Sub-Commission hears introductions to reports on discrimination based on work and descent, indigenous issues

Sub-Commission on the Promotion and
Protection of Human Rights
55th session
11 August 2003
Afternoon



Chairperson and Rapporteur of the Committee on
the Elimination of Racial Discrimination Address Sub-Commission




The Sub-Commission on the Promotion and Protection on Human Rights this afternoon continued its consideration of the prevention of discrimination, including issues related to racism, racial discrimination and xenophobia; prevention of discrimination and protection of indigenous peoples; and the prevention of discrimination and protection of minorities. In this context, the Sub-Commission heard introductions to reports by Sub-Commission Experts and a Special Rapporteur on discrimination based on work and descent, and on indigenous peoples’ permanent sovereignty over natural resources.
Sub-Commission Experts Yozo Yokota and Asbjorn Eide had undertaken work on issues related to discrimination based on work and descent. Mr. Eide said everyone was born free and equal in dignity and rights and that discrimination based on descent was a head-on challenge to that principle. Racial discrimination included distinctions, exclusions, restrictions or preferences based on descent which nullified or impaired equal enjoyment of human rights.
Mr. Yokota added that while discrimination based on work and descent was a most serious human rights violation, most international human rights instruments did not refer specifically to this type of violation. It had therefore been an issue on the periphery in the human rights environment. It was essential for the international community and Governments to acknowledge the existence of the problem and to take measures to prevent such discrimination.
Addressing issues contained in her report on indigenous peoples’ permanent sovereignty over natural resources, Special Rapporteur Erica-Irene Daes stressed that the reconciliation of the legitimate interests of States with the prior and paramount rights of indigenous peoples to their natural resources, was a critical and necessary step for the advancement of the rights of indigenous peoples. Meaningful political and economic self-determination of indigenous peoples was not possible without indigenous peoples’ having the legal authority to exercise control over their lands and territories in order to enjoy economic and other benefits deriving from their natural resources. In this connection, the term “sovereignty” referred not to the abstract and absolute sense of the term, but rather to governmental control and authority over their resources in the exercise of the right to self-determination.
The Chairperson of the Committee on the Elimination of Racial Discrimination (CERD), Ion Diaconu, also addressed the Sub-Commission this afternoon, stressing that the Committee was endeavouring to make sure that the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination were implemented in an improved manner. In the context of State reporting, the issue of non-citizens was not dealt with properly. The Sub-Commission was asked to contribute with its opinion on this issue so that the rights of non-citizens could be considered from all angles.
Patrick Thornberry, Rapporteur of CERD, also participated in the interactive debate, saying that discrimination on work and descent was an issue that deserved long-term attention. CERD had undertaken work on this issue in an attempt to highlight to States what their responsibilities were.
Participating in a subsequent interactive debate on the reports presented under the prevention of discrimination were Sub-Commission Experts Jose Bengoa, Antoanella-Iulia Motoc, Vladimir Kartashkin, Francoise Jane Hampson, Fisseha Yimer, Manuel Rodriguez-Cuadros, Soo Gil Park, Kalliopi Koufa, El Hadji Guisse, Leila Zerrougui, Christy Ezim Mbonu, and David Weissbrodt.
Making concluding remarks, Halima Embarek Warzazi, Chairperson of the Sub-Commission, stressed the importance of the Convention on Migrant Workers and Members of their Families and the need for more States to ratify it. Without more ratifications, the Convention would be nothing but a dead letter, much to the sorrow of minorities and migrants, as well as the human rights community.
The Sub-Commission will reconvene at 10 a.m. on Tuesday, 12 August, to continue its consideration of prevention of discrimination.

