CONSEJO INTERNACIONAL DE TRATADOS INDIOS

Monday, November 13, 2001

Mr. Rodolfo Staverhagen,
Special Rapporteur on the Situation of human rights and
Fundamental freedoms of indigenous peoples
c/o Office of the High Commissioner on Human Rights
Geneva, Switzerland

Dear Special Rapporteur Staverhagen,

Please receive our cordial and respectful greetings.

The International Indian Treaty Council is a Consultative Status Non-Governmental Organization (NGO), the first Indigenous NGO so recognized by ECOSOC, in 1977. Since that time and in that role, we have attended various UN fora including the Commission on Human Rights and the Sub-Commission on the protection and promotion of human rights, all in search of the promotion and advancement of Indigenous Peoples’ human rights and fundamental freedoms and the recognition and respect by all the member states of their inherent human dignity.

We see the creation of your mandate, and your appointment as most important step toward that end. In spite of all the gains that Indigenous Peoples are perceived to have accomplished at the United Nations, our Peoples are still the poorest of the poor, severely discriminated against, still suffering from violent, gross and massive violations of their most basic human rights, including hunger, ill health, disproportionately high child mortality and early death.

As you yourself have noted, “the entire population of the Americas decreased by 95 percent in the century and a half following the first encounter.” It has also been said that Brazil has lost one Indigenous nation, one culture, one Peoples, every year since 1900, “fully one third of all remaining cultures.” Lamentably, colonialism, in all of its forms, has not ended for the world’s Indigenous Peoples. The destruction of our peoples, our cultures and life-ways, beginning as divinely inspired now are justified in the name of national development. The racist underpinnings and the insatiable hunger for our lands and resources remain constant since the first encounter.

It is not hyperbole to say that Indigenous Peoples are faced with extermination. They are forced off their traditional lands and territories, suffering not only violent displacement (and the ruination of the environment is also violence) but the loss primary means of subsistence and resultant starvation, the loss of language, culture, spiritual practice, all of those human values reflected in human rights standards that are essential to our human dignity.

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.

We are particularly encouraged by your mandate to receive communications on violations of indigenous human rights and to formulate recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the human rights and fundamental freedoms of Indigenous Peoples. Of critical importance is your mandate to respond to urgent appeals and to make country visits in the furtherance of your mandate. We see the Special Rapporteur’s mandate, particularly the urgent response and country visits, as a critical step forward in addressing the very survival of Indigenous Peoples.

It is with these thoughts in mind that we would comment on the possible scope of your mandate, as contained in Commission on Human Rights resolution 2000/57 in the attached working paper, recommending that you focus your mandate on the rights of Indigenous Peoples to their lands and environment.

We very much appreciate your kind consideration, and wish you Godspeed in the fulfillment of your important tasks.

for all our relations,



Alberto Saldamando
IITC General Counsel



cc: Andrea Carmen, IITC Executive Director


The Commission on Human Rights’ Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous Peoples should focus his Mandate on the right of Indigenous Peoples to their lands, territories and environment

I. Collective Rights and the Special Rapporteur’s Mandate:
A. We are greatly encouraged by your use of the word Peoples in you previous writings with reference to Indigenous Peoples. For we believe that in order for your mandate to truly address the deplorable state of human rights and so-called Indigenous issues, the collective or group rights of Indigenous Peoples must be your focus.

1. We believe that mechanisms already exist for the vindication of individual rights throughout the UN system, and that the Commission, as reflected by the resolution, had the collective rights of Indigenous peoples in mind when your mandate was created.

This is not to say that the individual rights of our Peoples are being adequately addressed by the many UN mechanisms dedicated to the vindication of human rights. We are well aware not only of the lack of resources but the lack of political will on the part of many States that hamstring these well intentioned mechanisms. But in our experience, the violations of an indigenous individual’s human rights are more often than not based upon the community’s struggle for the right to their traditional lands and territories. It is the leadership of our communities in struggle that are targeted for torture, extra-judicial executions and disappearances. The decision to resist is a decision made by the community and it is the community, in addition to the family, that suffers the loss. And since the inception of colonialism, it is the community itself that is the target.

