CONSEJO INTERNACIONAL DE TRATADOS INDIOS

The United Nations Special Rapporteur on Indigenous Human Rights

1. The Commission Resolution:

On April 24, at their 57^th Session of 2001, the United Nations Commission on Human Rights adopted a resolution calling for the appointment of a Special Rapporteur on Human Rights and Indigenous Issues.[i] Another historic achievement by Indigenous Peoples and their organizations and representatives at the United Nations, the resolution was adopted by consensus of the members of the Commission.

Taking into account that no human rights mechanism exists to specifically protect the human rights and fundamental freedoms of Indigenous Peoples, the resolution authorizes the Special Rapporteur to receive communications, including communications from  Indigenous Peoples and their communities and organizations, on violations of their human rights and fundamental freedoms. The Special Rapporteur’s mandate (authorization) includes paying special attention to discrimination against Indigenous women and the violations of human rights and fundamental freedoms of Indigenous children.

There were some concerns voiced by Indigenous representatives and States that this initiative would duplicate or diminish the role of the Working Group on Indigenous Populations (WGIP) and the newly created and now appointed Permanent Forum for Indigenous Issues.

The resolution notes that the WGIP’s mandate is to study and review developments pertaining to the promotion and protection of human rights and the evolution of standards concerning Indigenous Peoples’ human rights. The WGIP can only do studies on developments, and apply those studies to the development of standards. It was with this mandate that the WGIP developed the proposed Declaration on the rights of indigenous peoples now before the Commission.

The WGIP mandate has never included the investigation of human rights complaints or their resolution. Many of us who have attended the WGIP have grown accustomed to its excellent Chairwoman interrupting oral interventions, warning Indigenous speakers that the WGIP cannot address their specific case of human rights violations.

The Permanent Forum’s mandate generally is to discuss indigenous issues relating to economic and social development, culture, the environment, education, health and human rights, and make recommendations to ECOSOC, its parent body. It is meant to examine the work of the UN in these areas as the work relates to Indigenous Peoples and to rationalize that activity. The Permanent Forum’s mandate does not allow it to investigate individual human rights complaints or to appoint rapporteurs or investigators to look into specific human rights situations.

The International Indian Treaty Council and other Indigenous NGOs worked for this resolution with the firm belief that the Special Rapporteur will compliment and strengthen the work of these other two most important fora. The WGIP and the Permanent Forum, with the Special Rapporteur, will be able themselves to refer matters to each other and provide a wider range of options to more effectively address the wide range of concerns and threats to the survival of Indigenous Peoples.

We all have attempted to use the Commission as well as the Sub-Commission and the WGIP to raise specific human rights violations of our communities. Although sometimes receptive, these fora are normally not able to follow up, except by resolution for further study. And working a resolution at the Commission or Sub-Commission is a long and laborious process.

Many of us saw a need, given the persistent, grave and massive attacks on the human rights and fundamental freedoms of our communities, to have a mechanism within the UN that could receive complaints and investigate them as they should be investigated. We saw an urgent need to have a UN mechanism that could put a stop to these gross and massive attacks on the survival of Indigenous communities or at least denounce them for the grave violations that they are.

The Special Rapporteur, unlike the WGIP or the Permanent Forum, can investigate specific human rights complaints. The mandate includes making visits to the countries alleged to have violated or that are violating the human rights of a particular Indigenous community. The Special Rapporteur is authorized to make recommendations and proposals to the State and to the Commission on steps or measures and activities that either or both can undertake to remedy violations of Indigenous Peoples’ human rights and fundamental freedoms and to prevent future violations.

A most important aspect of the Special Rapporteur’s mandate as authorized by the resolution, is to respond to urgent appeals from Indigenous Peoples and communities. We also worked for the resolution with the firm hope that the reality faced by Indigenous Peoples world-wide, a harsh reality of racist and colonialist practices that continue unabated to threaten their very existence, might be more effectively addressed.

2. The Rapporteur, Mr. Rodolfo Stavenhagen of Mexico:

The Resolution authorized the President of the Commission to appoint the Special Rapporteur. The Chairperson of the Commission on Human Rights is elected every year at the beginning of its regular session. In 2001, the Commission elected Mr. Leandro Despuy of Argentina as President.

