The International Discourse on Indigenous Peoples

Home , Dum Diversas, Inter caetera, Romanus Pontifex, Sublimis Deus

A Compilation of Legal and Political Documents

Second revised edition

Texts compiled and edited by Ulf Johansson Dahre

Palmkrons

2 Preface to the 2nd edition

The debate on the rights of indigenous peoples remains as relevant as when the first edition of this compilation was published in 2002. Whether the question is human rights, political self-determination or governments apologizing to indigenous peoples for past atrocities, the issue stirs considerable controversy in all parts of the world. However, it seems that the international legal and political context is critical for the interpretation of the current as well as the historical disputes. In addition, human rights have taken an even more significant role in this context than eighteen years ago. Most, if not all legal, political and social conflicts regarding indigenous peoples now takes place in the domain of human rights discussions. Since 2002 have two important international instruments been adopted. In 2007, the United Nations finally adopted the Declaration on the Rights of Indigenous Peoples after many years of deliberations. In 2016, the Organization of American States adopted the American Declaration on the Rights of Indigenous peoples. Moreover, this edition also adds several regional instruments on the rights of indigenous peoples. Other legal and political developments since 2002 have been the jurisprudence in national courts and many national apologies to indigenous peoples around the world. There is no place in this edition to include the development in jurisprudence, but it seems worthwhile to at least refer to this important field of indigenous rights in national and international courts. In 2006 was the first edition of this compilation translated to Bahasa and published by the Institut Dayakalogi in Pontianak, West Kalimantan (Borneo), Indonesia (Dokumen Internasional dan Nasional tentang Masyarakat Adat: ISBN 91-970014-1-4). I wish to thank Director John Bamba and the staff at the institute for the efforts they put in to translate and use the publication in their educational and political projects in different parts of West Kalimantan. I also wish to thank the "Book Fund" of the Lund University Library for support of the publication of this second edition.

Gyllebo, Sweden, in May 2020

Ulf Johansson Dahre

4 Preface

In seeking to conquer the earth, the Western colonizing nations of Europe and the settler- colonized states produced by their colonial expansion, were sustained by a central idea: that the religion, civilization and knowledge of the West were superior to the religions, civilizations and knowledge of non-European peoples. This assumed superiority was the foundation of the West’s presumed mandate to impose its visions of truth on non- European peoples. This compilation arose out of a desire to present and retrieve the instruments, which were and are being used to represent indigenous peoples. Basically, the argument of this compilation is that law, as a special kind of language – regarded by the West as its most respected and cherished instrument of civilization – was also the most vital and effective instrument of empire during its conquest and colonization of non-European peoples, in this case indigenous peoples. There is no doubt that the selective nature of the sources presented in this compilation may have resulted in inadequate commentaries on certain practices and perspectives. The intention with this compilation has not been to describe or compile the total history of the Western law and colonialism concerning indigenous peoples. Rather, I have tried to situate the role of Western ideas, expressed through different documents, in the West’s “will to empire” regarding indigenous peoples. For this purpose, a reliable narrative framework is required for searching the traces of the emergence of the international discourse on indigenous peoples. This compilation of international instruments concerning indigenous peoples has been assembled for two additional reasons: firstly, to serve as a primary documentary resource on the ideas concerning indigenous peoples in historical and contemporary thinking and re-presentation, and, secondly, to provide a convenient general reference for anyone interested in historical and contemporary issues concerning indigenous peoples. Trying to serve these two purposes simultaneously has led to the following criteria’s of selection: mainly international documents, that is instruments, reports, legal cases, proclamations declarations with multilateral international implications; state instruments as well as recent instruments adopted by indigenous peoples themselves and by NGOs; general instruments that are relevant to indigenous peoples, like the international human rights standards developed after 1945, have been omitted; all instruments are presented in chronological order; and a chronological chart serves the purpose of giving an outlook to specific national policies and development as regards indigenous peoples. The chronology may serve as an easily accessible illustration of the history and development of ideas and policies concerning indigenous peoples.

5 Moreover, it is important to note that choosing among all the international texts written and formulated by indigenous peoples themselves during the last decades has been a difficult matter. I am well aware that any selection of such instruments will lack in completeness. The instruments compiled here are the result of my own reading and understanding. It does not mean that other instruments lack in interest or significance. On the contrary, it means that it has been a very difficult task to choose among all the texts written by indigenous peoples themselves! This compilation would not have been possible without the help and assistance from many persons. Particularly librarians at Lund University Libary, University of Hawaii at Manoa, Hamilton and Sinclair libraries, Institute of Commonwealth Studies at the University of London and the Library at the United Nations in Geneva, have all helped to find the old and new texts. In addition, the staff at Anti-Slavery International in London have been a source of good ideas and references. And I wish to express my gratitude to Jonathan Friedman, Graciela Ratti de Carbonari, Björn Eriksson and Helen Avery for giving helpful advice. Ilgot Liljedahl for his patience when editing this textbook and Magnus Knutsson for technical assistance.

Lund in June, 2002

Ulf Johansson Dahre

6 Table of Contents

Abbreviations 13 Introduction 15 1 The Bull “Romanus Pontifex” 31 2 Privileges and Prerogatives Granted to Columbus 41 3 The Bull ”Inter Caetera” (The Bull of Donation) 45 4 Excerpt from: The Treaty of Tordesillas 50 5 Letters Patent to John Cabot 52 6 The Laws of Burgos 56 7 The Requirement 61 8 The Bull “Praecelsae Devotionis” 65 9 Excerpt from: Francisco de Vitoria 68 10 The Bull “Sublimis Deus” 71 11 The Royal Instructions of 1761 73 12 The Belcher Proclamation 76 13 The Royal Proclamation 78 14 Excerpts from: Cherokee Nation v. State of Georgia 84 15 Excerpts from: Worcester v. State of Georgia, 90 16 Excerpt from: Removal of Southern Indians to Indian Territory 93 17 Excerpts from: The Official Report of the Select Committee on Aborigines 96 18 Excerpt from: The Indian Problem 101 19 Excerpts from: The General Act of the Berlin Africa Conference 104 20 Declaration of the Institute of International Law 108 21 Excerpts from: The General Act of the Brussels Conference Relative to the African Slave Trade 111 22 Resolutions of the International Congress of Colonial Sociology 114

7 23 Excerpts from: The Covenant of the League of Nations 125 24 Excerpts from: The Convention of St. Germain-en-Laye 128 Context: The International Labour Organization and Indigenous Peoples 129 25 Excerpts from: The Convention Concerning Forced or Compulsary Labour 131 26 Legal Status of Eastern Greenland 134 27 Excerpts from: The Convention Concerning the Regulation of Certain Special Systems of Recruiting Workers 136 28 Excerpts from: The Convention Concerning the Regulation of Written Contracts of Employment of Indigenous Workers 139 29 Excerpts from: The Convention Concerning Penal Sanctions for Breaches of Contracts of Employment by Indigenous Workers 140 30 Excerpts from: The Convention Concerning the Maximum Length of Contracts of Employment of Indigenous Workers 141 Context: The United Nations and Indigenous Peoples: The Sacred Trust of Civilization Continued 143 31 The Fate of Minorities 145 32 Study of the Social Problems of the Aboriginal Populations and other Underdeveloped Social Groups of the American Continent 147 33 Excerpts from: The Convention Concerning the Abolition of Penal Sanctionsfor Breachesof Contract of Employment by Indigenous Workers 149 34 The Convention Concerning The Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries 151 35 Recommendation Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries 164 36 Advisory Opinion on Western Sahara 173 37 Solemn Declaration and Declaration of Principles 174 38 Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere 178 39 Excerptsfrom: The United Nations Declaration and Programme of Action to Combat Racism and Racial Discrimination 182 40 Fourth Russell Tribunal on the Rights of the Indians of the Americas 184

8 41 Statement by the International NGO Conference on Indigenous People and the Land 188 42 Declaration of San José 191 Context: The United Nations Working Group on Indigenous Populations 194 43 Study of the Problem of Discrimination Against Indigenous Populations 196 44 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (The Miskito Indian Case) 198 45 Resolution on the United Nations Voluntary Fund for Indigenous Populations 200 46 Recommendations from the Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States 202 47 ILO Convention No. 169 Concerning Indigenous Peoples and Tribal Peoples in Independent Countries 206 48 Excerpt from: Convention on the Rights of the Child 224 49 The World Bank Operational Directive (OD) 4.20: Indigenous Peoples 225 Context: Indigenous Peoples and the Right to Self-Determination 237 50 The Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government 242 51 Indigenous Peoples and the Quincentenary 1992 247 Context: Indigenous Peoples, Development, Environment and Intellectual Property 251 52 Excerpts from: The Convention on Biological Diversity 253 53 Indigenous Peoples Earth Charter 261 54 Excerpts from: The Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all types of Forests 272 55 Excerpts from: The Rio Declaration on Environment and Development 275 56 Excerpts from: Agenda 21 277 57 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities 287

9 Context: The Regionalization of the Rights of Indigenous Peoples 291 58 European Charter for Regional or Minority Languages 292 Context: The Self-Determination Revival of Indigenous Peoples 310 59 The B’okob Declaration 311 Context: Indigenous Peoples and Traditional Knowledge 314 60 The Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples 319 61 Excerpts from: The Vienna Declaration and Programme of Action on Human Rights 324 62 Voices of the Earth 327 63 The International Decade of the World’s Indigenous People 334 64 European Parliament Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples 339 65 Resolution of the Indigenous Initiative for Peace 343 66 Excerpts from: The United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa 345 67 Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples 347 68 Excerpts from: Programme of Actions of the United Nations International Conference on Population and Development 355 69 Establishment of a Working Group of the Commission on Human Rights to elaborate a Draft Declaration in accordance with operative paragraph 5 of the General Assembly resolution 49/214 of 23 December 1994 358 70 Excerpts from: Copenhagen Declaration and Programme of Action for Social Development 364 71 The Beijing Declaration of Indigenous Women 369 72 Excerpts from: The Beijing Declaration and Platform for Action 378 73 Framework Convention for the Protection of National Minorities 383 74 Programme of Activities for the International Decade of the World’s Indigenous People 397

10 75 Excerpts from: The Habitat Agenda and The Global Plan of Action 410 76 Resolution on Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States 415 77 Excerpts from: Cartagena Protocol on Biosafety to the Convention on Biological Diversity 419 78 United Nations Permanent Forum on Indigenous Issues 421 79 Resolution on the Rights of Indigenous Peoples’ Communities in Africa 424 80 Excerpts from: World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance 425 81 Universal Declaration on Cultural Diversity 434 82 Declaration of Atitlán 441 83 Convention for the Safeguarding of the Intangible Cultural Heritage 448 84 Convention on the Protection and Promotion of the Diversity of Cultural Expressions 463 Context: United Nations and Indigenous Peoples 481 85 United Nations Declaration on the Rights of Indigenous Peoples 484 86 The Expert Mechanism on the Rights of Indigenous Peoples Adopted by the UN Human Rights Council, Resolution 6/36, 2007. 499 87 Guidelines on Indigenous People´s Issues 503 88 Excerpts from: Charter of Fundamental Rights of the European Union, 506 89 FAO Policy on Indigenous and Tribal Peoples 507 90 Performance Standard No. 7: Indigenous Peoples 512 91 Outcome Document of the World Conference on Indigenous Peoples 520 92 American Declaration on the Rights of Indigenous Peoples 527 Annex 1 A Working Definition of Indigenous Peoples 547 Annex 2 Chart of Chronology 548 Annex 3 Selected Bibliography 557

12 Abbreviations

AU African Union CHR United Nations Commission on Human Rights ECOSOC United Nations Economic and Social Council EP The European Parliament EU The European Union GATT General Agreement on Tariffs and Trade HRC Human Rights Committee HUGO Human Genome Organization IACHR Inter-American Commission on Human Rights ICJ International Court of Justice ILO International Labour Organization IMF International Monetary Fund IWGIA International Work Group for Indigenous Affairs LN League of Nations NGO Non-Governmental Organization OAS Organization of American States OAU Organization of African Unity PCIJ Permanent Court of International Justice RAFI Rural Advancement Foundation International RIAA Reports of International Arbitral Awards UN United Nations UNCED United Nations Conference on Environment and Development UNDP United Nations Development Programme UNEP United Nations Environmental Programme UNESCO United Nations Education, Science, and Cultural organization UNGA United Nations General Assembly UNHCHR United Nations High Commissioner for Human Rights UNPFII United Nations Permanent Forum for Indigenous Issues WCIP World Council of Indigenous Peoples WGDD United Nations Working Group on the Draft Declaration on the Rights of Indigenous Peoples WGIP United Nations Working Group on Indigenous Populations WIPO World Intellectual Property Organization WTO World Trade Organization

14 Introduction

Language is the perfect instrument of Empire, Antonio de Nebrija, 1492

The International Discourse on Indigenous Peoples

In 1821, Reverend Jedediah Morse, a special commissioner, appointed to visit and report upon the Indian tribes in the United States, reported to the Secretary of War on the nature of the relationship between a civilized State exercising sovereignty over a region and aboriginal tribes inhabiting the same region:

The Government, according to the Law of Nations, having jurisdiction over the Indian Territory; and the exclusive right to dispose of its soil, the whole Indian population is reduced, of necessary consequence, to a dependent situation. They are without the privileges of self-government, except in a limited degree, and without any transferable property. They are ignorant of nearly all the useful branches of human knowledge, of the Bible, and of the only Savior of men therein revealed. They are weak and ready to perish; we are strong, and with the help of God, able to support, to comfort, and to save them. /.../ They are entitled, as “children” of the Government, for so we call them, peculiarly related to it, to kind paternal treatment, to justice in all our dealings with them, to education in the useful arts and sciences, and in the principles and duties of our religion. In a word, they have a right to expect and to receive from our civil and religious communities combined that sort of education, in all its branches which we are accustomed to give to the minority of our own population, and thus to be raised gradually and ultimately to the rank and to the enjoyment of all the rights and privileges of freemen and citizens of the United States. This I conceive to be the precise object of the Government (Snow, 1921:31-32)

During the last couple of decades, there has been a growing concern for the special situation of indigenous peoples by the international human rights community. Indigenous peoples’ concerns have risen because of their efforts to draw international attention to the deplorable and discriminatory social, economic, cultural and political conditions with which all indigenous peoples struggle. In response to the conditions they face efforts have been focused upon the development of new and extended human rights standards specific to indigenous peoples. The ILO Convention No. 169 and the United Nations Declaration of 2007 are significant instruments of contemporary development. However, this international legal and political development is not new. The regulation of the lives and cultures of indigenous peoples has a history of more than five hundred years.

15 It is a history of prejudices, destructive policies and ethnocentrism; a history of killings, slavery, assimilation and the sacred trust of civilization. The texts in this compilation primarily, but not solely, reflect the views of states with respect to indigenous peoples. The texts bear witness of ideas and discourses reflecting periods in the relationship between the military powerful and the military weak, between the conceptual power and the objectified “other”. Although the instruments tell the history of indigenous peoples seen through the eyes of powerful colonial states, it may be useful to add a historical context. I have done this in certain instances, but the scope of this compilation obviously does not allow a complete contextual analysis. Most of the instruments emanate from what is discursively called “international law and politics”. International law and politics reflects a constant tension in the relations between states. In this context, it is interesting to note that historically, international law reflects a double standard. One set of rules applies to Nation-States and another to indigenous peoples. Even if international law and politics after the Second World War has evolved in the direction of acknowledging “all peoples”, remnants of the double standard still exist, firmly entrenched in the contemporary discourse of international law concerning indigenous peoples. Today indigenous peoples are part of international law and politics, mostly as passive objects and not as equal, political subjects. Indigenous peoples all around the world still struggle to be acknowledged as equal to other peoples. They must also gain equal participation in the decisions that affect them.

The Discourse on Indigenous Peoples

This compilation of documents such as Conventions, Declarations, Bulls and Legal decisions and texts concerning indigenous peoples arises out of a desire to trace and reconstruct the emergence of the idea to conquer the world and to label certain peoples as “primitives”, “natives”, “tribes”, “barbarians”, “savages” or “indigenous”. The argument of this compilation is that international law and politics, were the most important, and effective instruments of empire building during the conquest and colonization of non-Western peoples of the world. Although the conquest of the world was a multifaceted enterprise, Europe’s “will to empire” was largely effective through legal or paralegal texts. While the colonizing nations of Europe interpreted and applied their presumed mandates in the rest of the world in sometimes radically divergent ways, each assumed that law was an appropriate instrument of empire in imposing their particular worldview on what they called “the natives”. It was in this context that “indigenous peoples” emerged as a distinct social category – they became a problem in the Western discourse of the law of nations. The many laws and texts concerning indigenous peoples, promulgated by popes and princes, reveal the existence of a professed political/legal

16 discourse on indigenous peoples. This discourse is traceable to statements, papal bulls, treaties, unilateral acts, reports and legal doctrines, focused on the problem of definition and how to treat the “infidel natives”. The discourses on colonization and indigenous peoples worked closely together and were deployed by the rival European colonial nations. All sought power over the vision of truth that was started to be imposed on the rest of the world from the middle of the 15th century. All the colonizing powers relied on “law” or their national legal doctrines (derived from the Roman Empire) as a vital supplement to the more ideological and political visions they had. This compilation has a rather narrow perspective and is mostly limited to documents and texts from the principal colonizing powers as Spain, Portugal, England, the United States, and certain international organizations when we enter the last century. The exercise of power requires efficient tools and instruments. As this compilation shows, the international legal-political discourse was the perfect instrument of empire in colonizing histories, when performing, legitimating, energizing and constraining “the will to empire”. We could say that this compilation of documents and texts attempts to show how it came about that indigenous peoples were drawn into the global system by means of national and international discursive formations, linking norms and ideologies of modernism and racism, religious opinions, natural and social views of societies. These norms and ideologies have led to the transformation of indigenous societies and their integration to Western social and political systems. This compilation therefore attempts to trace the emergence and maintenance of the discourse on indigenous peoples during 500 years; how did particular ways of thinking, talking and acting with respect to indigenous peoples take the form and content that they did?

What is the Discourse on Indigenous Peoples?

In one usage, “discourse” testifies to the pervasive impact in 20th century social theoretical thought of the “linguistic-turn” which underlines the importance of communication as a distinctive characteristic of social life. At the root of this usage is the basic idea that language does not simply name or label some autonomous reality, except in cases as when pointing at a “tree”. Most language does more than merely name, so it is more than a system of direct reference to an external reality. Of course, this line of thought does not deny that there is an external reality, but it makes the important point that this reality is mediated through language. In addition, so is institutional practice, like state behaviour, and scientific and religious opinions, which are crucial for the understanding of a discourse.

17 The concept of discourse emphasizes the processes that produce the characteristic ways of thinking and feeling and doing, that we might sense as natural and self-evident. A discourse provides a means of designating the different forms of communication, but also of reminding us of the institutional, cultural or constitutive place of language. The term reminds us that words work for us because they are part of some wider phenomenon. Seeing the concept of indigenous peoples as a “discourse” refers to elements, which constitute, if not always a coherent totality, at least a wider frame of reference. The discourse of indigenous peoples imposes a framework, which structures what can be experienced or the meaning that experience can encompass, and thereby influences what can be said and done. Each discourse, according to Michel Foucault, allows certain things to be said, thought and done and impedes or prevents other things from being said, thought and done. This leads to questions such as how do specific forms of knowledge and theory become possible? One might say that this compilation is exactly about how the discourse on indigenous peoples came about and how it is perpetuated. One must also underline that discourses have real effects. They are not just the way that social issues are talked and thought about. They structure the possibility of what is included and excluded and of what is done or remains undone. For instance, Foucault identified as a distinctive feature that in its most obvious sense discourse authorises some to speak, some views to be taken seriously, while others are marginalized, derived, excluded and even prohibited, killed or enslaved. Discourses impose themselves upon social reality. Indeed, they produce what it is possible to think, speak and do. Discourses construct reality.

Truth production: The Truth and Knowledge about Indigenous Peoples

It is argued that discourses generate truth-claims. Human beings produce truth, but it is produced passionately and partially, with what Foucault calls a “will to truth” or a “will to knowledge” and this gives rise to regimes of truth. This conception of truth intentionally stands against the views of truth that have been prevalent since the Enlightenment whereby truth is neutral, revealing itself only when it is separated from power. Seeing truth this way means that truth is not counter posed to falsity or error, but rather regimes of truth lay down what is true and what is false. Truth is not separated from power. Rather, it is one of the most important vehicles and expressions of power; power is exercised through the production and dissemination of truth.

18 Of course, this view of truth carries a risk of sliding into relativism where everything (and anything) is truth and only power is the arbiter between competing regimes of truth. Foucault denies this charge of relativism, by denying that anything could be “true”. There are no final causes or ultimate truths, is his claim. Once the metaphysical quest for truth is abandoned, Foucault recommends that we focus our energies on the more modest task of identifying techniques of truth and power. How is truth produced? One of the interests in compiling political, religious and legal texts is that it is frequently through these mechanisms that strategies such as truth- production become visible. This compilation describes the relations between statements about indigenous peoples. A discursive formation can be constructed out of different forms of statements, which also can be dispersed in time. If the statements refer to the same object, they form a discourse. The emergence of a discourse does not depend on the existence of the object of discourse, in this case indigenous peoples. It is not a result of objectivity, a one-to-one relation, between the social facts and the statements about them. To understand the difference between “us” and “them”, the distinction has to be symbolized, and that scheme is made in the observer’s eyes and head. The emergence of the concept of indigenous peoples in the 15th century was an interplay of rules, measures of discrimination, repression, legal distinction, religious opinions, etc. The relations between statements are also defined according to their form and connection. The idea of indigenous peoples, for instance, is not so much statements about the object as such or the concept, but is a way of looking at the social and human phenomenon. Statements are not an objective description, but hypotheses about how society should look like, how man should be, live, and reproduce society, and about ethical values. The discourse on indigenous peoples is a historical product by which an idea of the “other”, “the primitive”, “the noble savage” etc. emerged from Europe’s growing internal cohesion and its changing relations to non-European cultures and societies of the world. This product is a discourse in which Europe began to describe and represent the difference between itself and the “others” it encountered in the course of its expansion. The concept of indigenous peoples is a discourse with certain characteristics. Here we have to remind ourselves that what is important with the notion of discourse is that it is not based on the conventional distinction between thought and action, language and practice. It is not similar to what is commonly held as ideology, which provides the precondition for saying that something is “true” or “false”. The kind of discourse laying the ground for this compilation is about the production of knowledge through language. This knowledge is a practice of producing meaning. Since all social practices and relations entail meaning, all practices have a discursive aspect. Law, for instance, produces meaning, and is the result of a discursive action. Discourse enters into and influences all social practices (Foucault, 1972:21-39). The relation between Europe

19 and indigenous peoples can be argued to be based on the implications in practice, i.e. how Europe from the start behaved towards what it called “indians” and later “indigenous peoples”. To say that indigenous peoples are presented as a discourse is not the same as to say that certain characteristics are “true” or “false”. The idea of a distinction between true and false statements is based on the ideology that the facts about the world help us to decide, for instance, between statements concerning them and us. But this is not the case. We rarely have the opportunity to say that something is true or false when we are presented with the facts about the world. Facts can be constructed in different ways. The language we use to describe the facts is involved in the process of what will finally decide what is us and what is them. For instance, indigenous peoples living relatively isolated in a rainforest can be presented either as “primitive” or as “civilized”, “noble” or “ignoble”. It is a fact that they have a society and they trade, have distinct cultural traits and dresses, use different tools and production techniques from the Europeans, and so on. But what does it mean? The fact that they have different cultural traits and production techniques can not alone decide what the differences mean. We need references, and those are found in what is familiar to ourselves. The very language we use to describe the society – primitive/civilized – will be a part of constructing the notion we have of them. Whether the people in the rainforest are “primitive” or not, if we think they are, and we act on that “knowledge” they in effect become primitive because we will treat them as such. The language of the discourse we use has real effects in practice and the description becomes true. We create a dichotomy between us and them.

The Relation between the Discourse and Power

Many of our statements of the social world have an ideological dimension. Our early knowledge about indigenous peoples was produced by competing discourses – Christian/heathen, primitive/civilized, autonomous/integrated etc., and each is linked to a contestation of power. It is the outcome of the struggle between the competing discourses that finally decides the “truth” of the situation. Even if this approach sidesteps the truth/falsehood perspective, it does not evade the issue of power. On the contrary, it gives considerable weight to questions of power, since it is power, rather than “facts” about reality, which makes things “true”. Foucault tells us that: “We should admit that power produces knowledge /.../ That power and knowledge directly imply one another; that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose and constitute, power relations” (Foucault, 1980:27). To say that power produces knowledge is not to reduce discourse to statements that simply mirror the interests of a particular group, or in this case a particular region of the

20 world. Discourse, according to Foucault, is not instrumental. Groups or regions can use the same discourse with different or even contradictory interests. However, it does not mean that discourse is ideologically neutral or left without responsibility for its effects. The encounter between the Old and New Worlds, between the Western world and indigenous peoples could not have been neutral or innocent. There are several reasons why the discourse, which emerged in Europe about indigenous peoples, could not have been neutral. First, Europe brought its own cultural categories, languages, images and ideas to the Americas and other parts of the world in order to describe and represent it. The discourse tried to fit the indigenous peoples into existing conceptual frameworks and absorb them into European traditions of representation. Secondly, Europe had certain definite intentions and interests in trying to discover what was across the “Green Sea of Darkness”. The early colonists wanted gold and silver, land for the Catholic Majesties and to convert the heathen to Christianity. These motives may seem contradictory, but even if God and Mammon worked hand in hand to fulfil these efforts, it is problematic to reduce this to plain self-interest. Maybe the rulers of the time fully believed in a link between Christianity and Gold. However, this does not mean that their responsibility for what happened is less. It is quite clear that the discourse was moulded and influenced by the motives and interests of their language. Motives and interests are almost never wholly conscious or rational choices. The discourse was a system through which power circulated. In addition, the power produced the discourse. Thirdly, the discourse of indigenous peoples could not be neutral because it did not represent an encounter between equals. The Europeans “discovered” peoples that had no wish to be discovered, no need to be explored and no desire to be exploited. The Europeans were in a dominant position and this influenced what they saw and how. Moreover, of course, how they represented what they saw. The “knowledge” produced by a discourse constitutes a kind of power which is exercised over those who are “known”. When that knowledge is exercised in practice, those who are known in this particular way will be subjected to that knowledge. Those who produce the discourse also have the power to make it true: “truth isn’t outside power, or lacking in power: contrary to a myth whose history and functions would repay further study, truth isn’t the reward of free spirits /.../ Truth is a thing of this world: it is produced only by virtue of multiple forms of constraint /.../ Each society has its regime of truth, its “general politics” of truth: that is, the types of discourse which it accepts and makes function as true; the mechanisms and instances which enable one to distinguish true and false statements” (Foucault:1980:131). In his book “Orientalism” (1978), Edward Said notes “the essence of Orientalism is the ineradicable distinction between Western superiority and Oriental inferiority”. This can also be said about the texts on “Indigenism” presented in this compilation. In addition, the reason may be understood as a misrecognition of difference.

21 The Europeans, encountering the peoples of the New World, were immediately struck by what they interpreted as the absence of government and civil society – the basis of all “civilization”. Nevertheless, in fact these peoples did have several, very different, highly elaborated social structures. The New World, the Europeans discovered, was already home to millions of people who had lived there for thousands of years. What disturbed the European expectations was their difference. Although Europeans came to learn more about the peoples of the New World, as centuries passed by, they persisted in describing them all as “Indians”, lumping all distinctions together and suppressing differences in a single inaccurate stereotype (Berkhofer, 1978:2331). Another account of the inability to deal with the difference is provided by Captain Cook’s early experience of Tahiti in 1769. The Englishmen knew that the Tahitians held property communally and that they were therefore unlikely to possess a European concept of theft. In order to win over the native population, the crew showered them with gifts. However, the Tahitians began to help themselves. At first, the pilfering amused the visitors. When the natives snatched the spyglass and snuffbox, he threatened them with his musket until they were returned. Cook’s crew continued to be plagued by incidents like this (Hall, 1992:305). The thinking, speaking and doing of the Europeans was governed by the complex understandings and norms, which regulated their own systems of monetary exchange, trade and commerce. Europeans assumed that since the natives did not have such an economic system, they therefore had no system at all. Hugh Honour has remarked that “Europeans increasingly tended to see in America an idealized or distorted image of their own countries, on to which they could project their own aspirations and fears, their self-confidence and guilty despair” (Honour, 1976:3).