Documents
Under the agenda item on prevention of discrimination, the Sub-Commission has before it a working paper submitted by Asbjorn Eide and Yozo Yokota on discrimination based on work and descent (E/CN.4/Sub.2/2003/24). The paper contains sections of information on some affected communities outside of Asia, including to endogamous occupations groups in West Africa, groups in North-East Africa, Somali sab groups, akhdam of Yemen, osu of Igboland, diaspora communities, and ethnic minorities discriminated against on the grounds of work and descent. The paper also contains information on common features of different cases of discrimination based on work and descent, their causes and consequences. The paper recommends that the Sub-Commission disseminate widely CERD general recommendation XXIX on descent-based discrimination; take appropriate measures, or strengthen existing measures – constitutional, legislative and administrative – to effectively prohibit and eliminate discrimination based on work and descent; provide adequate remedies; establish appropriate affirmative action mechanisms for members of affected communities; and implement public awareness-raising and education campaigns.
There is a report of the Special Rapporteur, Erica-Irene Daes, on indigenous peoples’ sovereignty over natural resources (E/CN.4/Sub.2/2003/20). The present report contains a preliminary discussion of the term sovereignty as applied to indigenous peoples and natural resources, taking into consideration, among other things, the comments made by members of the Sub-Commission, as well as an annex containing a selected bibliography, a list of relevant cases, and a compilation of relevant international law standards. The importance and usefulness of a study on indigenous people’s permanent sovereignty over natural resources has been further emphasized by the ongoing debates about indigenous peoples’ right to self-determination and the adverse impacts of natural resource exploitation in indigenous territories. Consequently, the reconciliation of the legitimate interests of States with the prior and paramount rights of indigenous peoples to their natural resources has been recognized by many as a critical and necessary step for the advancement of the rights of indigenous peoples.
Before the Sub-Commission there is a report of the Working Group on Indigenous Populations (E/CN.4/Sub.2/2003/22) which contains information on the organization of the session, major issues raised by participants and members, conclusions and recommendations, as well as annexes of lists of participants, documents and interventions by observer delegations. The Working Group called upon States, international financial institutions and the private sector financing or implementing major projects that affected negatively the livelihoods and lands of indigenous peoples, to suspend these projects so that a full review could be undertaken to ensure that, if they were to continue, indigenous peoples’ human rights would not be violated. The Working Group invited the Office of the High Commissioner, as a matter of priority, to organize a second workshop on indigenous peoples, mining companies and human rights with a view to preparing guidelines based on respect for the cultures and traditions of these communities and the principle of full, prior and informed consent that companies would be encouraged to comply with when planning activities on indigenous peoples’ lands. The Working Group decided that it would begin the elaboration of a legal commentary on this principle. Recommendations were also made with regard to cooperation with other United Nations bodies; the World Conference against Racism; the International Decade of the World’s Indigenous People; Voluntary Funds; and States threatened with extinction. The Working Group decided that its principal theme at its next session would be “Indigenous peoples and conflict resolution”.

Discussion on the Prevention of Discrimination
ION DIACONU, Chairperson of the Committee on the Elimination of Racial Discrimination (CERD), said the Convention on the Elimination of all Forms of Racial Discrimination had been ratified by 169 States; and 43 of them had made declarations recognizing the Committee’s competence to receive and consider individual communications, claiming to be victims of violations of their rights under the treaty. The Committee was endeavouring to make sure that the provisions of the Convention were implemented in an improved manner. In its consideration of States reports, the Committee had no backlog so far, with its annual consideration of 20 to 22 reports; and only few countries did not submit periodic reports for more than 10 years. The single report procedure, which had been proposed by the Secretary-General under its reform agenda, might not meet the reporting needs of States and cover all aspects of each treaty. The Committee had expressed differing views on the issue.
CERD had organized a meeting with States parties on 19 August to discuss with them the expectations of the Committee while they prepared their respective periodic reports. In consideration of the reports, one could see that the issue of non-citizens was not dealt with properly. It was for that reason that the Committee inquired the opinion of the Sub-Commission on that theme so that it would consider the right of non-citizens from all angles.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, said that this year the Working Group on indigenous populations would be calling on all treaty bodies, including the Committee on the Elimination of Racial Discrimination, to keep it up to date on how they were implementing issues of concern to indigenous peoples.