The IITC encouraged Mr. Despuy to consider the appointment of a Rapporteur who demonstrated a thorough knowledge about the UN system, including its specialized agencies like the ILO. A most important qualification to us all was an understanding of the cultures and traditional ways of life of Indigenous Peoples and a willingness to consult fully with Indigenous Peoples in the exercise of the mandate. In addition, many Indigenous Peoples called for the appointment of an Indigenous Rapporteur.

Mr. Despuy received various suggestions from many sources including Indigenous NGOs, States, and interested individuals. The list of candidates suggested to the President of the Commission, as published by the High Commissioner’s Office, included Nobel Laureate Rigoberta Menchu Tum of Guatemala and James Anaya of the United States, both Indigenous persons, as well as non-indigenous experts, Ms. Erica Irene Daes, Mr. Agusto Wilhemsen Diaz of Guatemala, and Mr. Rodolfo Stavenhagen of Mexico.[ii]

On the 25h of June, 2001, the President of the Human Rights Commission, Mr. Despuy, named Mr. Rodolfo Stavenhagen of Mexico as the Special Rapporteur. According to the Mexican Embassy in Paris, he is the first Mexican appointed as a Special Rapporteur.[iii]

A press release by the High Commissioner issued 10 August 2001, marking the International Day of the World’s Indigenous Peoples, described his qualifications:

Mr. Stavenhagen has extensive qualifications for the position. The author of many books on sociology, ethnic conflicts, development and human rights in general and indigenous rights in particular, he is currently a research professor at El Colegio de Mexico. He was founding president of the Mexican Academy for Human Rights and a member for 10 years of the Council of the National Commission on Human Rights. Currently, he is a member of the Commission on the Monitoring and Followup of the San Andreas Peace Accords between the federal Government and the Zapatista National Liberation Army. He has been visiting professor at Harvard and Stanford Universities, and elsewhere. On occasion he writes for Mexican newspapers on social, cultural and political affairs.[iv]

The Mandate:

Although the Commission’s resolution as described above sets out the procedural mandate of the Special Rapporteur, the Rapporteur himself will define his mandate as to his method of work and the human rights and fundamental freedoms that he will address. His first report, due at the 58^th Session of the Commission of 2002, should address his method of work and those human rights and fundamental freedoms of Indigenous Peoples that he will address as a matter of priority.

Many times, the Resolution establishing the creation of a Rapporteur will itself provide guidance as to the human rights of particular concern. But this resolution only cites the Universal Declaration of Human Rights in particular[v] and generally, the problems faced by Indigenous Peoples “in areas such as human rights, the environment, development, education and health.[vi]

The International Indian Treaty Council has suggested to Mr. Stavenhagen that he should prioritize the exercise of his mandate on the human rights problems faced by Indigenous Peoples and their rights to land. The IITC suggested that he focus his mandate on the State taking of Indigenous Lands and territories, the forced displacement of Indigenous Peoples from their lands and the ruination of their environment and means of subsistence by State and transnational development schemes.

The human rights and fundamental freedoms of Indigenous Peoples displaced from their lands and the ruination of their environment have not been addressed in a manner adequate to the urgent need.  The IITC believes and respectfully suggests to the Special Rapporteur that the loss of indigenous lands and the ruination of Indigenous Peoples’ environment, directly linked to their very survival, are the most pressing human rights problem faced by Indigenous Peoples today.[vii]

The Universal Declaration on Human Rights, the only specific human rights document referred to in the Resolution, is generally a declaration of individual human rights save one: Article 7, the right to own property alone as well as in association with others.

In our letter, the IITC suggests to the Special Rapporteur that the collective right of Indigenous Peoples to their lands, territories and natural resources are well established in international law. We also suggest to him that the content of that right with regards to Indigenous Peoples, including its collective nature, as well as the spiritual, cultural and economic relationships are also well established under international law. We suggest to him that the loss of lands and their ruination are real and present threats to the very existence of Indigenous Peoples and should be prioritized.

Certainly there may be others who would suggest other priorities. But the fact remains that Indigenous Peoples are facing extinction. We approach the Special Rapporteur on Indigenous human rights, Mr. Stavenhagen, with the hope that he may do much to address that plight.