The ICERD Defines Racial Discrimination in Broad terms

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1 The ICERD Defines Racial Discrimination in Broad terms In this Convention, the term racial discrimination shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life --- Article 1, ICERD

2 The UN Declaration on the Rights of Indigenous Peoples and the CERD: A Strong Framework to Combat Racial Discrimination, October 20, 2012 Presentation by Andrea Carmen, International Indian Treaty Council CERD Review of Canada, February 22, 2012

3 History is Made: The General Assembly Adopts the UN Declaration on the Rights of Indigenous Peoples September 13th, 2007

4 The Declaration is the Minimum Standard The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. --Article 43

5 It Repudiates Racism Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, -- Preamble North American Regional Caucus, 2008

6 And affirms harmonious relations based on nondiscrimination Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith, Preamble

7 Non-Discrimination & Equal Rights Black Mesa Water Coalition Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind ---preamble

8 The International Right to Self-Determination Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law --- Preamble Kitchenuhmaykoosib Inninuwug Chief and Council, 2008

9 .and the Right to Participate in Decision-Making Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own Indigenous decisionmaking institutions. Chief Wilton Littlechild, Rapporteur UN Permanent Forum on Indigenous Issues, 2007

10 It Recognizes the Treaty Relationship as a Basis for Partnership Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States -- Preamble, UN Declaration on the Rights of Indigenous Peoples

11 and Provides a Framework for Redress, Restitution and Conflict Resolution Processes that: Are fair, independent, impartial, open, transparent, and established and implemented in conjunction with the indigenous peoples concerned (A 27) Gives due recognition to indigenous peoples laws, traditions, customs, legal and land tenure systems and international human rights (27 & 40) Provide redress for Indigenous Peoples traditional lands, territories and resources which were confiscated, taken, occupied, used or damaged without their free, prior informed and consent (27 & 28); can include restitution of lands/resources (28) Provide just, fair, equitable compensation; If return of original lands is not possible, compensation shall take the form of lands, territories & resources equal in quality, size and legal status; Monetary compensation or other redress can be provided with the free agreement of the affected Peoples (28) Provide remedies for all infringements of individual/collective rights (40)

12 International Borders: Article Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right. Mayo honoring Ceremony Potam, Rio Yaqui, Sonora Mexico, 2006

13 The International Convention on the Elimination of all forms of Racial Discrimination (ICERD) One of 9 major human rights treaties adopted by the UN Entered into effect January 4, 1969 The first human rights Treaty to establish a compliance-monitoring system for the State Parties

14 The ICERD is a Legally-Binding International Convention The ICERD creates state obligations with respect to racial justice for all signatories. States like the US, Canada and Mexico which have ratified the Convention are State parties and are legally bound to comply with its provisions. The ICERD does not distinguish between intentionally discriminatory acts and those that have discriminatory effects.

15 CERD: The United Nations Committee for the Elimination of Racial Discrimination The Treaty Monitoring Body for the ICERD 18 international experts nominated by States and voted on by the State parties to the Convention Assesses States parties compliance with the provisions of ICERD through Periodic Reviews CERD provides mechanisms for input by civil society including Indigenous Peoples CERD is the only UN Treaty Monitoring body with an Indigenous expert member

16 Why do Submissions to the CERD? If you don t inform the CERD member they won t know the true situation within the States it reviews It requires States to be more honest with the CERD It defines Indigenous struggles as human rights issues It helps to educate Peoples and communities about human rights and international bodies It creates international pressure on States to respect human rights It challenges States impunity & confronts hypocrisy It can result in real changes and improvements

17 What are Shadow Reports Submitted to a UN Treaty Monitoring Body (like CERD) by representatives of Civil Society or non-state entities, including Indigenous Peoples No set format for writing Shadow Reports, 6 weeks before the CERD session when the state will be reviewed CERD Members have limited time to review all the information presented so try to be succinct (20-30 pages) Include factual data, documentation and pictures Mention provision(s) and prior recommendations that have been violated or not fully implemented; provide updates on situations submitted previously, no change or even worse?

