ABSTRACT IN ENGLISH
Indigenous Peoples’ Protection in International Law / by Ruslan Garipov. – Kazan: Published by Kazan (Volga River) Federal University, 2012.
This book is published with the support of Fulbright Program in Russia and is a result of my scholarship in America in 2011, when I spent 3 months (from February to May) in the US within the Grant of the Government of the Republic of Tatarstan. I was the Woodrow Wilson International Center for Scholars (Kennan Institute) Public Policy Scholar and International Visiting Scholar at the Washington College of Law at American University, Washington, DC.
During my stay I researched, collected some new materials, had meetings with specialists in this field, and attended a number of events at WWICS and AU WCL as well as elsewhere. Among these other events, for example I attended the United South and Eastern Tribes Conference (February 9, 2011), and Conference at American University, Washington College of Law “Washington “Redskins”: Pride or Prejudice?” (February 15, 2011).
I also had several meetings with some officials and NGO activists involved in the field of Indigenous Peoples’ Rights. I met Ms. Kimberly Teehee – Senior Adviser for Native American Affairs to Barak Obama Administration and visited Indian Law Resources Center in Washington, DC.
I visited the headquarters of several intergovernmental organizations which are located in America, such as the Organization of American States. There I attended the hearing on the Land Tenure and Human Rights of Indigenous Peoples in Mexico within the 141st Session of the Inter-American Commission on Human Rights (IACHR) in March 28. The land conflict was discussed between representatives of Indigenous Peoples and the State of Mexico (Washington, DC). I was at the United Nations Permanent Forum on Indigenous Issues, where I had meetings with the Secretariat staff and discussed the UN Declaration on Indigenous Peoples Rights, which was recently supported by the US (New York City).
Twice a week I attended classes on Federal Indian Law at the Washington College of Law at American University (with a Professor Ezra Rosser). I also visited Georgetown University, Law School, and the annual meeting of the American Society of International Law, and attended different events at National American Indian Museum in Washington, DC.
While I was in America I tried to meet more people and to discuss my research conclusions with them. So, I met Indigenous leaders from Senate Committee on Native American Issues, National Indian Gaming Commission, Native Americans Rights Fund, National Congress of American Indians, Navajo Nation and Cherokee Nation Washington Offices, and representatives of different organizations and tribes.
During my stay in the US, I gave several lectures, presentations, and spoke at a number of Conferences. In March I gave lectures at the University of Arizona in Tucson. In April I spoke at the University of Florida in Gainesville. On March 24, 2011 I gave a presentation about Indigenous Peoples’ Rights at the Kennan Institute, WWICS. On April 18, 2011 I gave the same presentation at American University, Washington College of Law. Finally on April 28, 2011 I was a panel speaker at the Conference “International Perspectives on the Obama Administration and Human Rights” at American University, where I emphasized the role of the new Administration in the field of American Indians’ Rights development.
My time in the US (WWICS and AU WCL) was very helpful and productive. I collected a lot of new materials, ideas and information for my research, met many interesting people and made very useful contacts.
I want to thank all the staff of the Kennan Institute, Woodrow Wilson International Center for Scholars and Washington College of Law at American University for their invitation to come and their assistance in my research. I would like to thank Professor Robert Williams (University of Arizona) and Professor Ezra Rosser (American University) for their comments and help in my research. I want to thank Professor Leslye Obiora and Professor Virginia Maurer for their inviting to give the presentations at the Universities of Arizona and Florida. And my thanks to all the people who were so hospital and helpful to me while my being in America.
I hope my work will find good comments from academia as well as from practitioners and will take a worthy place amongst the works dedicated to the Rights of Indigenous People.
The first chapter «Status of Indigenous Peoples in the Context of Modern International Law» consists of two paragraphs and is devoted to investigating the definition of «indigenous people», development of indigenous people’s rights on an international level. The chapter contains the detailed analysis of all concept definitions «indigenous people» available today in international law. At the same time such concepts, as «people» and «nation» which still do not have definition in international law are analyzed also. So, for example, in the USA and Russia these terms are understood and treated in different ways.
The concept «indigenous people» has actively entered to international legal lexicon, uniting in itself different peoples which suffered before, as a rule, from conquest and seizure of their territories by representatives of other peoples. Indigenous peoples represent various ethnic groups, races, religions and have different ways of life in all corners of our planet. In Europe there is Sami people; in Asia various tribes in India, China, Pakistan, Ainu in Japan; in Russia indigenous small-numbered peoples of the North, Siberia and the Far East; in Africa Berbers, Bushmen; the American continents are occupied by Indians and Inuit; in Australia and New Zealand there are Aborigines and Maori. It is rather difficult to bring all of them under one official definition; however they have a lot in common that possible to use for the definition of concept «indigenous people». To this date, the definition of «indigenous people» is still being actively developed and shaped.