ASBJORN EIDE, Sub-Commission Expert, said that everyone was born free and equal in dignity and rights. Discrimination based on descent was a head-on challenge to that principle. Racial discrimination included distinctions, exclusions, restrictions or preferences based on descent. Discrimination based on descent included discrimination against members of communities based on forms of social stratification such as caste and analogous forms of inherited status which nullified or impaired their equal enjoyment of human rights. The working paper contained four parts. The first and major part examined some communities affected by discrimination based on work and descent outside Asia. The second part explored some common features of different cases of discrimination based on work and descent, exploring the causes and the consequences. The fundamental problem was that descent was a defining criterion for ascribing their marginalized status and associated discrimination which was often linked to their particular kind of work. The third part contained conclusions and the fourth part contained recommendations. It was recommended that the Sub-Commission consider mandating a third working paper to cover remaining issues, in particular a review of existing constitutional, legislative and administrative measures for the abolition of such discrimination. The Sub-Commission must also recommend to governments that they disseminate CERD general recommendation XXIX on descent-based discrimination and implement its recommendations. Governments must also be called upon to make more effective constitutional, legislative and administrative measures for the abolition of such discrimination and to prove adequate remedies for victims, including compensation.
YOZO YOKOTA, Sub-Commission Expert, continued the presentation on discrimination based on work and descent, and said the working paper had already been fully introduced by Mr. Eide. However, to add to this presentation one must stress that while discrimination based on work and descent was a most serious human rights violation, most international human rights instruments did not refer specifically to this type of violation. Discrimination had therefore been an issue on the periphery in the human rights environment. The work of the Committee on the Elimination of Racial Discrimination was therefore very important. Like issues such as discrimination against indigenous peoples, such discrimination could not be justified by the democratic process. This was because most such vulnerable groups were by definition minorities and marginalized from society. It was essential for the international community and Governments to acknowledge the existence of the problem and to take measures to prevent discrimination based on work or descent. Measures must be taken in the legislative field to extend protection to the victims of such discrimination, including remedies and compensation. In conclusion, he stressed the importance of education and awareness-raising in the battle to fight discrimination based on work and descent.
JOSE BENGOA, Sub-Commission Expert, said that the document he presented included peaceful means of approaching the vital issue of minorities in the world. The solutions which had been found in the world to resolve the problems relating to minorities should also be applied. The ten-year period of the work of the Working Group had resulted in a number of solutions on how to tackle the problem. Aside from the documents, he said that attention should be drawn to a truly democratic spirit in resolving the problem and whatever forms of fundamentalism existed among minorities. Some States refused to accept the existence of minorities in their territory, which was a serious threat to peace and a violation of the rights of minorities. The work done by Mr. Eide was excellent.
ERICA-IRENE DAES, Special Rapportuer on Indigenous Peoples’ Permanent Sovereignty over Natural Resources, said that the reconciliation of the legitimate interests of States with the prior and paramount rights of indigenous peoples to their natural resources, had been recognized by many as a critical and necessary step for the advancement of the rights of indigenous peoples and an important factor to national, regional and universal economic and social development. Discussions of sovereignty over natural resources had continued in the context of the Working Group on Indigenous Populations, the ad hoc Working Group of the Commission on Human Rights on the draft UN Declaration on the Rights of Indigenous Peoples, and, most recently, at the Permanent Forum on Indigenous Issues. Meaningful political and economic self-determination of indigenous peoples would never be possible without indigenous peoples having the legal authority to exercise control over their lands and territories and thereby enjoy the full economic and other benefits deriving from their natural resources.