2. The resolution, in its preamble, is mindful of Part I, paragraph 20, and Part II, paragraphs 28 to 32, of the recommendations adopted by the Vienna World Conference on Human Rights. Part I Paragraph 20 “strongly reaffirms the commitment of the international community to [indigenous peoples’] economic, social, and cultural well being, and their enjoyment of the fruits of sustainable development.”

The Resolution’s preamble also recalls the objectives of the Decade of the World’s Indigenous People the “strengthening of international cooperation for the solution of the problems they face in areas such as human rights, the environment, development, education, and health.”

These sections, among others, refer to what are generally known as third generation rights, including the right to development and the right to the environment. We are particularly mindful of the preambular section taking into account the Working Group on Indigenous Populations, giving special attention to the evolution of standards concerning the rights of Indigenous Peoples. We would suggest to you herein that this evolution of standards has reached a point where the rights of Indigenous Peoples are now recognized as the rights of Peoples within the full meaning of international human rights law and include the rights of all peoples to peace, of self-determination, to development and the right to a clean and safe environment.

B. As a practical matter, such a broad mandate, covering all third generation rights without some specific focus, would be difficult if not impossible to accomplish. The fact remains, that the basic human rights of Indigenous peoples as a group are violently grossly and massively violated all over the world, and it is this fact that led to the creation of your mandate. Given the Special Rapporteur’s previous invaluable human rights work in the Americas, there is no need to cite to you factual examples of the genocide and ethnocide that Indigenous Peoples face all over the world on account of the dispossession of their lands, their forced removal, and ruination of their environment. From the beginning, UN studies all have pointed to the fact that Indigenous Peoples, collectively, are violently being wiped off the face of the earth.

When the reason behind this deplorable situation is examined, we believe that the basis of the grossest and most massive violations of the human rights of Indigenous Peoples is the insatiable hunger on the part of many states for Indigenous lands and natural resources. That is why would suggest to you that a factual and legal basis exists for a major focus of your work to include violations of the collective human rights of Indigenous Peoples to their lands and natural resources.

II. Indigenous Peoples’ Right to Land:
The special spiritual and physical relationship between Indigenous Peoples and their lands and resources have been recognized by countless United Nations studies, documents and fora. We would suggest to the Special Rapporteur that it is this special relationship that defines Indigenous Peoples. Without their lands and resources, Indigenous Peoples lose their cultures, language and tradition, their life ways and very identity. The forced loss of their lands and natural resources is the major human rights problem faced by Indigenous Peoples to this day. Loss and ruination of their land is the source of their oppression and their extermination.

A. 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 the first major study of Discrimination against indigenous peoples, Special Rapporteur José R. Martínez Cobo commented on Indigenous Peoples’ right to land with regard to the right to property, that there was no notice given that Indigenous Peoples could not enjoy the right to property under national or international legislation, yet this exception existed under many such systems.

Mr. Cobo drew elements of this right with regard to Indigenous lands, first citing as essential the recognition and comprehension of the special profound spiritual relationship of Indigenous Peoples with their lands as something basic to their existence. He also found that the millenary or immemorial possession should be enough to establish title or ownership of Indigenous Peoples of their lands. He recommended that the takings of Indigenous lands not be recognized retrospectively in any legal system.

He further found that recognition and protection of the right to the land is today the basis of all movements and demands of the Indigenous, faced with constant usurpation of their lands. He recommended that the natural and inalienable rights of Indigenous Peoples to their lands should be recognized, and that they should keep possession of lands which they occupy and that they should recover the lands from which they have been dispossessed. His study recommends that Indigenous Peoples’ unrestricted right to control the land and its natural resources, be recognized.

