Sign in or 
Share this
TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BTWN STATES AND INDIGENOUS PEOPLES
This is the html version of the file http://www2.ohchr.org/english/issues/indigenous/docs/treaties/bp22.doc.
Google automatically generates html versions of documents as we crawl the web.
Google automatically generates html versions of documents as we crawl the web.
HR/GENEVA/TSIP/SEM/2003/BP.22
EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES
Geneva 15-17 December 2003
Organized by the Office of the United Nations High Commissioner for Human Rights
Background paper prepared by Mr. Jérémie Gilbert* Irish Centre for Human Rights
-------- The views expressed in this paper do not necessarily reflect those of the OHCHR. The purpose of this paper is basic yet essential. The aim is to emphasise the human rights obligations that stem from treaties/agreements between indigenous peoples and states as a result of states’ responsibilities under international human rights law. Despite the broad reach of human rights, it is often perceived as not extending to the obligations that arise from treaties/agreements negotiated between states and indigenous peoples. Thus, there is a need to stress that these fundamental rights create duties that must be taken into consideration whenever states enter into treaty relations with indigenous peoples, irrespective of whether or not they are specifically enumerated in the text. Based on the existence of such fundamental human rights, this paper highlights two approaches that the expert seminar could recommend:
I. Guidelines of Minimum Human Rights Standards
Even though treaties and other agreements, are signed between states and indigenous peoples/nations there are minimum standards that apply in any situation. These treaties/agreements are often defined either as a sui generis act (USA, Canada) or as a domestic agreement, yet it has to be remembered that one aspect of international human rights obligations is that they apply at the domestic level. Under international law, States have an obligation to respect human rights instruments they signed up to when negotiating treaties/agreements with indigenous peoples. There is no reason why international human rights obligations that States have accepted should not apply to treaties or agreements they sign with indigenous peoples. In fact, because most of the modern treaties/agreements are established within the domestic jurisdiction, it is even more important that these treaties are consistent with international human rights obligations contained in the human rights treaties that States have ratified. In this regard, the human rights of indigenous peoples that are contained in important and widely ratified human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as well as specific treaties relating to indigenous peoples rights, should be seen as basic principles for treaty negotiations. It is beyond the remit of the present paper to go into detail of all the human rights principles that are potentially applicable to treaties/agreements. The purpose is to provide a quick overview to point out that there are certain norms that states are bound to respect when entering into treaty negotiations. These rights could be procedural (free and informed consent) or substantive (protection of indigenous peoples land rights). The intention is not to provide an exhaustive list of such rights, the aim here is simply to show that there are some clearly established human rights norms that could be recognised as guiding principles in treaty negotiations.
One of the first human rights principles that could be regarded as relevant is the notion of consultation. When States and indigenous representatives are involved in the drafting or negotiating process one of the first human rights obligation is to consult the concerned populations. The whole spirit of ILO 169 is based on the notion of consultation.1 Article 6 (2) of ILO 169 states: “the consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.” The UN Draft Declaration on the Rights of Indigenous Peoples strongly insists on the duty of states to consult indigenous peoples in any decision that may affect them and on the duty to insure indigenous peoples’ participation in decision-making.2 In General Comment 23, the Human Rights Committee (HRC) stated: “Indigenous communities must have effective participation in decisions that affect the community (...)”. And in some individual cases the Committee has also affirmed that when taking action that might infringe with indigenous peoples’ rights, states have to consult indigenous peoples.3 The Committee on Economic, Social and Cultural Rights (CESCR) in its Concluding Observations on Columbia urged “the State party to ensure that indigenous peoples participate in decisions affecting their lives.”4 Thus, there is clearly a principle of consultation in matters affecting indigenous peoples, and it is certain that any treaty/agreement signed between states and indigenous peoples falls into this category of a matter that especially affects indigenous peoples.