The meaning of the term in relation to the principle of permanent sovereignty over natural resources could be generally stated as legal, governmental control or management authority over natural resources, particularly as an aspect of the exercise of the right to self-determination. The principle arose because of the political claim of newly emerging States to be free from unfair exploitation of their natural resources. Such unfair exploitation could make self-determination meaningless in many situations. The term “sovereignty” referred not to the abstract and absolute sense of the term, but rather to governmental control and authority over the resources in the exercise of the right to self-determination.
PATRICK THORNBERRY, Rapporteur of the Committee on the Elimination of Racial Discrimination, said that discrimination on work and descent was an issue that deserved long-term attention. CERD had undertaken work on this issue in an attempt to highlight to States what their responsibilities were. The broad geographical scope of the problem was noteworthy. In this sense, the report on this issue had both enlarged the scope and the understanding of discrimination based on work and descent. It was important to avoid ascribing intentions to the communities under analysis. The nature of the communities in question would to a large degree affect the promotion and protection of human rights. It was also necessary to recall the positive values of communities. In addition, one needed to be sensitive to customary community systems. Human rights, if indeed they were to be universal, needed to contain cultural dimensions. Many members of CERD would find the study helpful in order to enter into further dialogue with States reporting to it.
ANTOANELLA-IULIA MOTOC, Sub-Commission Expert, said that the study on the rights of non-citizens carried out by Mr. Weissbrodt had been in the right direction. A great distinction would have been drawn on the participation of non-citizens in local elections. With regard to the study carried out by Mr. Eide, one could not put all the countries in the same basket with respect to the implementation of minority rights. Some States might not be willing to give sovereignty to minorities. The study had also made efforts in identifying the new minorities. It had indicated that there was no dialogue between the State and minorities in certain situations. The work of Ms. Daes was also to be appreciated. She had included case studies concerning courts cases involving indigenous and American States, which had been a good illustration of the situation.
MIGUEL ALFONSO MARTINEZ, Sub-Commission Expert, addressed the issue of discrimination based on work and descent. When this issue had originally been raised, it had been concentrated mainly in India and Pakistan. It was important that this issue had been recognized as having a far broader geographical scope. In 2002, the Sub-Commission had decided to ask Asbjorn Eide and Yozo Yokota to prepare an additional working paper to that put forward by a former Sub-Commission Expert, concentrating on regions beyond those referred to previously. The current report showed that this problem was far broader that previously imagined and concerned most continents. It was only now that the true dimension had been revealed and further analysis was required to provide an in-depth look at remaining issues. It was striking that even though all persons were born free and equal in dignity and rights, inequality persisted and freedom had fallen by the way-side. All persons were born free, yet almost immediately after birth, individuals were confronted with inequalities, injustices and human rights violations. In the final analysis, it would be useful to cover more issues in order to truly grasp the notion of discrimination. It was also stressed that indigenous peoples were also often minorities and must be considered as both, or in the manner in which they defined themselves.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said that the Sub-Commission needed to consider the work of the rapporteur Mr. Weissbrodt on the rights of non-citizens and since new developments arose each year, the work should continue. All the six fundamental human rights treaties had been dealing with the issue of non-citizens. The rapporteur’s work should be supported. All the reports submitted to the Sub-Commission had related to non-citizens. With regard to the issue of minorities, there had been development on the work of the Working Group on minorities chaired by Mr. Eide. The Group had gone down to the practical work with regard to minorities; and detailed proposals had been laid down. The Working Group had submitted proposals to concerned countries to seek their comments. The idea was to examine the failure of the international community with regard to the rights of minorities. Concerning the report of Ms. Daes, the speaker said he agreed with her conclusions that the issue of sovereignty of indigenous people over their natural resources invoked economic measures.