”In the Beginning All the World Was America”

Upon the encounter between the Old World and the New, the question posed was if the inhabitants of the New World were to be considered as “true men” or “savages”. The question of how the indigenous peoples should be treated was linked to the question of what sort of peoples they were. This in turn depended on the knowledge about them, or rather, how the predisposed picture of them looked like, i.e. how they were represented according to the sources of information Europeans built their notions upon. The questions posed were: – where did the Indians stand in the order of the Creation, where were their societies placed in the order of civilization, were they true men, were they made in God’s image? If we turn to classical knowledge and Christianity, our approach to the Indians would probably be like this: “true men” was a special creation endowed with a special gift of

22 reason. If a man did not have this divine reason, the person was probably a savage. The Church taught that man was receptive to divine grace. Did the Indians correspond to these images of “true men”? On the other hand, did the Indians’ way of life and their lack of civilization constitute them as incapable of reason and faith? The debate raged for most of the 15th century and well into the 16th. Ferdinand and Isabel, emperors of Spain at the end of the 15th century, issued decrees to the effect that a “certain people called cannibals” and “any, whether called cannibals or not, who were not docile” could be enslaved. Another view expressed that “they probably descended from another Adam /.../ born after the deluge and /.../ perhaps have no souls” (Honour, 1976:58). Bartolomé de Las Casas, a Spanish Dominican Friar placed in Chiapas, Mexico, protested at the brutality of the Spaniards in putting Indians to work as forced labour. Indians, he argued, did have their own laws, customs, civilization, religion, and were “true men”. This debate continued in the 16th century and was formally debated in Valladolid before the Emperor Charles V in 1550. This debate also illustrates how the power struggle concerning the discourse on indigenous peoples was expressed. Two contradictory views were presented and the struggle concerned which one was going to prevail. The debate between Las Casas and Sepulveda also reveals how different discourses were being founded. Sepulveda never set foot in the Western Hemisphere and his only qualification to take part in the debate was his academic knowledge of the theories of Aristotle. He had just completed a Latin translation of “Politics”. Sepulveda was influenced by Aristotles’ “natural slave theory” which stated that some men, as they don’t possess reason, “are slaves by nature” and that “by nature some are free” (Aristotle, 1981:69). Las Casas, on the other hand, had extensive first-hand knowledge of the Indians. He was one of those who influenced the passage of the New Laws of Burgos, which attempted to protect the Indians and was later named Bishop of Chiapas to implement these new laws. The debate crystallized the views on the Indians: were they “true men” or “savages”. The view of the Indians according to Sepulveda; “These inferior people “require” by their own nature and in their own interests, to be placed under the authority of civilized and virtuous princes or nations, so that they may learn, from might, wisdom, and law of their conquerors, to practice better morals, worthier customs and a more civilized way of life /.../ [The] mere fact that the Indians lived under some form of government by no means proved that they were equals to Spaniards. It simply showed that they were not monkeys and did not entirely lack reason” (cf. Hanke, 1959:47-48). As they were not true men a war against the Indians would be just if they did not recognize the Spaniards as their natural superiors. Las Casas formulated a counter argument: “All the nations of the world are men, /.../ all have understanding and volition, all have the five exterior senses and four interior senses, and are moved by the objects of these, all take satisfaction in goodness and feel pleasure with happy and delicious things, all regret and abhor evil” (Hanke, 1951:82).

23 This debate was not settled, even if in practice the views of Sepulveda have had much more influence. We can also see that these two discourses on indigenous peoples still is a controversial matter and is found in legal decisions and in policies of states until this day. In international law, the views have fluctuated between the two positions expressed by Las Casas and Sepulveda. Also in art, a discourse on indigenous peoples emerged in the 16th century. The French philosopher Montaigne, in his essay “The Cannibals”, placed the noble savage in America. This idea took a strong hold on the European imagination. The idea later turned up in paintings, as “The Different Nations of America” by Le Brun, which represented the Indians as grave, tall, proud, independent, statuesque and naked (Honour,1978:118). Between 1590 and 1634, the Flemish engraver Theodor de Bry published “Historia Americae” in ten illustrated volumes. These became leading examples of a popular literature about the New World and its peoples. It is also an example of how the European way of seeing and representing the Indians was constructed. It imposed an image of the Indians and refined earlier pictures – the effect was to tame and “civilize” the people (Honour, 1976:75). The noble-ignoble and the rude-refined oppositions belonged to the same discursive formation. This civilized-primitive discourse influenced enlightenment thinking, and provided the framework of future thinking, speaking and doing with respect to indigenous peoples. The Enlightenment thinkers believed that there was a single path to civilization and social development. All societies could be ranked early or late, lower or higher. The emerging social science was the study of forces, which had led to distinct developmental stages, leaving some regrettably at the lowest stage – represented by the American “savage” – while others advanced to the summit of civilization – represented by the European societies. Enlightenment thinking thus reproduced within its own conceptual framework many preconceptions and stereotypes of the previous discourse on indigenous peoples. The examples are many. “No one who reads the work of the French and Scottish pioneers of the 1750s can fail to notice that all of them, without exception, were familiar with the contemporary studies of the Americans” (Meek, 1976:173). Most of them had evidently pondered deeply about their significance and some were almost obsessed by them. The rude-refined nation’s distinction was not simply descriptive, but formed part of a larger theoretical framework: • It represented a decisive movement away from mythological and religious explanations of the causes of social evolution; • It produced the idea that the history of mankind occurred along a single continuum, divided into a series of stages; • Writers differed over precisely which material or sociological facts they believed played the key role in propelling societies through these stages.

24 In Enlightenment thinking, Europe was the model, the prototype and the measure of social progress. European civilization, rationality and development were celebrated. Yet, all this depended on the discursive figures of the noble-ignoble savage and rude-refined nations, which had been formulated in the European discourse on indigenous peoples. Therefore, the notion of indigenous peoples was also critical for the formation of a Western European consciousness. Without the discourse of “the native primitive man”, Europe would not have been able to represent itself as the summit of human history. The texts in this compilation bear witness of the figure to “the other”, banished to the edge of the conceptual world and constructed as the opposite, the negation of everything that Europe stood for. Indigenous peoples appeared as the necessary anti-thesis at the very centre of the discourse of civilization, refinement, modernity and development. “The other” was the darkness, forgotten, repressed, and denied: thus the reverse image of enlightenment and civilization.

Indigenous Peoples in the World System

International law is significant for our understanding of the emergence and development of the discourse of indigenous peoples. What has become known as international law was at the time of the discoveries originally called the “European Law of Nations”, or sometimes, the public law of Christian Nations (Oppenheim, 1955:48; Kunz, 1968:13- 45). The major premise of the European Law of Nations was that war was the basic state of international relations. After the fall of the Roman Empire, the Catholic Church became the only source of authority on matters of relations between peoples. Although treaties were important sources of international law, the Bulls of the popes – claiming a line of succession back to Saint Peter – played a central role in the development of international law. A major test for the European Law of Nations evolved in the 15th century, when the question of the status of barbarous and heathen peoples was the focus of attention. The dispute concerned whether indigenous peoples were human, and thus had a right to own land and other possessions independently of the Christian Nations, or if the Christians had the duty to civilize the heathen peoples. It was argued that if the heathen peoples resisted the Christian mission, it was just to wage war against them. No efforts were too great for this enterprise. A curious formality was conducted in this effort: the reading of the Spanish Requirement before hostilities could legally be commenced against the Indians. A peculiarity was that it was often read when or where no one could hear it, or in Spanish or Latin which the Indians did not understand. It has been noted that when the Incas were told of the “Bull of Donation” they remarked to Pizzaro that the Pope: “must be crazy

25 to talk of giving away countries which do not belong to him” (Lindley, 1926:127). The instruments in this compilation reflect the tension and debate between two arguments: on the one hand, there has been a recognition of existing indigenous land and property rights. On the other hand, no pre-discovery rights have ever been recognized on behalf of indigenous peoples. The result we know. Indigenous peoples became minorities, and the colonially established states assumed full sovereignty over them, in all parts of the world. The present-day discussion on the rights of indigenous peoples emanates from the early 16th century legal and political debate. Francisco de Vitoria, one of the founders of modern international law and a theologian of the University of Salamanca in Spain, affirmed the view that the Indians of America were human and entitled to enjoy civil and political rights. They were in the eyes of Vitoria the true owners of their lands. He restricted Spanish rights to evangelism, travel and trade. However, if it was seen as a benefit for the tribes, Spain could assume rights over the Indians and their lands. This was the emerging doctrine of trusteeship, developed as a legitimation of colonialism. Officially, Vitoria’s views were accepted in Spain. The initial atrocities were to be abandoned for a more human treatment of the Indians. The New Laws of the Indes were issued in 1542 and the papal bull “Sublimis Deus” stated that the Indians were humans and were to be protected in their liberty and property. Sepulveda expressed the other view in 1550 in the well-known Valladolid debate with Bartolome de las Casas, who was the protector of the Indians and influenced by the arguments of Vitoria. Nevertheless, Sepulveda, whose argument mirrored the actual treatment of the Indians, argued that these inferior people “require by their own nature and in their own interests, to be placed under the authority of civilized and virtuous princes or nations” (Falkowski, 1992:26). The official policy of the European center failed to be implemented in the distant colonies. Indian populations in the Caribbean and in the fertile coastal areas were largely wiped out by slavery, forced labour and diseases. A process that was to be repeated over the years. The second part of the Spanish-Portuguese legacy in Latin America was the reductions- policy, which succeeded the initial “Encomiendas” policy. Between 1608-1637, the Jesuits established the first reserves in the New World, in present day Paraguay and Argentina. English colonial policy, on the other hand, was more pragmatic than the Spanish and Portuguese. Treaties were the basic instrument of acquiring sovereignty over lands. However, it has been noted that the pragmatic policy sometimes was based on the wrong premises. Colonial officials underestimated Indian populations and disregarded the existing agricultural pattern (Jennings, 1975:ch.2). Reality was interpreted in ways that justified the appropriation of occupied lands. The pragmatic position developed into purchasing lands from the Indians, a practice which had resulted from a competetive situation. Sweden and Holland purchased lands from the Indians in an effort to establish a basis of legality, which could compete with English claims based on prior discovery. Later,

26 a pattern of treaties emerged in New England. The treaties began as land transactions, but became more political. Private purchases became prohibited by statute, resulting in that only treaties between colonial governments and tribes were permitted. The treaties had many international law characteristics with agreements on peace and allegiance, and passports. Eventually, the jurisdiction over land and property were transferred from the tribes to the colonial governments. Over the years, two major views on colonization emerged: we can call them the South European and the West European. The South was the Spanish and Portuguese colonial doctrine developed in the 15th century. The latter were the doctrines developed by the Netherlands, France and England, in negation of the validity of the Spanish and Portuguese claims under the Bull of Donation. Queen Elizabeth I did not recognize the Spanish legal title by donation from the “Bishop of Rome” and limited Spanish claims to areas of actual and effective possession. This meant that the colonial power had to establish settlements on the lands claimed as a colony. British colonial policy was in general pragmatic. According to Blackstone, an English international lawyer of that time, the English perfected the inchoate legal title they obtained by the discovery. He argued that there was a need for a treaty of cession or a military conquest in order to acquire sovereignty over lands populated by indigenous peoples. The English generally made treaties during their colonial territorial expansion, the major exception being Australia. As Lindley notes in his by now classical study on the subject: “Australia has usually been considered to have been properly territorium nullius upon its acquisition” (Lindley, 1926:40). That is to say that the aborigines were considered a borderline case of being humans. Terra nullius was only applicable according to international law, when the land was uninhabited. “The Aboriginal tribes, forming probably the least constructed portion of the human race in all the arts of social life”, argued the British Select Committee of the House of Commons, some years later, in 1837. The idea of a Western “universal” civilization legitimated the conquest. Measuring the indigenous peoples by the European scale of cultures led to disastrous consequences. This statement has been seen as one of the first major international texts on the rights of indigenous peoples. Lindley again: “As the facts presented themselves at the time, there appeared to be no political society to be dealt with” (Lindley, 1926:41). It took two hundred years of destruction in Australia before this attitude was officially changed, in a legal case, in 1992, referred to as the Mabo-case. As colonialism, progressed, particular crises and controversies gave impetus to the definition of the rights of indigenous peoples. One example is the English Royal Proclamation of 1763, which was a result of the political crisis in the mid-18th century and led to a centralization of Indian affairs within the English system. However, the Royal

27 Proclamation did not grant rights to the Indians. On the other hand, it confirmed a pattern of recognition of the English colonial sovereignty, which included that the Indians should be protected and not molested in their established territories. In the early part of the 19th century, the United States Supreme Court was called upon to define the existing Indian areas. The United States had continued the English policy of signing treaties with the Indians for the appropriation of lands, but in the Cherokee cases, the State of Georgia contested the borders of the Indian reservations. Georgia wanted to dissolve the reservation and open the remaining Cherokee lands to non-Indian settlers. In northern Europe, the Sami controlled an area, which now is divided between Finland, Norway, Russia and Sweden. In the Border Treaty of 1751, a conflicting land claim was resolved between Norway and Sweden in the Lapp-Codicil:

In a codicil to the Border Treaty, the specific problems of the Sami reindeer nomads were taken up and dealt with in a surprisingly generous way. They would be allowed to cross the border freely in the pursuit of pastures, even in wartime, but without being obliged to pay taxes in more than one of the two countries. In this connection, mention was made of their “lappskatteland” [tax land] on both sides of the national border. These lands were explicitly referred to as their property. One of the Danish jurists who helped to prepare the treaty explained this Sami land ownership in terms of Samuel Pufendorf’s “occupatio per universitatem”, that is, a title derived from group occupation in a deserted land with limits either man-made or created by nature (Mörner, 1975:93).

The incorporation of Sami lands had been accomplished, but with a recognition of continuing, Sami land rights. Later, the position was reformulated to the effect that Sami rights only concerned reindeer herding, without ownership to the lands. A formulation that the Sami still are struggling to change. The international concern for indigenous peoples in the 19th century regained some of the interest it had rallied in the 16th century. The international movement against slavery extended its attention to the particular situation of indigenous peoples. In 1835, the British Anti-Slavery Society established the Aborigines Protection Society. A Select Committee of the British House of Commons investigated the problems of indigenous peoples within the British colonial empire and made its report in 1837. The findings were not for the weak-hearted person. Reports were made of treatments that by far reaches beyond what anyone can imagine is possible to do with human beings (Bodley, 1988:63). However, the treatment of indigenous peoples was in the 19th century a minor concern for the European colonial empires. “[T]he intercourse of Europeans, in general, without any exception in favour of the subjects of Great Britain, has been, unless when attended by missionary exertions, a source of many calamities to uncivilized nations”, the Select Committee reported. “Too often”, the Report continues, “their territory has been

28 usurped; their property seized; their numbers diminished; their character debased; the spread of civilization impeded”. In the latter half of the 19th century, the concept of “the sacred trust of civilization” was invoked in order to try to stop the genocide on the indigenous peoples throughout the world. The concept was launched at the 1885 Berlin African Conference, in an effort to civilize the indigenous peoples still existing, living under barbarous conditions, as the participating states formulated it. Finally, it had become apparent that the indigenous peoples suffered from the slave trade and there was an attempt to end this trade. The 1890 Brussels Act of the African Conference was mainly concerned with the protection of the indigenous peoples from slave raiders and dealers. It also contained provisions on the moral and material advancement of the indigenous peoples. To “civilize” meant an agricultural or industrial form of sustenance to increase their material and moral welfare. The domestication of indigenous peoples became a global concern. It took place in all corners of the world; from northern Europe to America, Australia, the Pacific, Africa and Asia. Indigenous peoples were being incorporated into the expanding nation-states of the world. Earlier recognition of indigenous sovereignty was not constraining state power. Domestic law could break treaties, jurisdictional arrangements were altered unilaterally by states, and previously recognized land rights of indigenous peoples were changed. Collective land holding by indigenous peoples in the Americas, New Zealand, the Nordic Countries and Japan were ended. These policies continued in the 20th century. However, indigenous peoples, despite powerful national policies of integration, did not simply accept to become national domestic issues. They had also some support, for instance by Helen Hunt Jackson, who published “A Century of Dishonour” in 1881, and the governor of Western Australia, who in 1888 proposed a constitutional independence to the Aborigines. International concern for some indigenous peoples was expressed. Maori delegations travelled to England in the late 19th century and in the 1920s. Canadian Indian delegations also went to England with petitions. Indian representatives asked for representation within the League of Nations, but were denied membership. The appeals continued at the San Francisco conference in 1945, when the United Nations Charter was being drafted.

The Sacred Trust of Civilization

The trusteeship concept developed by Vitoria and Las Casas in the 16th century was revoked in the 19th century. In the era of colonialism, a concern with the treatment of colonized populations developed before the international commitment to decolonization. The 1885 Final Act of the Berlin Africa Conference confirmed the duty of European states

29 to treat indigenous peoples as wards of the society of nations. The civilized states, as a “sacred trust of civilization”, bound themselves to protect and watch over the preservation of the indigenous peoples. They had also a responsibility for the improvement of the conditions of their moral and material well-being and teaching them virtues of civilization. It took a long time before the United Nations started to seriously deal with the issues of indigenous peoples as such. Human rights was one of the basic principles at the founding conference, and is today maybe the major issue besides the work of the Security Council. According to the United Nations Charter, one of the major purposes of the organization is “to develop friendly relations among nations based on the principle of equal rights and self-determination of peoples”. The idea was that the colonies of the world should be decolonized. The United Nations Charter deals with two principal forms of decolonization: the trusteeship model and the non-self-governing territory model. Neither of them deals specifically with the problems and issues of indigenous peoples. However, it should be noted that for the first time the concept of the right of peoples to self-determination occurs in an international legal text. The dispute in the 1990s about the “s” in peoples, in the expression “indigenous peoples” emanates from the use of the concept of “peoples” as the beneficiary of the right of self-determination according to the two international covenants of human rights, adopted in 1966. In most situations defined, the colonized peoples choose independence as a new state after breaking with the colonial power. Anyone could see that if this process were to happen within the independent nation-states, most would oppose it. Even if there are no texts that explicitly spell out a synonymy between “peoples” and indigenous peoples, it has become clear that, a close link exists. It was not until 1971 that the United Nations started to take up the special problems all around the world. A study on discrimination of indigenous peoples was commenced and it was not finished until 1983. One of the results of this study was the establishment of the United Nations Working Group on Indigenous Populations in 1982. The 1980s saw an increasing interest in the issues of indigenous peoples at the international level. Most major international instruments have dealt with indigenous peoples in one way or another. Finally, indigenous peoples are today using the international arena for announcing their views on what happens to them. This compilation attempts to show some samples, although I am well aware of its incompleteness. Nevertheless, the emergence of a discussion between states and indigenous peoples still marks a continuous phase in the history of ideas in this field.

30 1 The Bull “Romanus Pontifex”

Issued by Pope Nicholas V, Rome, January 8, 1455

The Plenitude of Apostolic Power

When Europe started its expansion beyond the Mediterranean world, the will to expansion and empire had already been legitimated through a legal discursive foundation at the Constance Debates on the Rights of Infidels, 1414 to 1418. Conquest of “infidel peoples” and their lands could proceed according to a rule of law that recognized the right of non- Christian peoples either to accept Christianity or to face subjugation through a just war for violations of the natural law. The Constance Council had been assembled primarily to resolve claims to St Peters chair by three rival popes. The debate centred around two opposing opinions regarding the status of heathen peoples: the conciliar movement, inspired by the writings of John Wyclif, which in his work De civili dominio in 1376, proposed a support for the self- government of the infidels (dominium), and the canonists, inspired by Alanus Anglicus, an English canon-law scholar and a student of Pope Innocent IV, who in the early 13th century built the argument on the doctrine of extreme papal hierocratic theorists, denying any infidel “dominium”, and asserted Rome’s unilateral right to authorize conquests of pagan territories on the basis of non-belief in the Christian God. Alanus’ argument, that infidels lacked dominium because they were not in a state of grace and did not obey God’s vicar the Pope, continued to appeal to the canonists, despite a subsequent commentary by Pope Innocent IV, Quod super his, (1243-54) which recognized the natural rights of pagan nonbelievers (Williams, 1990:62-67). The Constance debate was a Church doctrine firmly aligned with the position of Pope Innocent IV on the legitimacy of infidel dominium under natural law:

The Council of Constance brought to an end the line of argument about dependence of dominium upon grace /.../ Following the condemnation of Wyclif’s opinions. In the future, canonists, theologians, popes, and secular rulers who sought to defend the conquest of infidel lands would have to march their troops through whatever loopholes they could find in Innocent’s arguments about natural rights of infidels to possess property and lordship, or they would have to develop new arguments that avoided heresy (Muldoon, 1979:119).

Even though the dominium-doctrine had won the battle at Constance, the Pope still possessed the authority to deprive infidels of their property and lordship in certain

31 situations such as those outlined by Innocent: the failure to admit Christian missionaries peacefully or the violation of natural law. So for instance the Canarians, who refused to listen to the Gospel and who lived “as if in barbarism”, fell within both Innocentian exceptions of the infidel dominium.

The Discourse on Natural Slaves, Barbarism and Indigenous Peoples

The Christian religion, in the conquest of the Americas and its people, was part of a historical legacy. The importance of this fact can be seen at a glance in the behaviour and rationalizations of the Crusaders. Their enemies were also the enemies of the Crusaders’ God and therefore outside the protection of the moral law applicable to the Christians. Later the racist ideology grew out as a dominant principle of conquest. In the gradual transition from religious conceptions to racial conceptions, the gulf between persons calling themselves Christian and the other persons, whom they called heathen, translated into a chasm between whites and coloureds. Moral obligations sanctioned behaviour on only one side of that chasm. “The image of the Indian was moulded by the nature of colonization and the inner requirements of adventuring Englishmen”, argued Gary Nash (Nash, 1972) Two months in Brazil sufficed to convince the Franciscan missionary André Thevet that despite some good qualities, the natives lacked both the power of reason and the knowledge of God, and hence were irredeemably given over to the Devil. Villegagnon dismissed the natives as “beasts in human form” (Honour, 1975:55). It seems that from ancient times, self-consciously civilized people have favourably compared themselves with their neighbours. Aristotle discussed the virtue of natural slaves. The term “barbarian” has been applied to outsiders:

The antithesis that opposed civilization to barbarism was a highly useful cliché, and one, which served equally well as a means of self-congratulation and as a rationalization for aggression (Jones, 1971:377).

The definition of barbarism varied from century to century. Sometimes it has stressed linguistic or cultural differences, sometimes it has denoted little more than paganism in religion, but always retaining a core meaning of inferiority in moral worth:

the image of the “barbarian”, whatever its specific historical context and to whomever applied, was the invention of civilized man who thereby expressed his own strong sense of cultural and moral superiority (Jones 1971:405).

32 The myth of barbarism as a moral antithesis has survived changes in terminology. At the end of the Middle Ages, Europeans became aware of high cultures other than their own. However, it was not easy for the Castile to call the Moors of Granada barbarians. However, Europe expanded against other parts of the world, whose peoples and societies could readily be identified as radically different from the cultures then known to them. The distant heathen became the savages, and savagery could easily displace barbarism as the antithesis of civilization (Jordan, 1968:24-28). The myth of the uncivilized survived well into the 19th century when social scientists attempted to structure the evolution of societies into three stages: savagery-barbarism- civilization. In the 15th century, Rome itself was aware of its role in providing spiritual legitimacy to the colonizing desires of the European feudal potentates. Pope Nicholas V’s understanding of the peoples of the continents outside Europe (Africa) and the symbiotic nature of the evangelical-colonial joint venture with the Portuguese Crown can be read out from the Bull Romanus Pontifex. Pope Nicholas V in the Bull Romanus Pontifex took the next historical step, 1453-54. This bull was reissued several times in the 15th century. This rendition of Romanus Pontifex, perhaps the most refined version of the papal license of conquest, not only reconfirmed Portuguese rights in the Canary Islands, but also sanctioned and protected further expansion by Lisbon into the African continent. Romanus Pontifex was a juristic synthesis of the papal colonizing discourse at the beginning of the discovery era. Romanus pontifex recognizes and affirms the Portuguese title to those African “provinces, islands, ports, districts and seas... which have already been acquired and which shall be acquired in the future.” Where earlier discourses on extension of papal territory had been in a more warlike tone, characteristic of the Crusades against the “infidel” Saracens, the Romanus Pontifex emphasized a more paternal approach of the sovereignty of the Pope. The Pope authorized the subjugation and colonization of Africa under his guardianship. The shift in discourse from a warlike to a paternal attitude towards the infidels may be attributed to the more humanistic approach inspired by theorists as Innocent and Vladimir. Unlike the crusaders, the Portuguese Crown asserted that the primary goal was not mere conquest, but that conquest was a means to the larger declared goal of converting the barbarians to Christianity and civilization. If infidel land was taken in the process by which the Pope established a guardianship over the natives, so much the better, as the Portuguese had also come to open up a profitable trade with the Africans. This more complex relationship required a less openly hostile discourse on the part of the Pope and the colonizing enterprises. Papal sanction of Portugal’s expansion into Africa, grounded in Rome’s indirect jurisdiction in secular affairs, connected religious and secular ends with an evangelically

33 founded colonizing mandate. Christian princes could be called to bring the heathen and infidel sheep of Christ’s universal flock – if they were living “as if in barbarism” – to civilization as understood in European and Christian terms. The popes provided spiritual legitimacy to the European colonizing desires. Pope Nicholas’ understanding of the nature of this religious-colonial joint venture is read out in the Romanus Pontifex. From “the plenitude of apostolic power” Pope Nicholas granted the Portuguese Crown full title to any territories in the African region. The Bull Romanus Pontifex came to acquire a prominent place in the history of colonization and discovery in the late 15th century. In the middle of the 15th century there was a Portuguese-Castile controversy about the Guinea trade. The king of Castile, John II, and King Alfonso V of Portugal fought over the Portuguese seizure of the Canaries. On January 8, 1455, probably in accordance with the request of King Alfonso V of Portugal, Pope Nicholas V issued the Bull Romanus Pontifex, which marks a definite step in the colonial history of Portugal. By the Bull Rex Regum of 1443, Pope Eugenius IV had taken neutral ground in the conflict between Portugal and Castile concerning their rights in Africa. By the Bull Dum Diversas of 1452, Pope Nicholas V granted King Alfonso general and indefinite powers to search out and conquer all pagans, enslave them and appropriate their lands and goods. The Bull Romanus Pontifex settles the dispute between Castile and Portugal in favour of the last, and apparently granted Portugal exclusive rights in a vast southerly region. The Bull declared that all lands acquired by Portugal from the infidels before and after 1452 belonged to King Alfonso, his successors, and Prince Henry, and to no others. It further declared a right on behalf of King Alfonso to make laws or impose restrictions and tribute in regard to these lands and seas. Thus, the Bull Romanus Pontifex is a significant instrument in understanding the development of the discourse on indigenous peoples in the early years of the colonization and discoveries of new lands (Davenport, 1967: 9-26).

