Human right analysis
International day of world's indigenous peoples
Barrister Harun ur Rashid
On August 9, the International Day of World's Indigenous People was observed across the world including Bangladesh. This day is perceived as a significant milestone for human rights of indigenous peoples.
The heightened international concern over indigenous peoples led the UN to designate the year 1993 as the "Year of Indigenous Peoples". The purpose of the observance of the Day is to make all aware the rights of indigenous peoples in countries where they live.
Indigenous peoples inhabit large areas of the earth's surface. Spread across the world from the Arctic to the South Pacific, they number, at a rough estimate, some 300 million. Among many indigenous peoples are the Indians of the Americas, the Inuit (Eskimos) and the Aleutians of the circumpolar region, the Sami of northern Europe, the Aborigines and Torres Strait Islanders of Australia, the Maori of New Zealand, the Adhivasis of India and Bangladesh and tribal population of India and Bangladesh.
Throughout human history, whenever dominant neighboring peoples have expanded their territories or settlers from far away have acquired new lands by force, the cultures and livelihood even the existence of indigenous peoples-- have been endangered.
The threats to indigenous peoples' cultures and lands, to their status, and other legal rights as distinct groups and as citizens, do not always take the same forms as in previous times. Although some groups have been relatively successful, in most parts of the world indigenous peoples are actively seeking recognition of their identities and ways of life.
Who are indigenous peoples
Among the many challenging aspects of understanding indigenous peoples is the fundamental difficulty of defining just who is an indigenous person.
The UN Working Group on the Rights of Indigenous Peoples could not agree on a formal definition. However, there is an informal common agreement among nations that indigenous peoples (Aboriginal people) are those who were living on their lands before settlers came from elsewhere.
They are descendants of those who inhabited a country or a geographic region at the time when peoples of different cultures or ethnic origins arrived. For example, before Aryans came to India and Bangladesh, Dravidians lived and they would be considered as indigenous peoples. Subsequently Aryans became dominant in northern India through conquest, occupation, settlement or other means.
Julian Berger, an international political advocate (former UN official) determines indigenous peoples as follows:
" The notion of belonging to a separate culture with all its various elementslanguage, religion, social, moral values, beliefs, legends, music, dance and architectureis central to indigenous peoples' own definition." ( Report of the Frontier: State of World's Indigenous Peoples: 1987).
The UN Commission of Human Rights has provided the following definition. In part, it defines:
" Indigenous Populations are composed of the existing descendants of the peoples who inhabited the present territory of a country wholly or partially at the time when persons of a different culture or ethnic origin came there by conquest." ( the term "indigenous populations was re-placed by the term "indigenous peoples" by the UN Working Group in 1988).
Recognition of rights of indigenous peoples
In the 1920s, American Indians approached the League of Nations ( predecessor to the UN) and their visit to Geneva (where the League of Nations was located) attracted considerable attention, but there were no tangible results. In the early days of the UN, indigenous organisations made sporadic appeals to the UN. A Bolivian government initiative in the UN in 1948 to create a sub-commission to study the social problems of indigenous populations also came to nothing.
However, the 1948 UN Universal Declaration of Human Rights indirectly embodies rights for indigeneous peoples. Article 1 states that " All human beings are born free and equal in dignity and rights". This means all indigenous peoples are equal to settlers in their rights and dignity.
Article 7 of the Declaration stipulates that: " All are equal before the law and are entitled without any discrimination to equal protection of law. All are entitled to equal protection against any discrimination in violation of this Declaration". This implies indigenous peoples cannot be discriminated from other individuals.
The Bangladesh Constitution of 1972 provides similar rights as fundamental rights of all citizens of Bangladesh and Article 28(4) of the Constitution enables the state to make special provision for "advancement of any backward section of citizens."
The International Labour Organisation (ILO) Convention number 107 of 1957 provides the promotion of improved social and economic conditions for indigenous peoples. Later the convention was updated and was adopted as the Convention number 169 in 1989. The preamble of the revised Convention of 169 recognises " the aspirations of indigenous peoples to exercise control over their own institutions, ways of life and economic development… within the framework of the States in which they live."
Turning point for indigenous peoples
A turning point came in 1970 when the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities recommended that a comprehensive study be made of the problem of discrimination against indigenous populations.
That initiative led to the establishment of the UN Working Group on Indigenous Populations, acting as a subsidiary organ of the UN Sub-Commission. The Working Group was led by Ms. Erica-Irene Daes (Greece) and consisted of other four members from Nigeria, China, Cuba and former Yugoslavia. The Working Group started its work in 1985.
The Chairperson Erica-Irene visited many countries to gain first-hand information , as well as to provide information on UN activities in the field of indigenous peoples. After many sessions in Geneva, a draft UN Declaration on the Rights of Indigenous Peoples was agreed upon in July 1993 and it was adopted by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities by its resolution in 1994 on August, 26 ( UN Doc. E/CN.4/1995/2).
The 1994 draft declaration on the rights of indigenous peoples
The Draft Declaration is similar to the UN Universal Declaration of Human Rights. The only difference is that the draft Declaration is especially focused on the rights of indigenous peoples, while the Universal Declaration of Human Rights is much broader and includes all human beings.
One of the rights is enumerated in Article 6 of the Draft Declaration, stating:
" Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and to full guarantees against genocide or any other act of violence, including the removal of indigenous children from their families and communities under any pretext. I addition, they have the individual rights to life, physical, and mental integrity, liberty and security of person."
Another right in Article 10 states as follows:
"Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation, and, where possible, with the option of return."
The World Summit for Social Development took place in Copenhagen in March 1995. Clauses in the Copenhagen Declaration include commitments to:
"26(m) Recognise and support indigenous peoples in their pursuit of economic and social development, with full respect for their identity, traditions, forms of social organisation and cultural values."
What does self-determination for indigenous peoples mean?
The term "self-determination" in respect of indigenous people is a misplaced term because it may mean secession or independence in the context of decolonisation. At bottom, the resistance toward acknowledging the right of self-determination of indigenous peoples, is founded on the misconception, that self-determination means a right to secede and a right to independent statehood. This misconception is often reinforced by reference to decolonisation, which has involved the transformation of colonial territories to independent states.
Self-determination of indigenous peoples does not mean secession or independent statehood. Australia and Canada have explained the term "self-determination" in respect of indigenous peoples and considered that the concept of self-determination must be considered loosely and broadly, that is, to preserve their languages, cultures and traditions within the states they live.
The US in 2001 coined the term as " internal self-determination" and by virtue of this right they may negotiate a framework of local government within the state, subject to its Constitution.
In Bangladesh, the districts within the Chittagong Hill Tracts have been given by law to set up local Councils through elections, where tribal people constitute majority and decide their development programme within their jurisdictions. Furthermore the Peace Agreement with the Tribal Leaders in 1997 provides rights to preserve their cultural identities and way of life unhindered.
Conclusion
The International Day of World's Indigenous Peoples has become a significant day for indigenous peoples. It stimulates awareness of the rights of indigenous peoples to non-indigenous peoples.
In practical terms, the degree of self governance of indigenous peoples is provided by national laws, in accordance with the UN Declaration of their Rights. Many countries including Canada, US, Denmark, Norway, New Zealand and Bangladesh present dynamic precedents of self-governance of indigenous peoples. However there is always room for further improvements through peaceful negotiations, to meet the aspirations and wishes of indigenous peoples.
The author is former Bangladesh Ambassador to the UN, Geneva.