In works of Russian and foreign scientists are given detailed analysis of the basic attributes of indigenous peoples. Other terms used for definition of indigenous peoples are accounted, such as: autochthonous population or aborigines who are synonyms. The first definition of «indigenous people» was given by International Labour Organization, then by the Special Rapporteur on a problem of indigenous population discrimination for the UN Subcommittee on the prevention of discrimination and minority protection Hose Martinez Kobo. Besides these definitions the World Bank has applied to interpretation of the term «indigenous people». In the chapter there is also investigated the internal legislation of the USA, Canada and Russia regarding definition of indigenous peoples in these countries and their correspondence with national minorities.
In a result there is made a conclusion that in international law the concept of this term till now is not precise and universally received. At the same time there were some specific attributes for indigenous peoples formed, according to various international documents. There is proved the necessity to distinguish some different types of indigenous peoples, such as suffered from extermination and seizure of territories and dependant on environment.
I am investigating the history of indigenous peoples’ rights development in international law in this chapter. There are given the existed before doctrines of «Discovery» and «Terra Nullius» which served as a mask for the indigenous people land seizure. Some stages of indigenous peoples’ legal status evolution are emphasized, last of which is characterized by the further development of the international standards and the national legislation in this area. Nevertheless, indigenous peoples frequently continue to be considered as backward peoples, and requiring for development. These factors influence have caused a distress of many indigenous peoples today.
However there I have realized that today we have the most progressive stage in a history of indigenous peoples’ rights development. There is a certain evolution of their legal status, both in international, and in national law. Protecting the rights of indigenous peoples becomes a priority policy of the states and important sphere of the international cooperation. International community’s attention to the aborigines’ needs and their own activity which has unprecedented scope today, have formed a basis for wide popularization of the questions connected with indigenous peoples’ right.
In the second chapter «International and Legal Regulation of Indigenous Peoples’ Rights» international legal documents in the sphere of indigenous peoples’ rights protection are analyzed in detail. There is following international documents are examined: the United Nations Charter, Universal Declaration of Human Rights, Convention on the Prevention and Punishment of the Crime of Genocide, Declaration on the Granting of Independence to Colonial Countries and Peoples, International Covenants on Civil, Political, Economic, Social and Cultural Rights, International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child, Convention on Biological Diversity.
Emphasis is given to the documents of the International Labour Organization (ILO), which has begun granting specialized protection to indigenous peoples, in particular, in the Indigenous and Tribal Populations Convention № 107 and Indigenous and Tribal Peoples Convention № 169.
The ILO Convention № 107 was the first international document devoted exclusively to addressing indigenous peoples’ rights. It was also the first international document which admitted the right of indigenous peoples to individual and collective property over their primordial lands. This Convention was directed at the integration of indigenous populations into the dominant society, and at their development according to a majority vision. The indigenous populations themselves, however, would completely disagree with such an approach.
The convention was recognized as outdated, and in 1989, the ILO accepted a new document, the ILO Convention № 169. The preamble of this Convention states that adoption of new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards is necessary. Thus, the international community has recognized that original social and economic development, and the cultures and languages of indigenous peoples are part of their cultural heritage and should be protected.
The ILO Convention № 169 has a binding effect for the ratified states and is the only comprehensive document on the coverage of indigenous peoples’ basic rights. It is the only complex international legal document which comprises potentially obligatory minimal standards (political, social, economic, legal, and spiritual) for the state-participants. This fact gives the Convention a legal backbone and, accordingly, the question of this document’s ratification in the countries where indigenous peoples live, including Russia and the US, requires special consideration.
The third chapter «The UN Declaration on the Rights of Indigenous Peoples» describes in detail the history of this document acceptance and is devoted to the analysis of its provisions. The declaration provides protection of the wide list of indigenous peoples’ rights among which especially is necessary to note the right of self-determination and the right on lands and natural resources. These rights caused the main discussions during acceptance of the document.