Based on existing human rights law, it is clear that the right to be consulted is entrenched in indigenous peoples rights over their traditional lands and natural resources. Treaties/agreements signed between States and indigenous peoples often concern land ownership and access to natural resources. All human rights instruments that apply to indigenous peoples insist on the fact that land rights and access to natural resources are at the cornerstone of indigenous peoples’ rights.5 The ILO Convention 169 recognised land ownership and right to use natural resources.6 The HRC has in many occasions insisted on the fact that under Article 1 (2) of the ICCPR indigenous peoples have a right to the use of natural resources contained within their traditional territories.7 For example, the Committee in its Concluding Observations on Australia states that “[the] State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (art. 1, para. 2).”8 Thus, the principle of consultation in matters affecting indigenous peoples’ right to land and natural resources should be reflected in treaty/agreements signed between States and indigenous peoples.
Linked to this idea of consultation is the notion of free and informed consent that flows from several international human rights instruments. CERD in its General Comment XXIII pointed out that States have to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.”9 Closely related to this issue, it has to be pointed out that the practice of extinguishment10 in treaties/agreements between indigenous peoples and states is in violation of the human rights requirement of free and informed consent. The practice of extinguishment, which is used only against indigenous peoples, is certainly one of the most discriminatory vestiges of the colonial era. Extinguishment is contrary to the requirement set up by the ILO Convention 169 that clearly affirms that the prior and informed consent of indigenous peoples is legally necessary before states can use indigenous peoples’ territories.11
It is outside the scope of this paper to provide a list of what rights could be regarded as minimum standards in the negotiation of treaties/agreements between states and indigenous peoples. What this paper argues is that a similar approach to the one adopted by the indigenous caucus in the discussion at the Working Group on the Draft Declaration could be adapted in the negotiation of treaties/agreements. This approach is based on upholding the minimum standard, i.e. accepting standards that would improve the text. In terms of treaties/agreements it is possible to argue that there are minimum standards below which such treaties/agreements would not respect minimum indigenous peoples rights.
As pointed out by the Special Rapporteur, Mr. Miguel Alfonso Martínez, the process of modern negotiations between governments and indigenous peoples will take some time, as because of past betrayal, the issues of good faith and trust must be addressed; in this regard international law should be the path to codify such relationship and the way to move forward. The establishment of a guideline of human rights principles for negotiation between States and indigenous peoples could be a way forward to re-establish trust. It has to be pointed out that international law does not come out very strongly as there is no clearly spelled out human rights legacy relating to treaties/agreements between States and indigenous peoples. The Draft Declaration remains the only instrument to address this issue. Thus there a clear need for guidelines based on a guarantee of minimum recognised human rights principles. The Expert seminar could recommend that a study be undertaken to elaborate on minimum human rights standards applicable in treaty/agreement negotiation.
II. Mainstreaming: The Role of Human Rights Bodies in the Implementation of Treaties
There are precedents that show that treaty monitoring bodies could play an important role in the implementation and follow up to treaties or other agreements signed between indigenous peoples and States. To the extent that their competence allows, treaty monitoring bodies should pay special attention to the follow up to treaties signed between states and indigenous peoples. Even though it is not the mandate of treaty monitoring bodies to explore the follow up to these treaties/agreements, it is their mandate to ensure that these treaties/agreements are enforced in a manner that is consistent with international human rights treaties. There are some precedents: for example, at its 31st session, the CESCR in its Concluding Observations to the Report of Guatemala, expressed its concerns over the insufficient progress made by Guatemala towards the implementation of the 1996 Peace Agreements.12 This shows the legal connection between rights entrenched in the Covenant and promises made in treaties, as the Committee clearly recognised that the non-respect of treaty obligations had negative effects with regard to rights protected under the ICESCR such as access to land ownership, work, education, health services and adequate nutrition and housing. The Committee noted that the discrimination faced by indigenous peoples “have impacted adversely on full realization of economic, social and cultural rights enshrined in the Covenant, particularly with regard to indigenous peoples.” In its suggestions and recommendations, the Committee recommended “that the State party make every possible effort, including through international