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International Legal Context THE RIGHTS OF THE PYGMY PEOPLE IN THE REPUBLIC OF CONGO International Legal Context Prepared by S. James Anaya Moira Gracey Leonardo Alvarado Indigenous Peoples Law & Policy Program The University of Arizona, Rogers College of Law Tucson, Arizona for Rainforest Foundation - UK The Rights of the Pygmy People in Congo – International Legal Context CONTENTS I. Introduction ............................................................................................................................... 1 II. Overview of International Human Rights Treaties to which the Congo is a Party................... 4 A. AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS .......................................................... 5 B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR)............................... 8 C. CONVENTION FOR THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (CONVENTION AGAINST DISCRIMINATION).................................................................. 12 D. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS .................... 14 E. OTHER INTERNATIONAL TREATIES TO WHICH CONGO IS A PARTY......................................... 17 III. Other International Instruments Relevant to the Rights of Indigenous Peoples................... 18 A. ILO CONVENTION NO. 169 ................................................................................................... 19 B. INTER-AMERICAN HUMAN RIGHTS INSTRUMENTS ................................................................ 24 C. INTERNATIONAL DECLARATIONS AND POLICY STATEMENTS ................................................ 28 D. DRAFT INSTRUMENTS ON THE RIGHTS OF INDIGENOUS PEOPLES .......................................... 30 IV. Overview Of Domestic State Practice Concerning Indigenous Peoples .............................. 35 A. NON-AFRICAN COUNTRIES ................................................................................................... 36 1. Chile.................................................................................................................................. 36 2. Colombia........................................................................................................................... 37 3. Nicaragua ......................................................................................................................... 39 4. Philippines ........................................................................................................................ 41 5. Australia............................................................................................................................ 43 6. Canada.............................................................................................................................. 44 7. Denmark (Greenland Home Rule Act).............................................................................. 46 8. Panama ............................................................................................................................. 47 B. AFRICAN COUNTRIES ............................................................................................................ 48 Non-Francophone Countries ................................................................................................ 49 1. South Africa ...................................................................................................................... 49 2. Ethiopia............................................................................................................................. 51 Francophone countries ......................................................................................................... 54 3. Burundi ............................................................................................................................ 54 4. Cameroon.......................................................................................................................... 55 5. Democratic Republic of Congo (DRC)............................................................................. 56 6. Rwanda ............................................................................................................................. 58 V. Norms of Customary International Law Concerning Indigenous Peoples. ........................... 59 VI. Conclusion ............................................................................................................................ 62 - ii - I INTRODUCTION This report sets forth the broad contours of the international human rights regime as it concerns indigenous peoples1 and thus the Republic of Congo-Brazzaville’s responsibilities under international law, in the context of the current initiative to develop legislative protection for the Congolese Baka “Pygmy” peoples. The report first provides an overview and synthesis of the relevant provisions of applicable treaties, other international instruments, interpretive decisions by international human rights bodies, and the practice of state and other actors engaged in multilateral discussions about the rights of indigenous peoples. It then describes the domestic legal developments of several countries, including select francophone countries in Africa. Finally, the report summarizes the content of international norms concerning indigenous peoples, including norms of customary international law that establish obligations for states in addition to their treaty-based obligations. Concern within the international system for peoples or populations identified as indigenous has arisen as part of a larger concern for those segments of humanity that have experienced histories of colonization and marginalization and that continue to suffer the legacies of those histories. At the close of World War II, the international system instituted the United Nations Charter and incorporated human rights precepts among its foundational elements. The reformed system joined the revolutionary movements that fought colonialism where it continued to exist in its classical form and urged self- government in its place.2 The initial regime of decolonization prescriptions led to the 1 There is no single precise definition of ‘indigenous’ within international law and institutions. Indigenous peoples are identified, and identify themselves as such, by reference to identities that pre-date historical encroachments by other groups and the ensuing histories that have challenged their cultural survival and self-determination as distinct peoples. For an excellent discussion of the meaning of ‘indigenous’ in the African context, which specifically identifies the Yaka or Pygmy peoples of Congo- Brazzaville as fitting under this rubric, see Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (May 14, 2003), adopted by the African Commission on Human and Peoples’ Rights at its 34th ordinary session, November 2003 [hereinafter “ACHPR Working Group report”]. Cf. Benedict Kingsbury, “‘Indigenous Peoples’ in International Law: A Constructivist Approach to the Asian Controversy,” American Journal of International Law, Vol. 92 (1998), p. 414-457, at p. 457 (arguing for a flexible approach to understanding the concept of “indigenous peoples” that emphasises the commonality of “experiences, concerns and contributions made by groups in many different regions”). See generally Note by the Chairperson-Rapporteur of the Working Group on Indigenous Populations, Ms. Erica-Irene Daes, on Criteria Which Might Be Applied When Considering the Concept of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/ AC.4/1995/3 (1995). 2 Chapters XII and XIII of the U.N. Charter created a trusteeship system similar to but with results more effective than the system of mandates under the League of Nations, the failed attempt at world organization that preceded the U.N. at the close of World War I. U.N. trusteeship was established for the territories detached from the powers defeated in World War II with the objective of moving the territories to self-governing or independent status. Of far greater scope and impact has been the program pursuant to Chapter XI of the Charter, entitled “Declaration on Non-Self-Governing Territories,” establishing special duties for U.N. members “which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government.” U.N. Charter (June 26, 1945) 59 Stat. 1031 (entered into force October 24, 1945), art. 73. After a period of resistance by colonial powers, the General Assembly became increasingly engaged in promoting decolonization on the basis of Chapter XI The Rights of the Pygmy People in Congo – International Legal Context independence of African territories with their colonial boundaries in tact. However, indigenous patterns of association and political ordering that originated prior to colonization or conquest were largely bypassed. Instead, the population of a colonial territory as an integral whole, irrespective of pre-colonial political and cultural patterns, was deemed the beneficiary unit of decolonization prescriptions.3 In this context, international norms directed at sub-state indigenous groups defined by common ethnic or tribal characteristics focused on protection as part of a project of assimilation of these groups into the dominant population’s culture and economic modalities. Such norms were articulated in ILO Convention No. 107 of 1957 concerning the Protection and Integration of Indigenous and Other
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