The Bull “Romanus Pontifex”

Nicholas, bishop, servant of the servants of God. For a perpetual remembrance. The Roman pontiff, successor of the key-bearer of the heavenly kingdom and vicar of Jesus Christ, contemplating with a father’s mind all the several climes of the world and the characteristics of all the nations dwelling in them and seeking and desiring the salvation of all, wholesomely ordains and disposes upon careful deliberation those things which he sees will be agreeable to the Divine Majesty and by which he may bring the sheep entrusted to him by God into the single divine fold, and may acquire for them the reward of eternal felicity, and obtain pardon for their souls. This we believe will more certainly come to pass, through the aid of the Lord, if we bestow suitable favors and special graces on those

34 Catholic kings and princes, who, like athletes and intrepid champions of the Christian faith, as we know by the evidence of facts, not only restrain the savage excesses of the Saracens and of other infidels, enemies of the Christian name, but also for the defence and increase of the faith vanquish them and their kingdoms and habitations, though situated in the remotest parts unknown to us, and subject them to their own temporal dominion, sparing no labor and expense, in order that those kings and princes, relieved of all obstacles, may be the more animated to the prosecution of so salutary and laudable a work. We have lately heard, not without great joy and gratification, how our beloved son, the noble personage Henry, infant of Portugal, uncle of our most dear son in Chris, the illustrious Alfonso, king of the kingdoms of Portugal and Algarve, treading in the footsteps of John, of famous memory, king of the said kingdoms, his father, and greatly inflamed with zeal for the salvation of souls and with fervor of faith, as a Catholic and true soldier of Christ, the Creator of all things, and a most active and courageous defender and intrepid champion of the faith in Him, has aspired from his early youth with his utmost might to cause the most glorious name of the said Creator to be published, extolled, and revered throughout the whole world, even in the most remote and undiscovered places, and also to bring into the bosom of his faith the perfidious enemies of him and of the life-giving Cross by which we have been redeemed, namely the Saracens and all other infidels whatsoever, [and how] after the City of Ceuta, situated in Africa, had been subdued by the said King John to his dominion, and after many wars had been waged, sometimes in person, by the said infante, although in the name of the said King John, against the enemies and infidels aforesaid, not without the greatest labors and expense, and with dangers and loss of life and property, and the slaughter of very many of their natural subjects, the said infante being neither enfeebled nor terrified by so many and great labours, dangers, and losses, but growing daily more and more zealous in prosecuting this his laudable and pious purpose, have peopled with orthodox Christians certain solitary islands in the ocean sea, and has caused churches and other pios places to be there founded and built, in which divine service is celebrated. Also by the laudable endeavor and industry of the said infante, very many inhabitants or dwellers in divers islands situated in the said sea, coming to the knowledge of the true God, have received holy baptism, to the praise and glory of God, the salvation of the souls of many, the propagation also of the orthodox faith, and the increase of divine worship. Moreover, since, some time ago, it had come to the knowledge of the said infante that never, or at least not within the memory of men, had it been customary to sail on this ocean sea toward the southern and eastern shores, and that it was so unknown to us westerners that we had no certain knowledge of the peoples of those parts, believing that he would best perform his duty to God in this matter, if by his effort and industry that sea might become navigable as far as to the Indians who are said to worship the name of Christ, and that thus he might be able to enter into relation with them, and to incite them to aid

35 the Christians against the Saracens and other such enemies of the faith, and might also be able forthwith to subdue certain gentile or pagan peoples, living between, who are entirely free from infection by the sect of the most impious Mahomet, and to preach and cause to be preached to them the unknown but most sacred name of Christ, strengthened, however, always by the royal authority, he has not ceased for twenty-five years past to send almost yearly an army of the peoples of the said kingdoms, with the greatest labor, danger and expense, in very swift ships called caravels, to explore the sea and coast lands toward the south and the Antarctic pole. And so it came to pass that when a number of ships of this kind had explored and taken possession of very many harbors, islands, and seas, they at length came to the province of Guinea, and having taken possession of some islands and harbors and the sea adjacent to that province, sailing farther they came to the mouth of a certain great river commonly supposed to be the Nile, and war was waged for some years against the peoples of those parts in the name of the said King Alfonso and of the infante, and in it very many islands in that neighborhood were subdued and peacefully possessed, as they are still possessed together with adjacent sea. Thence also many Guinea men and other negroes, taken by force, and some by barter of unprohibited arti-cles, or by other lawful contract of purchase, have been converted to the Catholic faith, and it is hoped, by the help of divine mercy, that if such progress be continued with them, either those peoples will be converted to the faith or at least the souls of many of them will be gained for Christ. But since, as we are informed, although the king and infante aforesaid (who with so many and so great dangers, labors, and expenses, and also with loss of so many natives of their said kingdoms, very many of whom have perished in those expeditions, depending only upon the aid of those natives, have caused those provinces to be explored and have acquired and possessed such harbors, islands, and seas, as aforesaid, as the true lords of them), fearing lest strangers induced by covetousness should sail to those parts, and desiring to usurp to themselves the perfection, fruit, and praise of this work, or at least to hinder it, should therefore, either for the sake of gain or through malice, carry or transmit iron, arms, wood used for construction, and other things and goods prohibited to be carried to infidels, or should teach those infidels the art of navigation, whereby they would become more powerful and obstinate enemies to the king and infante, and the prosecution of this enterprise would either be hindered, or would perhaps entirely fail, not without great offense to God, and great reproach to all Christianity, to prevent this and to conserve their right and possession, [the said king and infante] under certain most severe penalties then expressed, have prohibited and in general have ordained that none, unless with their sailors and ships and on payment of a certain tribute and with an express license previously obtained from the said king or infante, should presume to sail to the said provinces or to trade in their ports or to fish in the sea, [although the king and infante have taken this action, yet] in time it might happen that persons of other kingdoms or nations, led by

36 envy, malice, or covetousness, might presume, contrary to the prohibition aforesaid, without license and payment of such tribute, to go to the said provinces, and in the provinces, harbors, islands, and sea, so acquired, to sail, trade, and fish; and thereupon between the King Alfonso and the infante, who would by no means suffer themselves to be trifled with in these things, and the presumptuous persons aforesaid, very many hatreds, rancors, dissensions, wars, and scandals, to the highest offense of God and danger of souls, probably might and would ensue – We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso – to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions an goods, and to convert them to his or their use and profit – by having secured the said faculty, the said King Alfonso, or, by his authority, the aforesaid infante, justly and lawfully has acquired and possessed, and doth possess, these islands, lands, harbors, and seas, and they do of right belong and pertain to the said King Alfonso and his successors themselves has any other even of the faithful of Christ been entitled hitherto, nor is he by any means now entitled lawfully to meddle therewith-in order that King Alfonso himself and his successors and the infante may be able the more zealously to pursue and may pursue this most pious and noble work, and most worthy of perpetual remembrance (which, since the salvation of souls, increase of the faith, and overthrow of its enemies may be procured thereby, we regard as a work wherein the glory of God, and faith in Him, and His commonwealth, the Universal Church, are concerned) in proportion as they, having been relieved of all the greater obstacles, shall find themselves, supported by us and by the Apostolic See with favors and graces – we, being very fully informed of all and singular the premises, do, motu proprio, not at the instance of King Alfonso or the infante, or on the petition of any other offered to us on their behalf in respect to this matter, and after mature deliberation, by apostolic authority, and from certain knowledge, in the fullness of apostolic power, by the tenor of these presents decree and declare that the aforesaid letters of faculty (the tenor whereof we wish to be considered as inserted word for word in these presents, with all and singular the clauses therein contained) are extended to Ceuta and to the aforesaid and all other acquisitions whatsoever, even those acquired before the date of the said letters of faculty, and to all those provinces, islands, harbors, and seas whatsoever, which hereafter, in the name of the said King Alfonso and of his successors and of the infante, in those parts and the adjoining, and in the more distant and remote parts, can be acquired from the hands of infidels or pagans, and that they are comprehended under the said letters of faculty.

37 And by force of those and of the present letters of faculty the acquisitions already made, and what hereafter shall happen to be acquired, after they shall have been acquired, we do by the tenor of these presents decree and declare have pertained, and forever of right do belong and pertain, to the aforesaid king and his successors and to the infante, and that the right of conquest which in the course of these letters we declare to be extended from the capes of Bojador and of Náo, as far as through all Guinea, and beyond toward that southern shore, has belonged and pertained, and forever of right belongs and pertains, to the said King Alfonso, his successors, and the infante, and not to any others. We also by the tenor of these presents decree and declare that King Alfonso and his successors and the infante aforesaid might and may, now and henceforth, freely and lawfully, in these [acquisitions] and concerning them make any prohibitions, statutes, and decrees whatsoever, even penal ones, and with imposition of any tribute, and dispose and ordain concerning them as concerning their own property and their dominions. And in order to confer a more effectful right and assurance we do by these presents forever give, grant, and appropriate to the aforesaid King Alfonso and his successors, kings of the said kingdoms, and to the infante, the provinces, islands, harbors, places, and seas whatsoever, how many soever, and of what sort soever they shall be, that have already been acquired and that shall hereafter come to be acquired, and the right of conquest also from the capes of Bojador and of Náo aforesaid. Moreover, since this is fitting in many ways for the perfecting of a work of this kind, we allow that the aforesaid King Alfonso, and [his] successors and the infante, as also the persons to whom they, or any one of them, shall think that this work ought to be committed, may (according to the grant made to the said King John by Martin V., of happy memory, and another grant made also to King Edward of illustrious memory, king of the same kingdoms, father of said King Alfonso, by Eugenius IV., of pious memory, Roman Pontiffs, our predecessors) make purchases and sales of any things and goods and victuals whatsoever, as it shall seem fit, with any Saracens and infidels, in the said regions; and also may enter into any contracts, transact business, bargain, buy and negotiate, and carry any commodities whatsoever to the places of those Saracens and infidels, provided they be not iron instruments, wood to be used for construction, cordage, ships, or any kinds of armor, and may sell them to the said Saracens and infidels; and also may do, perform, or prosecute all other and singular things [mentioned] in the premises, and things suitable or necessary in relation to these; and that the same King Alfonso, his successors, and the infante, in the provinces, islands, and places already acquired, and to be acquired by him, may found and [cause to be] founded and built any churches, monasteries, or other pious places whatsoever; and also may send over to them any ecclesiastical persons whatsoever, as volunteers, both seculars, and regulars of any of the mendicant orders (with license, however, from their superiors), and that those persons may abide there as long as they shall live, and hear confessions of all who live in the said

38 parts or who come thither, and after the confessions have been heard they may give due absolution in all cases, except those reserved to the aforesaid see, and enjoin salutary penance, and also administer the ecclesiastical sacraments freely and lawfully, and this we allow and grant to Alfonso himself, and his successors, the kings of Portugal, who shall come afterwards, and to the aforesaid infante. Moreover, we entreat in the Lord, and by the sprinkling of the blood of our Lord Jesus Christ, whom, as has been said, it concerneth, we exhort, and as they hope for the remission of their sins enjoin, and also by this perpetual edict of prohibition we more strictly inhibit, all and singular the faithful of Christ, ecclesiastics, seculars, and regulars of whatsoever state, degree, order, condition, or pre-eminence they shall be, although endued with archiepiscopal, episcopal, imperial, royal, queenly, ducal, or any other greater ecclesiastical or wordly dignity, that they do not by any means presume to carry arms, iron, wood for construction, and other things prohibited by law from being in any way carried to the Saracens, to any of the provinces, islands harbors, seas, and places whatsoever, acquired or possessed in the name of King Alfonso, or situated in this conquest or elsewhere, to the Saracens, infidels, or pagans; or even without special license from the said King Alfonso and his successors and the infante, to carry or cause to be carried merchandise and other things permitted by law, or to navigate or cause to be navigated those seas, or to fish in them, or to meddle with the provinces, islands, harbors, seas, and places, or any of them, or with this conquest, or to do anything by themselves or another or others, directly or indirectly, by deed or counsel, or to offer any obstruction whereby the aforesaid King Alfonso and his successors and the infante may be hindered from quietly enjoying their acquisitions and possessions, and prosecuting and carrying out this conquest. And we decree that whosoever shall infringe these orders [shall incur the following penalties], besides the punishments pronounced by law against those who carry arms and other prohibited things to any of the Saracens, which we wish them to incur by so doing; if they be single persons, they shall incur the sentence of excommunication; if a community or corporation of a city, castle, village, or place, that city, castle, village or place shall be thereby subject to the interdict; and we decree further that transgressors, collectively or individually, shall not be absolved from the sentence of excommunication, nor be able to obtain the relaxation of this interdict, by apostolic or any other authority, unless they shall first have made due satisfaction fro their transgressions to Alfonso himself and his successors and to the infante, or shall have amicably agreed with them thereupon. By [these] apostolic writings we enjoin our venerable brothers, the archbishop of Lisbon, and the bishops of Silves and Ceuta, that they, or two or one of them, by himself, or another or others, as often as they or any of them shall be required on the part of the aforesaid King Alfonso and his successors and the infante or any one of them, on Sundays, and other festival days, in the churches, while a large multitude of people shall assemble there for divine worship, do declare and denounce by apostolic authority that those persons

39 who have been proved to have incurred such sentences of excommunication and interdict, are excommunicated and interdicted, and have been and are involved in the other punishments aforesaid. And we decree that they shall also cause them to be denounced by others, and to be strictly avoided by all, till they shall have made satisfaction for or compromised their transgressions as aforesaid. Offenders are to be held in check by ecclesiastical censure, without regard to appeal, the apostolic constitutions and ordinances and all other things whatsoever to the contrary notwithstanding. But in order that the present letters, which have been issued by us of our certain knowledge and after mature deliberation thereupon, as is aforesaid, may not hereafter be impugned by anyone as fraudulent, secret, or void, we will, and by the authority, knowledge, and power aforementioned, we do likewise by these letters, decree and declare that the said letters and what is contained therein cannot in any wise be impugned, or the effect thereof hindered or obstructed, on account of any defect of fraudulency, secrecy, or nullity, not even from a defect of the ordinary, or of any other authority, or from any other defect, but that they shall be valid forever and shall obtain full authority. And if anyone, by whatever authority, shall, wittingly or unwittingly, attempt anything inconsistent with these orders we decree that his act shall be null and void. Moreover, because it would be difficult to carry our present letters to all places whatsoever, we will, and by the said authority we decree by these letters, that faith shallbe given as fully and permanently to copies of them, certified under the hand of a notary public and the seal of the episcopal or any superior ecclesiastical court, as if the said original letters were exhibited or shown; and we decree that within two months from the day when these present letters, or the paper or parchment containing the tenor of the same, shall be affixed to the doors of the church at Lisbon, the sentences of excommunication and the other sentences contained therein shall bind all and singular offenders as fully as if these present letters had been made known and presentedto them in person and lawfully. Therefore let no one infringe or with rash boldness contravene this our declaration, constitution, gift, grant, appropriation, decree, supplication, exhortation, injunction, inhibition, mandate, and will. But if anyone should presume to do so, be it known to him that he will incur the wrath of Almighty God, and of the blessed apostles Peter and Paul. Given at Rome, at Saint Peter’s, on the eighth day of January, in the year of the incarnation of our Lord one thousand four hundred and fifty-four, and in the eighth year of our pontificate.

40 2 Privileges and Prerogatives Granted to Columbus

Castile and Aragon, Spain, April 30, 1492

European contact with a New World

The people of this island and of all the other islands which I have found and of which I have information, all go naked, men and women /.../They have no iron or steel or weapons /.../ They do not hold any creed nor are they idolaters; but they all believe that power and god are in the heavens and were firmly convinced that I, with these ships and men, came from the heavens, and in this belief they, everywhere, received me after they had mastered their fear (Vigneras, 1960: 194-200).

For years, Columbus had been presenting his scheme of sailing westward to the Indies to the sovereigns of Spain, Portugal, France and England, but without success. In January 1492, the Spanish forces captured Granada and drove the Moors out of Spain, and Ferdinand and Isabella of Castile and Aragon were able to consider seriously the proposals of Columbus. At first, his terms were considered exorbitant and negotiations were broken off. Columbus was actually on his way to France, when he was summoned back to Court, and Ferdinand and Isabella as King and Queen of Castile accepted the following terms. A number of historical antecedents laid the foundation for the dynamic period of European expansion in the 15th century. Medieval theologians taught that any conquest could only be legitimate if the war that won them had been just. A just war was typically a defensive war. Difficulties arose when the prospective candidates for subjection lived halfway round the world; it was hard to proclaim a righteously defensive war against an enemy who had never ventured within a thousand miles of one’s domain. A saving precedent was established: the Crusades established the principle that war conducted in the interests of the Holy Church was automatically just. That principle became important at the extremes of Europe in the middle of the 15th century, where Islam held power. When the Ottoman conquest of Constantinople in 1453 opened the Balkans to the Muslim invasion and gave the Turks naval power Portugal and Spain took the counteroffensive. Two years after the fall of Constantinople, Pope Nicholas V empowered Portugal’s king to enslave the persons and seize the lands and property of “all Saracens and pagans whatsoever, and all other enemies of Christ

41 wheresoever placed” (The Bull “Romanus Pontifex”, 1455) The Portuguese used Pope Nicholas’ instruction to sanction their raids on Muslims of the African coast of the Mediterranean and the Atlantic. In 1452 Pope Nicholas V granted King Alfonso of Portugal “general and indefinite powers to search out and conquer all pagans, enslave them and appropriate their lands and goods.” In 1455 Pope Nicholas issued Romanus Pontifex which gave Portugal the exclusive right to trade and acquire territory in the region lying south of Cape Bojador, through and beyond Guinea “all of the way to the Indians” (Savelle, 1942: 12, 39). The papal bull’s whatsoever and wheresoever legitimized slaving expeditions anywhere. The doctrine that had originated to sanctify conquest of the Holy Lands expanded to justify conquest of the world. The African conquest and trade monopoly the Pope had granted Portugal was backed by possible excommunication. Church law left little to Spain to satisfy its imperial ambitions beyond the broad applicability of the bull Romanus Pontifex. However, Spain found itself in a better position than most European states in the end of the 15th century to extend its trading empire beyond the geographical boundaries of Europe. In 1469, the marriage of Ferdinand of Aragon and Isabella of Castile led to the unification of what is now called Spain, with the exception of Granada. They were both devout Catholics, wanting to create a strong and unified Spanish nation. In 1479, Portugal and Spain negotiated a treaty that cleared many of the earlier disputes between them. In 1480, they established the Inquisition, which lasted for almost 300 years. The Inquisition was a special court that imprisoned or killed all persons suspected of not following the Roman Catholic teachings. In 1485, Columbus proposed to the Spanish Crown a westward spice route to the Indies, which would avoid Portugal’s papally granted African monopoly. In 1492, the Spanish forces conquered Granada, which was the last centre under Muslim control in Spain, and the last of the Spanish Jews were either converted, enslaved, or driven from the country. The same year, Columbus was granted privileges and prerogatives in his efforts to search for new routes and worlds. When Columbus returned from his first voyage, the discoveries of the New World threatened to create an international conflict. This was a result of earlier disputes between Castile and Portugal on the claims to the newly discovered lands that occurred during the whole of the 15th century, starting already in the 13th century. But it was in 1344 the first really serious conflict arose, concerning the Canaries. This conflict was not settled until 1479, when Portugal ceded the islands to Castile. The second controversy concerned Africa, where Portugal after the conquest of Ceuta in 1415, continued with other enterprises such as in Morocco and Guinea. Portugal started trading with gold and slaves, which Castile saw as an offence against their right to conquest of the lands of Africa, Guinea and the Guinea trade. After the discovery, this dispute was settled by the Bull Inter Caetera of May 3, 1493.

42 Privileges and Prerogatives Granted to Columbus Ferdinand and Isabella,... For as much of you, Christopher Columbus, are going by our command, with some of our vessels and men, to discover and subdue some Islands and Continent in the ocean, and it is hoped that by God’s assistance, some of the said Islands and Continent in the ocean will be discovered and conquered by your means and conduct, therefore it is but just and reasonable, that since you expose yourself to such danger to serve us, you should be rewarded for it. And we being willing to honour and favour you for the reasons aforesaid; Our will is, That you, Christopher Columbus, after discovering and conquering the said Islands and Continent in the said ocean, or any of them, shall be our Admiral of the said Islands and Continent you shall discover and conquer; and that you be our Admiral, Vice- Roy, and Governour in them, and that for the future, you may call and stile yourself, D. Christopher Columbus, and that your sons and successors in the said employment, may call themselves Dons, Admirals, Vice-Roys, and Governours of them; and that you may exercise the office of Admiral, with the charge of Vice-Roy and Governour of the said Islands and Continent, which you and your Lieutenants shall conquer, and freely decide all causes, civil and criminal, appertaining to the said employment of Admiral, Vice-Roy, and Governour, as you shall think fit in justice, and as the Admirals of our kingdoms use to do; and that you have power to punish offenders; and you and your Lieutenants exercise the employments of Admiral, Vice-Roy, and, Governour, in all things belonging to the said offices, or any of them; and that you enjoy the perquisites and salaries belonging to the said employments, and to each of them, in the same manner as the High Admiral of our kingdoms does. And by this our letter, or a copy of it signed by a Public Notary: We commande Prince John, our most dearly beloved Son, the Infants, Dukes, Prelates, Marquesses, Great Masters and Military Orders, Priors, Commendaries, our Counsellors, Judges, and other Officers of Justice whatsoever, belonging to our Household, Courts, and Chancery, and Constables of Castles, Strong Houses, and others, and all Corporations, Bayliffs, Governours, Judges, Commanders, Sea Officers; and the Aldermen, Common Council, Officers, and Good People of all Cities, Lands, and Places in our Kingdoms and Dominions, and in those you shall conquer and subdue, and the captains, masters, mates, and other officers and sailors, our natural subjects now being, or that shall be for the time to come, and any of them, that when you shall have discovered the said Islands and Continent in the ocean; and you, or any that shall have your commission, shall have taken the usual oath in such cases, that they for the future, look upon you as long as you live, and after you, your son and heir, and so from one heir to another forever, as our Admiral on our said Ocean, and as Vice-Roy and Governour of the said Islands and Continent, by you, Christopher Columbus, discovered and conquered; and that they treat you and your Lieutenants, by you appointed, for executing the employments of Admiral, Vice-Roy, and Governour, as such in all respects and give

43 you all the perquisites and other things belonging and appertaining to the said offices; and allow, and cause to be allowed you, all the honours, graces, concessions, prehaminences, prerogatives, immunities, and other things, or any of them which are due to you, by virtue of your commands of Admiral, Vice-Roy, and Governour, and to be observed completely, so that nothing be diminished; and that they make no objection to this, or any part of it, nor suffer it to be made; forasmuch as we from this time forward, by this our letter, bestow on you the employments of Admiral, Vice-Roy, and perpetual Governour forever; and we put you into possession of the said offices, and of every of them, and full power to use and exercise them, as was said above. Concerning all which things, if it be requisite, and you shall desire it, We command our Chancellour, Notaries, and other Officers, to pass, seal, and deliver to you, our Letter of Privilege, in such form and legal manner, as you shall require or stand in need of. And that none of them presume to do any thing to the contrary, upon pain of our displeasure, and fortfeiture of 30 ducats for each offence. And we command him, who shall show him this our Letter, that he summon them to appear before us at our Court, where we shall then be, within fifteen days after such summons, under the said penalty. Under which same, we also command any Public Notary whatsoever, that he give to him that shows it him, a certificate under his seal, that we may know how our command is obeyed. Given at Granada, on the 30th of April, in the year of our Lord, 1492.I, THE KING, I, THE QUEEN.

44 3 The Bull ”Inter Caetera” (The Bull of Donation)

Issued by the Pope Alexander VI, Rome, May 3, 1493

Columbus returned from his first voyage in March 1493, and the news of his discoveries was promptly communicated to the rulers of Spain and Portugal and to the Pope. Considerable uncertainty as to the lands discovered by Columbus existed. King John II of Portugal believed that Columbus’ discoveries had really been in the region south and west of Guinea. Portuguese control over Guinea and the region to the south of Cape Bojador rested upon discoveries, papal bulls, and a treaty with Spain of 1480. King John was anxious therefore to have some decision as to the effects of Columbus’ discoveries on the territorial claims of Portugal and Spain. Under these circumstances, the matter was submitted to Pope Alexander VI. By the Bulls of May 3 and 4, he drew an imaginary line of demarcation one hundred leagues west of the Cape Verde lands. East of this line, Portugal was to have all the rights and possessions, which were already held; west of this line, Spain was to have the right to explore, trade, colonize, etc. The Bull of May 4 was amended by another Bull of September 1493, specifically granting the Spanish rulers the right to hold lands to the eastern regions and to India. The line of demarcation of 1493 was changed the following year. The emerging nation-states of Europe in the 15th century had centralized military power in their king’s hands, but had held to older habits in warranting the use of power. Conquest as the extension of the Crusades was unarguably feudal in its conception. It was also not Christian in any sense taught by the master prophet of Christianity. The Crusading mentality was formed by the feudal warlords’ urge to conquest, and in turn formed the rationalization for conquest and imprinted itself on what they later would do or become. The invaders of other continents assumed an innate and absolute superiority over all other peoples because of the divine endowment. When racism later emerged as the dominant principle of European conquest and in establishing the discourse of indigenous peoples, it grew naturally out of feudal religiosity (Falkowski, 1992:7-11). The first Bull Inter Caetera of May 3, 1493, declared that, as Columbus had discovered “a people /.../ well disposed” to embrace the Christian faith, “all the lands discovered or to be discovered in the name of the Spanish Crown in the region belonged legally to Ferdinand and Isabella. This bull applied the medieval Church colonizing doctrine applied to the New World previously unknown to the Europeans. The Pope placed the non-

45 Christian peoples under tutelage and guardianship. However, Portugal contested this first Bull of Donation. Therefore, Pope Alexander VI issued a new bull , Inter Caetera, of May 4, 1493, which revised some of the contents of the May 3 Bull Inter Caetera (Williams, 1990:80). It has been said, “of all the crimes of Rodrigo Borgia (Pope Alexander VI) this bull was the greatest” (Fertig, 1975: 216). Inter Caetera was based on the omni-insular doctrine, which was founded on the Donation of Constantine of the 8th century. According to this Donation, the Roman Emperor gave the Pope dominion over “various islands”. Pope Urban applied this doctrine for the first time in 1091, when he gave the Archipelago of Lipari (west Italy) to a local abbot and Corsica to the Bishop of Pisa. Also marginal areas as England, Ireland, Scandinavia and the Canary Islands became feudatory to the Holy See (Williams, 1983:53-57).