assistance, in order to provide adequate follow up to various issues contained in the Peace Agreements of 1996 (...).” Finally, the Committee “urges the State party to implement the measures contained in the Peace Agreements of 1996, in particular those related to agrarian reform and the devolution of communal indigenous lands.”13 Similarly, in its 1996 Concluding Observations on Guatemala, the HRC expressed its concern “that despite the signing of an accord between the Government and the armed opposition on 31 March 1995 on the identity and rights of the indigenous population, the law on indigenous communities required by article 17 of the Constitution has not yet been enacted.”14 Even though, to some extent the situation in Guatemala remains particular in the sense that the Peace Agreements have received very large international input and support, the observation of the two Committees show that treaty monitoring bodies can play an important role in ensuring the enforcement and follow-up to obligations arising from treaties between indigenous peoples and States. The case of Guatemala is not isolated as in recent years many agreements signed between indigenous peoples and States are aimed at ending a conflict situation and starting a reconciliation process, and in these treaties, notions of human rights are usually predominant. There are many examples of treaties that involve states obligation to ensure political, economic, social and cultural rights of indigenous peoples after a conflict situation. For example, the San Andrés Agreement signed in Mexico sought to redefine the relationship between traditional indigenous cultures and the modern state and economy by explicitly recognizing traditional forms of governance and land tenure that were not part of the Mexican constitution or legal system. As mentioned earlier, the HRC has developed an approach based on indigenous peoples’ right to access natural resources. Since most of the modern treaties involve aspects of economic sharing of natural wealth, the Committee should make sure that these treaties are implemented in a way that respects States obligations under Article 1 (2) and 27 of the ICCPR. Yet, human rights aspects of modern treaties are not limited to rights enshrined in the two Covenants. For example, the Committee on the Elimination of Racial Discrimination (CERD) has criticised the government of Bangladesh for “the slow progress in implementing the Chittagong Hill Tracts Peace Accord.”15 The ILO Committee of Experts on the Application of Convention 107 to which Bangladesh is party made several recommendations to the government in 2003 and invites the government to provide the Committee with more information regarding the implementation of the peace agreement especially regarding land rights.16 It is worth noting that the supervision of agreements between States and indigenous peoples by treaty monitoring bodies is not limited to conflict or post-conflict situations. For example, in its concluding observations on Canada, the CERD “notes with appreciation the assurance given by the delegation that Canada would no longer require a reference to extinguishment of surrendered land and resource rights in any land claim agreements.”17 Thus, there is a clear emerging practice from international and human rights bodies to follow the implementation of agreements. However, this practice still remains underdeveloped and should be encouraged. Therefore, it is crucial that the expert seminar on treaties and indigenous peoples highlights the importance for human rights treaty monitoring bodies and other independent bodies in charge of monitoring the implementation of indigenous peoples’ rights of paying specific attention to the implementation of relevant aspect of treaties signed between states and indigenous peoples.
In conclusion, it is important that the expert meeting adopt a view based on the mainstreaming of human rights obligations in treaties/agreements. Treaties between States and indigenous peoples are not sui generis as they are part of larger state obligations to respect human rights. In this regard, all the United Nations organs involved in the protection of human rights should pay attention to the implementation of treaties that would ultimately ensure the protection of indigenous peoples’ human rights.
----- * PhD Candidate, Irish Centre for Human Rights, National University of Ireland, Galway, Co-founder, Human Rights for Change; contact: jeremie@humanrightsforchange.org 1 See: article 6, 7, 15 (2), 17, 22, 27 and 28 2 See: article 10, 12, 19, 30 3Länsman et al. v. Finland, Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992, at 9.5 4 Concluding Observations of the Committee on Economic, Social and Cultural Rights : Colombia. 30/11/2001. E/C.12/1/Add.74. (Concluding Observations/Comments), para.33 5 See also application of the American Convention on Human Rights by the Inter-American Court on Human Rights in the case of Mayagna (Sumo) Awas Tingni Community, (Ser.C) No.79 (2001) 6 See also UN Draft Declaration and Propsed Inter-American, see also: Osvaldo Kreimer, “Report of the Rapporteur”, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.113/03rev.1 (20 February 2003), p.9 7 See: Human Rights Committee, Concluding Observations, Canada, UN Doc. CCPR/C/79/Add.105, O7/04/1999. Human Rights Committee, Concluding Observations, Mexico, UN Doc. CCPR/C/79/Add.109 (1999). Human Rights Committee, Concluding Observations of the Human Rights Committee, Australia 24/07/2000. GA 55th session, supp 40, UN Doc. A/55/40 vol. I (2000). Human Rights Committee, Concluding Observations, Norway, UN Doc. CCPR/C/79/Add.112 (1999). 