SUBCOMMISSION ON PROMOTION AND PROTECTION OF HUMAN RIGHTS BEGINS CONSIDERATION OF RIGHTS OF INDIGENOUS PEOPLES

Subcommission on Promotion and
Protection of Human Rights
53rd session
13 August 2001





The Subcommission on the Promotion and Protection of Human Rights began consideration this morning of the rights of indigenous populations, reviewing the activities of the Subcommission's Working Group on the subject and hearing a presentation of a working paper on the relationship between indigenous peoples and land.

Subcommission Expert Erica-Irene A. Daes, author of the working paper, said among other things that the single greatest problem today for indigenous peoples was the failure of States to demarcate indigenous lands -- that is, formally to identify the actual locations and boundaries of indigenous lands or territories and physically to mark those boundaries on the ground. Purely abstract or legal recognition of indigenous lands, territories or resources could be practically meaningless unless the properties were determined and marked, Mrs. Daes said.

Several Subcommission Experts praised Mrs. Daes for her comprehensive and extensive work on the question of indigenous peoples and their land which had started in the 1980s.

Mrs. Daes, introducing the report of the Working Group, said there were more than 1,000 participants, including representatives of 79 indigenous peoples, 70 Governments, and many non-governmental organizations (NGOs), and that matters discussed included globalization, sustainable development, and the right to development.

Discussion of the subject came as the Subcommission carried on with the debate under its agenda item on prevention of discrimination. Other topics raised included the rights of non-citizens, focusing on a paper introduced Friday by Subcommission Expert David Weissbrodt. A series of Subcommission members remarked on complexities and distinctions related to differences between citizenship and nationality, non-citizenship as it affected minority groups, and the provision of supranational sets of basic rights, as through membership in the European Union.


Subcommission Experts or Alternate Experts Soo Gil Park, Yozo Yakota, Iulia-Antoanella Motoc, Asbjorn Eide, Francoise Jane Hampson, Marilia Sardenberg, Y.K.J. Yeung Sik Yuen, Alonso Gomez-Robledo Verduzco, Vladimir Kartashkin, El-Hadji Guisse, Fisseha Yimer, Halima Embarek Warzazi, Fried Van Hoof, Manuel Rodriguez-Cuadros, and Soli Jehangir Sorbajee addressed the meeting.

The Subcommission will reconvene at 3 p.m. to hold a preparatory meeting for its Social Forum. During an evening session scheduled to conclude at 9, it will continue its consideration of matters related to the prevention of discrimination.

Prevention of discrimination

Before the Subcommission under this agenda item is a report (E/CN.4/Sub.2/2001/17) of the Working Group on indigenous populations, which concludes, among other things, that further consideration should be given to the activities of private sector energy, mining and natural resource companies as they affected indigenous lands. It notes that working papers will be prepared for the next session of the group on future standard setting, on the consequences of biotechnology for indigenous peoples, and on indigenous peoples permanent sovereignty over natural resources. The report recommends that representatives of indigenous peoples be given an opportunity to address the plenary of the World Conference against Racism; and that the Office of the High Commissioner for Human Rights organize a preparatory workshop on implementation of the recommendations relating to indigenous peoples contained in Agenda 21 of the United Nations Conference on Environment and Development. The document notes that among the themes the Working Group will consider at next year's session will be the relationship of indigenous peoples with the United Nations system and objectives for the future; and the right to development.

Statements

SOO GIL PARK, Subcommission Expert, speaking about the preliminary report on the rights of non-citizens, said that despite the title, the work was not preliminary. The work represented a big achievement. The selection of a specific problem related to this issue was noteworthy -- particularly the issue of trafficking. Every citizen should have the right to life and the right to be free from torture and other basic human rights, which was pointed out in the report. He agreed with all the points in the conclusions and supported them, in particular the need for the Committee on the Elimination of Racial Discrimination to articulate the rights of people who were not citizens in the country in which they lived.

YOZO YAKOTA, Subcommission Expert, said non-citizens, no matter how you defined the term, were vulnerable people, as most people were identified through nationality; State protections were often lacking in their case. A United Nations human-rights organ should indeed pay attention to their situation, and the Subcommission in particular was a suitable place for addressing such concerns. Mr. Weissbrodt's report was a valuable contribution to research on the topic.