The Bull Inter Caetera Alexander, bishop, servant of the servants of God to the illustrious sovereigns, our very dear son in Christ, Ferdinand, king, and our very dear daughter in Christ, Isabella, queen of Castile, Leon, Aragon, and Granada, health and apostolic benediction. Among other works well pleasing to the Divine Majesty and cherished of our heart, this assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted and everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself. Wherefore inasmuch as by the favor of divine clemency, we, though of insufficient merits, have been called to this Holy See of Peter, recognizing that as true Catholic kings and princes, such as we have known you always to be, and as your illustrious deeds already known to almost the whole world declare, you not only eagerly desire but with every effort, zeal, and diligence, without regard to hardships, expenses, dangers, with the shedding even of your blood, are laboring to that end; recognizing also that you have long since dedicated to this purpose your whole soul and all your endeavours-as witnessed in these times with so much glory to the Divine Name in your recovery of the kingdom of Granada from the yoke of the Saracens-we therefore are rightly led, and hold it as our duty, to grant you even of our own accord and in favor those things, whereby with effort each day more hearty you may be enabled for the honor of God himself and the spread of Christian rule to carry forward your holy and praise-worthy purpose so pleasing to immortal God. We have indeed learned that you, who for a long time intended to seek out and discover certain lands and islands remote and unknown and not hitherto discovered by others, to the end that you might bring to the worship of our Redeemer and profession of the Catholic faith their residents and inhabitants, having been up to the present time greatly engaged in the siege and recovery of the kingdom itself of Granada, were unable to

46 accomplish this holy and praiseworthy purpose; but the said kingdom having at length been regained, as was pleasing to the Lord, you, with the wish to fulfill your desire, chose our beloved son Christopher Columbus, whom you furnished with ships and men equipped for like designs, not without the greatest hardships, dangers, and expenses, to make diligent quest for these remote and unknown countries through the sea, where hitherto no one had sailed; and they at length, with divine airs and with the utmost diligence sailing in the ocean sea, through western waters, as is said, toward the Indians, discovered certain very remote islands and even mainlands, that hitherto had not been discovered by others; and therein dwell very many peoples living in peace, and, as reported, going unclothed, and not eating flesh, Moreover, as your aforesaid envoys are of the opinion, these very peoples living in the said islands and countries believe in one God, the Creator in heaven, and seem sufficiently disposed to embrace the Catholic faith and be trained in good morals. In addition, it is hoped that, were instructed, the name of the Savior, our Lord Jesus Christ, would easily be introduced into the said countries and islands. In addition, on one of the chief of these previously mentioned islands the above-mentioned Christopher has already caused to be put together and built a fortress fairly equipped, wherein he has stationed as garrison certain Christians, companions of his, who are to make search for other remote and unknown islands and countries. In the islands and countries already discovered are found gold, spices, and very many other precious things of divers kinds and qualities. Wherefore, after earnest consideration of all matters, as becomes Catholic kings and princes, and especially of the rise and spread of the Catholic faith, as was the fashion of your ancestors, kings of renowned memory, you have purposed with the favor of divine clemency to bring under your sway the said countries and islands with their residents and inhabitants, and to bring them to the Catholic faith. Hence, heartily commending in the Lord this your holy and praiseworthy purpose, and desirous that it be duly accomplished, and that the name of our Savior be carried into these regions, we exhort you very earnestly in the Lord and by your reception of holy baptism, whereby you are bound to our apostolic commands, and by the bowels of the mercy of our Lord Jesus Christ, enjoin strictly, that inasmuch as with eager zeal for the true faith you design to equip and dispatch this expedition, you purpose also, as is your duty, to lead the peoples dwelling in those islands to embrace the Christian profession; nor at any time let dangers or hardships deter you there from, with the stout hope and trust in your hearts that Almighty God will further your undertakings. And, in order that you may enter upon so great an undertaking with greater readiness and heartiness endowed with the benefit of our apostolic favor, we, of our own accord, not at your instance nor the request of anyone else in your regard, but of our own sole largess and certain knowledge and out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blesses Peter and of the vicar ship of Jesus Christ which we hold on earth, do by tenor of these presents give, grant, and assign forever to

47 you and your heirs and successors, kings of Castle and Leon, all and singular the aforesaid countries and islands thus unknown and hitherto discovered by your envoys and to be discovered hereafter, provided however they at no time have been in the actual temporal possession of any Christian owner, together with all their dominions, cities, camps, places, and villages, and all right, jurisdictions, and appurtenances of the same. And we invest you and your aforementioned heirs and successors with them, and make, appoint, and depute you lords of them with full and free power, authority, and jurisdiction of eve-ry kind, with this proviso however, that by this our gift, grant, assignment, and investiture no right acquired by any Christian prince is hereby to be understood to be withdrawn or taken away. Moreover we command you in virtue of holy obedience, that, employing all due diligence in the premises, as you also promise-nor do we doubt that you will act in accordance with your devoted loyalty and royal greatness of spirit-you should appoint to the aforesaid countries and islands worthy and God-fearing, learned, skilled, and experienced men to instruct the aforesaid inhabitants and residents in the Catholic faith, and to train them in good morals. And under penalty of excommunication late sententie to be incurred ipso facto, should any thus contravene, we strictly forbid all persons of no matter what rank, estate, degree, order or condition, to dare, without your special permit or that of your aforesaid heirs and successors, to go for the sake of trade or any other reason whatever to the said islands and countries after they have been discovered and found by your envoys or persons sent out for that purpose. And inasmuch as some kings of Portugal, likewise by apostolic grant made to them, have similarly discovered and taken possession of islands in the regions of Africa, Guinea, and the Gold Mine, and elsewhere, and divers privileges, favors, liberties, immunities, exemptions, and indults have been granted to them by the Apostolic See, we through similar accord, authority, knowledge, and fullness of apostolic power, by a gift of special favor, do grant to you and your aforesaid heirs and successors, that in the islands and countries thus discovered and to be discovered by you, you may and rightly can use, employ, and enjoy freely and legally, in all things and through all things, just as if they had been especially granted to you and your aforesaid heirs and successors, all and singular these favors, privileges exemptions, liberties, faculties, immunities, and indults the terms of all which we wish to be understood as being sufficiently expressed and inserted, as if they were inserted word for word in these presents. Moreover we similarly extend and enlarge them in all things and through all things to you and your aforesaid heirs and successors, apostolic constitutions and ordinances as well as all those things that have been granted in the letters set forth above or other things whatsoever to the contrary notwithstanding. We trust in Him from whom empires and governments and all good things proceed, that should you with the Lord’s guidance pursue this holy and praiseworthy undertaking, in a short while your hardships and endeavours will attain the most felicitous result, to the happiness and glory of all

48 Christendom. But inasmuch as it would be difficult to have these present letters sent to all places where desirable, we wish, and with similar accord and knowledge do decree that to copies of them, signed by the hand of a notary public commissioned therefore and sealed with the seal of any ecclesiastical officer or ecclesiastical court, the same respect is to be shown in court and outside as well as anywhere else, as would be given to these presents should they be exhibited or shown. Let no one, therefore, infringe, or with rash boldness contravene this our exhortation, requisition, gift, grant, assignment, investiture, deed, constitution, deputation, mandate, inhibition, indult, extension, enlargement, will, and decree. Should anyone presume to do so, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul. Given in Rome, at St. Peter’s, on the third day of May in the year one thousand four hundred and ninety-three of the incarnation of our Lord, in the first year of our pontificate. Gratis by order of our most holy lord the Pope.

49 4 Excerpt from: The Treaty of Tordesillas

Signed Between Spain and Portugal, Tordesillas, Spain, June 7, 1494

King John of Portugal was not satisfied with the provisions of the Bull Inter Caetera of 1493. By the Treaty of Tordesillas he persuaded the Spanish crown to consent to moving the line of demarcation 370 leagues west from the Cape Verde Islands. This change gave Portugal a claim to Brazil. The negotiations began at Barcelona in August 1493. Spain argued that the Portuguese had to keep away from the discoveries made by Columbus, just as the Spanish had to keep away from the Portuguese colonies along the African coast. The Portuguese felt aggrieved by the narrow demarcation line, only 100 leagues west of the Cape Verde Islands. They argued that as they were continually sailing to these islands, the demarcation was too narrow. The Portuguese therefore wished another line of demarcation lying farther to the west, halfway between the Cape Verde Islands and the newly discovered lands. King John of Portugal “was certain that within those limits famous lands and things must be found”. According to the treaty, all lands lying east of a meridian located 370 leagues west of the Cape Verde Islands, and discovered by Portugal, were to pertain to that country. Moreover, all lands lying west of the meridian, discovered by Spain, were to pertain to Spain. If the sovereign of either country were to discover new lands within the bounds assigned to the other, the land was to be surrendered to the other monarch. However, since at that time it was impossible to exactly determine the position of the demarcation line, the treaty led to further disputes, and its interpretation was the subject of controversy for a long time.

The Treaty of Tordesillas /.../ Whereas a certain controversy exists between the said lords, their constituents, as to what lands, of all those discovered in the ocean sea up to the present day, the date of this treaty, pertain to each one of the said parts respectively; therefore, for the sake of peace and concord, and for the preservation of the relationship and love of the said King of Portugal for the said King and Queen of Castile, Aragon, etc. it being the pleasure of their Highnesses, they /.../ covenanted and agreed that a boundary or straight line be determined and drawn north and south, from pole to pole, on the said ocean sea, from Arctic to the

50 Antarctic pole. This boundary or line shall be drawn straight as aforesaid at a distant of three hundred and seventy leagues west of the Cape Verde Islands, being calculated by degrees /.../ And all lands, both islands and mainland’s found and discovered already, or to be found and discovered hereafter, by the said King of Portugal and by his vessels on this side of the said line and bound determined as above, toward the east, in either north or south latitude, on the the eastern side of the said bound, shall belong to and remain in the possession of, and pertain forever to, the said King of Portugal and his successors. And all other lands, both islands and mainlands, found or to be found hereafter, /.../ by the said King and Queen of Castile, Aragon, etc. and by their vessels, on the western side of the said bound, determined as above, after having passed the said bound toward the west, in either its north or south latitude, shall belong to... the said King and Queen of Castile, Leon, etc. and to their successors. Item, the said representatives promise and affirm /.../ that from this date no ships shall be dispatched namely as follows: the said King and Queen of Castile, Leon, Aragon etc. for this part of the bound /.../ which pertains to the said King of Portugal /.../ nor the said King of Portugal to the other side of the said bound which pertains to the said King and Queen of Castile, Aragon, etc. – for the purpose of discovering and seeking any mainland’s or islands, or for the purpose of trade, barter, or conquest of any kind. But should it come to pass that the said ships of the said King and Queen of Castile... on sailing thus on this side of the said bound, should discover any mainland’s or islands in the region pertaining, as abovesaid, to the said King of Portugal, such mainlands or islands shall belong forever to the said King of Portugal and his heirs, and their Highnesses shall order them to be surrendered to him immediately. And if the said ships of the said King of Portugal discover any islands or mainlands in the regions of the said King and Queen of Castile /.../ all such lands belong to and remain forever in the possession of the said King and Queen of Castile /.../ and their heirs, and the said King of Portugal shall cause such lands to be surrendered immediately... And by this present agreement, they /.../ entreat our most Holy Father that his Holiness be pleased to confirm and approve this said agreement, according to what is set forth therein; and that he order his bulls in regard to it to be issued to the parties or to whichever of the parties may solicit them with the tenor of this agreement incorporated therein, and that he lay his censures upon those who shall violate or oppose it at any time whatsoever/.../

51 5 Letters Patent to John Cabot

Issued in London, England, March 5, 1496

The Emerging International Legal Discourse Concerning Indigenous Peoples

One important part of the creation of the discourse of indigenous peoples was the international legal debate on the status of the Indians. At the dawn of Europe’s expansion in the New World and the conquests of the American Indian, Europe already had the advantage of possessing an elaborated legal discourse on colonization. This discourse, first successfully deployed during the medieval Crusades to the Holy Land, asserted that normatively divergent non-Christian peoples could rightfully be conquered and their lands could lawfully be confiscated by Christian Europeans enforcing their vision of a universally binding natural law. The emergence of the discourse of crusades can be traced back to 1096. The ideas raised at that moment created a basis for later expansion of Europe into the New World and the rest of the Old. International law, the idea that rules ought to govern relations among states, emerged and developed as a discourse of a double standard. One set of rules was applied to Christian-European states, and another set applied to backward races. Although international law has evolved around the recognition of the right of all peoples to self- determination, remnants of the double standard remain in existing contemporary international law. What has become known, as international law was at this time the European Law of Nations, or the public law of Christian Nations (Oppenheim, 1955:13- 45). The primary trait of the European Law of Nations was that war was the basic state of international relations, even among Christian-European states. The questions raised were when it was legitimate to commence war. The doctrine of the just war dominated the discourse of laws between nations. The expansion of the European Law of Nations throughout out the world followed the European trade and colonial expansion. The law was to assist in this process of expansion. It was intended to advance the Christian imperialist interests of the colonizing powers and it showed little or no concern for the rights of non-Christian European peoples (Henkin, 1979:121). International law had its beginnings in the city-states system of ancient Greece. During the Roman Empire, the emperor was the source of authority. After the fall of the Roman

52 Empire, the Catholic Church became the dominant influence in the development of the international legal discourse. A number of historical events laid the foundation for the expansion of a European Law of Nations, which became synonymous with international law. After the test of Christianity, the test of Western style civilization became the decisive trait for entering the Family of Nations. It was not until 1856, that Turkey, the first non- Christian nation-state, was accepted as a member of the Family of Nations. The primary international rules that arose out of this state of chaos and genocidal acts in the western hemisphere were the doctrine of “two spheres” and the “doctrine of discovery”. According to former Europe was recognized as having its own system of international law. This system did not apply in the Western Hemisphere. The rule in the Americas emerging from this doctrine was might make right. There was no law beyond the dividing line set up by the Treaty of Tordesillas in 1494. Hostilities that occurred west of the line would not be a good cause to commence hostilities east of the line. The second rule of customary international law emerging during this period was the doctrine of discovery. The use of the term discovery had of course a special connotation in this period. Generally, the term discovery refers to something that has no previous owner, a land without an owner, i.e. terra nullius. Nevertheless, in this sense it was used as finding something that was previously unknown to Europeans and not the more usual sense of finding something previously without an owner. Another element of justification of the doctrine of discovery was to deny the human condition of the inhabitants of the Americas. According to the doctrine of discovery, merely sighting or landing on a particular portion of territory was not enough to give legal title. Such acts were only sufficient to give an inchoate title or a right to occupy that had to be perfected by actual possession. Possession was defined as permanent settlement and cultivation of the soil within reasonable time after the initial sighting (European Treaties, 1967:290-92, 329-32, 353- 60). A review of the claims made by the English rulers demonstrate the role played by the doctrine of discovery in the colonization of eastern North America. In 1496, Henry VII of England commissioned John Cabot to conquer, occupy, and possess the lands of the “heathens and infidels”, and to acquire title and jurisdiction over them. The Cabot patent was simultaneously an affirmation of Christian right and a denial of papal sovereignty. Based on Cabot’s voyage, England claimed all the territory from the Gulf of Mexico to the most northern regions and all the way west. However, the first permanent settlement was not made until 1607 at Jamestown, Virginia (Jennings, 1975:5). A valid claim of discovery brought with it two main benefits. First, it gave the discovering European nation an exclusive area within which it was free to pursue its colonizing activity, pre-empting the activity of other European nations in that area. The second benefit was the right to obtain land from the indigenous peoples, by either conquest or purchase. The English generally obtained land by purchase through treaties,

53 rather than the more usual means of military conquest employed by the Spanish. The treaties made by the English led to dividing lines being drawn between the land in English possession and the land that remained in the possession of the various Indian nations. The English, French and Dutch colonial enterprises were made in negation to the Spanish claim of exclusive dominion over the entire Western Hemisphere. A constant state of warfare threatened the profitability of the colonial enterprises. Thus, the emerging rules of international law played a crucial role in meeting the need of minimizing the expenses and increasing the profits. Later, the notation of sacred trust of civilization or the international rule of guardianship completed these rules over the indigenous peoples (Berkhofer, 1978; Falkowski, 1992; and Williams, 1990).

Letters Patent to John Cabot The letters patents of King Henry the seventh granted unto John Cabot and his three sons, Lewis, Sebastian, and Sancius for the discovery of new and unknown lands. Henry, by the grace of God, king of England and France, and lord of Ireland, to all to whom these presents shall come, Greeting. Be it known that we have given and granted, and by these presents do give and grant for us and our heirs, to our well beloved John Cabot citizen of Venice, to Lewis, Sebastian, and Santius, sons of the said John, and to heirs of them, and every of them, and their deputies, full and free authority, leave, and power to sail to all parts, countries, and seas of the East, of the West, and of the North, under our banners and ensignes, with five ships of what burden or quantity soever they be, and as many mariners or men as they will have with them in the said ships, upon their own proper costs and charges, to seek out, discover, and find whatsoever isles, countries, regions or provinces of the heathen and infidels whatsoever they be, and in what part of the world soever they be, which before this time have been unknown to all Christians: we have granted to them, and also to every of them, the heirs of them, and every of them, and their deputies, and have given them licence to set up our banners and ensignes in every village, town, castle, isle, or main land of them newly found. And that the aforesaid John and his sons, or their heirs and assignes may subdue, occupy and possess all such towns, cities, castles and isles of them found, which they can subdue, occupy and possess, as our vassals, and lieutenants, getting unto us the rule, title, and jurisdiction of the same villages, towns, castles, and firm land so found. Yet so that the aforesaid John and his sons and heirs, and their deputies, be holden and bounden of all the fruits, profits, gains, and commodities growing of such navigation, for every their voyage, as often as they shall arrive at our port of Bristol (at which port they shall be bound and holden only to arrive) all manner of necessary costs and charges by them made, being deducted, to pay unto us in wares or money the fifth part of the capital gain so gotten. We giving and granting unto

54 them and to their heirs and deputies, that they shall be free from all paying of customs of all and singular such merchandize as they shall bring with them from those places so newly found. And moreover, we have given and granted to them, their heirs and deputies, that all the firm lands, isles, villages, towns, castles and places whatsoever they be that they shall chance to find, may not of any other of our subjects be frequented or visited without the licence of the aforesaid John and his sons, and their deputies, under pain of forfeiture as well of their ships as of all and singular goods of all them that shall presume to sail to those places so found. Willing, and most straightly commanding all and singular our subjects as well on land as on sea, appointed officers, to give good assistance to the aforesaid John, and his sons and deputies, and that as well in arming and furnishing their ships or vessels, as in provision, of quietness, and in buying of victuals for their money, and all other things by them to be provided necessary for the said navigation, they do give them all their help and favour. In witness whereof we have caused to be made these our letters patents. Witness our self at Westminister, the fifth day of March, in the eleventh year of our reign.-

55 6 The Laws of Burgos

Excerpts from: ”Recopilacion de las Leyes de los Reynos de las Indias”, Adopted at Burgos, Spain, 1512

The Encomienda: Slavery as a Moral Necessity

One of the Spanish king’s official preachers, Friar Bernardo de Mesa, played an important role in forming the Spanish colonial policy in the world, which had newly been discovered. At the deliberations at Burgos in 1512, he formulated the main argument against the rights and freedoms of the Indians as a part of the natural law, which was forwarded by the Dominicans: De Mesa argued that the king had the duty to “curb their vicious inclinations and compel them to industry”, because freedom could be injurious to them (Hanke, 1949:23) Therefore, according to Bernardo de Mesa, the Indians could only be saved by being compelled to work for the Spanish colonists. Thus, some form of servitude was a moral necessity. The road to Burgos went over an intensive debate of the status of the Indians. In contradiction to the “slavery as freedom” argument, another humanistic view on the Indians started to grow in Spain, only some years after the colonization had started. In 1501, the Spanish Crown sent a governor, Nicolás de Ovando, to the colony in the Western Hemisphere. Ovando’s royal mandate included the removal of all Indians from Spanish enslavement. He also established a more centralized system of control over the activities of the colony. Supervision and a tribute were to be transferred to the Crown. However, the colonists, not used to interference from the distant king, and who had amassed fortunes from the feudal system – the Encomienda – resisted the changes, and the Crown withdrew its instructions, realizing that the success of the colonial enterprise lay in the new privileged class of the colony. Ovando re-adopted the encomienda, which was a practice of commending groups of Indian slaves to worthy Spaniards. Already in 1493, the Pope had mandated that the Indians be Christianized and civilized by the Spanish Crown. It was argued that only by denying the Indians their freedom and appropriating their labour could the civilizing task be carried out. “Because of the excessive liberty the Indians have been permitted, they flee from Christians and do not work. Therefore they are to be compelled to work, so that the kingdom and the Spaniards may be enriched, and the Indians Christianized”, argued Ferdinand of Spain (Hanke, 1949).

56 The encomienda system demanded a constant flow of Indian slaves for its continuity. Regardless of the source of demand, the supply of Indian slaves diminished at an ever- increasing rate. It has been estimated that the Indian population of Hispaniola was reduced from 250 000 to less than 15 000 in the first two decades of Spanish colonial enslavement. It may seem puzzling that the Spanish king actually wanted to reform the colonial policy in the New World, in the first place. However, Pope Innocent IV and the Council of Constance had established the legal principles governing Christian relations with infidels in Church law in 1418. The Dominicans and the natural law theorists of the time found Spanish treatment of the indigenous peoples highly suspect. Ferdinand of Spain grasped the essentials of the controversy: the Dominicans were questioning the legality of the Spanish enterprise in the New World. Moreover, if the Dominicans continued to challenge the colonial rights of Spain, they might even take their complaints to Rome, a situation that Ferdinand wanted to avoid at all costs (Williams, 1990: 85-86). It was in response to the rapid decline in the Indian population that the Spanish Church to awake the moral implications of the expanding slave trade in the Americas. The Dominican reform movement in America began when Antonio de Montesinos delivered a sermon to the “best people” of Hispaniola in 1511, speaking as a “voice crying in the wilderness” (Hanke, 1949: 17). He argued against the servitude of the Indians. The Spaniards on the islands in the New World were outraged by Montesino’s defense of the natural rights of the Indians. Montesino had questioned the legal foundations of the Spanish enterprise in the Americas. Ferdinand immediately threatened to return the disruptive dominicans to Spain. Montesino himself was not intimidated by the royal displeasure. He voluntarily returned to Spain in order to report on the mistreatment of Indians. His account of the genocidal fury of the Spanish colonists and conquistadors forced Ferdinand to convene a council, composed of royalist theologians and canon-law scholars who served the king and his interests. The council met in Burgos, in 1512, and their attention was devoted to the question of how to save the Indians. Was enslavement the best way and even a moral necessity or could there be any other means to this end? Meeting more than twenty times, the council heard testimonies regarding the Indians’ lack of reason, which mandated the extinguishment of their rights and freedom under natural law. The council drafted seven basic propositions to serve as a basis for future Spanish colonial legislation. The actual Laws of Burgos, the legal code based on the seven propositions of the council, reflects a euro centric view. The code nearly regulated all of Indian life and the encomienda system was acknowledged as “in agreement with divine and human law”. The Laws of Burgos actually legitimated appropriation of Indian resources and labor as a means of facilitating the goal of assimilation of the Indians. (Hanke, Ibid: 24) The laws enacted regarding the “Kingdoms of the Indies” pointed in the direction of recognizing the rights of the Indians to their possessions, with an important ex-ception:

57 no claim by the Indians to unoccupied lands or uninhabited territory appears to have been recognized. Such territory was designated “waste lands”, and became part of the royal domain.

The Laws of Burgos We decree and command, that the laws and good customs anciently in force in the Indies, for their good government and police, and the usages and customs observed and retained from the introduction of Christianity among them, which are not repugnant to our sacred religion, or to the laws contained in this book, and to those which have been framed anew, be observed and fulfilled; and it having become expedient to do so, we hereby approve and confirm them, reserving to ourselves the power of adding thereto whatever we shall think fit and will appear to us necessary for the service of God our Lord, and our own, and for the protection of, and Christian police among, the natives of those Provinces, without prejudice to established usages among them, or to their good and wholesome customs and statutes. (Lib. II, tit.1, law 4, vol.1, p. 218) It being our wish that the Indians be protected and well treated, and that they be not molested nor injured in their person or property; We command that in all cases, and on all occasions, when it shall be proposed to institute an inquiry, whether any injury is to accrue to any person in consequence of any grant of land, whether for tillage, pasture, or other purposes, the Viceroys, Presidents, and Judges shall cause summonses to be directed to all persons whom it may really concern, and to the Attorneys of our Royal Audiences, wherever Indians may be interested, in order that all and every person may take such measures as may be expedient to protect his rights against all injuries which might result there from. (Lib. II, tit.18, law 36, vol.1, p. 412) Whereas some grazing farms, owned by Spaniards for their use of their cattle, have been productive of injury to the Indians, by being located upon their lands, or very near their fields and settlements, whereby said cattle eat and destroy their produce and do them other damage: We command that the Judges who shall examine the lands, make it their duty to visit such farms, without previous request to do so, and ascertain whether any injury accrues there from to the Indians or their property; and, if so, that, after due notice to the parties interested, they forthwith, and by summary or legal process, according as they may think most fit, remove them to some other place without damage or prejudice to any third person. (Lib.II, tit.31, law 13, vol.1, p. 484) Should the natives attempt to oppose the settlement [of a colony], they shall be given to understand that the intention in forming it, is to teach them to know God and His holy law, by which they are to be saved; to preserve friendship with them, and teach them to live in a civilized state, and not to do them any harm or take from them their settlements. They shall be convinced of this by mild means, through the interference of religion and

58 priests, and of other persons appointed by the Governor, by means of interpreters, and by endeavoring by all possible good means, that the settlement may be made in peace and with their consent; and if, notwithstanding, they do withhold their consent, the settlers, after having notified them pursuant to Law 9, Tit.4, Lib.3, shall proceed to make their settlement without taking anything that may belong to the Indians, and without doing them any greater damage than shall be necessary for the protection of the settlers and to remove obstacles to the settlement. (Lib.IV, tit.7, law 23, vol.II, p. 24) We command that the farms and lands, which may be granted to Spaniards, be so granted without prejudice to the Indians; and that such as may have been granted to their prejudice and injury be restored to whomever they of right shall belong. (Lib. IV, tit. 12, law 9, vol II, p. 41) In order to avoid the inconveniences and damages resulting from the sale or gift to Spaniards of caballerias or peonies, and other tracts of land, to the prejudice of the Indians, upon the suspicious testimony of witnesses, we order and command, that all sales or gifts shall be made before the Attorneys of our Royal Audiencias, to be summoned for that purpose, who shall be bound to examine, with due care and diligence, the character and depositions of witnesses; and the Presidents and Audiences, where they shall administer the government, shall give or grant such lands by the advice of the Board of Treasury, where it shall appear that they belong to us, at auction, to the highest bidder, as other estates of ours, and always with an eye to the benefit of the Indians. And where the grant or sale shall be made by the Viceroys, it is our will that none of the officers above mentioned shall interfere. Upon the letters which shall be granted to the parties interested, they shall sue out confirmations within the usual time prescribed in cases of grants of Indians [encomiendas de Indios]. (Lib.IV, tit. 12, law 16, vol.II, p. 43) In order more effectually to favor the Indians, and to prevent their receiving any injury, we command that no composition shall be admitted of lands which Spaniards shall have acquired from Indians, in violation of our royal letters and ordinances, and which shall be held upon illegal titles: it being our will that the Attorneys-Protectors should proceed according to right and justice, as required by letters and ordinances, in procuring such illegal contracts to be annulled. And we command the Viceroys, Presidents, and Audiences to grant them their assistance for its entire execution. (Lib.IV, tit. 12, law 17, vol. II, p. 43) We command that the sale, grant, and composition of lands be executed with such attention, that the Indians shall be left in possession of the full amount of lands belonging to them, either singly or in communities, together with their rivers and waters; and the lands which they shall have drained or otherwise improved, whereby they may, by their own industry, have rendered them fertile, are reserved in the first place, and can in no case be sold or aliened. And the Judges who shall have been sent thither, shall specify what Indians they may have found on the land, and what lands they shall have left in possession

59 of each of the elders of tribes, caciques, governors, or communities. (Lib. IV, tit. 12, law 17[18], vol. II, p. 44) No one shall be admitted to make composition of lands who shall not have been in possession thereof for the term of ten years, although he should state that he is in possession at the time; for such circumstance by itself is not sufficient; and commu-nities of Indians shall be admitted to make such compositions in preference to other private individuals, giving them all facilities for that purpose. (Lib. IV, tit. 12, law 19, vol. II, p. 44) Whereas the Indians would sooner and more willingly be reduced into settlements, if they were allowed to retain the lands and improvements which they may possess in the districts from which they shall remove; we command that no alteration be made therein, and that the same be left to them to be owned as before, in order that they may continue to cultivate them and to dispose of their produce. (Lib. VI, tit. 3, law 9, vol. II, p. 209)

60 7 The Requirement

Adopted at Burgos, Spain, 1513

Law as a Perfect Instrument of Civilization and Empire

It soon became evident that the Spanish Crown came to see law as an instrument of acquiring land in the New World. Europe had for a long time revered law as an instrument of civilization. Now it became a perfect instrument of empire in the heart of darkness that was America (Williams, 1990: 93). The deliberations at Burgos 1512 had reopened an issue that the Spanish Crown had considered long settled: the formal basis of Spain’s right to conquer and rule in the Indies. The discussions at Burgos had permitted doubts to arise about the precise nature of the Crown’s rights under its grant from the Pope. In 1513, Ferdinand convened a group of theologians and scholars to draft regulations for future royal conquest, entitled “requirement”, the Requirement, a document that had to be read aloud to any group of Indians newly discovered by Spanish conquistadors before hostilities could legally be commenced against them. Hanke has summarized the history of the Requirement:

A complete list of the events that occurred when the Requirement formalities ordered by King Ferdinand were carried out in America, more or less according to the law, might tax the reader’s patience and credulity, for the Requirement was read to trees and empty huts when no Indians were to be found (Hanke, Ibid: 34).

Along with the purported grant of land from Pope Alexander VI, the Spanish were also given the duty to convert the Indians to Catholicism. To carry out this duty, the Spanish argued that a just war could be legally commenced against the Indians if they refused to convert to Catholicism or to acknowledge the authority of the Spanish monarch. The doctrine of the papal sovereignty was first formulated in the 13th century. According to this doctrine, the earth was divided into a Christian world and a heathen world. Before the birth of Christ, heathen peoples possessed their own temporal authority based on natural law. After the birth of Christ, all the spiritual and temporal authority held by heathen peoples passed to Christ, who became the temporal and spiritual lord over the entire earth. This authority later passed over to Christ’s successors, first to S:t Peter, then to other popes. Based on this authority, the Pope could extinguish all the rights that non- Christians obtained prior to the division of the world. The natural rights of heathen

61 peoples were thus subordinated to the authority of the Pope, who could delegate this authority to other Christian princes. In theory, the Requirement could only be used after the Indians’ refusal to permit missionary priests to enter their lands. In practice, however, the application by the conquistadors revealed a gap between the law on paper and the law in action. The Italian Peter Martyr, serving on the Royal Council of the Indies, had the courage to see behind the useless paper:

All these instructions have been thought out by prudent and humane jurisconsults and sanctioned by religious men. But have what of that? When our compatriots reach that remote world, so far away and so removed from us /.../ they find themselves distant from any judge. Carried away by love of gold, they become ravenous wolves instead of gentle lambs, and heedless of royal instructions (Hanke, Ibid: 47).

Not until 1556, did the Spanish formally abolish the useless legalisms of the Requirement. Then the Spanish colonial enterprise was declared a missionary enterprise instead of the military conquest. However, by that time, the Spanish had already conquered most of the population and most of the land worth exploiting (Berkhofer, Ibid: 125).