8 Concluding observations of the Human Rights Committee : Australia. 24/07/2000. A/55/40,paras.498-528. (Concluding Observations/Comments) 9 CERD, General Comments XXIII (Fifty-first session, 1997), para. 4 (d) 10 On the issue of extinguishment, see: Final report by Miguel Alfonso Martínez, Special Rapporteur: Study on treaties, agreements and other constructive arrangements between States and indigenous populations, UN Doc. E/CN.4/Sub.2/1999/20 and Indigenous peoples and their relationship to land - Final working paper prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/2000/25 11 For example, Article 3 (2) of ILO 169 states: “No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the peoples concerned, including the rights contained in this Convention.” On the issue of extinguishment, see also: Concluding observations of the Committee on Economic, Social and Cultural Rights : Canada (10/12/98), UN. Doc. E/C.12/1/Add.31, para.18 12 Concluding Observations of the Committee on Economic, Social and Cultural Rights, Guatemala, UN Doc. E/C.12/1/Add.93 (Unedited Version), 28 November 2003 13 Ibid, para.42 14 Human Rights Committee, Comments on Guatemala, U.N. Doc. CCPR/C/79/Add.63 (1996), para. 22 15 Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/304/Add.118, (27 April 2001), para.10 16 See: International Labour Office, “Recent Development in the ILO Concerning Indigenous and Tribal Peoples”, February 2003, p.2 17 Concluding Observations of the Committee on the Elimination of Racial Discrimination : Canada. (01/11/2002), A/57/18,para.331
EXPERT SEMINAR ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS PEOPLES
Geneva 15-17 December 2003
Organized by the Office of the United Nations High Commissioner for Human Rights
Mainstreaming Human Rights in Treaties/Agreements Between States and Indigenous Peoples |
Background paper prepared by Mr. Jérémie Gilbert* Irish Centre for Human Rights
-------- The views expressed in this paper do not necessarily reflect those of the OHCHR. The purpose of this paper is basic yet essential. The aim is to emphasise the human rights obligations that stem from treaties/agreements between indigenous peoples and states as a result of states’ responsibilities under international human rights law. Despite the broad reach of human rights, it is often perceived as not extending to the obligations that arise from treaties/agreements negotiated between states and indigenous peoples. Thus, there is a need to stress that these fundamental rights create duties that must be taken into consideration whenever states enter into treaty relations with indigenous peoples, irrespective of whether or not they are specifically enumerated in the text. Based on the existence of such fundamental human rights, this paper highlights two approaches that the expert seminar could recommend:
- a need for a UN guideline on minimum human rights standards applicable in treaties/agreements between states and indigenous peoples - this would be the first step towards the establishment of a confidence-building process as envisaged by the Special Rapporteur, Mr. Miguel Alfonso Martínez;
- a need to put the emphasis on possible ways to ensure an effective mechanism for supervising and monitoring the implementation of these treaties under already existing human rights bodies.
I. Guidelines of Minimum Human Rights Standards
Even though treaties and other agreements, are signed between states and indigenous peoples/nations there are minimum standards that apply in any situation. These treaties/agreements are often defined either as a sui generis act (USA, Canada) or as a domestic agreement, yet it has to be remembered that one aspect of international human rights obligations is that they apply at the domestic level. Under international law, States have an obligation to respect human rights instruments they signed up to when negotiating treaties/agreements with indigenous peoples. There is no reason why international human rights obligations that States have accepted should not apply to treaties or agreements they sign with indigenous peoples. In fact, because most of the modern treaties/agreements are established within the domestic jurisdiction, it is even more important that these treaties are consistent with international human rights obligations contained in the human rights treaties that States have ratified. In this regard, the human rights of indigenous peoples that are contained in important and widely ratified human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as well as specific treaties relating to indigenous peoples rights, should be seen as basic principles for treaty negotiations. It is beyond the remit of the present paper to go into detail of all the human rights principles that are potentially applicable to treaties/agreements. The purpose is to provide a quick overview to point out that there are certain norms that states are bound to respect when entering into treaty negotiations. These rights could be procedural (free and informed consent) or substantive (protection of indigenous peoples land rights). The intention is not to provide an exhaustive list of such rights, the aim here is simply to show that there are some clearly established human rights norms that could be recognised as guiding principles in treaty negotiations.
