Committee on the Implementation of the Rights of Indigenous Peoples of the International Law Association

Transcription

1 Working plan, November 2014 Committee on the Implementation of the Rights of Indigenous Peoples of the International Law Association The first part (para s 1 to 4) consists of the text approved of by the Executive Council of the ILA, and slightly adapted to new insights. Par. 5 consists of the draft working plan d.d. November 2014, to be further discussed in February 2015 in The Hague. 1. Background In June 2006 the ILA Executive Council approved the establishment of a Committee on the Rights of Indigenous Peoples. At the first meeting of the Committee (Pretoria, 2007), it was decided that the Committee would focus on the actual legal meaning of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in September After having studied the Declaration, it soon became clear that it should be seen as a landmark text, but also that it raised many legal questions. At the end of its work, the Committee concluded that several key provisions of the UNDRIP correspond to existing State obligations under customary international law. At the same time, however, with respect to other articles of the Declaration it is still uncertain whether or not they have already crystallized into customary law and/or reflect existing treaty obligations. Furthermore, in relation to a number of provisions included in the UNDRIP it is rather unclear how they should be read and interpreted in terms of specific prerogatives and concrete rights to be recognized in favor of indigenous peoples in the real world. The Committee started working on, in its own words, an authoritative clarification, elucidation and guidance in respect of the UNDRIP provisions, including their development, context and status in international law, while by providing such clarification, it was expected that the Commentary will reduce confusion and contention over the normative status of the UNDRIP provisions and of Indigenous rights in general. All this has led to two reports, adopted in The Hague and Sofia, in 2010 and 2012 respectively. 2. ILA Resolution No. 5/2012, on the Rights of the Indigenous Peoples The 75th Conference of the International Law Association held in Sofia, Bulgaria, 26 to 30 August 2012, adopted a resolution recognising the need for guidance for States, competent international bodies, civil society and indigenous peoples to ascertain the contents of international law applicable to indigenous peoples as well as further to enhance the safeguarding of indigenous peoples human rights. The Resolution consisted of ten Conclusions and four Recommendations. Its conclusions affirmed, inter alia, the customary international law character of an indigenous people s principal right to self-determination, to their internal and local self-government, to their cultural identity, and to their traditional lands, territories and resources, as well as rights to reparation and redress. They also include the right of indigenous peoples to be consulted if a governmental measure affects them, and to free, prior and informed consent if a project significantly impacts their rights and ways of life. By adopting the Resolution, the ILA Conference made a link, as the Committee did, between,

2 on the one hand, the standards as agreed upon in the 2007 Declaration and, on the other hand, action needed in order to make them become a reality. As noted in the previous paragraph, the Resolution observes that the 2007 Declaration includes several key provisions which correspond to existing State obligations under customary international law, as well as that, since it was passed with overwhelming support by the United Nations General Assembly, also with respect to the provisions included in UNDRIP which do not yet correspond to customary international law, an expectation [exists] of maximum compliance by States and the other relevant actors. 3. Proposed Mandate The latter words would mark the step from clarification of the norms, as is done by the first ILA Committee on the Rights of Indigenous Peoples, to carefully looking at what legal, quasi-legal and practical barriers potentially block the road from theoretical to actual protection in some areas of the world. In fact, while the said Committee ascertained that in many countries significant practice has developed which is consistent with the provisions of the UNDRIP, certain problems remain which sometimes hinder the full realization of the UNDRIP provisions, especially in a number of States. As to actual practical problems, one can refer to the fact that Indigenous peoples are sometimes confronted with discrimination and social, economic, and political marginalization. Other major violations of their rights relate to denial of justice, such as arbitrary arrests, unjust imprisonment and related inhumane treatment, denial of liberty of association, and collective punishment. In some cases, such violations arise solely as a result of their efforts to promote or safeguard their human rights. Again other violations relate to reluctance shown by some governments to recognize and implement in practice affirmation of Indigenous peoples rights to lands and resources or cultural rights, as well as to lack of access to schools and health facilities, political recognition, representation, and participation. Given the inter-related, interconnected, indivisible and inter-dependent nature of Indigenous human rights, many violations have an economic dimension. And, all of these rights have a strong cultural dimension, the recognition of which is at the foundation of their very existence as Indigenous peoples. Often, the rights of Indigenous peoples to their lands, territories, and resources have not been secured, leaving them with little or no access to natural resources on their territories and to their traditional economies. In some cases, they are forcibly removed in order for others, including foreign investors and multinational companies, to exploit their resources. Through such (f)actors they are often denied the right to maintain a livelihood of their own choice, to determine their own priorities for development, or, even more important, to foster and transmit their cultural identity to future generations. A key issue in many ways: the issue therefore relates to land rights, c.a. To illustrate, a quote can be taken from the Working Group of Experts on Indigenous Populations /Communities of the African Commission on Human and Peoples Rights: Dispossession of land and natural resources is a major human rights problem for indigenous peoples. They have in many cases been pushed out of their traditional areas to give way for the economic interests of other more dominant groups and large-scale development initiatives that tend to destroy their lives and cultures rather than improve their situation. The establishment of protected areas and national parks has impoverished indigenous pastoralist and hunter-gatherer communities, made them vulnerable and unable to cope with environmental uncertainty and, in many cases, even displaced them. Large-scale extraction of natural resources such as logging, mining, dam construction, oil drilling and pipeline construction have had very negative impacts on the livelihoods of indigenous pastoralist and hunter-gatherer communities in Africa. So has the widespread expansion of areas under crop production. They have all resulted in loss of access to fundamental