FRANCOISE JANE HAMPSON, Sub-Commission Expert, said that the first addendum of the report on the rights of non-citizens only referred to treaty bodies, when it could also have mentioned the useful role of special procedures. Concerning the report from the Working Group on minorities, one issue concerned her very much. The usual problem was that the State did nothing to protect the rights of minority groups or to protect them from discrimination at the hands of others. In certain circumstances, however, it would appear that the State authorities were complicit in organizing attacks against members of the minority. Such situations needed to be treated separately from the general issue of the protection of minority rights. Turning to the expanded working paper on discrimination based on work and descent, she said that in some cases, it might be difficult to distinguish between people who were born into poverty and who, as a result of a lack of educational opportunities for example, only had the possibility to undertake menial work and those who were discriminated against on the basis on work and descent. The study might also want to consider discrimination on the basis of work and descent in diaspora communities where States had no experience of this type of discrimination. With regard to segregation in access to public services, she asked if it was not possible to share food, drink and utensils with members of the group discriminated against, what happened about access to health care, which depended on the administration of personal, not to say intimate, services.
FISSEHA YIMER, Sub-Commission Expert, congratulated Mr. Weissbrodt on his work that would be essential for future action. He had treated the issue of non-citizenship within the context of the enjoyment of economic, social and cultural rights. His conclusions were worthwhile, particularly the ones relating to his affirmation of the continued discrimination of non-citizens in many countries. The Convention on the Rights of Migrant Workers and Members of their Families, when it entered into force, would play a major role with regard to the rights of non-citizens. Concerning Mr. Eide’s report on the rights of minorities, he should be appreciated for his excellent work. He endorsed the final update of the report. Although it was a difficult subject, Ms. Daes had made efforts in dealing with the issue of indigenous peoples’ permanent sovereignty over their natural resources.
MANUEL RODRIGUEZ-CUADROS, Sub-Commission Expert, said the report on the rights of non-citizens was an excellent tool to address this issue in a more systemic fashion, particularly in view of events in the international arena in this regard. It was a substantial contribution and the Special Rapporteur must continue his important work on this topic. The analytic basis of the points elaborated by the Special Rapporteur lay in the distinction set out between citizens and non-citizens in national legislation. There were provisions in this regard in the Convention on Economic, Social and Cultural Rights, as well as in the recently established Convention on Migrant Workers. The Convention viewed migrant workers, in conceptual terms, as all people who carried out economic activities in a foreign country, without any distinction between non-citizens and citizens. The issue of migrant workers had a specific component which was particularly important for the report on non-citizens. On the updated report on peaceful and constructive solutions to situations involving minorities, there were constructive approaches which reconciled individual rights and collective rights. With regard to the work undertaken by Ms. Daes, he asked whether future work would deal with the term “sovereignty”, which was an exclusive and excluding area of competence within law. There could not be two levels of sovereignty. Ms. Daes was congratulated on her report.
SOO GIL PARK, Sub-Commission Expert, said that the rights of all non-citizens should be respected in all countries. Asylum-seekers had been subjected to refoulement and deportation without many of them receiving due process to their requests. The rights of asylum-seekers should be treated in accordance with the 1951 Geneva Convention relating to the status of refugees. In some European countries, asylum seekers had been subjected to discrimination and detention, contrary to the spirit of the Convention. Even if their presence in a country’s territory was illegal, their case should be dealt with correctly. In the Republic of Korea, for instance, there were many thousands of illegal workers; the Government treated them with tolerance. He said he supported the work of Mr. Eide on the rights of minorities.
KALLIOPI KOUFA, Sub-Commission Expert, said Ms. Daes had brought forward new issues with regard to the protection and promotion of the rights of indigenous peoples. The discussion over their rights over natural resources was interesting and her future work on the term of sovereignty with regard to natural resources would be fruitful. All other Sub-Commission Experts were congratulated on the important work contained in their reports.
