 seeking judicial remedy and justice. On 25 December 2003, the Supreme Court of Japan had rejected to review the claims those women had made against the Government. That was a terrible Christmas present to the elderly women who had believed in justice to be rendered eventually. Fifteen of them had already passed away. The Court had left those victims totally without any remedy. The victims of sexual slavery had claimed apology and legal compensation to be provided for the wrongful acts committed by the State of Japan.

AFTON BEUTLER, of Worldwide Organization for Women, said unlawful separation of children from their families was a terrible violation of the human rights of each family member. Often, when children were separated from their families, more egregious human rights violations followed. Throughout the world, families continued to be torn apart as children were separated from their families through abduction. The separation and destruction of families were a tragedy in their own right. When the basic human rights of children were set at naught, children often experienced severe psychological trauma, and the lasting effects of indignities and abuses had an impact decades into the future of the young. Protecting children was an investment in the future of peace. Situations where children’s rights were being violated and families torn apart were taking place throughout the world, and the Sub-Commission should undertake measures within its power to investigate these situations and promote compliance with the Convention on the Rights of the Child.

SIMOS ANGELIDES, of International Federation for the Protection of the National, Religious, Linguistic and Other Minorities, said that in Cyprus, the rights of women had traditionally been safeguarded and protected through the Constitution and the adoption of relevant international instruments that sought to promote and safeguard their protection. However, a large number of women had been victims of ongoing collective and systematic violations of basic rights and fundamental freedoms since 1974, due to the illegal invasion and ongoing occupation by Turkey. Turkish Cypriot women who resided in the occupied territories lived under constant fear and threats. They were being treated in a degrading and inhuman manner and were even forced to change their surnames in an attempt to eradicate their Cypriot origins. The Turkish soldiers who controlled and patrolled the occupied territories perpetuated those acts. The effects of the invasion and ongoing occupation had rendered overnight thousands of Greek Cypriot women internally displaced. These women, with their children and spouses were forcefully expelled from their permanent residences and properties and were still not allowed to return.

RIYAZ PUNJABI, of Himalayan Research and Cultural Foundation, said the world was witnessing with horror a spate in terrorist activities resulting in mayhem and wanton destruction of material and ecological wealth across the globe. In a response to this menace, States were vigorously engaged in devising counter-terrorism strategies. This interface of counter-terrorism stratagem and protection of human rights had genuinely raised the concern of human rights groups in ensuring that an over-zealous response to terrorism did not lead to the undermining of human rights. The world was reaping a bloody harvest of violence for engaging extremist fundamentalist in bringing about the so-called unipolarity of the world. One of the aftermaths was the use of international state terrorism as coercive diplomacy to achieve strategic objectives. This trend was gaining ground, and terrorism had provided States with opportunities to curtail civil and political rights.

FIRDOUS SYED, of European Union of Public Relations, said that on 11 September 2001, the world had forcibly awakened to the harsh reality that States even as powerful and with the most sophisticated military machinery as the United States were vulnerable to large scale surprise attacks. Terrorism got elevated to the rank of a number one enemy of the United States and the world. But as the Special Rapporteur rightly pointed out, neither her conceptual study on the issue of terrorism and human rights nor any other investigative research or input had led to a consensus definition of terrorism. The question of compatibility of counter-terrorism measures with States’ human rights obligations also remained pending. With regard to Jammu and Kashmir, he said that all organs of national security forces, both from India and Pakistan, should under no pretext be spared from accountability in front of the law. Human rights violations in all their forms and manifestations should be curtailed and the rule of law should be allowed to prevail.

HAMSA ABD EL-HAMID, of Afro-Asian Peoples’ Solidarity Organization, said violence against women during armed conflicts and in territories under occupation constituted a gross violation of the Universal Declaration of Human Rights and of international covenants that considered any violation of women’s rights as a violation of human rights. The situation of women in Iraq was of concern. The situation of Palestinian women refugees had deteriorated. Women in Darfur also suffered from a severe humanitarian disaster. There should be an end to all forms of gender-based violence in armed conflicts, and all States should activate Security Council resolution 1325 calling for empowering women to play a suitable role in peace processes and giving their role in peace issues more credit and appreciation. The Sub-Commission should call for an immediate humanitarian intervention in the affected areas in Darfur and guarantee the return of internally displaced persons.

AKHTAR-UI-WASEY, of Voluntary Action Network India, said the association of terrorism with Islam was wrong, and those who were attempting to do should refrain in the future.

Right of Reply

LA YIFAN (China), speaking in a right of reply, said with regard to the statements made by some non-governmental organizations, Falun Gong was an evil cult that advocated the personality cult of its leader and doomsday principles with the aim of manipulating its members. It also plotted criminal activities, organizing the derailing of trains, self-immolation, and others. In outlawing Falun Gong, China was motivated by the desire of protecting the lives of all, including the members of Falun Gong and their families. In this, it had always remained within the law, adopting a practice of patient persuasion of teaching them the evilness of Falun Gong. Even in judicial sanctioning, China had remained within the provisions of national and international law. Falun Gong was resorting to the spreading of lies and rumours, leading to much harm. People should be vigilant and not believe the lies of Falun Gong.