18 CERD General Recommendation XXIII The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories --- para. 5

19 The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories -- Para. 5, CERD General Recommendation 23

20 Aspirational or Legally binding? Concluding observations of the Committee on the Elimination of Racial Discrimination, (CERD), Report of the United States, February 2008: While noting the position of the State party with regard to the United Nations Declaration on the Rights of Indigenous Peoples (A/RES/61/295), the Committee finally recommends that the Declaration be used as a guide to interpret the State party s obligations under the Convention relating to indigenous peoples. IITC and Teton Sioux Nation Treaty Council/Tetuwan Oyate delegates attending the UN Committee on the Elimination of Racial Discrimination, February 2008, Geneva

21 In February 2008 CERD also recommended that the US: Consult with Indigenous representatives, chosen in accordance with their own procedures to ensure that activities carried out in areas of spiritual and cultural significance do not have a negative impact on the enjoyment of their rights under the Convention. take appropriate legislative or administrative measures to prevent acts of transnational corporations registered in the State party which negatively impact on the enjoyment of rights of indigenous peoples in territories outside the United States. Stated that it was deeply concerned about the incidence of rape and sexual violence Particularly with regard to American Indian and Alaska Native women and female migrant workers San Francisco Peaks, Arizona

22 In March 2007 CERD Recommended that Canada: engage, in good faith, in negotiations based on recognition and reconciliation for Indigenous Peoples rights regarding the settlement of land and natural resources claims. Support the immediate adoption of the UN Declaration on the Rights of Indigenous Peoples explore ways to hold transnational corporations registered in Canada accountable for human rights impacts of their activities outside Canada and more

23 New Zealand (Aotearoa) Aotearoa foreshore The legislation appears to the Committee, on balance, to contain discriminatory aspects against the Maori, in particular in its extinguishment of the possibility of establishing Maori customary titles over the foreshore and seabed and its failure to provide a guaranteed right of redress, notwithstanding the State party's obligations under articles 5 and 6 of the Convention. --- CERD response in 2005 to filings by Maori addressing New Zealand s Foreshore and Seabed Act

24 August 2008, CERD Recommended that Sweden: Provide Saami villages (samebyar) with legal aid in court proceedings concerning right to land and natural resources. In cases concerning Saami land and resource rights, amend the rules of evidence, so that the burden of proof no longer vests solely with the Saami parties Finalize the work of the Boundary Commission (Gränsdragningskommissionen) by providing additional resources so that correct boundaries for Saami reindeer grazing areas can be established. In this work is to be taken into account the oral tradition of the Saami Culture, as well as limitations in written documentary evidence of Saami title. The Committee particularly underlines that the complimentary work must also include land areas to which the Saami have already lost grazing rights in past court proceedings.

25 2012 Recommendations to Canada: (1) ensure respect for Treaties and Treaty rights (2) prevent Canadian-based transnational mining corporations from violating the human rights of Indigenous Peoples in other countries (3) address disproportionate rates of incarceration of Indigenous Peoples (4) strengthen its efforts to eliminate violence against Indigenous women; (5) implement Free, Prior and Informed Consent regarding development (6) correct the high rates of poverty and economic marginalization of Indigenous Peoples in Canada regarding housing, employment and adequate drinking water among other concerns; 7) create a national plan of action to implement the United Nations Declaration (8) discontinue the removal of Indigenous children from communities

26 Other opportunities for making submissions to the CERD Early Warning Procedure: NGO s and communities can submit information about pending conflicts or immanent threats to human rights when they have not received an adequate preventative domestic response (adopted in 1994) Urgent Action Procedure: A way for the CERD Committee to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention. Under these procedures, CERD can examine a situation without any Periodic Report from the State Party concerned (also in 1994). In 2010, 9 of the 10 CERD Early Warning submissions were from Indigenous Peoples opposing mining in their territories

27 Urgent Action, Western Shoshone (US) " The CERD issued a full Urgent Action Decision in 2006 stating that the "Committee has received credible information alleging that the Western Shoshone Indigenous Peoples are being denied their traditional rights to land, and that the measures taken and even accelerated lately by the State party in relation to the We are very pleased with the CERD's decision against the United States. Hopefully, the United States will begin to address it poor history with the Indigenous Peoples and begin to act in a more honest and good faith manner. --Carrie Dann status, use and occupation of these lands may cumulatively lead to irreparable harm to these communities". --- Early Warning and Urgent Action Procedure Decision 1(68). (CERD/C/US/DEC/1)

28 Cheoque Utesia, Thank you

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