One question had concerned him for some time, Mr. Yokota said. How did you define the terms citizenship, nationality, race and ethnicity? Could you link race with nationality, and could such concepts and any discrimination that might result be seen to apply legally between individuals? Could one discriminate on the basis of nationality? A shopowner in Japan recently had been fined by a lower court for ordering a Brazilian to leave his shop, based on her nationality. He was sued for violating the International Convention on the Elimination of All Forms of Racial Discrimination, which Japan had ratified. Mr. Yokota said he agreed with the court finding, but it was not clear to him that discrimination on the basis of nationality was in fact racial discrimination, although the Committee on the Elimination of Racial Discrimination appeared to have a different opinion; he was not sure that conclusion was true based on the language of the Convention. He wondered if Mr. Weissbrodt could enlighten him on the matter.

ERICA-IRENE DAES, Subcommission Expert, said she supported the preliminary report as a whole. She hoped that there would be more talk about nationality later.

IULIA-ANTOANELLA MOTOC, Subcommission Expert, said the legislative framework had been outlined as it related to this issue of non-citizenship. The recently adopted European Union's Charter on Fundamental Rights was an effort to give a set of basic rights to all, citizens and non-citizens, although the Charter's status within the European Union had still to be set. But it also was necessary to consider the legislative framework that currently applied in the European Union; it seemed to her that this area was particularly rich; people tended to see themselves as both "European citizens" and as citizens of their own countries and the subject was a fertile one for further research. There also was the Council of Europe's framework convention for national minorities, which was an important source within the Council; it had aspects which applied to non-citizens, especially if the concept of non-citizen was contained in the concept of "minority".

Other documents had been drawn up by the Council of Europe in reference to the Roma, and she considered it important to take care with terminology, Ms. Motoc said. She felt that the Roma were not to be called "Gypsies". Perhaps the Special Rapporteur could look more closely into this and other topics.

ASBJORN EIDE, Subcommission Expert, said there was an intensive debate on many of the questions that were posed in the report. It could be confusing to try to differentiate between nationality and citizenship. It could actually differ in different regions of the world. In international law, there needed to be a precise understanding. The first premise should be that human rights were rights for everyone, and each State was responsible for everyone on its territory. There were concerns that had to be addressed, including examining whether every country had an effective remedy when non-citizens were not enjoying human rights. The Human Rights Committee had opined that minority rights extended to non-citizens. Another issue was discrimination in the allocation of citizenship -- that had been a top debate in Europe in the last decade. There was a great significance for these issues in countries like the former Yugoslavia and the former Soviet Union. Mr. Weissbrodt was congratulated for the report, and follow-up information was being anticipated in future reports.

FRANCOISE JANE HAMPSON, Subcommission Expert, said Mr. Weissbrodt's report contained a thorough compilation of legal norms; she looked forward to the next report, which would focus on what actually happened. The right to marry and the right to movement, the right to entry of non-citizens excluded on racially discriminatory grounds, and systems of deportation were matters that were not thoroughly clear according to current international conventions, including those enacted by European associations, and were of major concern to non-citizens. European Council or European Union law had had a profound impact on non-citizens, whether they were of European origin or not. There were people in the United Kingdom who could vote, but did not count as European Union citizens. The United Kingdom, when joining the European Union, had had to define who was a United Kingdom citizen. Under European Union law, home-country citizens could be treated differently than European Union citizens. The United Kingdom, her country, had never seen the need for nice, clear, rational categories -- there were different rules for citizenship and participation in elections, and distinctions between citizenship and status as a British Commonwealth subject. Matters involving the rights of the Irish in the United Kingdom were especially murky.

As for the Working Group on minorities, Mrs. Hampson said, she had thought she understood what a minority was. Now she was not so sure. There were references to nomads, for example, which seemed to indicate that status as a "minority" could be based on occupation. There were linguistic, and/or cultural minorities spread in many parts of the territory in which they were living, such as the Hungarian minority living in various parts of Slovakia. Were they an "indigenous" minority? What about other immigrant groups in the same country who had been present long enough to achieve citizenship, but had their own language, culture, and religious beliefs? There also were issues of membership in and expulsion from minority groups. Could an individual opt out of a membership in a minority? Who decided -- the individual, the State, or the minority? And who decided who could be expelled from membership in a minority group?

MARILIA SARDENBERG, Subcommission Alternate Expert, said it was a common view that the subject of the rights of non-citizens was not a simple issue. But it was a crucial issue for the protection and promotion of human rights as a whole, and it became more crucial in today's globalized world. It was a sector where serious human rights abuses occurred. The report offered a broad picture of the protection of the rights on non-citizens. In spite of existing standards, violations still existed. There was a need for new legislation, and for more information on the subject, from governments, from non-governmental organizations (NGOs) and from intergovernmental organizations. This would be an important move to bring more light to the issue. Raising public awareness of the plight of non-citizens was necessary, and it needed to become a political issue. It would be useful to promote a declaration on non-citizens throughout the international organizations. In relation to the Committee on the Rights of the Child, the report focused on the concluding observations from the Committee. The Committee often had noted the negative situations faced by non-citizens, including children. This was a complex issue, which was likely why it did not receive much attention within the international community. Any approach to the problem of discrimination of non-citizens was welcome.