The Requirement On the part of the King, Don Fernando, and of Dona Juana, his daughter, Queen of Castile and Leon, subduers of the barbarous nations, we their servants notify and make known to you, as best as we can, that the Lord our God, Living and Eternal, created the Heaven and the Earth, and one man and one woman, of whom you and I, and all the men of the world, were and are descendants, and all those who come after us. But, on account of the multitude which has sprung from this man and woman in the five thousand years since the world was created, it was necessary that some men should go one way and some another, and that they should be divided into many kingdoms and provinces, for in one alone they could not be sustained. Of all these nations God our Lord gave charge to one man, called St. Peter, that he should be Lord and Superior of all the men in the world, that all should obey him, and that he should be head of the whole human race, wherever men should live, and under whatever law, sect, or belief they should be; and he gave him the world for his kingdom and jurisdiction. And he commanded him to place his seat in Rome, as the spot most fitting to rule the world from; but also he permitted him to have his seat in any other part of the world, and to judge and govern all Christians, Moors, Jews, Gentiles, and all other sects. This man was called Pope, as if to say, Admirable Great Father and governor of men. The men who lived in that time obeyed that St. Peter, and took him for Lord, King, and Superior of the

62 universe; so also have they regarded the others who after him have been elected to the Pontificate, and so it has been continued even until now, and will continue until the end of the world. One of these Pontiffs, who succeeded that St. Peter as Lord of the World, in the dignity and seat which I have before mentioned, made donation of these isles and Terrafirma to the aforesaid King and Queen and to their successors, our lords, with all that there are in these territories, as is contained in certain writings which passed upon the subject as aforesaid, which you can see if you wish. So their Highnesses are kings and lords of these islands and land of Terra-firma by virtue of this donation; and some islands, and indeed almost all those to whom this has been notified, have received and served their Highnesses, as lords and kings, in the way that subjects ought to do, with good will, without any resistance, immediately, without delay, when they were informed of the aforesaid facts. And also they received and obeyed the priests whom their Highnesses sent to preach to them and teach them our Holy Faith; and all these, of their own free will, without any reward or condition, have become Christians, and are so, and their Highness have joyfully and benignantly received them, and also have commanded them to be treated as their subjects and vassals; and you too are held and obliged to do the same. Therefore as best we can, we ask and require you that you consider what we have said to you, and that you take the time that shall be necessary to understand and deliberate upon it, and that you acknowledge the Church as the Ruler and Superior of the whole world and the high priest called Pope, and in his name the King and Queen Dona Juana our lords, in his place, as superiors and lords and kings of these islands and this Terrafirma by virtue of said donation, and that you consent and give place that these religious fathers should declare and preach to you the aforesaid. If you do so, you will do well, and that which you are obliged to do to their Highnesses, and we in their name shall receive you in all love and charity, and shall leave you your wives, and your children, and your lands, free without servitude, that you may do with them and with yourselves freely that which you like and think best, and they shall not compel you to turn Christians, unless you yourselves, when informed of the truth, should wish to be converted to our Holy Catholic Faith, as almost all the inhabitants of the rest of the islands have done. And besides this, their Highnesses award you many privileges and exceptions and will grant you many benefits. But if you do not do this, and wickedly and intentionally delay to do so, I certify to you that, with the help of God, we shall forcibly enter into your country and shall made [sic] war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses; we shall take you and your wives and your children, an3d shall make slaves of them, and as such shall sell and dispose of them as their Highnesses may command; and we shall take away your goods, and shall do all the harm and damage that we can, as to vassals who do not obey, and refuse to receive

63 their lord, and resist and contradict him; and we protest that the deaths and losses which shall accrue from this are your fault, and not that of the Highnesses, or ours, nor of these cavaliers who come with us. And that we have said this to you and made this Requisition, we request the notary here present to give us his testimony in writing, and we ask the rest who are present that they should be witnesses of this Requisition.

64 8 The Bull “Praecelsae Devotionis”

Issued by Pope Leo X, Rome, November 3, 1514

In March 1513, Leo X became Pope and King Emmanuel of Portugal soon gained his favour. The Portuguese expansion in Asia took form and was unreservedly received by the Pope. The Pope gave favours to Portugal, who had enlarged the field of missionary enterprise. Portugal soon received further concessions and grants by the Pope: In the Bull of June 7, 1514, Portugal was granted patronage and ecclesiastical benefices in “Africa and in all other places beyond the sea, acquired or to be acquired from the infidels, and subjected them to the spiritual jurisdiction of the Order of Christ. In the Bull of November 3, 1514, earlier donations to Portugal were renewed and amplified in the way that the Bull of Donation of 1493 extended the grants to Spain. This bull granted to Portugal the lands and other property acquired from the infidels, not only from Cape Bojador, Náo and the Indies, but also in any region whatsoever, even if then unknown. It appears that Pope Leo X regarded the line of demarcation set out in the Treaty of Tordesillas as confined to the Western Hemisphere, where it served to determine the route that must be followed by Spain and Portugal to the Indies. The following Bull permitted the Portuguese, following an eastern route, to acquire lands from the infidels in Asia. The Portuguese wished to come before the Spanish to the Moluccas, which was the object of a Spanish expedition.

The Bull “Praecelsae Devotionis” Leo, bishop, servant of the servants of God. For an abiding remembrance. Meditating fittingly in the inmost counsels of our heart upon the unwearied fervor of lofty devotion, the purity of blameless faith, the respect for the Holy Apostolic See, and the ardor of lofty virtues, whereby our very dear son in Christ, Emmanuel, the illustrious king of Portugal and of the Algarves, has made himself, in manifold ways, pleasing serviceable, and agreeable to us and to the said see, especially since the light of experience we consider, and from manifest proofs every day clearly perceive, with what unremitting vigilance his Sublimity and Serenity, following the example of his predecessors, the kings of Portugal, has striven, and ever more zealously strives, for the most part in person and not without the greatest effort and expense, in order that the barbarous hostility of the Moors and of other infidels to our Savior and to the Christian name may not only be warded off from the territories of the faithful, but, perishing in its own iniquity, may be entirely restrained

65 and blotted out, and that the Christian religion may by peaceful means be advanced and promoted in all longedfor ways: persuaded by these considerations and by many other legitimate reasons, we deem it fitting and expedient constantly to guard and protect those concessions which we have learned were granted by our predecessors, the Roman pontiffs, to the aforesaid predecessors of the said king Emmanuel, and also to grant other and new privileges, in order that then his Highness, fortified by the further munificence of the aforesaid Apostolic See, may not only be roused to greater zeal in fulfilling his promises, but having received a liberal and generous reward may induce and cause others more readily to undertake similar work, and that his devotion to us and to the aforesaid see may be increased, and that in return for the labors which he sustains in serving the Church Universal by exalting the Catholic and apostolic faith, he may obtain suitable honors and rewards. A short while ago, divers letters of the following tenor were issued by our predecessors, Popes Nicholas V. and Sixtus IV., of happy memory (The bulls of June 18, 1452; January 8, 1455; and June 21, 1481). We, therefore, who passionately strive for the advantage and profit of the said King Emmanuel, since he is continually aiming at the growth and extension of the faith, of our own accord, and not at the instance of the said King Emmanuel or on account of any request offered by any other person in his behalf, but from our mere deliberation and out of our certain knowledge and from the plenitude of apostolic power, approve and renew and confirm by the apostolic authority and by the tenor of these presents, the aforesaid letters, all and singular, regarding their contents, all and singular, and whatever has followed thereupon as established and acceptable, and supplying all and singular defects, both of law and of fact, if any should happen to occur in them; and we decree that they ought to be permanently valid. And for greater security and by virtue of the authority and in the terms mentioned above, we newly grant everything, all and singular, contained in the aforesaid letters, and all other empires, kingdoms, principalities, duchies, provinces, lands, cities, towns, forts, lordships, islands, harbors, seas, coasts, and all property, real and personal, wherever existing, also all unfrequented places, recovered, discovered, found and acquired from the aforesaid infidels, by the said King Emmanuel and his predecessors, or in future to be recovered, acquired, discovered, and found by the said King Emmanuel and his successors, both from Capes Bojador and Náo to the Indies, and in any place or region whatsoever, even although perchance unknown to us at present; and we also extend and amplify the aforesaid letters, and their contents, all and singular, to the aforesaid concessions, and in virtue of holy obedience and under penalty of our wrath, by the authority and in the terms aforesaid, we inhibit all faithful Christians, even though adorned with imperial, royal, or any other rank, from presuming to hinder in any way the said King Emmanuel and his

66 successors in respect to the aforesaid concessions, and from furnishing aid, counsel, or favor to the said infidels. Wherefore by apostolic writings, and of the same accord, we charge our venerable brothers, the archbishop of Lisbon and the bishops of Idanha-Velha (Guarda) and Funchal, that they, or two or one of them, by himself, or through another, or others, solemnly publishing the present letters and all and singular therein contained, where and when it shall be expedient, and as often as they shall be required on behalf of King Emmanuel and his successors and, aiding the aforesaid King Emmanuel and his successors with effectual protection in the aforesaid, do by our authority cause the present and other letters and the matters contained therein to be inviolably observed after this manner, not permitting them [i.e., the kings] to be troubled in any way whatever and by anyone in respect to these matters, restraining the disobedient by ecclesiastical censure, without permitting appeal, and likewise if necessary invoking for this purpose the aid of the secular arm. And none the less, observing the legal process to be followed in these matters, let them be careful, as often as it shall be expedient, to harass again those who it shall appear have incurred the censures and penalties imposed by them in accordance with circumstances. Nor shall the [edict] of Pope Boniface VIII., of celebrated memory, similarly our predecessor, interfere with these injunctions, in which, among other things, he forbade that anyone be summoned to trial outside his city or diocese, except in certain excepted cases, and in those cases not more than one day’s journey from the bounds of his diocese, or that judges, deputed by the Apostolic See, presume to proceed against anyone outside the city or diocese in which they shall have been deputed, or that they presume to entrust their duties to any other person or persons; nor the regulation in regard to the two days’ journey, ordained in the General Council; and other apostolic constitutions; nor all those constitutions whatsoever to the contrary which the said Nicholas and others of our predecessors, who made similar concessions to the said King of Portugal, declared to be of no effect in their letters, even if the said has granted an insult to any, jointly or singly, that they may not be interdicted, suspended, or excommunicated by apostolic letters not making full and express mention, word for word, of such indult. Let no man whomsoever therefore infringe or with rash boldness contravene this our approval, renewal, confirmation, completion, decree, grant, extension, amplification, inhibition, and mandate. Should anyone presume to attempt this, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul. Given at Rome, at St. Peter’s, on the third day of November, in the year of the incarnation of our Lord, 1514, in the second year of our pontificate. JACOPO SADOLETO B. DE COMITIBUS

67 9 Excerpt from: Francisco de Vitoria

Reflections on the Indians and the Laws of War, Salamanca, Spain, 1532

”On the Indians Lately Discovered” The legal documents, Spain’s instruments of Empire, such as the Encomienda, the Laws of Burgos, and the Requirement, institutionalized and rationalized the foundations of the Indian policy derived from the popes. In contrast to the conquistadors, the Spanish missionaries and theologians were concerned with the ethical issues raised by the encounter between the Europeans and the Native Americans. To radical reformers like the Dominican friar Montesino, Spain’s imperial policy was “perverse, unjust, and tyrannical,” designed to mask Spanish barbarity (Hanke, Ibid: 58). In a series of lectures delivered in 1532, Francisco de Vitoria, Dominican professor at the University of Salamanca, and by some considered as the “father” of modern international law, repudiated all the arguments put forth by the Spanish conquistadors to justify their domination of the Indians. Vitoria rejected the arguments that Indians were precluded from being true owners because of unbelief, heresy, unsoundness of mind, or any other mortal sin:

...the aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners. It would be harsh to deny to those, who have never done any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity (Vitoria, 1917:128).

In contradistinction to those who asserted that Indians were slaves by nature, because of their “incapability for self-government”, Vitoria argued that the Indians constituted sovereign nations. The doctrine of the sovereign equality of nations was derived from Vitoria’s concept. According to this doctrine, all nations, just as all men, were equal and possessed certain fundamental rights, as the right to exist and the right of sovereignty and equal status with other nations (Parry, 1940:21). Vitoria also rejected the temporal authority of the Pope to give away the land of Indians, and the validity of the doctrine of discovery, because this title “in and by itself gives no support to a seizure of the aborigines any more than if it had been they who had discovered us” (Vitoria, 1917:139).

68 Vitoria argued that only vacant land could be claimed by discovery, not land that was used, owned, and occupied by Indians. One of the most important contributions Vitoria made to the development of international law was his formulation of the trusteeship concept of colonialism. He argued that although Indians were not natural slaves, they needed to be ruled and governed by other nations. In addition, it was good for them to be subjects to others, just as sons need to be subject to their parents until they come of age (Hanke, 1959:47). Vitoria expressed the concept of the trust relationship as follows:

“Reflections on the Indians and the Laws of War” There is another title, which can indeed not be asserted, but brought up for discussion, and some think it a lawful one. I dare not affirm it at all, nor do I entirely condemn it. It is this: Although the aborigines in question are /.../ not wholly unintelligent, yet they are little short of that condition, and so are unfit to found or administer a lawful State up to the standard required by human and civil claims. Accordingly they have neither proper laws nor magistrates, and are not even capable of controlling their family affairs; they are without any literature or arts not only the liberal arts, but the mechanical arts also; they have no careful agriculture and no artisans; and they lack many other conveniences, yea necessaries, of human life. It might, therefore, be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country, providing them with prefects and governors for their towns, and might even give them new lords, so long as this was clearly for their benefit. I say there would be some force in this contention; for if they were all wanting in intelligence, there is no doubt that this would not only be a permissible, but also a highly proper, course to take; nay, our sovereigns would be bound to take it, just as if the natives were infants. The same principle seems to apply here to them as to people of defective intelligence; and indeed, they are no whit or little better than such so far as self-government is concerned, or even than the wild beasts, for their food is not more pleasant and hardly better than that of beasts. Therefore, their governance should in the same way be entrusted to people of intelligence. There is clear confirmation hereof for if by some accident of fortune all their adults were to perish and there were to be left boys and youths in enjoyment, indeed, of a certain amount of reason, but of tender years and under the age of puberty, our sovereigns would certainly be justified in taking charge of them and governing them so long as they were in that condition. Now, this being admitted, it appears undeniable that the same could be done in the case of their barbarian parents if they be supposed to be of that dullness of mind which is attributed to them by those who have been among them and which is reported to be more marked among them than even among the boys and youths of other nations. And surely

69 this might be founded on the precept of charity, they being our neighbors and we being bound to look after their welfare. Let this; however, as I have already said, but put forward without dogmatism and subject to the limitation that any such interposition be for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards. For this is the respect in which all the danger to soul and salvation lies And herein some help might be gotten from the consideration, referred to above, that some are by nature slaves, for all the barbarians in question are of that type and so they may in part be governed as slaves are. Now, it seems to follow from all this discussion that, if there be no force in any of the titles which have been put forward, so that the native Indians neither gave cause for just war nor wished for Spanish rulers, etc., all the travel to, and trade with, those parts should be stopped, to the great loss of the Spaniards and also to the grave hurt of the royal treasury (a thing intolerable) (Vitoria, 1917:160-61).

70 10 The Bull “Sublimis Deus”

Issued by Pope Paul III, Rome, June 4, 1537

The Pope Paul III, who began the Counter-Reformation, gave Vitoria’s ideas. In 1537, he issued three Bulls concerning the treatment of the Indians. The first transferred jurisdiction over the spiritual upbringing of Indians from the Spanish Holy Office to the Bishops. The second was a strong condemnation of Indian slavery. The third was the celebrated Sublimis Deus. Sublimis Deus had the effect of revoking the Bull of Donation (Inter Caetera, May 3, 1493) insofar as it purported to give the Spanish monarchy title to the Indians’ land, although Spain continued to have the duty to convert the Indians to Roman Catholicism. Sublimis Deus has been called a declaration of human rights because it recognized the right of Indians to own lands regardless of their race, religion, and degree of civilization or any other circumstance, (Falkowski, 1992:21-25). The effect of the criticism put forward by Vitoria and later Las Casas, can be seen in the following period, where policy moves from straight explicit integration to protection. However, the situation of the Indians may not have changed as a result. One reason for the change of formal policy was that in the second half of the 16th century, Latin America was already conquered. In addition, the Iberian hegemony in the Americas started to decline and be challenged by other European powers.

The Bull “Sublimis Deus” Paul III Pope To all faithful Christians to whom this writing may come, health in Christ our Lord and the apostolic benediction. The sublime God so loved the human race that He created man in such wise that he might participate, not only in the good that other creatures enjoy, but endowed him with capacity to attain to the inaccessible and invisible Supreme Good and behold if face to face; and since man, according to the testimony of the sacred scriptures, has been created to enjoy eternal life and happiness, which none may obtain save through faith in our Lord Jesus Christ, it is necessary that he should possess the nature and faculties enabling him to receive that faith; and that whoever is thus endowed should be capable of receiving that same faith. Nor is it credible that any one should possess so little understanding as to desire the faith and yet be destitute of the most necessary faculty to enable him to receive it. Hence Christ, who is the Truth itself, that has never failed and can never fail, said to the preachers of the faith whom He choose for that office “Go ye

71 and teach all nations.” He said all, without exception, for all are capable of receiving the doctrines of the faith. The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the catholic faith. We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside, into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the catholic faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, we define and declare by these our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect. By virtue of our apostolic authority We define and declare by these present letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, which shall thus command the same obedience as the originals, that the said Indians and other peoples should be converted to the faith of Jesus Christ by preaching the word of God and by the example of good and holy living. Given in Rome in the year of our Lord 1537. The fourth of June and of our Pontificate, the third year.

72 11 The Royal Instructions of 1761

Issued by George III, London, England, December 9, 1761

By Royal Instructions issued to colonial governors in December 1761, the English settlers were required to remove themselves from all lands acquired without a formal licence. The English were at that time determined “to support and protect the Indians in their just Rights and Possessions and to keep inviolable the treaties and Compacts which have been entered into with them”. In 1537, Pope Paul III acknowledged the rights of the indigenous peoples of the New World, by the Spanish lawyer Vitoria and by the protector of the Indians Bartholomé de las Casas. During the 17th century, the French and English established settlements in North America, without really challenging the land rights of the Indians. The fur trade was an important part of the relationship England and France. However, the situation changed and the relations between the colonial powers were in the 18th century largely governed by events in Europe and abroad. The events of 1759 in Quebec and 1760 in Montreal ended French power in North America. At this critical moment, the English king restated the Crown’s intentions of buying from the indigenous peoples the lands it needed for the settlers. The Royal Instructions of 1761 mark the first English effort to draw a demarcation between indigenous and settler lands.

The Royal Instructions of 1761 WHEREAS the peace and security of Our Colonies and Plantations upon the Continent of North America does greatly depend upon the Amity and Alliance of the several Nations or Tribes of Indians bordering upon the said Colonies and upon a just and faithful Observance of those Treaties and Compacts which have been heretofore solemnly entered into with the said Indians by Our Royal Predecessors Kings & Queens of this Realm. And whereas notwithstanding the repeated Instructions which have been from time to time given by Our Royal Grandfather to the Governor of Our several Colonies upon this head the said Indians have made and do still continue to make great complaints that Settlements have been made and possession taken of Lands, the property of which they have by Treaties reserved to themselves by persons claiming the said lands under pretence of deeds of Sale and Conveyance illegally, fraudulently and surreptiously obtained of the said

73 Indians; And Whereas it has likewise been represented unto Us that some of Our Governors or other Chief Officers of Our said Colonies regardless of the Duty they owe to Us and of the Welfare and Security of our Colonies have countenanced such unjust claims and pretensions by passing Grants of the Lands so pretended to have been purchased of the Indians. We therefore taking this matter into Our Royal Consideration, as also the fatal Effects which would attend a discontent amongst the Indians in the present situation of affairs, and being determined upon all occassions to support and protect the said Indians in their just Rights and Possessions and to keep inviolable the Treaties and Compacts which have been entered into with them. Do hereby strictly enjoy & command that neither yourself nor any Lieutenant Governor, President of the Council or Commander in Chief of Our said Colony/Province of{} do upon any pretence whatever upon pain of Our highest Displeasure and of being forthwith removed from your or his office, pass any Grant or Grants to any persons whatever of any lands within or adjacent to the Territories possessed or occupied by the said Indians or the Property Possession of which has at any time been reserved to or claimed by them. And it is Our further Will and Pleasure that you do publish a proclamation in Our Name strictly enjoining and requiring all persons whatever who may either willfully or inadvertently have seated themselves on any lands so reserved to or claimed by the said Indians without any lawful Authority for so doing forthwith to removetherefrom And in case you shall find upon strict enquiry to be made for that purpose that any person or persons do claim to hold or possess any lands within Our said Province/Colony upon pretence of purchases made of the said Indians without a proper licence first had and obtained either from Us or any of Our Royal Predecessors or any person acting under Our or their Authority you are forthwith to cause a prosecution to be carried on against such person or persons who shall have made such fraudulent purchases to the end that the land may be recovered by due Course of Law And whereas the wholesome Laws that have at different times been passed in several of Our said Colonies and the instructions which have been given by Our Royal Predecessors for restraining persons from purchasing lands of the Indians without a Licence for that purpose and for regulating the proceedings upon such purchases have not been duly observed. It is therefore Our express Will and Pleasure that when any application shall be amde to you for licence to purchase lands of the Indians you do forebear to grant such Licence until you shall have first transmitted to Us by Our Commissioners for Trade and Plantations the particulars of such applications as well as in respect to the situation as the extent of the lands so proposed to be purchased and shall have received Our further directions therein; And it is Our further Will and Pleasure that you do forthwith cause this Our Instruction to you to be made Public not only within all parts of your said Province/Colony inhabited by Our Subjects, but also amongst the several Tribes of

74 Indians living within the same to the end that Our Royal Will and Pleasure in the Premises may be known and that the Indians may be apprised of Our determined Resolution to support them in their just Rights, and inviolably to observe Our Engagements with them.

75 12 The Belcher Proclamation

Issued by Governor Belcher, Halifax, Canada, May 4, 1762

His Majesty by His Royal Instruction, Given at the Court of St. James, the 9th day of December 1761, having been pleased to Signify. THAT the Indians have made, and still do continue to make great Complaints, that Settlements have been made, and Possessions taken, of Lands, the Property of which they have by Treaties reserved to themselves, by Persons claiming said Lands, under Pretence of Deeds of Sale & Conveyance, illegally, Fraudulently, and surreptitiously obtained of said Indians. AND THAT His Majesty had taken this Matter into His Royal Consideration, as also the fatal Effects, which would attend a Discontent among the Indians in the present Situation of Affairs. AND BEING determined upon all Occasions to support and protect the said Indians in their just Rights and Possessions and to keep in violable the treaties and compacts which have been entered into with them, was pleased to declare His Majesty’s further Royal Will and Pleasure, that His Governor or Commander in Chief in this province should publish a Proclamation in His Majesty’s Name, for this special purpose; WHEREFORE in dutiful Obedience to His Majesty’s Royal Orders I do accordingly publish this proclamation in His Majesty’s Royal Name, strictly enjoining and requiring all Persons what ever, who may either will fully or inadvertently have seated themselves upon Lands so reserved to or claimed by the said Indians, without any lawful Authority for so doing, forthwith to remove there from. AND, WHEREAS Claims have been laid before me in behalf of the Indians for Fronsac Passage and from thence to Nartigonneich, and from Nartigonneich to Piktouk, and from thence to Cape Jeanne, from thence to Emchih, from thence to Ragi Pontouch, from thence to Tedueck, from thence to Cape Rommentin, from thence to Miramichy, and from thence to Bay Des Chaleurs, and the environs of Canso. From thence to Mushkoodabwet, and so along the coast, as the Claims and Possessions of the said Indians, for the more special purpose of hunting, fowling and fishing, I do hereby strictly enjoin and caution all persons to avoid all molestation of thesaid Indians in their said claims, till His Majesty’s pleasure in this behalf shall be signified.

76 AND if any person or persons have possessed themselves of any part of the same to the prejudice of the said Indians in their Claims before specified or without lawful Authority, they are hereby required forthwith to remove, as they will otherwise be prosecuted with the utmost Rigour of the law. Given under my Hand and Seal at Halifax this Fourth Day of May, 1762, and in the Second Year of His Majesty’s Reign.

77 13 The Royal Proclamation

London, England, October 7, 1763

The English capture of Quebec in 1759 and Montreal in 1760 ended France’s power in North America. Within a month of the announcement at Halifax that permanent peace between England and France had been achieved, the Royal proclamation of 1763 was issued. King George III restated that the intention was to buy the lands the Crown needed for its settlers. He recognized that “it is just and reasonable, and essential to our Interest and the Security of our Colonies” (The Mi’kmaq Treaty Handbook, at p. 7). The English generally obtained land from the Indians by treaties rather than the more usual means of conquest employed by the Spanish. The treaties made by the English led to dividing lines drawn between the land in English possession and the land that remained in the possession of the various Indian nations. In an attempt to limit white settlement to the eastern seaboard and to keep the loyalty of their Indian allies, the English issued the Proclamation of 1763. This proclamation prohibited whites from settling west of a line that ran roughly along the crest of the Appalachian Mountains. It also recognized the right of the Indians to the undisturbed possession of the land west of this line. Early English imperial policy in North America dictated recognition of indigenous peoples’ legal title to traditional lands. The policy was however ineffectually enforced by local governments, which were more concerned with the interests of the settlers than with those of the Indians. Encroachments upon Indian lands were not contained. It resulted in Indian attacks upon settlements. In an effort to protect these settlements, treaties of peace and friendship were concluded, intended to save the Indians some of their lands and liberties. The Royal Instruction of 1761 to the governors of Nova Scotia and the American colonies directed them not to issue any “grants to any persons whatever of any lands within or adjacent to the Territories possessed or occupied by the said Indians,” and to issue a proclamation which directed the removal of those who had occupied such lands. However, the colonial opposition restricted the application of the Instructions to lands “confirmed to the Indians by solemn compacts” (Bartlett, 1990:9). In 1763, Chief Pontiac, provoked by the invasions of settlers into traditional lands, led a rebellion, which threatened the back country. The imperial response was the Royal Proclamation of 1763. The Royal Proclamation prohibited the issuance of warrants of survey or grants beyond the borders of Quebec, East Florida and West Florida, and

78 reserved the country to the west to the Indians. Settlers were required to remove themselves from such lands. If at any time the Indians desired to dispose of lands reserved to them within any of the colonies, these lands were to be purchased only by the Crown. Private purchases of Indian lands became prohibited. The Royal Proclamation of 1763 is a significant instrument of the protection policy, which demanded that only the Crown could acquire traditional indigenous lands, and only upon the consent of the indigenous peoples themselves. This instrument is the foundation of the policy of entering into treaties and agreements with the indigenous peoples with respect to their traditional lands. The peace treaty between Great Britain and France, which the Royal Proclamation was a result of, made it possible for British disposal of territory inhabited by Indians, without referring to them, thus assuming that the indigenous peoples had neither legal title to the lands nor sovereignty.

The Royal Proclamation of 1763 George R. WHEREAS WE have taken into our Royal Consideration the extensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace concluded at Paris, the 10th Day of February last; and being desirous that all our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue there from to their Commerce, Manufactures, and Navigation, We have thought fit, with the advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under the Great Seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the Names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows, viz. First.– The Government of Quebec bounded on the Labrador Coast by the River St.John, and from thence by a Line drawn from the Head of that River through the Lake St.John, to the South End of the Lake Nipissim; from whence the said Line, crossing the River St.Lawrence, and the Lake Champlain, in 45 Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St.Lawrence from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of St.Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St.Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St.John.