He found basic the freedom to enjoy the right to land as basic to their right to property, and recommended that they should be free to freely determine its use and enjoyment. In this regard, Mr. Martínez Cobo made reference to the right to a clean and safe environment, specifying mining as particularly destructive; he cited the loss and ruination of water as a non-renewable resource essential to the survival of Indigenous Peoples, noting that the destruction of the ecological balance that had been maintained by Indigenous Peoples is a result of the loss of land and concomitant tradition.

Mr. Martínez Cobo cited the profound alienation that Indigenous Peoples suffered when their lands, to which they had been tied for thousands of years, were taken, and recommended that this suffering should be understood; “No one should be permitted to destroy this relationship. The systematic violations of the rights of the Indigenous to the land and its resources should end.”

He recommended that traditional (collective) forms of land ownership be recognized and that title to their lands be guaranteed, that negotiations over lands be carried out with the full equality of Indigenous Peoples, that lands occupied by Indigenous Peoples be recognized as their property with proof of their ownership being possession and control, and that sacred sites be attributed to them in perpetuity.

He addresses the problem and suffering of Indigenous Peoples occasioned by their forced relocation as well as agrarian reform that does not meet the needs and rights of Indigenous Peoples. He notes the forced assimilation of Indigenous Peoples upon being displaced from their lands; he recommending that the lands taken be returned to them.

B. The Cobo Study and its implications with regard to the content of Indigenous Peoples’ right to land and the environment are echoed in present-day human rights standards. In her excellent study on Indigenous people and their relationship to land Special Rapporteur Mme. Erica-Irene Daes carefully and with great insight, describes the nature of Indigenous Peoples’ special and spiritual relationship to land, and the many legal doctrines of dispossession (now discredited) adopted internationally and by States.

She describes the failures of states to recognize the existence of Indigenous use, occupancy and ownership of their lands, the failures of states to accord legal status to these lands and resources, and discriminatory laws facilitating their loss. She also cites the failures to demarcate Indigenous Lands, the removal and relocation of Indigenous Peoples from their lands, and the settlement of their lands by non-indigenous settlers, the abrogation of treaties between Indigenous Peoples and States, the failure to protect Indigenous lands, and the expropriation of lands, all such measures directed toward “the legacy of colonialism,” for national economic and development interests.

Mme. Daes also lists many of the international standards established as a response to these problems of survival of Indigenous Peoples, including:

1. Universal Declaration of Human Rights, Articles 7 and 17;
2. International Convention on the Elimination of All Forms of Racial Discrimination (CERD), Article 5, 5 (v);
3. International Covenant on Civil and Political Rights (ICCPR), Article 27; and,
4. International Labor Organization Convention No. 169 concerning indigenous and tribal peoples in Independent Countries (1989), Articles 4, 7, 13, 14, 15, 16, 17, 18, and 19;

To these Conventions and articles listed by Mme. Daes, firmly recognizing Indigenous land rights, we would add Article 1 in Common to the International Covenant on Economic Social and Cultural Rights (ICESC) and the ICCPR.

1. The International Covenant on Civil and Political Rights:
Mme. Daes cites General Comment 23 of the Human Rights Committee, the treaty monitoring body of the ICCPR, echoing again the Cobo Study:

3.2 The enjoyment of the rights to which article 27 relates does not prejudice the sovereignty and territorial integrity of a State party. At the same time, one or other aspect of the rights of individuals protected under that article – for example, to enjoy a particular culture – may consist in a way of life which is closely associated with territory and use of its resources. This may be particularly true of members of indigenous communities…

7. With regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting, and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions that affect them.

The Human Rights Committee found violations of Article 27 in the case of the Lubicon Lake Band of Canada, in the continued denial and loss of traditional use of Indigenous lands and territories through mineral exploitation and consequent environmental ruin.

The Human Rights Committee also found, upon examining the findings of the Royal Commission on Aboriginal Peoples (RCAP), recommending greater recognition of Indigenous lands, that in the application of Article 1 of the ICCPR to Canada’s Indigenous Peoples:

..without a greater share of lands and natural resources, institutions of aboriginal self-government will fail, the Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence (art. 1, para. 2). The Committee recommends that decisive and urgent action be taken towards the full implementation of the RACP recommendations on land and resource allocation. The Committee also recommends that the practice of extinguishing aboriginal title rights be abandoned as incompatible with article 1 of the Covenant.