Y.K.J. YEUNG SIK YUEN, Subcommission Expert, said that as a point of information, one case was mentioned in the addendum of. Mr. Weissbrodt's report which had come before the Human Rights Committee -- a case on gender discrimination in relation to a non-citizen. The national law in question was soon changed, but there was some "inside information"; the woman, soon after the Committee's decision, had become the Minister for Women's Affairs of the country concerned, and she was the one who pushed the amending law through the Parliament.

ALONSO GOMEZ-ROBLEDO VERDUZCO, Subcommission Alternate Expert, said this was a complex issue, and the report did an excellent job of addressing such a delicate topic. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990 recognized the work of all migrant workers, and spelled out important guidelines on conditions of employment and equal remunerations. It was incredible that up to May 2001 there were only 16 States that signed or acceded to the convention. It was most discouraging as it had been open for signature for over 10 years. The major concern was not so much the number of ratifications -- because only 20 were required -- but that the highly industrialized States wanted nothing to do with it. That was serious and distressing. Why? For the simple reason that it was precisely that type of country that was in the best position to move that convention forward. Without their participation, that treaty and convention would pretty much remain dead.

VLADIMIR KARTASHKIN, Subcommission Alternate Expert, said a matter of concern was the difference between nationality and citizenship; the concepts were separate in some countries, as Mrs. Hampson had indicated for the United Kingdom. There even could be subdivisions within each category or citizen and non-citizen. The Russian Federation drew distinctions between citizens, non-citizens, and "compatriots". After the collapse of the Soviet Union, 25 million Russians by birth and origin were in the former USSR republics that were now sovereign independent States. A number attained citizenship in those new States; others remained citizens of Russia and were so designated. A third category residing in the territory of a given State were "non-citizens" insofar as they were not allowed citizenship in that State. The Russian Federation had expressed some concern regarding their rights.

Some 105 States had ratified the International Covenants on Civil and Political and Economic, Social and Cultural Rights. The second Covenant did not distinguish between citizens and non-citizens. The Covenant on Civil and Political Rights attributed its rights to citizens and non-citizens alike, allowing only one distinction -- that political rights were not allowed to non-citizens. Signatories to these Covenants were bound to observe the rights outlined within and to apply them to non-citizens. That obligation must be made clear to States.

EL-HADJI GUISSE, Subcommission Expert, said this was an extremely broad and exhaustive report that touched upon many different issues. Mr. Weissbrodt should be congratulated for covering all these issues in a comprehensive way. It was difficult to determine what was meant by non-citizen or non-national. There were issues of nationality, citizenship, and foreigners, and in each instance, determining a category of rights was sought. Non-citizens generally embraced every aspect of life in their new countries. What needed to be done was to undertake, in all societies, activities to promote all human rights in general, because when all human rights were promoted, then everyone was covered.

Concerning the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Convention, these were the people who were most in need of those rights. They had never been appropriately implemented in developed countries. The most basic rights of the human being were simply ignored in the case of migrant workers. Only 16 countries had ratified this Convention. The problem was serious. Discrimination was practised in many facets of society, and many people remained without social protection. The political will that was needed to implement these international treaties simply did not exist in the developed world. There was discriminatory treatment in these countries against those who were not their nationals.

DAVID WEISSBRODT, Subcommission Expert, said he had taken note of the suggestions and questions put by Subcommission members. What he had intended to do in his addendum was to review the legal provisions that existed and the interpretations that had been given to those provisions as applied in particular countries. He had not tried to give a factual assessment of the situation all over the world. He would try to do a better job of such a review of facts in his next report. And of course some specific situations he had mentioned had since had new developments. It would not be possible to review all relevant facts related to non-citizens everywhere in the world. As Mr. Park had suggested, he would look into the vulnerable nature of women and children who suffered from the status of non-citizenship.

As a United States citizen, he still found the European Union and other European systems difficult to follow, Mr. Weissbrodt said; he was grateful for the distinctions made on these topics by other Subcommission members, and would look into these matters. He also would delve further into relevant standards set by the International Law Commission.