79 Secondly.– The Government of East Florida, bounded to the Westward by the Gulph of Mexico and the Apalachicola River; to the Northward by a Line drawn from that Part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary’s River, and by the course of the said River to the Atlantic Ocean; and to the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast. Thirdly.– The Government of West Florida, bounded to the Southward by the Gulph of Mexico, including all Islands within Six Leagues of the Coast, from the River Apalachicola to Lake Pontchartrain; to the Westward by the said Lake, the Lake Maurepas, and the River Mississipi which lies in 31 Degrees North Latitude, to the River Apalachicola or Chatahouchee; and to the Eastward by the said River. Fourthly.– The Government of Grenada, comprehending the Islands of the Name, together with the Grenadines, and the Islands of Dominico, St.Vincent’s and Tobago. And to the End that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the adjacent Islands, We have thought fit, with the Advice of our said Privy Council, to put all that Coast, from the River St.John’s to Hudson’s Straights, together with the Islands of Antidote and Madeleine, and all other smaller Islands lying upon the said Coast, under the Care and Inspection of our Governor of Newfoundland. We have also, with the Advice of our Privy Council, thought fir to annex the Islands of St.John’s and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia. We have also, with the Advice of our Privy Council aforesaid, annexed to our Province of Georgia all the Lands lying between the Rivers Alatamaha and St.Mary’s. And whereas it will greatly contribute to the speedy settling our said new Governments, that our loving Subjects should be informed of our Paternal care, for the Security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our said Colonies respectively, that, so soon as the State and Circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; and We have also given Power to the said Governors with the Consent of our said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies; and in the mean

80 Time, and until Assemblies can be called as aforesaid, all Persons inhabiting in or resortingto our says Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and Public Justice within our said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council. We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies upon the Continent, full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands, Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit- Rents, Services and Acknowledgments, as have been appointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and Settlement of our said Colonies. And whereas We are desirous, upon all occasions, to testify our Royal Sense and Approbation of the Conduct and Bravery of the Officers and Soldiers of our Armies, and to renew the same, We do hereby command and empower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North America, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz. To every Person having the Rank of a Field Officer. 5,000 Acres. To every Captain. 3,000 Acres. To every Subaltern or Staff Officer. 2,000 Acres. To every Non-Commission Officer. 200 Acres. To every Private Man. 50 Acres. We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same Conditions, to reduced Officers of our Navy of like Rank as served on board our ships of War in North America at the times of the Reduction of

81 Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such grants. And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds, We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West Florida, do presume, upon and Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the Present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads of Sources of any of the Rivers which fall into the Atlantic Ocean from West and North West, or upon Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the Present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and NorthWest as aforesaid; And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking possession of any of the Lands above reserved, without our especial Leave and License for that Purpose first obtained. And We do further strictly enjoin and require all Persons whatever who have either willfully or inadvertently seated themselves upon any Lands within the Countries above described, or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians; In order, therefore, to prevent such Irregularities for the Future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council, strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those Parts of our Colonies

82 where We have thought proper to allow Settlement; but that, if at any Time any of the said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some Public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively, within which they shall lie; and in case they shall lie within the Limits of any Proprietary Government, they shall be purchased only for the Use and in the Name of such Preprimaries, comformable to such Directions and Instructions as We or they shall think proper to give for that Purpose; And We do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor of Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade: And We do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid. And We do further expressly enjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the Use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisions of Treason, Murders, or other Felonies or Misdemeanors, shall fly from Justice and take Refuge in the said Territory, and to send them under a proper Guard to the Colony where the Crime was committed of which they stand accused, in order to take their Trial for the same. Given at our Court at St. James’s the 7th Day of October 1763, in the Third Year of our Reign.

83 14 Excerpts from: Cherokee Nation v. State of Georgia

US Supreme Court, Washington DC, USA, 1831

From Independent to Domestic Dependent Nations

The early American Indian policy and legal development came to influence a significant part of the international debate concerning indigenous peoples. During the colonization of America, the British Crown dealt with the Indians formally as foreign nations. Britain and several of its colonies entered into treaties with various Indian nations. As the colonies grew in strength and population, individual colonists were encroaching upon Indian lands and were treating the Indians unfairly. In order to avoid expensive Indian wars, the British Crown assumed the position of protector of the Indians from the excesses of the colonists. Upon independence, the new nation had the same problems of non-Indian aggression and threatened Indian retaliation that had faced the British Crown. If Indian affairs were left to the individual states, non-Indian land claims would almost certainly result in new Indian wars. Indian affairs were placed in the hands of the federal government. Congress was granted the power to “regulate Commerce with the Indian Tribes”, while the President was empowered to make treaties. Between 1790 and 1834 a series of Trade and Intercourse Acts were passed. The central policy of the acts was to separate Indians from non-Indians. The Acts defined the boundaries of Indian lands. Non-Indians were prohibited from acquiring Indian lands by purchase or treaty, or from settling on those lands or entering them for hunting and grazing. Despite the Trade and Intercourse Acts, frictions grew between the growing non-Native population and the Native Americans. Consequently, removal of the Indians became the solution to the problems. The Indians were to be moved west of the Mississippi. The first legal case concerning the legal and historical relations of the Indians to the land was Johnson v. McIntosh in 1823. The case concerned the validity of a grant of land made by Indian chiefs to private individuals in 1773 and 1775, before the passage of the Trade and Intercourse Acts. The Court held the conveyance invalid. The Court held that discovery of lands in the New World gave the discovering European nation a legal title good against all other European nations, and along with it “the sole right of acquiring the soil from the natives.” The Indians retained a right of occupancy, which only the discovering European nation could extinguish, by

84 either purchase or conquest. The result of the decision was a recognized legal right of Indians in their lands, which was good against all third parties, i.e. all the other European nations except the British. This right of occupancy is referred to as “original Indian title”. A few years later, the State of Georgia attempted to extinguish Indian title within the state. Georgia enacted a series of laws that divided the Cherokee territory among several Georgia counties, and extended state law to the divided territories. This invalidated all Cherokee laws and made it criminal for the Cherokee to act as an independent nation. The Cherokee answered by bringing the case to the Court. (Canby, 1988:10-17). In 1827 the Cherokee Indians, who occupied extensive lands in north western Georgia, set up a government and declared themselves an independent nation. Thereupon, the legislature of Georgia passed resolutions alleging ownership of Cherokee territory, extending the laws of Georgia over the Cherokee Indians, and annulling all laws, usages and customs of the Indians. The Indians appealed to the Supreme Court for an injunction to prevent the execution of these laws. The opinion of Marshall is notable for its definition of the legal relations of the Indians with the United States government: the Indians constituted not foreign nations but “domestic dependent nations” in a state of pupillage (Commager, 1968:255).

Cherokee Nation v. State of Georgia MARSHALL, C. J. This bill is brought by the Cherokee nation, praying an injunction to restrain the state of Georgia from the execution of certain laws of that state, which, as is alleged, go directly to annihilate the Cherokee as a political society and to seize for the use of Georgia, the lands of the nation which have been assured to them by the United States, in solemn treaties repeatedly made and still in force. If courts were permitted to indulge their sympathies, a case better calculated to excite them could scarcely be imagined. A people, once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands, by successive treaties, each of which contains a solemn guarantee of the residue, until they retain no more of their formerly extensive territory than is deemed necessary to their comfortable subsistence. To preserve this remnant, the present application is made. Before we can look into the merits of the case a preliminary inquiry presents itself. Has this court jurisdiction of the cause? The third article of the constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended, with “controversies between a state or citizens thereof, and foreign states citizens or subjects.” A subsequent clause of the same section gives the Supreme

85 Court original jurisdiction, in all cases in which a state shall be a party. The party defendant may then unquestionably be sued in this court. May the plaintiff sue in it? Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution? The counsel for the plaintiffs has maintained the affirmative of this proposition with great earnestness and ability. So much of the argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has in the opinion of a majority of the judges, been completely successful. They have been uniformly treated as a state, from the settlement of our country. The numerous treaties made with them by the United States, recognize them as a people capable of maintain the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States, by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts. A question of much more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the constitution? The counsel have shown conclusively, that they are not a state of the Union and have insisted that, individually, they are aliens not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state; each individual being foreign, the whole must be foreign. This argument is imposing. but we must examine it more closely, before we yield to it. The condition of the Indians in relation to the United States is, perhaps unlike that of any other two people in existence. In general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is peculiar and cardinal distinctions, which exist nowhere else. The Indian Territory admitted to compose a part of the United States. In all our maps, geographical treaties, histories and laws, it is so considered. In all our inter-course with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints, which are imposed upon our own citizens. They acknowledge themselves, in their treaties to be under the protection of the United States, they admit, that the United States shall have the sole and exclusive right of regular trade with them, and managing all their affairs as they think proper; and the Cherokees in particular were allowed by the treaty of Hopewell, which preceded the constitution “to send a deputy of their choice, whenever they think fit, to congress.” Treaties were made with some tribes by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that state, taking back a limited grant to themselves, in which they admitted their dependence. Though the Indians acknowledged to have an unquestionable, and heretofore

86 unquestioned, right to the land they occupy, until that right shall extinguished by a voluntary cession to our government; yet it may well be doubted, whether those tribes which reside within the acknowledged boundaries of the United States with accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a ter-ritory to which we assert a title independent of their will, which take effect in point of possession, when the right of possession ceases. Meanwhile they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connection with them would be considered by all as an invasion of our territory and an act of hostility. These considerations go far to support the opinion, that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the Union to controversies between a state or the citizens thereof and foreign states. In considering this subject, the habits and usages of the Indians, in their intercourse with their white neighbors, ought not to be entirely disregarded. At the time the constitution was framed, the idea of appealing to an American court of justice for an assertion of right or a redress of wrong, had perhaps never entered the mind of an Indian or of his tnbe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might furnish some reason for omitting to enumerate them among the parties who might sue in the courts of the Union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as designated by the term foreign state, were there no other part of the constitution which might shed light on the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the eighth section of the third article, which empowers congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” In this clause, they are as clearly contradistinguished, by a name appropriate to themselves, from foreign nations, as from the several states composing the Union. They were designated by a distinct appellation; and as this appellation can be applied to neither of the others, neither can the application distinguishing either of the others be, in fair construction applied to them. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes – foreign nations, the several states, and Indian tribes. When forming this article, the convention considered them as entirely distinct. We cannot assume that the distinction was lost, in framing a subsequent article, unless there be something in its language to authorize the assumption.

87 The counsel for the plaintiffs contend, that the words “Indian tribes” were introduced into the article, empowering congress to regulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the language of the ninth article of the confederation. Intending to give the whole of managing those affairs to the government about to be instituted, the convention conferred it explicitly; and omitted those qualifications, which embarrassed the exercise of it as granted in the confederation. This may be admitted, without weakening the construction, which has been intimated. Had the Indian tribes been foreign nations, in the view of the convention, this exclusive power of regulating intercourse with them might have been, and, most probably, would have been, specifically given in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered “to regulate commerce with foreign nations, including the Indian tribes, and among the several states.” This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them particularly. It has been also said, that the same words have not necessarily the same meaning attached to them, when found in different parts of the same instrument; their meaning is controlled by the context. This is undoubtedly true. In common language, the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context. This may not be equally true with respect to proper names. “Foreign nations” is a general term, the application of which to Indian tribes, when used in the American constitution, is, at best, extremely questionable. In one article, in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate, in terms clearly contradistinguishing them from each other. We perceive plainly, that the constitution, in this article, does not comprehend Indian tribes in the general term “foreign nations;” not, we presume, because a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term “foreign state” is introduced, we cannot impute to the convention, the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that construction on us. We find nothing in the context, and nothing in the subject of the article, which leads to it. The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion, that an Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States. A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighboring people, asserting their independence; their right to which the state denies. On several of the matters alleged in

88 the bill, for example, on the laws making it criminal to exercise the usual posters of self- government in their own country by the Cherokee nation, this court cannot interpose; at least, in the form in which those matters are presented. That part of the bill which respects land occupied by the Indians, and prays the aid of the court to protect their possession may be more doubtful. This court, in a proper case, might perhaps, decide the mere question of right with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned; it savors too much of the exercise of political power, to be within the proper province of the judicial department. But the opinion on the respecting parties makes it unnecessary to decide this question. If it were true, that the Cherokee nation have rights, this isnot the tribunal in which those rights are to be asserted. If it be that wrongs have been inflicted, and that still greater are to be apprehended, this is no tribunal which can redress the past or prevent the future. The motion for an injunction is denied.

89 15 Excerpts from: Worcester v. State of Georgia,

US Supreme Court, Washington DC, USA, 1832

The Cherokee question returned to the Supreme Court only after one year. Several missionaries were arrested for violating a state law requiring non-Indians residing in Cherokee territory to obtain a license from the state governor. Two of them appealed to the Supreme Court. The facts of the case are stated in the opinion below. It is of this opinion that President Jackson is reputed to have remarked: “John Marshall has made his opinion, now let him enforce it.” Georgia was so incensed at judicial interference with what it considered its sovereign affairs that it refused to appear before the Court in this case, and refused likewise to obey the mandate of the Court (Commager, 1968:258). The Worcester case was also a test case in challenging the constitutionality of laws passed by the state of Georgia concerning the Cherokee. Chief Justice Marshall, took a radically different view of the nature of Indian title. In this case, he rejected the theories of Emmerich Vattel, the international lawyer who influenced much of the thinking on indigenous peoples in an international perspective. The Worcester case recognized the rights of both Indians and whites to own land as equal, with one exception: the belief that discovery gave the discovering European nation the exclusive right to purchase Indian land if the Indians choose to sell it. But discovery was only recognized as having asserted a title against other Europeans.

Worcester v. State of Georgia MARSHALL, C. J. This cause, in every point of view in which it can be placed, is of the deepest interest. The defendant is a State, a member of the Union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States. The plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia under color of an act, which he alleges to be repugnant to the Constitution, laws, and treaties of the United States.

90 The legislative power of a State, the controlling power of the Constitution; and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, all are involved in the subject now to be considered /.../ We must inquire and decide whether the act of the Legislature of Georgia which the plaintiff in error has been procured and condemned, be consistent with, or repugnant to the Constitution, laws and treaties of the United States. It has been said at the bar that the acts of the Legislature of Georgia seize on the whole Cherokee country, parcel it out among the neigh-boring counties of the State, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence. If this were the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded. It enacts that “all white persons, residing within the limits of the Cherokee Nation on the 1st day of March next, or at any time hereafter without a licence or permit from his excellency the governor ... and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanor, and upon conviction thereof, shall be punished by confinement to the penitentiary at hard labor for a term not less than four years.” The extraterritorial power of every Legislature being limited in its action to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee Nation, and of the rights and powers consequent on jurisdiction. The first step, then, in the inquiry, which the Constitution and the laws impose on this court, is an examination of the rightfulness of this claim. /../ From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but also guaranteed by the United States /../ The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. Our Constitution and laws vest the whole intercourse between the United States and this nation vested in the government of the United States. The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity /.../ The Acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee Nation, the regulation

91 of which according to the settled principles of our Constitution, are committed exclusively to the government of the Union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guarantee to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the preexisting power of the nation to govern itself. They are in equal hostility with the acts of Congress for regulating this intercourse, and giving effect to the treaties. The forcible seizure and abduction of the plaintiff, who was residing in the nation with its permission, and by authority of the President of the United States, is also a violation of the acts, which authorize the chief magistrate to exercise this authority /.../ Judgment reversed.

92 16 Excerpt from: Removal of Southern Indians to Indian Territory

President Jackson’s Seventh Annual Message to Congress, Washington DC, USA, December 7, 1835

Georgia’s Indian policy, and the refusal of Jackson to sustain the Supreme Court in its interpretation of the rights of the Indians, led to the plan of removing the remaining Creek, Cherokee, and other Indian tribes of the south to a reservation west of the Mississippi. This policy had been outlined by Jackson in his first message to Congress, and in 1830 Congress had appropriated half a million dollars for the removal of the Indians to the west. In 1834, Congress created a special Indian Territory, and by a treaty of December 29, 1835, the Indians surrendered their lands east of the Mississippi in return for five million dollars. All but a few Indian Nations were moved west under a program that was formally voluntary, but coerced in fact.

Removal of Southern Indians to Indian Territory The plan of removing the aboriginal people who yet remain within the settled portions of the United States to the country west of the Mississippi River approaches its consummation. It was adopted on the most mature consideration of the condition of this race, and ought to be persisted in till the object is accomplished, and prosecuted with as much vigour as a just regard to their circumstances will permit, and as fast as their consent can be obtained. All preceding experiments for the improvement of the Indians have failed. It seems now to be an established fact that they cannot live in contact with a civilized community and prosper. Ages of fruitless endeavours have at length brought us to knowledge of this principle of intercommunication with them. The past we cannot recall, but the future we can provide for. Independently of the treaty stipulations into which we have entered with the various tribes for the usufructuary rights they have ceded to us, no one can doubt the moral duty of the Government of the United States to protect and if possible to preserve and perpetuate the scattered remnants of this race which are left within our borders. In the discharge of this duty, an extensive region in the West has been

93 assigned for their permanent residence. It has been divided into districts and allotted among them. Many have already removed and others are preparing to go, and with the exception of two small bands living in Ohio and Indiana, not exceeding 1,500 persons, and of the Cherokees, all the tribes on the east side of the Mississippi, and extending from Lake Michigan to Florida, have entered into engagements which will lead to their transplantation. The plan for their removal and reestablishment is founded upon the knowledge we have gained of their character and habits, and has been dictated by a spirit of enlarged liberality. A territory exceeding in extent that relinquished has been granted to each tribe. Of its climate, fertility, and capacity to support an Indian population the representations are highly favourable. To these districts the Indians are removed at the expense of the United States, and with certain supplies of clothing, arms, ammunition, and other indispensable articles; they are also furnished gratuitously with provisions for the period of a year after their arrival at their new homes. In that time, from the nature of the country and of the products raised by them, they can subsist themselves by agricultural labour, if they choose to resort to that mode of life; if they do not they are upon the skirts of the great prairies, where countless herds of buffalo roam, and a short time suffices to adapt their own habits to changes which a change of the animals destined for their food may require. Ample arrangements have also been made for the support of schools; in some instances council houses and churches are to be erected, dwellings constructed for the chiefs, and mills for common use. Funds have been set apart for the maintenance of the poor; the most necessary mechanical arts have been introduced and blacksmiths, gunsmiths, wheelwrights, millwrights, etc., are supported among them. Steel and iron and sometimes salt, are purchased for them, and plows and other farming utensils, domestic animals, looms, spinning wheels, cards, etc., are presented to them. And besides these beneficial arrangements, annuities are in all cases paid, amounting in some instances to more than $ 30 for each individual of the tribe, and in all cases sufficiently great if justly divided and prudently expended, to enable them, in addition to their own exertions, to live comfortably. In addition, as a stimulus for exertion, it is now provided by law that “in all cases of the appointment of interpreters or other persons employed for the benefit of the Indians a preference shall be given to persons of Indian descent, if such can be found who are properly qualified for the discharge of the duties.” Such are the arrangements for the physical comfort and for the moral improvement of the Indians. The necessary measures for their political advancement and for their separation from our citizens have not been neglected. Congress decided that the country destined for the residence of this people shall be forever “secured and guaranteed to them”. A country west of Missouri and Arkansas has been assigned to them, into which the white settlements are not to be pushed. No political communities can be formed in that extensive region, except those, which are established by the Indians themselves or by the United States for them and

94 with their concurrence. A barrier has thus been raised for their protection against the encroachment of our citizens, and guarding the Indians as far as possible from those evils, which have brought them to their present condition. Summary authority has been given by law to destroy all ardent spirits found in their country, without waiting the doubtful result and slow process of a legal seizure. I consider the absolute and un-conditional interdiction of this article among these people as the first and great step in their melioration. Halfway measures will answer no purpose. These cannot successfully contend against the cupidity of the seller and the overpowering appetite of the buyer. And the destructive effects of the traffic are marked in every page of the history of our Indian intercourse. /.../

95 17 Excerpts from: The Official Report of the Select Committee on Aborigines

House of Commons, London, England, 1837

By the 1830s, it had become apparent that the expanding British Colonial Empire was destroying indigenous peoples throughout the world. Not only was this morally unacceptable, it also meant the loss of valuable sources of labour, and often led to costly military operations. In response to this crisis, the House of Commons established a 15- member Select Committee to investigate the problem and issue recommendations. The Committee spent 10 months interviewing expert witnesses from all corners of the British Empire in order to understand what was happening. The official report, published in 1836-37, contains more than a thousand pages of testimony of the outrages committed worldwide against indigenous peoples. Despite legal instruments such as the Royal Proclamation of 1763, an obvious pattern emerged: unregulated frontier expansion was leading to a disastrous result for the indigenous peoples.

The Official Report of The Select Committee on Aborigines The Select Committee “appointed to consider what Measures ought to be adopted with regard to the Native Inhabitants of Countries where British Settlements are made, and to the neighbouring Tribes, in order to secure to them the due observance of Justice and the protection of their Rights; to promote the spread of Civilization among them, and to lead them to the peaceful and voluntary reception of the Christian Religion;” and to whom the Report of the Committee of 1836 was referred; and who were empowered to report their Observations thereupon, together with the Minutes of Evidence taken before them, to The House; Have examined the Matters to them referred, and have agreed to the following Report: The situation of Great Britain brings her beyond any other power into communication with the uncivilized nations of the earth. We are in contact with them in so many parts of the globe, that it has become of deep importance to ascertain the results of our relations with them, and to fix the rules of our conduct towards them. We are apt to class them under the sweeping term of savages, and perhaps, in so doing, to consider ourselves exempted from the obligations due to them as our fellow men. This assumption does not,

96 however, it is obvious, alter our responsibility; and the question appears momentous, when we consider that the policy of Great Britain in this particular, as it has already affected the interests, and, we fear we may add, sacrificed the lives, of many thousands, may yet, in all probability, influence the character and the destiny of millions of the human race. The extent of the question will be best comprehended by taking a survey of the globe, and by observing over how much of its surface an intercourse with Britain may become the greatest blessing, or the heaviest scrouge. It will scarcely be denied in word, that, as an enlightened and Christian people, we are at least bound to do to the inhabitants of other lands, whether enlightened or not, as we should in similar circumstances desire to be done by; but, beyond the obligations of common honesty, we are bound by two considerations with regard to the uncivilized: first, that of the ability which we possess to confer upon them the most important benefits; and, secondly, that of their inability to resist any encroachments, however unjust, however mischievous, which we may be disposed to make. The disparity of the parties, the strength of the one, and the incapacity of the other, to enforce the observance of their rights, constitutes a new and irresistible appeal to our compassionate protection. The duty of introducing into our relations with uncivilized nations the righteous and profitable laws of justice is incontrovertible, and it has been repeatedly acknowledged in the abstract, but has, we fear, been rarely brought into practice; for, as a nation, we have not hesitated to invade many of the rights, which they hold most dear. Thus, while Acts of Parliament have laid down the general principles of equity, other and conflicting Acts have been framed, disposing of lands without any reference to the possessors and actual occupants, and without making any reserve of the proceeds of the property of the natives for their benefit... /.../ the Address of the House of Commons to the King, passed unanimously July 1834, states, “That His Majesty’s faithful Commons in Parliament assembled, are deeply impressed with the duty of acting upon the principles of justice and humanity in the intercourse and relations of this country with the native inhabitants of its colonial settlements, of affording them protection in the enjoyment of their civil rights, and of imparting to them that degree of civilization, and that religion, with which Providence has blessed this nation, and humbly prays that His Majesty will take such measures, and give such directions to the governors and officers of His Majesty’s colonies, settlements and plantations, as shall secure to the natives the due observance of justice and the protection of their rights, promote the spread of civilization amongst them, and lead them to the peaceful and voluntary reception of the Christian religion.” This Address, as the Chancellor of the Exchequer observed, so far from being the expression of any new principle, only embodies and recognizes principles on which the British Government has for a considerable time been disposed to act. In furtherance of

97 these views, your Committee was appointed to examine into the actual state of our relations with uncivilized nations; and it is from the evidence brought before this Committee during the last two Sessions, that was are enabled to compare our actions with avowed principles, and to show what has been, and what will assuredly continue to be, unless strongly checked, the course of our conduct towards these defenseless people. It is not too much to say, that the intercourse of Europeans in general, without any exception in favor of the subjects of Great Britain, has been, unless when attended by missionary exertions, a source of many calamities to uncivilized nations. Too often, their territory has been usurped; their property seized; their numbers diminished; their character debased; the spread of civilization impeded. European vices and diseases have been introduced amongst them, and they have been familiarized with the use of our most potent instruments for the subtle or the violent destruction of human life, viz. brandy and gunpowder. It will be only too easy to make out the proof of all these assertions, which may be established solely by the evidence above referred to. It will be easy also to show that the result to ourselves has been contrary to our interest as to our duty; that our system has not only incurred a vast load of crime, but a vast expenditure of money and amount of loss. On the other hand, we trust it will not be difficult to show by inference, and even to prove, by the results of some few experiments of an opposite course of conduct, that, setting aside all considerations of duty, a line of policy, more friendly and just towards the natives, would materially contribute to promote the civil and commercial interests of Great Britain. It is difficult to form an estimate of the population of the less civilized nations, liable to be influenced for good or for evil, but contact and intercourse with the more civilized nations of the earth. It would appear that the barbarous regions likely to be immediately affected by the policy of Great Britain, are the south and the west of Africa, Australia, the islands in the Pacific Ocean, a very extensive district of South America at the back of our Essequibo settlement, between the rivers Orinoco and Amazon, with the immense tract which constitutes the most northerly part of the American continent, and stretches from the Pacific to the Atlantic Ocean. These are countries in which we have either planted colonies, or which we frequent for the purposes of traffic, and it is our business to inquire on what principles we have conducted our intercourse. It might be presumed that the native inhabitants of any land have an incontrovertible right to own soil: a plain and sacred right, however, which seems not to have been understood. Europeans have entered their borders uninvited, and, when there, have not only acted as if they were undoubted lords of the soil, but have punished the natives as aggressors if they have evinced a disposition to live in their own country. “If they have been found upon their own property, they have been treated as thieves and robbers. They are driven back into the interior as if they were dogs or kangaroos.”

98 From very large tracts we have, it appears, succeeded in eradicating them; and though from some parts their ejection has not been so apparently violent as from others, it has been equally complete, through our taking possession of their hunting-grounds, whereby we have despoiled them of the means of existence...

CONCLUSION Your Committee cannot recapitulate the evils which have been the result of the intercourse between civilized and barbarous nations more truly, than in the summary contained in the interrogation and responses of the secretaries of the three Missionary societies most conversant with the subject, and to which we have already referred. /.../ These allegations have, we conceive, been clearly proved in the evidence of which we have given an abstract; and we have also seen the effects of conciliatory conduct, and of Christian instruction. One of the two systems we must have to preserve our own security, and the peace of our colonial borders; either an overwhelming military force with all its attendant expenses, or a line of temperate conduct and of justice towards our neighbors. “The main point which I would have in view,” said a witness before your Committee, “would be trade, commerce, peace and civilization. The other alternative is extermination; for you can stop nowhere; you must go on; you may have a short respite when you have driven panic into the people, but you must come back to the same thing until you have shot the last man.” From all the bulky evidence before us, we can come to no other conclusion; and considering the power, and the mighty resources of the British nation, we must believe that the choices rests with ourselves. Great Britain has, in former times, countenanced evils of great magnitude,slavery and the slave-trade; but for these she has made some atonement; for the latter, by abandoning the traffic; for the former, by the sacrifice of 20 millions of money. But for these offenses there was this apology; they were evils of an ancient date, a kind of prescription might be pleaded for them, and great interests were entwined with them. An evil remains very similar in character, and not altogether unfit to be compared with them in the amount of misery it produces. The oppression of the natives of barbarous countries is a practice which pleads no claim to indulgence; it is an evil of comparatively recent origin, imperceptible and unallowed in its growth; it never has had even the colour of sanction from the legislature of this country; no vested rights are associated with it, and we have not the poor excuse that it contributes to any interest of the state. On the contrary, in point of economy, of security, of commerce, of reputation, it is a short-sighted and disastrous policy. As far as it has prevailed, it has been a burthen on the empire. It has thrown impediments in the way of successful colonization; it has engendered wars, in which great expenses were necessarily incurred, and no reputation could be won; and it has been banished from our confines, or exterminated, the natives who might have been profitable workmen, good customers, and good neighbors. These unhappy results have not flowed

99 from any determination on the part of the government of this country to deal hardly with those who are in a less advanced state of society, but they seem to have arisen from ignorance, from the difficulty which distance interposes in checking the cupidity and punishing the crimes of that adventurous class of Europeans who lead the way in penetrating the territory of uncivilized man, and from the system of dealing with the rights of the natives. Many reasons unite for apprehending that the evils which we have described will increase if the duty of coming to a solemn determination as to the policy we shall adopt towards ruder nations be now neglected; the chief of these reasons is, the national necessity of finding some outlet for the superabundant population of Great Britain and Ireland. It is to be feared that, in the pursuit of this benevolent and laudable object, the rights of those who have not the means of advocating their interests or exciting sympathy for their sufferings, may be disregarded. This, then, appears to be the moment for the nation to declare, that with all its desire to give encouragement to emigration, and to find a soil to which our surplus population may retreat, it will tolerate no scheme which implies violence or fraud in taking possession of such a territory; that it will no longer subject itself to the guilt of conniving at oppression, and that it will take upon itself the task of defending those who are too weak and too ignorant to defend themselves. Your Committee have hitherto relied chiefly on arguments, showing that no national interest, even in its narrowest sense, is subserved by encroachments on the territory or disregard of the rights of the aboriginal inhabitants of barbarous countries; but they feel it their duty to add, that there is a class of motives of a higher order which conduce to the same conclusion. The British empire has been signally blessed by Providence, and her eminence, her strength, her wealth, her prosperity, her intellectual, her moral and her religious advantages, are so many reasons for peculiar obedience to the laws of Him who guides the destinies of nations. These were given for some higher purpose that commercial prosperity and military renown. “It is not to be doubted that this country has been invested with wealth and power, with arts and knowledge, with the sway of distant lands, and the mastery of the restless waters, for some great and important purpose in the government of the world. Can we suppose otherwise than that it is our office to carry civilization and humanity, peace and good government, and, above all, the knowledge of the true God, to the uttermost ends of the earth?” He who has made Great Britain what she is, will inquire at our hands how we have employed the influence He has lent to us in our dealings with the untutored and defenseless savage; whether it has been engaged in seizing their lands, warring upon their people, and transplanting unknown disease, and deeper degradation, through the remote regions of the earth; or whether we have, as far as we have been able, informed their ignorance, and invited and afforded them the opportunity of becoming partakers of that civilization, that innocent commerce, that knowledge and faith with which it has pleased a gracious Providence to bless our own country (cf. Bodely, 1988:63- 69).

