STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionThis recent authentic expression of indigenous peoples’conception of their rights contrasted with that of earliermainstream human rights instruments claiming universalism…Such comparisons confirm the contention that participatoryrights are integral to a legitimate political order, as well as toa reliable clarification of grievance, demand, and aspiration.This alternative conception has been developed by indigenouspeoples in an elaborate process of normative reconstruction thathas involved sustained and often difficult dialogue among themultitude of representatives of Indigenous traditional peoples. 3Despite efforts over the last forty years to improve conditions and to increaserecognition of indigenous rights through law and policy, litigation, nationaldialogue and enhanced leadership opportunities, full accommodation ofindigenous rights remains elusive. Domestically, remnants of colonialismapplied with nuance and subtlety have become difficult to specify or identify.But ever since Cayuga Chief Deskaheh and Maori religious leader W.T. Ratana 4tried to gain the attention of the League of Nations in the early 1920s, indigenouspeoples have increasingly felt compelled to speak out internationally aboutthe abuses being perpetrated by one people against another and the needto check the limits of power and abuses of others. Largely due to indigenouspeoples organising themselves nationally and internationally, we are seeingan important synergy develop between domestic arenas and internationalhuman rights standard setting. These actions may ultimately ensure indigenouspeoples their rightful place within the international community and create newtools with which to reconstruct political and legal relationships with nationstatesand others. In this regard, the adoption of the Declaration on the Rightsof Indigenous Peoples by the United Nations General Assembly in 2007 wasa very significant event and the Declaration will inevitably be instrumentalin shaping indigenous peoples’ relationships with both the internationalcommunity as well as states.full accommodation ofindigenous rights remainselusiveA human rights-based approachIndigenous advocates believe the use of a human rights-based approach toadvancing their rights, interests and concerns, and for resolving indigenous/state conflicts, is critical to the future of indigenous peoples. As the Special3Falk (2000), 151-152.4 See the Introduction to this volume. Although the Iroquois Confederacy engaged in internationalrelations with Great Britain, France and other Indigenous nations, it was not untilthe creation of the League of Nations that they attempted to gain access to a formal internationalorganization to resolve a conflict. See, generally, Akwesasne Mohawk CounselorOrganization, Deskaheh: Iroquois Statesman and Patriot (1984); and also D. Sanders (1992),485. Regarding W.T. Ratana see http://www.socialjustice.org.nz/?sid=32&id=99&print=articles, wherein his efforts to have the Treaty of Waitangi upheld are discussed, and referenceis made to his trip to Europe.HUMAN RIGHTS | 191
EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionRapporteur on the situation of human rights and fundamental freedoms ofindigenous people, Rodolfo Stavenhagen, has noted, a human rights-basedapproach…should take into account basic principles such as theindivisibility and universality of human rights; non-discrimination,especially in the case of vulnerable or marginalized groups;participation and empowerment; and accountability. 5Right to self-determinationindigenous peoples haveconsistently regarded theright to self-determinationas a prerequisite to theprotection and promotion,as well as the exercise andenjoyment, of all otherhuman rightsIn the context of indigenous peoples, and consistent with the inter-related,interdependent and indivisible nature of human rights, a human rights basedapproach requires recognition of the fundamental right to self-determination.The fundamental nature of the right to self-determination is evidenced by thefact that it appears in the United Nations Charter, 6 the International Covenants, 7the Declaration Concerning Friendly Relations and Cooperation among Statesin Accordance with the Charter of the United Nations, 8 and the United NationsDeclaration on the Rights of Indigenous Peoples. 9 The right to self-determinationhas been acknowledged as essential to the exercise of all other human rightsand referred to as the pre-condition for the exercise of all other rights:Human rights and fundamental freedoms can only exist trulyand fully when self-determination also exists. Such is thefundamental importance of self-determination as a human rightand a prerequisite for the enjoyment of all the other rights andfreedoms. 10Likewise, indigenous peoples have consistently regarded the right to selfdeterminationas a prerequisite to the protection and promotion, as well asthe exercise and enjoyment, of all other human rights. Furthermore, they haveconsistently emphasized the principle of non-discrimination, despite repeatedstate efforts to qualify or limit the right of self-determination in relation toindigenous peoples. And they have articulated self-determination as an inherentright, not a right that is “given” or “created” by others but pre-existing.Under international law, self-determination is considered to be jus cogens or aperemptory norm. Similarly, the prohibition of racial discrimination is a peremptory5Stavenhagen (2007), para. 14.6Charter of the United Nations, Article 1, para. 2.7 The International Covenant on Civil and Political Rights and the International Covenant onEconomic, Social and Cultural Rights, common Article 1.8 Declaration on Principles of International Law concerning Friendly Relations and Cooperationamong States in Accordance with the Charter of the United Nations. UN Doc. GeneralAssembly Resolution 2625 (XXV), 1970.9 The UN Declaration on the Rights of Indigenous Peoples was adopted by the General Assemblyon 13 September 2007 (A/RES/61/295).10Gros Espiell (1980), 10, para. 59.192 | CHAPTER VI
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STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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