2. The Convention on the Elimination of All Forms of Racial Discrimination:
General Recommendation XXIII of the CERD Committee calls upon the states to provide indigenous peoples with conditions allowing for sustainable economic and social development compatible with their cultural characteristics, and to ensure that indigenous peoples can exercise their rights to practice and revitalize their cultural traditions and customs and to preserve and practice their language. Echoing the Cobo Study’s view of the elements of Indigenous Peoples right to property:

5. The Committee especially calls upon the 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. Only when this is for factual reasons not possible, the right of restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.

We would invite the Special Rapporteur to examine the CERD Committee’s Concluding Observations, expressing its dissatisfaction with Australia’s response to its decisions condemning legislation that facilitated the loss of Aboriginal title, stressing the importance of securing the effective participation and informed consent of Indigenous Peoples in decisions affecting their land rights.

3. International Labor Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent States: Without doubt the Special Rapporteur is knowledgeable about the requirements of ILO Convention 169, ratified as it is by many American States. We would only observe that with regard to the concept of Indigenous Peoples’ property rights and their rights to their lands and environment, this convention reflects the elements of those right reflected by Special Rapporteurs Martinez Cobo and now, Erica-Irene Daes, as established international standards.

ILO Convention 169, Part II, Land, calls upon governments to respect the “special importance for the cultures and spiritual values of the peoples concerned of their relationship to the land or territories or both as applicable, which they occupy or otherwise use, and in particular, the collective aspects of this relationship. The rights of ownership and possession of these lands and territories are to be recognized and protected, particularly territories not exclusively occupied by them, but to which, traditionally they have had access to for subsistence and traditional activities.

The Convention requires that governments take steps to identify Indigenous traditional lands and to guarantee effective protection of their rights to ownership and possession. The heart of ILO 169 is Article 6, requiring that in all measures that the State may take on matters that affect them, the State is required to consult with Indigenous Peoples, “such consultations undertaken in good faith, with the objective of achieving agreement or consent to the proposed measures.”

With regard to the environment, ILO Convention 169 requires special measures for the safeguarding of the cultures and environment of Indigenous Peoples especially safeguarding their rights to their natural resources, including the right to participate in the use, management and conservation of these resources.

III. Emergent Standards on the Environment and Human Rights:
A. Indigenous Peoples right to the Environment:
1. We would note that Mme. Daes’ study on the protection of the Heritage of Indigenous Peoples throughout traces the importance of the relationship to their lands and the cultural heritage of Indigenous Peoples.

In addition to ILO Convention 169, Mme. Daes cites the Rio Declaration and the Convention on Biological Diversity as norms in third generation rights with which Indigenous Peoples are influencing thinking and bringing about the progressive development of standards that are more sensitive responsive and useful for themselves as well as humankind generally. “There now exists a strong basis, in international conventional law, for concrete measures at the international, regional and local levels, to protect the heritage of indigenous peoples, in particular the economic, social, cultural, and spiritual relationships which exist between indigenous peoples and their ancestral territories and resources.” We would also suggest that these two documents, particularly the Convention on Biodiversity, implicitly recognize the rights of Indigenous Peoples to their lands, their natural resources and their environment.

2. In her study on the Environment and Human Rights, Special Rapporteur Mme. Fatma Zhora Ksentini, recognized that the right to the environment was not a new right, but flowed from well-established human rights. The right to life and the right to health include the right to be free from environmental conditions that endanger life or health. The right to the environment includes the right of peoples not to be deprived of their means of subsistence by damage to their environment.

Special Rapporteur Ksentini’s Draft Principles on Human Rights and the Environment include:

14. Indigenous Peoples have the right to control their lands, territories and natural resources and to maintain their traditional way of life. This includes the right to security in their enjoyment of their means of subsistence.