3 natural resources that are critical for the survival of both pastoral and hunter-gatherer communities such as grazing areas, permanent water sources and forest products. 1 It is proposed that the new Committee will study these issues by: Selecting key cases in the domain of land rights c.a., from different regions of the world. Applying an interdisciplinary analysis of such cases, taking full account of all relevant factors, on the basis of legal issues and approaches, ranging from Indigenous customs, practices, land tenure systems and law as well as national, regional, and international law with a view to identifying an effective resolution of the potential competing rights and interests concerning the lands, territories, and resources of the Indigenous peoples concerned. Paying particular attention to the cultural elements as well as to the cultural implications arising from violations of the land rights c.a. of Indigenous peoples, culture being the cornerstone of the very existence of those peoples. Paying attention to economic factors and actors, with a focus on state and third parties, including multinational companies, and the role they are playing, positively and negatively, in the lives of Indigenous communities. Doing so, the work of the new Committee will be linked to the UN Guiding Principles on Business and Human Rights, as adopted in 2011, as well as to the work undertaken by the ILA Study Group on Business and Human Rights as to the implementation of the UN Guiding Principles. Further to that, the Committee activities will also be linked to the activities of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises, in 2011 installed by the UN Human Rights Council. The mandate of the UN Working Group relates, inter alia, to continue to explore options and make recommendations at the national, regional and international levels for enhancing access to effective remedies available to those whose human rights are affected by corporate activities, including those in conflict areas. One of the five members of the Working Group, Pavel Sulyandziga from the Russian Federation, has an Indigenous background and is asked by the Working Group to focus on that issue. A working relation has already been established at a formal visit by the proposed provisional chair of the new ILA Committee to Geneva in February Special focus will be devoted to identification and selection of best practices of countries that have or are attempting to implement the UNDRIP standards and provisions and to evaluate how such practices could be applied to other areas, taking into account existing cultural and social differences. The mandate will be specified in a more detailed working plan after the first meeting of the new Committee. 4. Timing and work plan [to be further discussed] November: formal approval of the new Committee by the ILA Executive Council. December 2013 February 2014: invite Committee members, based on nominations by the national ILA branches. April 2014: first meeting, in the context of the 76 th ILA Conference in Washington DC; sharpen the focus of the mandate, select cases, division of work : Meetings in different regions, if possible (to be discussed and depending on capacity and willingness to host such meetings). 2016: Presentation of an interim report at the 77 th ILA Conference in Johannesburg. 1 See Doc. Assembly/AU/Dec.56 (IV).

4 : Continuation of meetings in different regions (see above). 2018: Presentation of the final report at the 78 th ILA Conference in Australia. 5. Proposal on how to proceed The Rapporteurs as of now: Federico Lenzerini and Timo Koivurova, a Rapporteur with an indigenous background to be added (to be discussed in February in The Hague), the Chair of the first Committee (Siegfried Wiessner) and the Chair and Co-Chair of the new Committee have discussed the way forward. Given the mandate, the focus will be on cases with economic dimensions. Before the relevant cases will be selected, it will be important to identify the lenses through which the case studies will be evaluated and reviewed, for example: Does the law of indigenous peoples (customary, national and/or international) play a role in analyzing and solving the conflict at hand? If so, are there any interactions or direct linkages between these three layers? If IP law plays a role, what judicial and/or non-judicial procedures have been used? To what extent are the relevant indigenous peoples given the space to act autonomously and/or to participate directly in decision-making by national governments? Is the right to self-determination fully recognized and respected? Is the right of Indigenous peoples to free, prior and informed consent operationalized in the context of resolving contentious issues and/or affirming their rights to lands, territories, and resources? Did the outcome, if any, do justice to the victims? If yes, in what way (reparation, compensation,...)? From the perspective of the Indigenous peoples concerned, was the outcome fair and equitable? Was it arrived at in a fashion consistent with the norms established by the UNDRIP? What form did the agreement or outcome take, e.g. land rights affirmed in law, policy or legislation, was it demarcated, did full implementation of all rights and interests result, etc.? If full implementation was not realized, what were the barriers or road blocks? What best practices or lessons have been learnt? What could be learned for the future? The interdisciplinary nature of the Committee approach as discussed in the mandate should lead to analyses of cases not purely from a legal perspective, but from what is often referred to as law in (its societal) context. Selection of cases In our view, the Committee should consider types of cases that should come under review and evaluation against the backdrop of the UNDRIP standards and provisions. It is suggested that a rather broad approach be taken at the outset, allowing for a range of conditions to be taken into consideration. For example, finalization of land claims agreements, conflicts over renewable and non-renewable resources, impact of extractive industries and related economic interests and disputes are all potential case studies. However, due to the extraordinary diversity of both Indigenous peoples, nations and communities as well as the conditions that they face, the Committee does not intend to undertake a comparative analysis approach. Rather, each case will be evaluated on the basis of its distinct elements and characteristics and whether or not they meet the standards and provisions of the UNDRIP, especially from the perspective of the Indigenous peoples concerned.

5 Against this background, all Committee members are asked: To identify cases that may fit this approach and that can be studied through the lenses identified above. Proposed cases don t necessarily have to be new ones. They may include existing research materials or citations taken from past reports of the former ILA Committee, and allowing for additional information on the basis of the lenses/perspectives only. To indicate whether or not they would be willing to disclose/conduct some research themselves. If yes, they will remain the intellectual author of the draft text and would be free to publish their piece elsewhere as well. As to the length of the case study reports we think of 10 to max. 15 pages per case. Later on, the Rapporteurs and the Chair will make a coherent report out of that. Apart from the cases as such, the Chair and the Rapporteurs will write an draft introductory reflection on the focus of the report and the methodology followed, to be discussed by the committee members. Dalee Sambo Dorough (Co-Chair) Federico Lenzerini (Rapporteur) Timo Koivurova (Rapporteur) Siegfried Wiessner (Chair of the first Committee) Willem van Genugten, Committee Chair