MRS. DAES, Subcommission Expert, presenting a working paper on indigenous peoples and their relationship to land (E/CN.4/Sub.2/2001/21), said the paper was prepared on the basis of the suggestions, information and data submitted by the representatives of the observer Governments, indigenous peoples, intergovernmental organizations and non-governmental organizations (NGOs) concerned. This paper had been updated in many respects, and the suggestions of countries like France, Bangladesh and Brazil, as well as a number of indigenous organizations and NGOs, had been included.

Historically, indigenous peoples in most parts of the world had been deprived of their lands and resources, in whole or in part through many unjust processes, including military force, unlawful settlements, forcible removal and relocation, legal fraud and illegal expropriations by the governments. Indeed, indigenous societies in a number of countries were in a state of rapid deterioration and change due to a large part to the denial of the rights of indigenous peoples to their lands, territories and resources. One of the most widespread contemporary problems was the failure of States to recognize the existence of indigenous land use, occupancy and ownership, and the failure to accord appropriate legal status and legal rights to protect that use, occupancy or ownership. The doctrines of dispossession showed well-known adverse affects on indigenous peoples. Especially the doctrine of terra nullius, which held that indigenous lands were legally unoccupied until the arrival of a colonial presence and could therefore become the property of the colonizing power through effective occupation.

The single greatest problem today for indigenous peoples was the failure of States to demarcate indigenous lands. Demarcation of land was the formal process of identifying the actual locations and boundaries of indigenous lands or territories and physically marking those boundaries on the ground. Purely abstract or legal recognition of indigenous lands, territories or resources could be practically meaningless unless identity of the property was determined and marked.

This paper illustrated the need for a flexible approach to the consideration of the topic of indigenous peoples and their relationship to land. It had to be acknowledged that a momentous evolution was taking place. In fact, dozens of countries had adopted constitutional and legislative measures recognizing in various degrees the legal rights of indigenous peoples to their lands. That was powerful evidence that such legal measures were consistent with domestic legal systems and that they were needed. The ongoing development of indigenous peoples' rights to land, territories and resources had to be seen as an opportunity for both indigenous peoples and States to contribute to the progressive development of human rights standards.

FISSEHA YIMER, Subcommission Expert, said this report was more than a working paper -- it was a study that was both comprehensive and detailed. Issues involving land and indigenous peoples' rights to it were put in focus; it was clear that these topics were at the forefront of the human rights agenda, as the concerns of such populations were vitally tied to the matter of land. The creation of a permanent forum for indigenous peoples and the appointment of a Special Rapporteur on the subject were understandable given the circumstances now affecting indigenous peoples; the threats to their cultures and different value systems were mounting, and had to be confronted.

The problems cited were clear; now the question was how to respond. He agreed with the conclusions of the report that the distinctive and profound spiritual relationships of indigenous peoples with their traditional lands merited special concern and protection. And he agreed that there was a need for a general framework of principles on the topic.

MR. EIDE, Subcommission Expert, said the Mrs. Daes=s final working paper showed that monumental work had come to fruition. For 20 years, Mrs. Daes had carried out her work in the field of the rights of indigenous peoples. John Locke was the first to articulate in a clear way the right to property. His work made many positive contributions to human rights and had very negative consequences for community rights. This legacy was now seen in an individualized concept of property. There needed to be some plurality in this field. The work done by Mrs. Daes inspired many other peoples' work in this field, and now many basic tenets of domestic law were being re-examined. Ms. Daes should be congratulated for this working paper. It was more than a working paper -- it was the culmination of her lifelong study, and it was a most important work.

HALIMA EMBAREK WARZAZI, Subcommission Expert, said Mrs. Daes's ongoing work on behalf of indigenous peoples since 1983 had borne fruit in many ways, although unfortunately these peoples continued to suffer in terms of their identities, cultures, and assets. She firmly supported the recommendation in Mrs. Daes's report that the rule of law be respected and remedies be made available to indigenous peoples defending their lands and resources.

MRS. MOTOC, Subcommission Expert, said Mrs. Daes was unique as an individual. She had started addressing this issue back in the 1980s, had been continuously working on it since, and it was reflected in this academic study. This was a model for all the Subcommission=s Experts to follow. The Working Group hoped that Mrs. Daes would continue the study of land and natural resources for indigenous peoples. This had been requested by non-governmental organizations (NGOs) and it would be helpful to the Subcommission if she undertook this study.

FRIED VAN HOOF, Subcommission Expert, said the report on the relation of indigenous peoples to their land provided valuable guiding principles which had their roots in international law. In addition, Mrs. Daes tackled the issue of implementation of this important body of international law, calling for fact-finding and establishment of mechanisms that could have practical effects.