Author comes to a conclusion, that this declaration became the important step to the way of historical justice restoration and worthy end of long negotiations on indigenous issues. It has fixed at the international level the right of indigenous peoples to carry out control above their lands, territories and resources. It has enabled them to build their public life, to keep culture and traditions, and to develop according to their aspirations and needs. The main achievement of the Declaration is the proclamation of the self-determination right for indigenous peoples.
Existing international documents on human rights do not cover all spectrums of problems which natives face, that is why the representatives of indigenous peoples supported that their expectations were reflected within the framework of the new document. The declaration acceptance became the fullest statement of indigenous peoples’ rights from ever made documents. And collective rights in the declaration are determined in unprecedented for international law way. Acceptance of this document became the most obvious confirmation that international community today is adherent to individual and collective rights protection of indigenous peoples.
And though the declaration has no legally binding force for the states, it has significant moral and political force. After certain period of time it would be possible on its basis to develop and accept an international legal convention on indigenous peoples’ rights protection which will incorporate all the declaration experience and become a new step in indigenous peoples’ interests strengthening.
The fourth chapter «International Organizations and Their Role in Protecting the Rights of Indigenous Peoples» is devoted to the international and regional intergovernmental and non-governmental organizations activity in the sphere of indigenous peoples’ rights protection.
As from the United Nations, Organization of American States and finishing with non-governmental organizations of indigenous peoples, the essential contribution to the development of international system of indigenous peoples’ rights and freedoms protection is making. Author emphasizes the International Labour Organization’s role, which one of the first has paid attention to a distress of indigenous population. Activity of the UN Sub-commission on Prevention of Discrimination and Protection of Minorities, the UN Permanent Forum on Indigenous Issues, and also conventional bodies of the United Nations is investigated.
On a concrete example the role of Inter-American Commission on Human Rights and Inter-American Court on Human Rights in the field of indigenous peoples’ rights protection is considered. Provisions of the Draft Inter-American Declaration on Indigenous Peoples Rights are analyzed. Author investigates such organizations activity as the Arctic Council, Council of Europe, and OSCE etc.
In conclusion it is judged a growing role of international and regional organizations, both intergovernmental, and non-governmental levels in protection of indigenous peoples’ rights and interests. Aborigines have had an opportunity today to carry on dialogue with the states governments at the international level and to draw attention of international community to the actual problems connected to infringement of their rights and interests solving.
At the present stage of international cooperation development was formed a system of bodies and organizations capable adequate and duly to react to those challenges and problems which indigenous population faces today. Author offers some measures on increase the efficiency of international bodies’ performance in the sphere of indigenous peoples’ rights protection.
In the fifth chapter «Indigenous Peoples’ Right to Self-Determination» is investigated in detail issues connected with indigenous peoples’ right on self-determination. Author traces the history of this principle development, its treatment in international legal documents and a correspondence with a principle of territorial integrity. Decisions of the Russian Constitutional court in 1992 and Canadian Supreme court in 1998 on a question of these two international principles correspondence are given.
Aborigines’ demands on self-determination realization have caused alert reaction of many governments because such demands are frequently identified with requirements about independence and secession. However many countries could overcome their fears and have supported then the ideas of internal self-determination. So, for example, Denmark at the end of 1970th years had given autonomy to Inuit in Greenland, and Canada had recognized by the end of 1990th the limited autonomy right for Inuit in Northern Canada and Nisga people in British Columbia.
There are considered opportunities of indigenous peoples’ self-determination on an example of the USA and Russia where some indigenous peoples want to self-determinate up to separate and creation of their own state, for example, some Indian tribes in North America, that inevitably will lead to infringement of a territorial integrity. Other indigenous peoples agree to live within the framework of the state on conditions of self-government, for example Russian indigenous small-numbered peoples.
In the end there is made a conclusion about the necessity of rethinking of the peoples’ right to self-determination concept and content, as one of key principles of modern international law. It is necessary to make a revision and specification in the context of last events and tendencies of international law. The fixing of common for all international community attitude on a question of the right on self-determination could be realized as a separate international document which would concretize the subjects of the right of self-determination, its content and limits of realization.
Indigenous peoples’ demands on recognition their autonomy and self-determination right are based on the independence restitution lost by them in the past and on contemporary human values in a context of the proclaimed today Human Rights. According to international law indigenous peoples do not have the right on external self-determination, but can apply for the internal self-determination, where the most acceptable form is the autonomy.
Indigenous people can realize their right on self-determination taking into account the sovereignty and territorial integrity of the state. However till now in a doctrine and practice of international law there is exist the necessity of a concrete definition, content and realization limits of the self-determination right for indigenous people.