100 18 Excerpt from: The Indian Problem

President Arthur’s First Annual Message, Washington DC, December 6, 1881

In the 1870-80s, there was an increasing dissatisfaction with the reservation policy in the US. The reservation policy occurred after the removal policy, approximately between 1850-1887. Those who stood on the side of the Indians recognized that Indian economies were deteriorating and that individual Indians were living in poverty. Others argued that there was still much land in the West for settlement. The combination of these two views led to the most disastrous piece of Indian legislation in American History – the General Allotment Act, also called the Dawes Act. The recommendations of President Arthur foreshadow the provisions of the Dawes Act of 1887. The Dawes Act is said to be influenced by those who stood on the side of the Indians. It was argued that if individual Indians were given plots of land to cultivate they would prosper and become assimilated into the mainstream American culture. The tribes, which were seen as obstacles to development, would wither away. The result of the plan was a decline in the total amount of Indian held land. Between 1887 and 1934, it declined from 138 million acres to 48 million, 20 million being desert or semi desert. Furthermore, the Indians’ new power to sell land provided opportunities for non-Indians to negotiate purchases of land on terms disadvantageous to the Indians. By 1934, this period in American Indian history ended. In 1924, all Indians born in the US were granted citizenship.

The Indian Problem /.../ Prominent among the matters which challenge the attention of Congress at its present session is the management of our Indian affairs. While this question has been a cause of trouble and embarrassment from the infancy of the Government, it is but recently that any effort has been made for its solution at once serious, determined, consistent, and promising success. It has been easier to resort to convenient makeshifts for tiding over temporary difficulties than to grapple with the great permanent problem, and accordingly the course has almost invariably been pursued. It was natural, at a time when the national territory seemed almost illimitable and contained many millions of acres far outside the bounds of civilised settlements, that a

101 policy should have been initiated which more than aught else has been the fruitful source of our Indian complications. I refer, of course, to the policy of dealing with the various Indian tribes as separate nationalities, of relegating them by treaty stipulations to the occupancy of immense reservations in the West, and of encouraging them to live a savage life, undisturbed by any earnest and well-directed efforts to bring them under the influences of civilization. The unsatisfactory results, which have sprung from this policy, are becoming apparent to all. As the white settlements have crowded the borders of the reservations, the Indians, sometimes contentedly and sometimes against their will, have been transferred to other hunting grounds, from which they have again been dislodged whenever the adventurous settlers have desired their newfound homes. These removals and the frontier collisions by which they have often been preceded have led to frequent and disastrous conflicts between the races. It is profitless to discuss here which of them has been chiefly responsible for the disturbances whose recital occupies so large a space upon the pages of our history. We have to deal with the appalling fact that though thousands of lives have been sacrificed and hundreds of millions of dollars expended in the attempt to solve the Indian problem, it has until within the past few years seemed scarcely nearer a solution than it was half a century ago. However, the Government has of late been cautiously but steadily feeling its way to the adoption of a policy which has already produced gratifying results, and which, in my judgment, is likely, if Congress and the Executive accord in its support, to relieve us ere long from the difficulties, which have hitherto beset us. For the success of the efforts now making to introduce among the Indians the customs and pursuits of civilised life and gradually to absorb them into the mass of our citizens, sharing their rights and holden to their responsibilities, there is imperative need for legislative action. My suggestions in that regard will be chiefly such as have been already called to the attention of Congress and have received to some extent its consideration. First. I recommend the passage of an act making the laws of the various States and Territories applicable to the Indian reservations within their borders and extending´´ the laws of the State of Arkansas to the portion of the Indian Territory not occupied by the Five Civilized Tribes. The Indian should receive the protection of the law. He should be allowed to maintain in court his rights of person and property. He has repeatedly begged for this privilege. Its exercise would be very valuable to him in his progress toward civilization. Second. Of even greater importance is a measure, which has been frequently recommended by my predecessors in office, and in furtherance of which several bills have been from time to time introduced in both Houses of Congress. The enactment of a general law permitting the allotment in severalty, to such Indians, at least, as desire it, of a reasonable quantity of land secured to them by patent, and for their own protection made

102 inalienable for twenty or twenty-five years, is demanded for their present welfare and their permanent advancement. In return for such considerate action on the part of the Government, there is reason to believe that the Indians in large numbers would be persuaded to sever their tribal relations and to engage at once in agricultural pursuits. Many of them realize the fact that their hunting days are over and that it is now for their best interests to conform their manner of life to the new order of things. By no greater inducement than the assurance of permanent title to the soil can they be led to engage in the occupation of tilling it. The well-attested reports of their increasing interest in husbandry justify the hope and belief that the enactment of such a statute as I recommend would be at once attended with gratifying results. A resort to the allotment system would have a direct and powerful influence in dissolving the tribal bond, which is so prominent a feature of savage life, and which tends so strongly to perpetuate it. Third. I advise a liberal appropriation for the support of Indian schools, because of my confident belief that such a course is consistent with the wisest economy /.../

103 19 Excerpts from: The General Act of the Berlin Africa Conference

Adopted in Berlin, Germany, February 26, 1885

The Open Door Policy and the Emergence of the Sacred Trust of Civilization In 1859, the famous American surgeon Dr Martin Delany visited the Niger. He wrote, “The claims of no people are respected until they are presented in a national capacity.”(Delany, 210) What he meant was that since Africans themselves were thought to have produced no such capacity, the liberators from Europe must do it for them. This was the emerging discourse in the 19th century scramble for Africa. The Colonial enterprise regarded integration of indigenous peoples as an important part of the development of the natives. Herman Merivale provided some guidelines in his lectures on colonies and colonization concerning the European administration of native customs, which he classified in three categories: 1. “violations of the eternal and universal laws of morality”; 2. “less horrible”; and 3. “absurd and impolitic” customs that were not directly injurious (cf. Bodley, 1990:95). Merivale’s definition of “the sacred trust of civilization” may be seen as example of the foundation of the 19th century colonial discourse:

It will be necessary, in short, that the colonial authorities should act upon the assumption that they have the right in virtue of the relative position of civilized and Christian men to savages, to enforce abstinence from immoral and degrading practices, to compel outward conformity to the law of what we regard as better instructed reason (Merivale, 1861: 502- 503).

In the 19th century, international politics began to break down the barriers that colonial powers had hidden behind and where they could mistreat the native peoples. The growth of the aboriginal humanitarian movement’s concern for peoples under colonial rule on a national level led in due time to an international concern. The European colonization race for raw materials and expanding markets finally confronted them with areas that earlier had been untouched by white men, but which at that moment in history could be colonized. The increased competition for natural resources led first to bilateral agreements between colonial powers for the reciprocal application of the Open Door- policy. Later, these bilateral agreements were expanded to multilateral treaties, which marked the emergence of the international discourse of the sacred trust of civilization.

104 The first attempt to regulate the lives of the native peoples was the abolishing of the slave trade. The Berlin and Brussels African Conferences later affirmed that slave trade was forbidden by “the principles of international law as recognized by the signatory powers”. The internationalization of the trusteeship concept of colonialism went hand in hand with the international discourse on protection and integration of indigenous peoples. Philosophers like John Locke and Jean-Jacques Rousseau, with the notions of the social contract and the equality of all human beings, had founded the theoretical foundation earlier. These theories were applied exclusively to European peoples, but the theories of the equality of all men came inevitably to influence the ideas of colonialism in the 19th century. A moral justification of colonialism had to be found, as it would otherwise be impossible to impose rule by one people over another in violation of the theory of human equality. The solution was in the derogatory concepts of “backward”, “primitive” and /or “savages” as a mark of indigenous peoples. That is to say, that they were incapable of self- government and had to be placed under the protection of a “civilized” and advanced nation. The advanced nation then had the duty to develop the self-governing institutions of the natives. The sacred trust of civilization provided a theoretical foundation in the international discourse on indigenous peoples that survived to this century and still is a part of the international legacy. As has been said earlier, during the second half of the 19th century the colonizing nations began to justify their scramble for foreign territories together with a fulfillment of the sacred duty to spread the European civilization to the world. When the major colonial powers met in Berlin 1884-85 for the partitioning of Africa, they pledged support for the civilizing crusade and that they should assist missionaries and other institutions whose efforts were dedicated “at instructing the natives and bringing home to them the blessings of civilization” (General Act of the Berlin Africa Conference, art. 6). This position was more militant in the Brussels Africa Conference following in 1890. In art. 2 it was stated that the colonial powers should protect the natives to “...raise them to civilization and bring about the extinction of barbarous customs...” The Berlin African Conference of 1884-85 marked the definite international acceptance of a particular relationship between European nations and indigenous peoples: the concept of the “sacred trust of civilization”. This responsibility was both for the individual colonial power and collectively. The principle of international law that indigenous peoples were the wards of the society of nations was upheld and that the sovereignty of the European nations over indigenous peoples followed the dispositions of territorial sovereignty, which was made among the colonial powers them-selves. The Berlin African Conference gave an international character to the whole territory of the middle of Africa, the conventional basin Congo. This basin became a zone of international jurisdiction of special interest for many colonial powers. The United States claimed a special interest because of Stanley’s discoveries. However, the United States also

105 renounced individual sovereignty over Congo and suggested a collectively held wardship over the territory and its population. Fourteen states were represented at the Berlin African Conference: Germany, Great Britain, France, the United States, Russia, Spain, Austria-Hungary, Italy, Holland, Portugal, Belgium, Denmark, Sweden-Norway, and Turkey. One of the principal results of the Conference was the assurance of guardianship of aborigines and the so-called “open- door policy” of economy and political regime. A definition of the formalities to be observed in order that new occupations on the Coast of Africa was to be effective was also adopted.

The General Act of the Berlin Africa Conference CHAPTER I Declaration relative to Freedom of Trade in the Basin of the Congo, its Mouths and circumjacent Regions, with other Provisions connected therewith.

Article 1 The trade of all nations shall enjoy complete freedom – 1. In all the regions forming the basin of the Congo and its outlets. This basin is bounded by the watersheds (or mountain ridges) of the adjacent basins, namely, in particular, those of the Niari, the Ogowé, the Schari, and the Nile, on the north; by the eastern watershed line of the affluents of Lake Tanganyika on the east; and by the watersheds of the basins of the Zambesi and the Logé on the south. It therefore comprises all the regions watered by the Congo and its affluents, including Lake Tanganyika, with its eastern tributaries.

106 Article 6 Provisions relative to Protection of the Natives, of Missionaries and Travellers, as well as relative to Religious Liberty. All the Powers exercising sovereign rights or influence in the aforesaid territories (“the Congo basin”) bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave-trade. They shall, without distinction of creed or nation, protect and favor all religious, scientific, or charitable institutions, and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home the blessings of civilization. Christian missionaries, scientists, and explorers, with their followers, property, and collections, shall likewise be the objects of special protection. Freedom of conscience and religious toleration are expressly guaranteed to the natives, no less than to subjects and to foreigners. The free and public exercise of all forms of Divine worship, and the right to build edifices for religious purposes, and to organize religious Missions belonging to all creeds, shall not be limited or fettered in any way whatsoever.

CHAPTER VI Declaration relative to the essential Conditions to be observed in order that new Occupations on the Coasts of the African Continent may be held to be effective.

Article 34 Any Power which henceforth takes possession of a tract of land on the coasts of the African Continent outside its present possessions, or which, being hitherto without such possessions, shall acquire them, as well as the power which assumes a Protectorate there, shall accompany the respective act with a notification thereof, addressed to the other Signatory Powers of the present Act, in order to enable them, if need be, to make good any claims of their own.

107 20 Declaration of the Institute of International Law

Adopted at Lausanne, Switzerland, 1888

The Institute of International Law, at its session held at Lausanne in 1888 considered the question of the conditions with regard to occupation, which ought to be fulfilled by a civilized State in order to enable it to obtain a good title in international law to the sovereignty over the region occupied by it. Incidentally consideration was also given to the question of the relations which the occupying State ought to hold, under the law of nations, both at the time of occupation and afterwards, toward the aboriginal tribes inhabiting the region. The deliberations of the Institute resulted in the adoption of the following declaration of the views held by the Institute.

Declaration of the Institute of International Law

Article I The occupation of a territory under title of sovereignty can be recognized as effective only in case it fulfills the following conditions: 1. The taking of possession of a territory comprised within certain limits, the Act being done in the name of the Government; 2. The official notification of the taking of possession. The taking of possession is to be effected by the establishment of a local responsible government provided with means sufficient for maintaining order and assuring the regular exercise of its authority within the limits of the occupied territory. These means may be borrowed from the institutions existing in the occupied country. The notification of the taking of possession is made either by publication in the form used by each State for notification of its official acts, or through diplomatic channels. It will contain an approximate determination of the limits of the territory occupied.

108 Article II The rules stated in the above article are applicable to the case where a power, without assuming the entire sovereignty of a territory, and maintaining with or without restrictions the administrative autonomy of the aboriginal tribes, shall place the territory under its “protectorate.”

Article III If the taking of possession shall give rise to claims founded on anterior titles, and if the ordinary diplomatic procedure shall not lead to an agreement between the parties interested, they will appeal to the good offices, the mediation, or the arbitration of one or several third powers.

Article IV All wars of extermination of aboriginal tribes, all useless severities, and all tortures are forbidden, even by way of reprisals.

Article V In the territories had in view by the present declaration, the local authority will respect or will cause to be respected all rights, especially of private property, as well of the aborigines as of foreigners, and including both individual and collective rights.

Article VI The local authority has the duty of watching over the conservation of the aboriginal populations, their education, and the amelioration of their moral and material condition. It will favor and protect, without distinction of nationality, all the private institutions and enterprises created and organized for this purpose, under the reserve that the political interests of the occupying or protecting State shall not be compromised or menaced by the actions or tendencies of these institutions and enterprises.

Article VII Liberty of conscience is guaranteed to the aborigines, as well as to the nationals of the colonizing State, and to foreigners. The exercise of all the forms of religious faith shall not be subjected to any restriction or hindrance; provided, however, that practices contrary to the laws of morality and of humanity shall be prohibited.

109 Article VIII The local authority shall make preparations for the abolition of slavery. The sale or the employment of slaves for domestic service, by others than aborigines, shall be immediately forbidden.

Article IX The slave trade shall be forbidden in the whole extent of the territories had in view by the present declaration. These territories shall not be used as markets, or ways of transit, for the sale of slaves; and the most rigorous measures shall be taken against those who engage in the traffic or are interested in it. The introduction and the internal commerce in cangues and other instruments of torture for use by proprietors of slaves shall be prevented.

Article X The sale of intoxicating liquors shall be regulated so as to preserve the aboriginal populations from the evils resulting from their abuse.

110 21 Excerpts from: The General Act of the Brussels Conference Relative to the African Slave Trade

Adopted at Brussels, Belgium, July 2, 1890

The Brussels Africa Conference was convened in response to the demand for international protection of the African indigenous peoples. This demand was based on revelations of the inhumanities practiced in the aboriginal regions of Africa; such as the slave trade, the use of intoxicating liquors, and the destruction of societies by the use of firearms. The slave trade had continued, despite that it was formally abolished. It was thought that only the powers exercising influence in Africa could prevent and stop further slave trading. The supply of alcohol and firearms to the indigenous peoples was also supposed to be stopped through a joint venture of the major colonial powers. The Brussels African Conference of 1889-90 was an attempt to apply international cooperation concerning common measures for abolishing the slave trade and for the protection of the indigenous peoples inhabiting the middle of Africa between the Sahara desert in the north and the Cape region in the south. However, the protection did not succeed in creating the necessary conditions for survival of indigenous peoples. The words of Joseph Conrad in”Heart of Darkness” reflects the minds of the colonial powers: “exterminate all the brutes” in this connection, Conrad also made a stringent observation on the colonial enterprise in Africa:

They were conquerors, and for that you want only brute force-nothing to boast of, when you have it, since your strength is just an accident arising from the weakness of others. They grabbed what they could get for the sake of what was to be got /.../ The conquest of the earth, which mostly means the taking it away from those who have different complexion or slightly flatter noses than ourselves, is not a pretty thing when you look into it too much. What redeems it is the idea only. An idea at the back of it; not a sentimental pretence but an idea; and an unselfish belief in the idea – something you can set up, and bow down before, and offer a sacrifice to /.../

Authors like Conrad did not only observe that intoxicants and firearms were destroying the lives of indigenous peoples in Africa. It was early common knowledge. For instance, in the British parliament it could be heard already in 1837:

111 Too often, their [the aborigines] territory has been usurped; their property seized; their numbers diminished; their character debased; /…/ European vices and diseases have been introduced amongst them, and they have been familiarized with the use of our most potent instruments for the subtle or the violent destruction of human life, viz. brandy and gunpowder.

The problems, which had been insolvable at the Berlin conference five years earlier, were to be solved by a conference, which considered the whole of Africa. While the Berlin conference had been confined to the questions of consideration and application of the principles of common international use of the Congo and Niger rivers, of common international commerce in the Congo basin and the acquisition of sovereignty over occupied territory inhabited by aboriginal peoples on the African west coast, the Brussels conference considered Africa as being a region to some extent under international jurisdiction. In the preamble of the General Act of the Brussels conference, the motives and objects were stated:

[The Powers attending the Brussels Conference, being] Equally animated by the firm intention of putting an end to the crimes and devastation engendered by the traffic in African slaves, of effectively protecting the aboriginal populations of Africa, and of assuring to that vast continent the benefits of peace and civilization;

Wishing to give a fresh sanction to the decisions already taken in the same sense and at different periods by the Powers; to complete the results obtained by them; and to draw up a collection of measures guaranteeing the accomplishment of the work, which is the object of their common solicitude;

Represented states at the Conference were Great Britain, Germany, Austria-Hungary, Belgium, Denmark, Spain, Congo, the United States, France, Italy, Holland, Persia, Portugal, Russia, Sweden-Norway, Ottoman Empire, and Zanzibar.

112 The General Act of the Brussels Africa Conference CHAPTER I – SLAVE TRADE COUNTRIES. MEASURES TO BE TAKEN IN PLACES OF ORIGIN.

Article II The stations, the cruisers organized by each Power in its inland waters, and the posts which serve as ports for them shall, independently of their principal task, which is to prevent the capture of slaves and intercept the routes of the Slave Trade, have the following subsidiary duties: - Protection to Natives. 1. To serve as a base and, if necessary, as a place of refuge for the native populations placed under the sovereignty or the protectorate of the State to which the station belongs, for the independent populations, and temporarily for all others in case of imminent danger; to place the populations of the first of these categories in a position to co-operate for their own defence; Arbitration in Intestine Wars. To diminish intestine wars between tribes by means of arbitration; Agricultural Works and Industrial Arts. To initiate them in agricultural works and in the industrial arts so as to increase their welfare; Barbarous Customs. Cannibalism. Human Sacrifices. To raise them to civilization and bring about the extinction of barbarous customs, such as cannibalism and human sacrifices. Commercial Undertakings. 2. To give aid and protection to commercial undertakings; Contracts of Service with Natives. To watch over their legality, especially by controlling contracts of service with natives; Permanent Centres. Commercial Establishments, etc. And to lead up to the foundation of permanent centers of cultivation and of commercial establishments.

113 22 Resolutions of the International Congress of Colonial Sociology

Adopted in Paris, France, 1900

It has been argued that 1898 marked the beginning of a new epoch in the “art and science” of colonization. A.H. Snow, the American expert on international indigenous issues, argued since that date, civilized states definitely recognized that guardianship over the aboriginal tribes not only implies protection, benevolence toward private missionary charity, or educational efforts, but also a positive duty of direct legislative, executive and judicial domination of aborigines as minor “wards” of the nations in which they lived. The reason for this position, according to Snow, was to enable them to become, in the shortest possible time, “civil and political adults”, participating on equal standards with other segments of the population in the states in which they lived. According to the study of A.H Snow in the aftermath of the First World War, the civilized Nations since 1900 have “generally recognized this duty of tutorship.” And he argued that the International Colonial Institute of Brussels clearly showed that tutorship was being “extensively practiced by the European States”, and that the experiment was being almost uniformly successfully implemented (Snow, 1921:176-190). In 1900, in connection with the International Exposition in Paris, an International Congress was assembled to lay the basis for the future establishment of “the humane principles of the law of nations”. The congress discussed the duties of civilized states towards aboriginal peoples under their sovereignty. Many European governments were, according to Snow, agreeable to the plan, but on the account of delicacy of the questions raised, the congress was given a scientific character. Thus, it was called an “international congress of colonial sociology”. Experts on colonial science and administration attended the congress. The main aim was to draft and form statements of opinions concerning what the principles of the law of nation ought to be. The congress did not go into the matter which principles were valid law at that particular moment in history. But it is quite clear that the outcome of the congress formed the international discourse on indigenous peoples, at least until the 1970s. Protection and assimilation were the basic concepts, which the “de lege ferenda” principles should be formed around. As we later will see, they also formed the basis of the ILO Convention No. 107, of 1957, which was revised only in 1989, in Convention 169.

114 Resolutions of the International Congress of Colonial Sociology The object of the congress is the study of the moral and social questions growing out of colonization /.../ It is necessary not to forget that the congress /.../ is an international congress; that it has for its purpose the bringing about of an exchange of views which shall, as it were, serve as a body of directions destined to guide, not one particular power, but rather all the powers which have been fit to give to their development the form of colonial expansion. Certainly if there be one problem which can be said to be essentially international, it is that of the condition of aboriginal peoples. It is such not only by the circumstances under which it presents itself, but also by certain manifestations to which it has given occasion. It will suffice that I recall to your attention those somewhat peculiar statements of a document international in its nature, the Berlin African Act of 1885; the avowal of the preamble that the powers have concerned themselves in considering “the means of increasing the moral and material well-being of the aboriginal peoples”; and the engagement assumed by the powers in Article VI to watch over “the conservation of the aboriginal peoples and the amelioration of their moral and material conditions of existence.” These are significant evidences, and in spite of the contradiction, which certain established facts give to these avowals, they have nevertheless, from the point of view of the moral history of colonization, a considerable value. They amount to a condemnation of that policy of destruction and enslavement, which for centuries has been the policy, followed by the colonizing peoples as regards the natives of their colonies. The imply the avowal of the opinion that, though of a civilization more or less retarded, these aboriginal peoples are not on this account outside the domain of law, and that as for the colonizing powers, it is only by a just sentiment toward the inferior races and an exact observation of duties toward them that they can justify to themselves those facts of brutal conquest which are almost always the beginnings of colonial enterprises. The general subjects of the conference will be: The duties which colonial expansion imposes upon the colonizing powers, in colonies properly so called, as regards aboriginal peoples. The program [will be] as follows:

I. The political condition of aborigines. To what extent and under what conditions is it desirable to maintain the aboriginal administrative organisms? How and by what means may an aboriginal population be put in a position to defend its rights and to secure redress of its grievances at the hands of the local authorities? II. The juridical condition of aborigines. The conditions of aboriginal population from the point of view if civil and criminal legislation and the distribution of justice. Respect for the property of the aborigines and the means of harmonizing this respect with the needs of colonization.

115 III. The moral condition of aborigines. means to which it is proper to have recourse to raise their intellectual and moral standards. IV. The material conditions of aborigines. Measures proper to be taken to assure the conservation of the race, to prevent its physical degeneration, and to ameliorate its conditions of existence. The congress adopted resolutions upon all these points, which were as follows: The political and juridical conditions of aborigines. I. To what extent and under what conditions is it desirable to maintain the aboriginal administrative organisms? Opinions adopted by the congress: The congress – Considering that the well-being of aborigines, their physical, intellectual, and moral development ought to be the supreme end of all colonial policy; Considering that the evolution of aboriginal societies can of necessity take place only gradually, being itself only the consequence of economic transformations which determine the degree of civilization of a people; Convinced that the only rational method is that which consists in adapting, as much as possible, the colonial régime to the existing institutions, laws, and customs of the aboriginal races, ameliorating them so as to do away with their injustices and adapting them to new needs when such needs make themselves felt; Announces as its opinionThat colonial policy should tend, in principle, toward the maintenance of the aboriginal administrative organisms. II. How and by what means may the aboriginal population be put in a position to defend its rights and to secure redress of its grievances at the hands of the local authorities? Opinion adopted by the congress: The congress – Considering, on the other hand, that it is important to the security of the colonies, and therefore to their prosperity, that the aboriginal populations should find in the peaceful operation of regular institutions the means of making known their grievances, whether arising from the local administrative measures or from legal measures of the metropole by which they are affected; Is of the opinion – That the colonizing powers ought to give attention to the matter of providing their aboriginal subjects with the means of defending their rights and of securing redress of their grievances at the hands of the local authorities; Among these means, which ought to be appropriate to the degree of civilization of the aboriginal population, the

116 congress recommends the free exercise of the right of petition; this right being subjected to the minimum of formalities and expenses, in order that the ignorant and the very poor may be able to profit by it without difficulty. While recognizing that the grant of representative institutions may be considered as the surest means of putting aboriginal populations in a position to defend their rights, and to obtain redress of their grievances at the hands of the local authorities, the congress considers that the régime of representative institutions is one which presupposes the concurrence of moral, intellectual, and political conditions which can be conceived of as realizable by aboriginal peoples only in a future more or less distant; and that, in view of the actual condition of the greater part of the aboriginal populations, the solution is to be sought according to circumstances, either in admitting the chief men of the aborigines as members adjunct of the councils connected with the local governments (the executive council, the council of administration, the privy council), or, preferably in the creation of aboriginal assemblies invested with purely consultative powers. The composition and powers of these assemblies should vary with the local conditions. It is, however, desirable, if the local circumstances permit, that these assemblies should be composed, in part at least, of elected members, the suffrage being restricted or of several grades. In the colonies where the local conditions do not lend themselves to the establishment of such assemblies, it is to be desired that a person delegated by the governor should be constituted the protector of the aborigines, and should be charged with the duty of receiving their complaints. III. Condition of aborigines from the point of view of civil and criminal legislation and the distribution of justice. Opinions adopted by the congress: CIVIL LAW 1. Inasmuch as knowledge of the juridical institutions of the aborigines is a matter of very considerable interest, both from the political and the scientific standpoint, it is to be desired that the governments should initiate and encourage the study of these institutions by competent men. 2. As respects the organization of their family life, and the use of their property, it is desirable to leave to the aborigines the benefit of their own customs, so far as these customs are not incompatible with respect due to human life and liberty. 3. It is desirable to maintain the aboriginal tribunals for the purpose of exercising jurisdiction over the civil affairs between aborigines; a surveillance, more or less strict according to circumstances, being exercised over those tribunals and a right of appeal being before a tribunal of metropolitan origin. Whenever it becomes necessary to organize new tribunals it is essential to give representation to the aboriginal element of the population on these tribunals.