MR. GUISSE, Subcommission Expert, said Mrs. Daes should be thanked for all she had done for the indigenous peoples. It was good to see that she would continue to work on behalf of the indigenous populations. She was the best person to help the Subcommission come to grips with this major problem of indigenous peoples and their land. She seemed the only person capable to continue working on this issue of man and land. She would be preparing principles that the Subcommission would be using. They would also be transmitted to other people studying this issue.

MR. YAKOTA, Subcommission Expert, said Mrs. Daes had accomplished much in 20 years of work on behalf of the rights of indigenous peoples; in fact she had played a major role in developing the concept of these rights and in making them the serious international concern they were today. The working paper on the relationship to land dealt with a sensitive political issue in a way that was realistic and constructive. She was quite right to focus on lands, territories and resources, because that was the central issue to indigenous peoples -- they could not live without these lands and territories and still remain themselves, still retain their cultures and identities. States had to recognize this issue, as difficult as it was to deal with. In fact it went beyond matters of history and culture and affected these peoples' exercise of their right to development.

MRS. DAES, Subcommission Expert, presenting the report of the Working Group on indigenous peoples on its nineteenth session (E/CN.4/Sub.2/2001/17), said there were more than 1,000 participants in the meeting, and it was more of a community of people than a Working Group. There were representatives of 70 Governments, and many non-governmental organizations (NGOs). The principle theme was the right to development, including their participation in development issues affecting them. The President of the Working Group on development also attended. Items discussed included globalization and sustainable development, and a number of decisions were adopted. The World Conference against Racism was also discussed. The indigenous peoples requested to participate in the World Conference. Seventy-nine indigenous persons had participated in the Working Group, and it was hoped that Governments would continue with their generous support to the Voluntary Fund for Indigenous Peoples so that even more indigenous people could attend such fora.

The report included recommendations and conclusions. It was unfortunate that the report was distributed late. It was hoped that the one day the Commission on Human Rights, the High Commissioner for Human Rights, and the Fifth Committee would provide the Subcommission with the needed assistance so these reports could be released and studied in time. This would allow the Experts to further understand the issues contained within the report.

MR. PARK, Subcommission Expert, said there was deep respect for the life-long work Mrs. Daes had carried out concerning issues relating to indigenous people. The international community rightly held her in the highest esteem. With regard to the final working paper on indigenous peoples and their relationship to land, the possession of land was indispensable. The right of indigenous peoples to a decent life was guaranteed within their economic, social and cultural rights. It was suggested that the rules of the past, that had validity in the limited scope of land acquisition, should be re-considered. It was imperative that the message of this study should be conveyed clearly to the attention of the concerned Governments and international institutions. He recommended that additional attention should be focused on the situation of indigenous peoples in other categories as well.

MRS. HAMPSON, Subcommission Expert, said two things struck her in the report on indigenous peoples and their relationship to land. The first was that there had been a significant amount of progress over the last decade. The second thing was that there had been some appalling developments, and that seemed hard to accept given the focus now given to indigenous peoples' rights. These negative activities could only have been undertaken, given the wealth of publicity related to indigenous peoples, in conscious understanding that they were improper and even illegal. It seemed in some cases to be a case of economics prevailing over human rights. One startling example was a State that had introduced excellent legislation but not only had it not implemented the legislation but it had engaged in activities that were very harmful to indigenous peoples.

MIGUEL RODRIGUEZ-CUADORS, Subcommission Expert, said Mrs. Daes should be thanked for her reports. Despite the lengthy path travelled, the greatest obstacles had yet to be overcome. In general, the reports were very well put together. It was quite obvious that despite enormous efforts made, there were difficulties in having a United Nations Declaration on Indigenous Peoples, and legal instruments on these rights. Recognition of indigenous peoples internationally was still an unresolved issue. There was a need to have more substantive political support. In recent months, there had been two events which were important for the Subcommission to consider. On the one hand, the question on the definition of indigenous peoples was a matter of political debate. This had recently enjoyed some positive news -- the American Declaration decided to use the term indigenous peoples, instead of indigenous populations. The second event happened last July, when the presidents of the Andean countries adopted the Machu Pichu Declaration, in which the expression "indigenous peoples" was recognized, and they agreed to respect and promote the rights of indigenous peoples, including formulating community programmes for them. Further, they would establish a permanent forum on indigenous peoples.

SOLI JEHANGIR SORABJEE, Subcommission Expert, said this was one of the finest reports that had been presented, and it was heartening to see that Mrs. Daes would be representing the Subcommission at the World Conference. The report did a good job of highlighting the indigenous peoples' relationship with the mining companies -- an issue that did not get a lot of attention.



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