A Right to Media? Lorie M. Graham - Columbia Law School

438 COLUMBIA HUMAN RIGHTS LAW REVIEW [41:429
disseminating erroneous and in some cases racist propaganda. 26 This
exclusion has been both structural and cultural. The structural
barriers have stunted the development of indigenous media and the
cultural barriers have diminished the media’s potential as a tool for
positive change both within and outside of indigenous communities.
Recognizing that the rights to freedom of expression and
information have not been applied equally to indigenous peoples, and
acknowledging the particular benefits derived from media with
respect to these rights, Article 16 appears to articulate a right to
media and then incorporates various means of promoting this right.
Article 16 first draws upon the well established prohibition against
racial discrimination, which, as later discussed, has achieved the
status of jus cogens. 27 Under Article 16, indigenous peoples have the
right of “access to all forms of non-indigenous media without
discrimination.” 28 Mainstream media stands apart from all other
means of communication in that it has become widely accepted as
“reflecting reality.” The “reality” reflected is determined by the
narrative of the dominant group’s paradigm or way of
conceptualizing the world. 29 One scholar suggests the through the
use of “signs and representation[s],” the media presents ideas in a
way that not only creates the impression that there is one culturally
26. See generally World Summit on the Information Society, Geneva,
Switz., Dec. 2003, Indigenous Position Paper for the World Summit on the
Information Society (stating the particular concerns and demands of indigenous
peoples with respect to the World Summit on the Information Society).
27. In a 1997 General Recommendation, the Committee on the Elimination
of Racial Discrimination discussed state obligations and indigenous rights under
the Convention. “The Committee called upon states-parties 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.’” Fergus MacKay,
Briefing Paper on the Rights of Indigenous Peoples in International Law (citations
omitted), available at http://www.sdnp.org.gy/apa/topic3.htm. The Committee
further noted that interpretations of the International Convention for the
Elimination of all Forms of Racial Discrimination “should carry additional weight
given that the prohibition of racial discrimination has acquired the status of jus
cogens–the highest level of international law–and therefore, will void any law or
practice found to be in violation of the norm.” Id.
28. UNDRIP, supra note 20, art. 16.
29. Rawle Agard, Existing in other worlds: How to Locate Indigenous
Narratives (World Assoc. for Christian Commc’n, Media Development Series,
Children and Media 1, 1999), available at http://www.waccglobal.com/en/19991-
children-and-media/838-Existing-in-other-worlds-How-to-locate-indigenousnarratives--.html.