STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionThe United Nations system does not provide specific juridical mechanisms forthe resolution of conflicts to which indigenous peoples are a party or whichresult in the victimization of indigenous peoples.The International Court of Justice (ICJ) does not provide legal standing toindigenous individuals or collectives to pursue litigation against States andothers. The human rights treaty bodies and the regional international courts,such as the Inter-American Court, have been accessed by indigenous peoplesto a limited extent, i.e., in cases where a State party has agreed to optionalprotocols, or where a State party has reporting obligations under a treaty. Itshould be noted, however, that the decisions of these human rights treaty bodiesare not binding or enforceable and are often ignored by offending States. Thus,indigenous efforts in these fora have not had significant results in the resolutionof conflicts.The indigenous problématique and United Nations intervention incases of conflictIn his “Study of treaties, agreements and other constructive arrangementsbetween States and indigenous populations”, Special Rapporteur Miguel AlfonsoMartínez discussed inherent problems relating to domestic and internationaljuridical fora as venues for the resolution of conflicts between States andindigenous peoples. He notes:In practically all cases, both in Latin America and in otherregions mentioned above, the legal establishment can be seenserving as an effective tool in [the] process of domination.Jurists (with their conceptual elaborations), domestic laws(with their imperativeness both in the metropolis and in thecolonies), the judiciary (subject to the ‘rule of [non-indigenous]law’), one-side international law (its enforcement assuredby military means) and international tribunals (on the basisof existing international law) were all present to “validate”juridically the organized plunder at the various stages of thecolonial enterprise. 7indigenous peoples oftenfind themselves involvedin conflict with thedominant society, mostlyrelating to the loss oftheir lands, territoriesand resources or to thedeprivation of their civil,political, cultural, socialand economic rightsNoting that the indigenous problématique “cannot be approached exclusivelyon the basis of juridical reasoning” because the problems confronted areessentially political in nature, he concludes that:Juridical discussions and argumentation simply take too long,require copious resources (which the indigenous side almostalways lacks or has only in limited amounts), and in manycases are prejudiced by centuries of sedimented rationale. Inaddition, the urgency of the existing problems simply leaves no7Martínez (1999), para. 196.EMERGING ISSUES | 223
EMBARGOED UNTIL 14 January 2010STATE OF THE WORLD’S INDIGENOUS PEOPLESNot for distributionroom to engage, at the threshold of the twenty-first century,in the type of juridico-philosophical debates … pursued in thesixteenth century. 8International legal expert Augusto Willemsen Díaz also dismisses the idea thatdomestic legal fora would be an alternative. In his opinion,Judicial adjudication in specific disputes or conflicts by a courtof law forming part of the State or of an intergovernmentalorganization is more clearly questionable, since it would entailsurrendering fully the deciding powers of the Community tothose outside entities. 9as indigenous issuesbecome more prominentin the United Nationssystem, the need foran international forumfor conflict and disputeresolution for issuesbetween indigenouspeoples and States isalso becoming morecriticalDíaz proposes that the United Nations itself might utilize processes includingfacilitation, moderation, conciliation, mediation and arbitration, provided thatthe indigenous communities themselves freely and formally request such UnitedNations intervention.The Manila DeclarationIn December 2000, the Tebtebba Foundation, an indigenous organizationbased in the Philippines, convened an International Conference on ConflictResolution, Peacebuilding, Sustainable Development and Indigenous Peoples.The outcome document, referred to as the Manila Declaration, affirmed theright of indigenous peoples:…to create new systems and institutions of peace-makingthat are sourced in indigenous values and that co-exist withexisting bodies such as the International Court of Justiceand similar regional bodies. Such institutions could includeindependent indigenous peoples’ tribunals; commissions ofinquiry that are recognized as legitimate organs in any processof conflict resolution. 10The Conference agreed that an “independent International Commission ofIndigenous Peoples for Mediation and Conflict Resolution be organized notlater than the year 2002. The mission of this body will be to promote and defendthe rights of indigenous peoples, and to expose and denounce aggression andabuses of the rights of indigenous peoples in different parts of the world.” 11The Manila Declaration contains detailed recommendations for peacebuilding,technical assistance, training in mediation and other approaches to conflict8Martínez (1999),para. 254.9Willemsen Díaz (2004), 543.10Manila Declaration (2000), Preamble.11Willemsen Díaz (2004), 547-552.224 | CHAPTER VII
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STATE OF THE WORLD's INDIGENOUs PEOpLEs - CINU

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