One of the first human rights principles that could be regarded as relevant is the notion of consultation. When States and indigenous representatives are involved in the drafting or negotiating process one of the first human rights obligation is to consult the concerned populations. The whole spirit of ILO 169 is based on the notion of consultation.1 Article 6 (2) of ILO 169 states: “the consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.” The UN Draft Declaration on the Rights of Indigenous Peoples strongly insists on the duty of states to consult indigenous peoples in any decision that may affect them and on the duty to insure indigenous peoples’ participation in decision-making.2 In General Comment 23, the Human Rights Committee (HRC) stated: “Indigenous communities must have effective participation in decisions that affect the community (...)”. And in some individual cases the Committee has also affirmed that when taking action that might infringe with indigenous peoples’ rights, states have to consult indigenous peoples.3 The Committee on Economic, Social and Cultural Rights (CESCR) in its Concluding Observations on Columbia urged “the State party to ensure that indigenous peoples participate in decisions affecting their lives.”4 Thus, there is clearly a principle of consultation in matters affecting indigenous peoples, and it is certain that any treaty/agreement signed between states and indigenous peoples falls into this category of a matter that especially affects indigenous peoples.
Based on existing human rights law, it is clear that the right to be consulted is entrenched in indigenous peoples rights over their traditional lands and natural resources. Treaties/agreements signed between States and indigenous peoples often concern land ownership and access to natural resources. All human rights instruments that apply to indigenous peoples insist on the fact that land rights and access to natural resources are at the cornerstone of indigenous peoples’ rights.5 The ILO Convention 169 recognised land ownership and right to use natural resources.6 The HRC has in many occasions insisted on the fact that under Article 1 (2) of the ICCPR indigenous peoples have a right to the use of natural resources contained within their traditional territories.7 For example, the Committee in its Concluding Observations on Australia states that “[the] State party should take the necessary steps in order to secure for the indigenous inhabitants a stronger role in decision-making over their traditional lands and natural resources (art. 1, para. 2).”8 Thus, the principle of consultation in matters affecting indigenous peoples’ right to land and natural resources should be reflected in treaty/agreements signed between States and indigenous peoples.
Linked to this idea of consultation is the notion of free and informed consent that flows from several international human rights instruments. CERD in its General Comment XXIII pointed out that States have to “ensure that members of indigenous peoples have equal rights in respect of effective participation in public life and that no decisions directly relating to their rights and interests are taken without their informed consent.”9 Closely related to this issue, it has to be pointed out that the practice of extinguishment10 in treaties/agreements between indigenous peoples and states is in violation of the human rights requirement of free and informed consent. The practice of extinguishment, which is used only against indigenous peoples, is certainly one of the most discriminatory vestiges of the colonial era. Extinguishment is contrary to the requirement set up by the ILO Convention 169 that clearly affirms that the prior and informed consent of indigenous peoples is legally necessary before states can use indigenous peoples’ territories.11
It is outside the scope of this paper to provide a list of what rights could be regarded as minimum standards in the negotiation of treaties/agreements between states and indigenous peoples. What this paper argues is that a similar approach to the one adopted by the indigenous caucus in the discussion at the Working Group on the Draft Declaration could be adapted in the negotiation of treaties/agreements. This approach is based on upholding the minimum standard, i.e. accepting standards that would improve the text. In terms of treaties/agreements it is possible to argue that there are minimum standards below which such treaties/agreements would not respect minimum indigenous peoples rights.
As pointed out by the Special Rapporteur, Mr. Miguel Alfonso Martínez, the process of modern negotiations between governments and indigenous peoples will take some time, as because of past betrayal, the issues of good faith and trust must be addressed; in this regard international law should be the path to codify such relationship and the way to move forward. The establishment of a guideline of human rights principles for negotiation between States and indigenous peoples could be a way forward to re-establish trust. It has to be pointed out that international law does not come out very strongly as there is no clearly spelled out human rights legacy relating to treaties/agreements between States and indigenous peoples. The Draft Declaration remains the only instrument to address this issue. Thus there a clear need for guidelines based on a guarantee of minimum recognised human rights principles. The Expert seminar could recommend that a study be undertaken to elaborate on minimum human rights standards applicable in treaty/agreement negotiation.
