INDIGENOUS PEOPLES EMERGING ON THE WORLD STAGE
For some time indigenous peoples were denied recognition and a
role in international fora. This has changed with the ILO Convention
on Tribal and Indigenous Peoples and the UN Commission on Human
Rights' establishment of a Working Group on Indigenous Populations.
(Second article in a series of three on the UN-designated Year of
Indigenous Peoples)
By Marcus Colchester
The International Labour Organisation (ILO) has led the way among
intergovernmental agencies in defining indigenous peoples' rights
and in setting standards for governments towards them. The ILO's
involvement with indigenous peoples dates back to 1921 when the
organisation carried out a study of indigenous labour. The concern
was maintained during the 1920s and 1930s by focusing special
attention on the problems of native labour in colonial countries.
This work led to several ILO Conventions designed to protect native
labour from exploitation.
In the 1950s, the ILO revived its concern with indigenous peoples
and embarked on an ambitious programme, later to include other
United Nations agencies, to provide assistance to the Indian peoples
of the Andes. Then, in 1957, the ILO passed ILO Convention 107, for
long the only piece of international law which explicitly
acknowledged the rights of tribal and indigenous peoples to own
their lands.
The Convention was precedent-setting for its time. For, it not only
recognised that indigenous peoples had rights to their lands, but
recognised this right as being based on 'immemorial possession',
that is as on 'aboriginal title', thus dispensing with the requirement
that native title be traced to implied consent or acknowledgement
by the State.
Crucially important also was its recognition that 'land' under the
law is generic and included the woods, waters and other surface
notion, then widely prevalent in developing countries, that the best
hope for indigenous peoples was for them to become integrated into
the national majority of the newly independent countries within
whose borders they now found themselves. The Convention was
designed to smooth this transitional process by insisting on certain
standards to protect indigenous rights, while they were absorbed
into the national mainstream.
Subsequent changes in international thinking about tribal and
indigenous peoples rendered these paternalistic notions obsolete.
In 1986 a committee of experts convened by the ILO called for the
Convention's revision and this was undertaken in 1988 and 1989.
The revised Convention 169 on Tribal and Indigenous Peoples has
proved somewhat controversial. It has been openly criticised by
many indigenous people for its failure to secure some of the
fundamental rights that they claim. In particular, it has been
criticised for the way that it subordinates customary law to
national law; for explicitly avoiding recognition of their right of
self-determination; and, critically, for the ambiguous way it
distinguishes between 'lands' and 'territories'.
Probably the most distressing aspect of the revision of the
convention was the way the issues went to the vote.
Indeed nothing more clearly illustrated the hypocrisy of the entire
process than the very seating arrangements at the Conference.
While the rhetoric in the Convention was all of 'recognising the
aspirations of these peoples to control their destinies' and 'of
seeking to obtain the consent of these peoples, as expressed through
their own representative institutions, in decisions affecting their
future', the reality was that the indigenous peoples sat against the
wall of the conference hall looking on powerlessly while their
rights were negotiated away before their very eyes.
On the other hand, in certain respects the new Convention has
created new international standards which are far above those
accepted by law and actually applied in most countries. In the first
place, the new Convention is based on the notion that indigenous
and tribal identities are there to stay and should be respected and
promoted. The Convention recognises the aspirations of tribal and
indigenous peoples to control their own destinies.
The new Convention goes further than any other piece of
international law in recognising collective as opposed to
individual rights. It provides strong measures to secure indigenous
rights to land and natural resources. It regards indigenous self-
identification as a 'fundamental criterion' for determining who falls
within the definition of indigenous and tribal peoples. States that
are party to the convention are thus prevented from making
arbitrary decisions as to whether or not a group of people qualify
for the description of tribal or indigenous.
To date the revised Convention has been adopted by five countries
-- Norway, Bolivia, Colombia, Mexico and Costa Rica -- and it
became law in 1992. Many indigenous peoples' organisations in
countries as far apart as the Philippines, Brazil and Argentina
have been pressing their governments to ratify the Convention,
while NGOs in the North have also been asking their governments to
ratify it and thereby set standards for their development assistance
projects on indigenous lands.
In 1977, North American Indians converged on the United Nations to
demand that they be included among the subject people being
considered by the UN's Committee on Decolonisation. Asserting their
rights to self-determination, indigenous peoples demanded a
complete re-evaluation of their position in international law and
the right to negotiate with nation states on the basis of equality.
The Indian peoples referred to the fact that they had signed treaties
with the British Crown and other forces colonising their lands,
which often explicitly recognised them as 'allies' and as 'nations'.
The Indians' attempts to be included in the UN's decolonisation
process were not successful. However, they were not rebuffed as
curiosities in quite the same way as the Haudenoshonee
representatives who had visited the League of Nations in the 1920s.
The United Nations Commission on Human Rights appointed a Special
Rapporteur to look into the rights of indigenous 'populations' and in
1982, on the basis of his report's broadly sympathetic and
influential recommendations, the Commission established a
Working Group on Indigenous Populations with the mandate of
reviewing developments pertaining to the promotion and protection
of indigenous peoples' rights and evolving appropriate standards to
ensure respect for their fundamental human rights.
The Working Group has met annually (with one exception) in Geneva
ever since and has been attended by hundreds of indigenous peoples'
representatives from all over the world. Substantively, the Working
Group has made rapid progress in drafting an International
Declaration on the Rights of Indigenous Peoples, which the
secretariat hopes to have finalised by the end of August 1993.
What then happens to this draft is a source of much concern to
indigenous peoples. Whereas some indigenous groups, particularly
those from the 'developed' world, feel that the draft itself does not
secure them clear enough rights to their territories and to self-
determination and should be amended before being presented to the
Human Rights Commission, others feel that rapid acceptance of the
Declaration as it stands would provide them with a useful tool for
securing their positions nationally, where their human rights are
daily abused.
The secretariat apparently favours sending the text to the UN Human
Rights Commission for consideration at its 1994 session, from
whence under ideal circumstances it could be forwarded for
acceptance by the UN's General Assembly. But the chances of the
draft declaration emerging unscathed from this process are
minimal.
Some governments of North and South have been openly hostile to
the declaration already -- notably India, Bangladesh, Venezuela,
Japan, and Canada -- so that a final agreement on a Declaration that
is both acceptable to UN member governments and indigenous
peoples seems a long way off. More likely is the promulgation of an
ambiguous piece of international law which will further delay the
effective recognition of indigenous peoples' rights and may even set
standards below those already established by the ILO. This would be
a serious setback.
A parallel process is also under way through the Organisation of
American States (OAS), which announced at the end of 1990 that it
was planning to come out with a Declaration on the Rights of the
Indigenous Peoples of the Americas in time for the quincentenary of
the 'discovery' of the Americas in 1992. Many indigenous groups
were very sceptical of the process, when it was announced, because
it had no clear process for indigenous representation. But the OAS
has responded to these concerns by slowing down the process and
opening it up to indigenous input. A first regional consultation was
held in March 1993 and it now seems that progress towards a
Declaration will be a complex but hopefully balanced process. --
Third World Network Features
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About the writer: Marcus Colchester is an anthropologist and human
rights advocate who works as Forest Peoples Programme Director
for the World Rainforest Movement.
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