EL HADJI GUISSE, Sub-Commission Expert, said he congratulated Ms. Daes for her report and asked about the idea of cohabitation of indigenous sovereignty within a sovereign State. He said that in African regions, the issue of ethnic sovereignty had caused violence among the population. Some ethnic groups, being misled and indoctrinated by foreign elements, had misconceptions about sovereignty over their natural resources. Ms. Daes should reconsider some of her positions on the issue of “sovereignty”. With regard to the protection of migrant workers, as indicated by Mr. Weissbrodt’s report, the issue of protection should be reinforced and the Convention on Migrant Workers should play a role in that regard. Concerning Mr. Eide’s work, minorities were an integral part of a population; and their special condition required protection. States were responsible for the protection and implementation of international instruments. Work on educating should continue concerning discrimination against minorities.
LEILA ZERROUGUI, Sub-Commission Expert, said she appreciated the report by Ms. Daes and was eagerly anticipating her next report. The notion of sovereignty was complex, since some minorities were also demanding the right to profit from natural resources. Concerning the report on the rights of non-citizens, she welcomed the move to prolong this work, particularly when considering the implications on non-citizens by the fight against terrorism. It was important to consider this, particularly with the entry into force of the Convention on the Rights of Migrants. It was noted that those States that were hosting migrants were in fact those that had so far not ratified this Convention. Last year, she had raised a point on discrimination against non-citizens and judicial cooperation. It was important to consider this issue, since there were groups of non-citizens not part of the integration both in Europe and in Africa. Other colleagues were congratulated for their working papers. She had been surprised that one could even find discrimination based on work and descent in her region and would focus more attention on this issue in the future.
YOZO YOKOTA, Sub-Commission Expert, said he was impressed by a paragraph in the report of Ms. Daes concerning indigenous peoples’ control over their natural resources. There had been a consensus in the Working Group on the free and prior consultation by the indigenous people in order to strengthen their sovereign power over their natural resources. The issue of sovereignty had so far been exercised by people, with a government applying in their behalf. The right to development of indigenous peoples would be rhetoric if they were not given the right over their natural resources. Mr. Weissbrodt’s work was also a masterpiece that should be appreciated.
CHRISTY EZIM MBONU, Sub-Commission Expert, said with regard to sovereignty of indigenous peoples that it was in fact self-determination, and instead of talking about sovereignty over natural resources, one must refer to it as autonomy over natural resources. Otherwise, it could easily be implied that the Sub-Commission was talking about the dismemberment of States. One could not talk about sovereignty within sovereignty – it would cause anarchy. The emphasis must be on those States that had not granted autonomy to indigenous peoples, including over their natural resources. Thanks to Ms. Daes, indigenous peoples had been given a voice. Turning to the paper on discrimination based on work and descent, particularly with regard to Osu of Igboland (chapter I, section F of the report), she said the picture did not reflect the situation accurately and it was hoped that this would taken into consideration in the next report.
ASBJORN EIDE, Sub-Commission Expert, thanked all those Experts who extended words of encouragement concerning his work. With regard to Ms. Mbonu’s reference to his study, he said that his reference on the issue of a minority in Nigeria was based on previous studies made by well-known institutions. The subject dealt with by Ms. Daes was a complex one, and she should continue with her work.
DAVID WEISSBRODT, Sub-Commission Expert, thanked colleagues for their supportive comments about his report on non-citizens presented this morning. With regard to questions asked, he said that he had started with the principle of equality as a basis. On standard setting, the Convention on Migrants was an important step, and there was no watering down of rights, even though there was not much stress on certain issues. The general recommendations suggested would be an important step in the right direction. In conclusion, he said that special procedures would be included and given recommendations, just as the treaty bodies. He also expressed gratitude and appreciation to Ms. Daes for her important work.
ERICA-IRENE DAES, Special Rapporteur on Indigenous Peoples’ permanent sovereignty over natural resources, said that she was encouraged by the words expressed by the members of the Sub-Commission. Since her report was on its preliminary stage, she would considered all the suggestion made to her and she would be guided by them in her future work. The issue of sovereignty was complex; however, a dialogue should be established with the indigenous people in order to resolve the different problems affecting them. She was also happy to hear the comments of governments and United Nations specialized agencies on indigenous issues.




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