II. Mainstreaming: The Role of Human Rights Bodies in the Implementation of Treaties
There are precedents that show that treaty monitoring bodies could play an important role in the implementation and follow up to treaties or other agreements signed between indigenous peoples and States. To the extent that their competence allows, treaty monitoring bodies should pay special attention to the follow up to treaties signed between states and indigenous peoples. Even though it is not the mandate of treaty monitoring bodies to explore the follow up to these treaties/agreements, it is their mandate to ensure that these treaties/agreements are enforced in a manner that is consistent with international human rights treaties. There are some precedents: for example, at its 31st session, the CESCR in its Concluding Observations to the Report of Guatemala, expressed its concerns over the insufficient progress made by Guatemala towards the implementation of the 1996 Peace Agreements.12 This shows the legal connection between rights entrenched in the Covenant and promises made in treaties, as the Committee clearly recognised that the non-respect of treaty obligations had negative effects with regard to rights protected under the ICESCR such as access to land ownership, work, education, health services and adequate nutrition and housing. The Committee noted that the discrimination faced by indigenous peoples “have impacted adversely on full realization of economic, social and cultural rights enshrined in the Covenant, particularly with regard to indigenous peoples.” In its suggestions and recommendations, the Committee recommended “that the State party make every possible effort, including through international assistance, in order to provide adequate follow up to various issues contained in the Peace Agreements of 1996 (...).” Finally, the Committee “urges the State party to implement the measures contained in the Peace Agreements of 1996, in particular those related to agrarian reform and the devolution of communal indigenous lands.”13 Similarly, in its 1996 Concluding Observations on Guatemala, the HRC expressed its concern “that despite the signing of an accord between the Government and the armed opposition on 31 March 1995 on the identity and rights of the indigenous population, the law on indigenous communities required by article 17 of the Constitution has not yet been enacted.”14 Even though, to some extent the situation in Guatemala remains particular in the sense that the Peace Agreements have received very large international input and support, the observation of the two Committees show that treaty monitoring bodies can play an important role in ensuring the enforcement and follow-up to obligations arising from treaties between indigenous peoples and States. The case of Guatemala is not isolated as in recent years many agreements signed between indigenous peoples and States are aimed at ending a conflict situation and starting a reconciliation process, and in these treaties, notions of human rights are usually predominant. There are many examples of treaties that involve states obligation to ensure political, economic, social and cultural rights of indigenous peoples after a conflict situation. For example, the San Andrés Agreement signed in Mexico sought to redefine the relationship between traditional indigenous cultures and the modern state and economy by explicitly recognizing traditional forms of governance and land tenure that were not part of the Mexican constitution or legal system. As mentioned earlier, the HRC has developed an approach based on indigenous peoples’ right to access natural resources. Since most of the modern treaties involve aspects of economic sharing of natural wealth, the Committee should make sure that these treaties are implemented in a way that respects States obligations under Article 1 (2) and 27 of the ICCPR. Yet, human rights aspects of modern treaties are not limited to rights enshrined in the two Covenants. For example, the Committee on the Elimination of Racial Discrimination (CERD) has criticised the government of Bangladesh for “the slow progress in implementing the Chittagong Hill Tracts Peace Accord.”15 The ILO Committee of Experts on the Application of Convention 107 to which Bangladesh is party made several recommendations to the government in 2003 and invites the government to provide the Committee with more information regarding the implementation of the peace agreement especially regarding land rights.16 It is worth noting that the supervision of agreements between States and indigenous peoples by treaty monitoring bodies is not limited to conflict or post-conflict situations. For example, in its concluding observations on Canada, the CERD “notes with appreciation the assurance given by the delegation that Canada would no longer require a reference to extinguishment of surrendered land and resource rights in any land claim agreements.”17 Thus, there is a clear emerging practice from international and human rights bodies to follow the implementation of agreements. However, this practice still remains underdeveloped and should be encouraged. Therefore, it is crucial that the expert seminar on treaties and indigenous peoples highlights the importance for human rights treaty monitoring bodies and other independent bodies in charge of monitoring the implementation of indigenous peoples’ rights of paying specific attention to the implementation of relevant aspect of treaties signed between states and indigenous peoples.