Indigenous Peoples have the right to protection against any action or course of conduct that may result in the destruction or degradation of their territories, including land, air, water, sea-ice, wildlife or other resource.

B. The rights of the displaced:
The Mandate of the Special Rapporteur calls for his working in close relation to other special rapporteurs, special representatives, working groups and independent experts of the Commission and Sub-Commission, a difficult task as all are relevant to the human rights problems of Indigenous Peoples.

We note particularly that the Special Representative of the Secretary-General for internally displaced persons has limited his mandate, by necessity, to the displaced on account of civil strife. Although generally not addressing the special problems of Indigenous Peoples even in widespread civil conflict yet even in this country visit he noted the effect of the forced removal of Indigenous Peoples from their lands in Peru by that country’s recent violent past:

The vast majority of the displaced are from the indigenous and native communities. Violence and displacement have fundamentally altered their way of life. Even the manner in which they construct their homes and the form in which their communities are physically organized have changed. Psychologists and sociologists working with them have noted that they suffer more than any other social group in the Andean region when they are uprooted, since they lose the links with their lands and traditions. Grief, depression, feelings of guilt, nostalgia and loss of their identity are compounded by educational and linguistic barriers, serious health problems, crime, drugs and insecurity. As a consequence, the displaced have serious difficulties adapting to life in the areas of refuge, particularly in the cities.

We would suggest that the effect on Indigenous Peoples displaced by State sponsored development suffer a similar misery and tragic end.

Mr. Francis M. Deng, the Representative of the Secretary General for the Displaced continues to do invaluable work, not only in promoting humanitarian relief for the displaced but in establishing legal standards where none exist for their protection, such as the right of return to places of origin and restitution for the displaced. We note the gaps that he continues to identify in international standards for the protection of the displaced, particularly between refugee and humanitarian law and human rights law.

It strikes us as somewhat ironic, for example, that the forced relocation of civilian populations and the destruction of sacred and historical sites are prohibited by Protocol II of the Geneva Conventions during civil conflict, which we would presume are times of great national emergency, but accomplished with impunity during times of so-called peace and development.

IV. The OAS Court:
The OAS Interamerican Court of Human Rights, on September 17, 2001, found that Nicaragua had violated Article 21 of the American Convention on Human Rights, the right to the full enjoyment of their property, by not demarcating the traditional lands of the Mayagna Community of Awas Tingni. We believe this recent decision is the first time that any human rights body of such competence has addressed the rights of Indigenous Peoples to their lands.

This case arose upon the grant of a logging concession on Awas Tingni traditional lands by the Nicaraguan government to a Korean lumber company. In its findings, the Court (echoing the Cobo Study) declared:

By virtue of the fact of their very existence, indigenous communities have the right to live freely on their own territories; the close relationship that the communities have with the land must be recognized and understood as a foundation for their cultures, spiritual live, cultural integrity and economic survival. For Indigenous communities, the relationship with the land is not merely one of possession and production, but also a material and spiritual element that they should freely enjoy, as well as a means through which to preserve their cultural heritage and pass it on to future generations.


CONCLUSION:
The IITC perceives the mandate of the Special Rapporteur on human rights and indigenous issues, particularly the Resolution’s call that he respond to urgent appeals and country visits as a most important and urgently needed accomplishment of the Human Rights Commission and its recognition and protection of Indigenous Peoples’ human rights, fundamental freedoms and their survival.

In the light of the urgent need and the existence of international standards established for their recognition and protection, we strongly urge the Special Rapporteur to consider in the exercise of his mandate, as a priority, the displacement of Indigenous Peoples from their traditional lands and the destruction of their environment as the most pressing human rights problem facing Indigenous Peoples.

The IITC recommends to the Special Rapporteur that he focus on Indigenous rights to land and their environment, as we believe that this focus would contribute greatly to the growth and evolution of human rights standards, particularly in the field of the right to the environment, as Mme. Daes suggests, for the benefit of all of humankind.