In conclusion, it is important that the expert meeting adopt a view based on the mainstreaming of human rights obligations in treaties/agreements. Treaties between States and indigenous peoples are not sui generis as they are part of larger state obligations to respect human rights. In this regard, all the United Nations organs involved in the protection of human rights should pay attention to the implementation of treaties that would ultimately ensure the protection of indigenous peoples’ human rights.
----- * PhD Candidate, Irish Centre for Human Rights, National University of Ireland, Galway, Co-founder, Human Rights for Change; contact: jeremie@humanrightsforchange.org 1 See: article 6, 7, 15 (2), 17, 22, 27 and 28 2 See: article 10, 12, 19, 30 3Länsman et al. v. Finland, Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992, at 9.5 4 Concluding Observations of the Committee on Economic, Social and Cultural Rights : Colombia. 30/11/2001. E/C.12/1/Add.74. (Concluding Observations/Comments), para.33 5 See also application of the American Convention on Human Rights by the Inter-American Court on Human Rights in the case of Mayagna (Sumo) Awas Tingni Community, (Ser.C) No.79 (2001) 6 See also UN Draft Declaration and Propsed Inter-American, see also: Osvaldo Kreimer, “Report of the Rapporteur”, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.113/03rev.1 (20 February 2003), p.9 7 See: Human Rights Committee, Concluding Observations, Canada, UN Doc. CCPR/C/79/Add.105, O7/04/1999. Human Rights Committee, Concluding Observations, Mexico, UN Doc. CCPR/C/79/Add.109 (1999). Human Rights Committee, Concluding Observations of the Human Rights Committee, Australia 24/07/2000. GA 55th session, supp 40, UN Doc. A/55/40 vol. I (2000). Human Rights Committee, Concluding Observations, Norway, UN Doc. CCPR/C/79/Add.112 (1999). 8 Concluding observations of the Human Rights Committee : Australia. 24/07/2000. A/55/40,paras.498-528. (Concluding Observations/Comments) 9 CERD, General Comments XXIII (Fifty-first session, 1997), para. 4 (d) 10 On the issue of extinguishment, see: Final report by Miguel Alfonso Martínez, Special Rapporteur: Study on treaties, agreements and other constructive arrangements between States and indigenous populations, UN Doc. E/CN.4/Sub.2/1999/20 and Indigenous peoples and their relationship to land - Final working paper prepared by the Special Rapporteur, UN Doc. E/CN.4/Sub.2/2000/25 11 For example, Article 3 (2) of ILO 169 states: “No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the peoples concerned, including the rights contained in this Convention.” On the issue of extinguishment, see also: Concluding observations of the Committee on Economic, Social and Cultural Rights : Canada (10/12/98), UN. Doc. E/C.12/1/Add.31, para.18 12 Concluding Observations of the Committee on Economic, Social and Cultural Rights, Guatemala, UN Doc. E/C.12/1/Add.93 (Unedited Version), 28 November 2003 13 Ibid, para.42 14 Human Rights Committee, Comments on Guatemala, U.N. Doc. CCPR/C/79/Add.63 (1996), para. 22 15 Committee on the Elimination of Racial Discrimination, U.N. Doc. CERD/C/304/Add.118, (27 April 2001), para.10 16 See: International Labour Office, “Recent Development in the ILO Concerning Indigenous and Tribal Peoples”, February 2003, p.2 17 Concluding Observations of the Committee on the Elimination of Racial Discrimination : Canada. (01/11/2002), A/57/18,para.331
kering |
Latest page update: made by kering
, Jun 30 2009, 6:31 PM EDT
(about this update
About This Update
Rename
- kering
No content added or deleted. - complete history) |
|
Keyword tags:
consent
consultation
implementation
mainstreaming
rights
treaties
More Info: links to this page
|
There are no threads for this page.
Be the first to start a new thread.