117 4. It is not desirable to encourage the aborigines to solicit individually the benefit of European juridical institutions. 5. It is desirable to codify the civil institutions of the aborigines, but only on the condition of attributing to these codes, at least provisionally, only a value purely doctrinal. These codes ought to translate the customary law of the aborigines without altering it. 6. By way of exception to the above, as respects the law of contracts and the commercial law, it is, on the contrary, desirable to enact for the aborigines a code resembling, as nearly as possible, the European legislation on this subject with some reservations of which the principal are as follows: A. The contract of labor ought to be made the object of a special and detailed regulation guaranteeing the liberty of the aboriginal workers and assuring them equitable treatment. B. The system of evidence ought to be placed in harmony with the social status and the degree of instruction of the aboriginal population. C. It may be necessary to enact particular rules to assure the execution of obligations undertaken by the aborigines, and especially to authorize, as regards them, execution by bodily constraint. 7. Cases arising between individuals of different races ought to be adjudicated, not by European tribunals, but by mixed tribunals in which the European element should in all cases be represented. 8. When the authority of the Europeans has been once established, it is desirable to commence to constitute the civil status of the aborigines but compelling them to declare the births and deaths, which occur among them; it being understood that this declaration shall not modify their personal status. CRIMINAL LAW 9. The enactment of a penal code for the use of the aborigines is a duty which exists from the instant that the colony is founded. This code ought to be translated as soon as possible into the language of the aborigines. 10. This penal code for the aborigines ought not to be merely a copy, more or less modified, of the European penal code, though it ought to be based upon the same juridical principles. It is necessary to define anew each infraction of the law, and to determinate its relative gravity. An act forbidden to Europeans may be permitted to aborigines, and vice versa. the gravity of an infraction of the law may vary according to the race of the author or of that of the victim.

118 11. The duty of imposing penalties upon aborigines in criminal cases ought to be confided to the authorities of the colonizing power, even when exercise of the right of jurisdiction is delegated to the aboriginal authorities. 12. It is desirable to establish, in order to impose penalties upon aborigines in criminal cases, a judiciary authority distinct from the administrative authority. 13. It is permissible, however, to confer upon an administrative officer jurisdiction to repress minor crimes conformably to the law. 14. It is desirable that a code of criminal procedure should be made for the use of the aborigines. While giving to the accused the necessary guaranties, the procedure ought to be established with sufficient conditions to insure rapid action, so that the punishment may follow as quickly as possible upon the commission of the crime. The practice of subjecting accused persons to incessant questioning and torture [la question et les épreuves] ought to be and to remain rigorously prohibited. 15. A prison régime different from that applied to Europeans ought to be established for the use of the aborigines.

THE MATERIAL CONDITION OF THE ABORIGINES I. Measures necessary to assure the conservation of the race, to prevent its physical degeneration, and to ameliorate its conditions of existence. Opinions adopted by the congress: 1. It being evident that the prosperity of tropical colonies is dependent upon the maintenance and development of the aboriginal population; 2. The congress expresses the opinion that the measures taken in the acts of Brussels of 1890 and 1899 to restrain the traffic in spirituous liquors within a zone of the African Continent, ought to be generalized, and that it is desirable that a diplomatic accord should be made for the purpose of extending these provisions to all colonies where there is an aboriginal population. 3. As respects those colonies which have local representative powers, the congress expresses the hope that the metropolitan governments will bring to the attention of the local governments the dangers arising from the consumption of alcohol, and will exercise upon them a moral pressure so as to induce them to take all possible measures having for their object the reduction of the local consumption of alcohol.

119 4. It is desirable that measures should be taken to prevent or restrict the consumption of opium. 5. It is desirable that the colonizing powers, each as regards that which concerns itself and in the respective spheres of their interests, should take measures to supervise and train all aboriginal labor, and should regulate it in such a way that the work done shall not be in excess of the physical forces of the laborers, whether the labor be on public works or private enterprises. 6. It is desirable that the colonizing powers take measures with a view to preventing the dangers, which result from penury and famine among the aboriginal populations, and which are for them, periodically, a cause of epidemic diseases and abnormal mortality. 7. The organization of the public hygiene being one of the most efficacious means to maintain the aboriginal populations and preserve them from degenerationConsidering, on the other hand, that the Europeans have the effective control, in moral and material matters, of the aboriginal peoples who are subjected to their authority, and that there is thus imposed upon all the colonizing powers the obligation of giving to the aborigines all the security, which it is in their power to procure for them; The congress expresses the opinion that the measures of public hygiene ought not be limited to the European personnel only. It recommends as particularly urgent the adoption of the following measures: (a) In the localities where leprosy exists, there should be created asylums, to which should be admitted as patients all lepers who, by reason of the characteristic condition of the lesions, are likely to be a source of contagion for the people of the neighborhood. These asylums should be distant from the inhabited centers. They should be established on rural lands of large extent, so as to permit the lepers to enjoy a certain liberty, under usual restrictions of non-communication with healthy localities. The hygienic care suitable to their condition and the necessary attention should be furnished by the administration. The competent authorities ought to give advice of the departure of each leper leaving the colony to the Government of the country of his destination. (b) It is necessary to instruct the aboriginal populations regarding the grave dangers which syphilis, under all its forms, presents, for the individual, the family, the community, and the race. It is desirable to institute in the localities where they do not exist and to multiply in those in which they exist,

120 dispensaries, hospitals, and consultation rooms where the malady may receive gratuitous treatment; hospital treatment not being made obligatory. In those colonies where supervised prostitution shall be introduced it will be desirable that the best arrangements and regulations in use in the metropolis should be applied. (c) Against smallpox it is necessary to organize in tropical colonies a service of public vaccination. (d) It is desirable that the colonial governments should give their attention to the creation of aboriginal schools of medicine and institutions for the instruction of a sufficient number of aboriginal women as midwives. (e) The streets and ways of the European settlements, and of the aboriginal villages, tats, camps, or other cantonments should be the object of a sanitary police. (f) Against the persistent diseases of animals which render difficult the conditions of existence and labor of the aborigines, by depriving them of their beasts of labor, it is necessary to establish a local veterinary service, to eradicate the diseases of animals and prevent their recurrence. (g) The service of colonial hygiene, in so far as it is a matter of public administration, should be directed by officials having technical training and knowledge. Each colony ought to have at its capital a council of hygiene. (h) It is desirable that the colonizing powers should publish each year a schedule or general report indicating, from the social and demographic point of view, the progress made as respects public hygiene (the birth, sickness, and death statistics) and as respects private or public assistance for the benefit of the aborigines. It is also desirable that the governments of colonies should take care to advise, as promptly as possible, the governments of neighboring colonies and that of the metropolis in regard to matters occurring which may affect the public health. II. Is it not necessary, in the interest of the material condition of the aborigines, to suppress that form of forced labor called the corvée? Opinion adopted by the congress: The congress – Considering that the use of the corvée produces nothing but inconvenience; that it is a cause of diminution of the aboriginal population and at the same times a danger to the public tranquility by reason of the discontent which it excites;

121 Considering, on the other hand, that it is demonstrated by experience that the measures taken to prevent the abuses which arise from the use of the corvée are always ineffective and illusory; Considering, finally, that it is only free and remunerated labor, which gives beneficial results, and that there is no colony in which the necessary labor cannot be obtained, provided the remuneration offered is sufficient; Announces the opinion – That the colonizing powers should suppress the corvée, and that they should force themselves to replace it by free and remunerated labor. III. How to develop among the aborigines the habits of foresight and saving. The congress – Considering that it is important to develop among the aboriginal populations habits of foresight and saving, and that, as soon as these populations shall have adopted these habits, many of the difficulties arising out of colonization will solve themselves; Considering, on the other hand, that the excellent results shown in Algeria by the aboriginal savings, mutual-aid, and cooperative societies organized under the law of April 14, 1893, have demonstrated the advantages which may be derived from these institutions; that not only are they an excellent agency of economic education for the aborigines, but that they are susceptible of furnishing to the metropolis the means for remedying the dangers, which usury offers to the holding of property by the aborigines, and of preventing, or at least mitigating, the consequences which flow from extreme poverty as respects the conservation of aboriginal races; Is of the opinion that wherever the local conditions permit, the colonizing powers ought to give their attention to bringing about the formation of savings, mutual-aid, and cooperative societies among the aborigines. THE MORAL CONDITION OF THE ABORIGINES Means to which it is proper to have recourse in order to raise the intellectual and moral standards of the aborigines. Opinions adopted by the congress: 1. The development of the producing forces, which is the basis upon which human life evolves itself under all its manifestations, being a powerful factor in civilization and one of the best means for raising the moral standards of aboriginal populations; The congress announces the opinion –

122 That colonial policy should tend to the continual improvement of the means of existence of the aborigines and organization of the labor performed by them. 2. The congress – Considering that the colonizing powers, by extending their domination over countries inhabited by populations of a civilization more or less retarded, have contracted the duty not only of ameliorating their material conditions of existence, but also of raising their intellectual and moral standards; Is of the opinion- That the colonizing powers ought to exercise a very particular solicitude over the instruction of the aborigines. They ought not to forget that this instruction ought to be of a character appropriate to their circumstances; that is to say, that the methods used and the courses given ought to be adapted to the mental conditions of the aborigines to whom they are applied. The instruction ought, moreover, to be essentially educative, that is to say, it ought not to have for its object merely to give a certain amount of professional knowledge to the aborigines, but it ought to have, as an object of its constant attention, their moral improvement. 3. The congress – Considering that the colonizing peoples have a duty of education to perform as regards the aboriginal populations, and that the prosperity of the colonies is dependent upon the cooperation and the progressive culture of these races; Announces the opinion – That, by means of schools and other appropriate institutions, by means of encouragement given to free private establishments, and by means of an unhampered protection assured to all civilizing enterprises, this end ought to be pursued without intermission, particular care being taken to select out of the various means of action those which are adapted to the particular country, the particular race, the particular time, and the particular circumstances. 4. The congress – As regards the moral and intellectual improvement of the women of the Mohammedan and Hindoo peoples; Announces the opinion – That the governments should encourage the creation or the development of professional schools of aboriginal industries appropriate to the condition and the traditions of women, in which there shall be given a moral education, and instruction in the language of the

123 colonizing power, as incidental to instruction of a technical kind by means of which, these women may be enabled to improve their material condition.

124 23 Excerpts from: The Covenant of the League of Nations

Article 23 (b): (The Native Inhabitants Clause) Adopted at Geneva, Switzerland, April 28, 1918

The League of Nations and Indigenous Peoples: The Sacred Trust of Civilization

By 1900, it has been noted; the colonial powers generally recognized the duty of guardianship regarding the indigenous peoples inhabiting the colonies. The leading powers had given attention to education, training in civilized arts and sanitation. The American expert on the law of nations and indigenous peoples, A.H. Snow who was active in the period between the World Wars, noted in his study that the United States at that time was making the policy of guardianship the leading principle of the development of the law of nations regarding indigenous peoples (Snow, 1921:190). The content of that policy can be explained as “protection until assimilation”. Snow concluded that the obligation of guardianship implied, not merely protection, but also a positive duty of direct legislative, executive, and judicial domination of aboriginals as minor wards of the civilized nations. It also included direct legislative, executive and judicial tutorship of them for civilization, so that they may become “in the shortest possible time civil and political adults participating on an equality in their own government under democratic and republican institutions (Snow, 1921:108 and Bennet, 1978: 8). After World War I, the trusteeship, or guardianship, policy of colonialism became a matter of continuous concern. The mandate-policy outlined at the Berlin Africa Conference in 1885, was now part of the policy of the emerging world organization, the League of Nations. In the aftermath of World War I, three areas of concern to international ethnic politics emerged; 1. the international policy of the right of all peoples to self-determination, 2. the rights of minorities, which dealt mainly with the minority issues in Europe, and; 3. the native inhabitants clause which dealt with relationship between so-called civilized nations and indigenous peoples.

125 In 1918, the American president Woodrow Wilson became the leading international spokesperson of the right of all peoples to self-determination. In his famous “Fourteen Points Speech” in 1918, Wilson outlined, not only that all peoples have the principal right of self-determination, but also provisions for the establishment of a “general association of nations”, which should be formed under a specific international covenant. According to Wilson, the borders of Europe should be drawn along ethnic lines. This was done in conformity with the principle of self-determination, but numerous exceptions were made. The nation-state aspirations of some groups were respected, while others had to form minorities within new or already established nation-states. Another manifestation of the principle of self-determination was the “sacred trust of civilization”, which was contained in the Mandate system, and as we will see, the native inhabitants clause of the Covenant of the League of Nations. The mandate system, article 22 of the Covenant, was an attempt to apply the idea of making the colonial powers accountable on an international level for the treatment of colonies. In practice, the mandate system was confined to a limited number of colonies. These colonies were divided into three categories. In scope, they were confined to former Turkish and German colonies. Class A mandates consisted of colonies in the Middle East; class B mandates consisted of colonies in Africa, and class C mandates consisted of former German colonies in the Pacific including the territory of South-West Africa. When the new nation-states were established in Europe after the First World War, a minority rights system was established. It has been called a compromise, as many minorities were not granted an independent nation-state of their own. The minority rights-system reached from the Memel on the Baltic Sea to the Kurds in Iraq at the Persian Gulf (Rosting, 1923: 641-660). Article 23 (b) of the League of Nations Covenant has also been called the “native inhabitants clause”, as the members of the League undertook “to secure just treatment of native inhabitants of territories under their control.” The clause was an outcome of the same trend that produced the mandate system at the Berlin Africa Conference. It manifested the concerted international action regarding indigenous peoples. The ideas behind the clause are easily found in the policy statements by the International Congress of Colonial Sociology in 1900 as referred to above and the trusteeship idea as a constant all the way back to Francisco de Vitoria. In the 19th century, the doctrine of the sacred trust of civilization was developed from the idea that indigenous peoples were “backward”, “primitive” and not capable of handling their own affairs. They had to be placed under the protection of an advanced nation, as indigenous peoples not could be self-governing by themselves. The advanced nation, a European colonial power, had the obligation to develop self-governing institutions of the indigenous peoples. These ideas provided the foundation for the further development of the trusteeship concept of colonialism, which entered into force after the First World War.

126 One of the major efforts of the League of Nations was to administer the re-colonization of former colonies of Germany and the Ottoman Empire. The situation of indigenous peoples was not dealt with under this mandate-system. However, there was never any question of the application of the native inhabitant clause in a specific case. It was invoked as the legal basis for investigations made by the League of Nations in 1931 regarding the “inhuman treatment meted out by the Liberian government to the nomadic tribes inhabiting its desert interior. Liberia was warned that the failure to honour its obligations under article 23(b) warranted its expulsion from the League (Bennett, 1978:8-11; and Falkowski, 1992: 39-45).

The Covenant of the League of Nations The High Contracting Parties, in order to promote international co-operation and to achieve international peace and security by the acceptance of obligations not to resort to war, by the prescription of open, just and honourable relations between nations, by the firm establishment of the understandings of international law as the actual rule of conduct among Governments, and by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another, agree to this Covenant of the League of Nations.

Article 10 The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.

Article 23 Subject to and in accordance with the provisions of international conventions existing or hereafter to be agreed upon, the Members of the League – (b) undertake to secure just treatment of the native inhabitants of territories under their control;

127 24 Excerpts from: The Convention of St. Germain-en-Laye

Switzerland, September 10, 1919

This Convention revised the Berlin and Brussels Acts. The abrogation of these Acts did not denote any repudiation on the part of those Powers of the duties they had undertaken towards the indigenous peoples. Art. 11, re-enacts the provisions of Art. 6 of the Berlin Act, and it extended them to all the African territories of the Powers concerned (Lindley, 1926: 334-335).

The Convention of St. Germain-en-Laye

Article 11 The Signatory Powers exercising sovereign rights or authority in African territories will continue to watch over the preservation of the native populations and to supervise the improvement of the conditions of their moral and material well-being. They will, in particular, endeavour to secure the complete suppression of slavery in all its forms and of the slave trade by land and sea. They will protect and favour, without distinction of nationality or of religion, the religious, scientific or charitable institutions and undertakings created and organised by the nationals of the other Signatory Powers and of States, Members of the League of Nations, which may adhere to the present Convention, which aim at leading the natives in the path of progress and civilisation. Scientific missions, their property and their collections, shall likewise be the objects of special solicitude. Freedom of conscience and the free exercise of all forms of religion are expressly guaranteed to all nationals of the Signatory Powers and to those under the jurisdiction of States, Members of the League of Nations, which may become parties to the present Convention. Similarly, missionaries shall have the right to enter into, and to travel and reside in, African territory with a view to prosecuting their calling. The application of the provisions of the two proceeding paragraphs shall be subject only to such restrictions as may be necessary for the maintenance of public security and order, or as may result from the enforcement of the constitutional law of any of the Powers exercising authority in African territories.

128 Context: The International Labour Organization and Indigenous Peoples

Today, the International Labour Organization (ILO) is one of the principal actors on the international arena concerning indigenous peoples’ issues. It may seem odd that an organization devoted to work and working conditions has taken such an interest in the situation of the indigenous peoples, but at a closer look, it becomes rather natural. ILO, established in 1919, and an organization that survived from the League of Nations to continue under the United Nations, has since its inception shown an interest in the condition of indigenous peoples. The first study on the working conditions of indigenous peoples was carried out in 1921. In 1926, a Committee of Experts on Native Labour was established and the ILO adopted a series of conventions and recommendations. The primary concern for the ILO had been the working conditions of indigenous peoples, but the interest expanded over the years, to social, economic and cultural conditions, as well. The reason for the interest of the ILO in the situation of the indigenous peoples is found in the policy of labour recruitment in the colonies. Indigenous peoples were used as forced or cheap labour in the colonial development all over the world. Colonial development depended partly on private enterprises, but these could not expand without the support of the colonial government. The colonial administration cared for transports, and organized native labour for the mines, road-construction and plantation work. For various reasons the native populations did not voluntarily abondon their own means of subsistence to get an employment in a colonial project. The colonial projects sometimes had labour shortages and the natives had to be directly or indirectly forced to labour in colonial development projects. Additionally, the indigenous peoples were coerced to work for the colonial administration. The means could be to levy taxes, which had to be paid only in money, thus, obliging indigenous peoples to take work to get the money. The effect was that the indigenous peoples were brought into the market-economy system. Another method was to prohibit vagabondage. Persons condemned for vagabondage were sentenced to work. The amount of land and cattle the indigenous peoples could own were also limited. Indigenous workers were paid in advance and recruited by public officials or native chiefs. When the ILO began to concern itself with forced labour the reaction was hostile from colonial administrations, institutes and organizations. The question of forced labour was linked to the issue of economic development, and it was thought that forced labour was

129 necessitated by the economic situation. In ideological terms, the indigenous peoples should work for their own civilisation, it was argued. However, it became clear that the conditions of work of the indigenous peoples were not acceptable. If civilisation required indigenous peoples to be “raised out of their state” by working, it was questionable whether a policy of forced labour was the most efficient means to that end. However, the conventions of ILO protecting the indigenous peoples in labour relations were not solely the result of a humanitarian effort. One aim was to produce more goods of better quality. The ILO did not want to extend the labour legislations of the metropolitan legal systems, but rather to make special conventions, which took into account the special conditions in the colonies. The actual working conditions of the indigenous peoples were to say the least, poor, and their societies were in a process of change where the old structures were collapsing. The taking of men to the mines and public works, cattle diseases at their homelands, break-up of families, all left the peoples to the abuses of the industrial system. The abuses were brutal. ILO regularly received reports from all over the world of the treatment of the indigenous workers: forced labour, floggings, deportations, suicides, and the mortality rate was high due to lack of medicines and care. All of the Conventions of ILO may be seen as policies of a more careful integration of the indigenous peoples than the more common attitude among the colonial powers in the 1920s and 30s. Integration was a primary aim, but it was realized that it had to be at a little slower pace. Otherwise, the disastrous effects of the cultural up rootedness would spoil the whole process. An important instrument in the integration process of the indigenous peoples was economic development and that was primarily reached through work. A simple industrial and modernist logic.

130 25 Excerpts from: The Convention Concerning Forced or Compulsary Labour

ILO Convention No. 29, Geneva, Switzerland, June 10, 1930

The Convention entered into force on May 1, 1932. 136 states has ratified the convention. The Convention aims at practices in colonial countries and certain independent states at a certain stage of development. Its focus is on forced labour as a form of economic exploitation.

The Convention

Article 2 1. For the purposes of this Convention the term “forced or compulsary labour” shall mean work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term “forced or compulsary labour” shall not include(a) any work or service exacted in virtue of compulsary military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; any work or service exacted in cases of emergency, that is to say, in the event of war or of calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members

131 of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such sevices.

Article 3 For the purposes of this Convention the term “competent authority” shall mean either an authority of the metropolitan country or the highest central authority in the territory concerned.

Article 4 1. The competent authority shall not impose or permit the imposition of forced or compulsary labour for the benefit of private individuals, companies or associations. 2. Where such forced or compulsary labour for the benefit of private individuals, companies or associations exists at the date on which a Member’s ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsary labour from the date on which this Convention comes into force for that Member.

Article 5 1. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsary labour for the production or the collection of products which such private individuals, companies or associations utilize or in which they trade. 2. Where concessions exist containing provisions involving such forced or compulsary labour, such provisions shall be rescinded as soon as possible, in order to comply with Article 1 of this Convention.

132 Article 6 Officials of administration, even when they have the duty of encouraging the populations under their charge to engage in some form of labour, shall not put constraint upon the said populations or upon any individual members thereof to work for private individuals, companies or associations.

Article 8 1. The responsibility for every decision to have recourse to forced or compulsary labour shall rest with the highest civil authority in the territory concerned. 2. Nevertheless, that authority may delegate powers to the highest local authorities to exact forced or compulsary labour which does not involve the removal of the workers from their place of habitual residence. That authority may also delegate, for such periods and subject to such conditions as may be laid down in the regulations provided for in Article 23 of this Convention, powers to the highest local authorities to exact forced or compulsary labour which involves the removal of the workers from their place of habitual residence for the purpose of facilitating the movement of officials of the administration, when on duty, and for the transport of Government stores.

133 26 Legal Status of Eastern Greenland

Permanent Court of International Justice, The Hague, Netherlands, 1933

The Principles of Terra Nullius and Guardianship Revoked

In international law, several concepts have been developed regarding indigenous peoples, starting with the time of the Spanish conquest of the Americas in the 15th century. As noted above, two main principles of international law were crystallized by Francisco de Vitoria in 1532, in his book “De Indis et de Iure Belli Relectiones”: First: The principle of guardianship. Vitoria maintained that the governing of aboriginal communities, by nations “of more mature intelligence must be subject to the limitation that any such interposition be for the welfare and in the interests of the Indians and not merely for the Spaniards”. He stated that the relationship between invaded and invader was that of a ward to his/her guardian. This doctrine of guardianship has since then been one of the key concepts for the understanding of the status of indigenous peoples in international law. The doctrine contains the following elements:

1. The principle of guardianship in theory imposed certain duties on the colonial powers to secure the improvement of the moral and material conditions of the “natives”. 2. Despite several attempts to seek rights from the doctrine, it has so far been impossible to derive legally enforceable rights from it. In the case Chippewa Indians v. United States, 1939, the implicit ruling by the Supreme Court of the United States was that the duties imposed by guardianship are not cognisable in a court of law in the same way as those arising under the more conventional, equitable trust. A similar attitude has been taken by the English Courts, argues Gordon Bennett (Bennett, 1978:8-9). Second, the principle of terra nullius: this principle arose from the necessity to regulate the relationship between the conquerors and the conquered during European colonial expansion. According to this principle, any territory inhabited by peoples whose civilization was considered“backward” and whose political organization did not correspond to European norms, was regarded as terra nullius – i.e. a land not belonging to anyone, until the first “civilized” power chose to occupy it. An important effect of this

134 principle was that indigenous peoples did not have any rights to sovereignty or self- determination. This thinking is reflected in an adjudication of the Permanent Court of International Justice in 1933, concerning the status of Eastern Greenland. In 1931, some Norwegian hunters hoisted the flag of Norway in MacKenzie Bay in Eastern Greenland. They announced that they occupied territory, in the name of the King of Norway. Denmark invoked to the Permanent Court, that “the Norwegian action constituted a violation of the existing legal situation and are accordingly unlawful and invalid”. Norway on the other hand argued that the area at the time of occupation was “terra nullius”. The Court went on to analyse the downfall of the early Norwegian settlements in Greenland as a result of Eskimo resistance: The Court declared: “... conquest only operates as a cause of loss of sovereignty where there is a war between two states, and by reason of the defeat of one of them sovereignty over the territory passes from the loser to the victorious state. The principle does not apply in the case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population”. Bennett (1978) argued that this reasoning was a logic borne of expediency, and it had as its corollary a doctrine which regarded as terra nullius any territory inhabited by peoples whose civilization was thought to be “backward” and whose political organization did not correspond to western norms. It followed that the territory would automatically be vested by the first “civilized” power, which chose to occupy them.

135 27 Excerpts from: The Convention Concerning the Regulation of Certain Special Systems of Recruiting Workers

ILO Convention No. 50, Geneva, Switzerland, June 20, 1936

The Convention

Article 1 Each Member of the International Labour Organisation, which ratifies this Convention, undertakes to regulate in accordance with the following provisions the recruiting of indigenous workers in each of its territories in which such recruiting exists or may hereafter exist.

Article 2 For the purposes of this Convention – (a) the term “recruiting” includes all operations undertaken with the object of obtaining or supplying the labour of persons who do not spontaneously offer their services at the place of employment or at a public emigration or employment office or at an office conducted by an employers’ organisation and supervised by the competent authority; (b) the term “indigenous workers” includes workers belonging to or assimilated to the indigenous populations of the dependent territories of Members of the Organisation and workers belonging to or assimilated to the dependent indigenous populations of the home territories of Members of the Organisation.

136 Article 3 Where the circumstances make the adoption of such a policy desirable, the following classes of recruiting operations may, except when undertaken by persons or associations engaged in professional recruiting, be exempted from the application of the Convention by the competent authority: (a) operations undertaken by or on behalf of employers who do not employ more the a prescribed limited number of workers; (b) operations undertaken within a prescribed limited radius from the place of employment; and (c) operations for the engagement of personal and domestic servants and of nonmanual workers.

Article 4 Before approving for any area any scheme of economic development which is likely to involve the recruiting of labour, the competent authority shall take such measures as may be practicable and necessary- (a) to avoid the risk of pressure being brought to bear on the populations concerned by or on behalf of the employers in order to obtain the labour required; (b) to ensure that, as far as possible, the political and social organisation of the populations concerned and their powers of adjustment to the changed economic conditions will not be endangered by the demand of labour; and (c) to deal with any other possible untoward effects of such development on the populations concerned.

Article 5 1. Before granting permission to recruit labour in any area, the competent authority shall take into consideration the possible effects of the withdrawal of adult males on the social life of the population concerned, and in particular shall consider- (a) the density of the population, its tendency to increase or decrease, and the probable effect upon the birth rate of the withdrawal of adult males; (b) the possible effects of the withdrawal of adult males on the health, welfare and development of the population concerned, particularly in connection with the food supply;

137 (c) the dangers to the family and morality arising from the withdrawal of adult males; and (d) the possible effects of the withdrawal of adult males on the social organisation of the population concerned. 2. Where the circumstances make the adoption of such a policy practicable and necessary, the competent authority shall, in order to safeguard the populations concerned against any untoward consequences of the withdrawal of adult males, fix the maximum number of adult males who may be recruited in any given social unit in such manner that the number of adult males remaining in the said unit does not fall below a prescribed percentage of the normal proportion of adult males to women and children.

Article 6 Non-adult persons shall not be recruited. Provided that the competent authority may permit non-adults above a prescribed age to be recruited with the consent of their parents for employment upon light work subject to prescribed safeguards for their welfare.

138 28 Excerpts from: The Convention Concerning the Regulation of Written Contracts of Employment of Indigenous Workers

ILO Convention No. 64, Geneva, Switzerland, June 27, 1939

The Convention

Article 1 For the purposes of this Convention – (a) the term “worker” means an indigenous worker, that is to say a worker belonging to or assimilated to the indigenous population of a dependent territory of a Member of the Organization or belonging to or assimilated to the dependent indigenous population of the home territory of a Member of the Organization;

Article 2 1. This Convention applies to contracts of employment by which a worker enters the service of an employer as a manual worker for remuneration in cash or in any other form whatsoever. 2. The competent authority may exclude from the application of this Convention contracts by which a worker enters the service of an indigenous employer who does not employ more than a limited number of workers prescribed by the regulations or satisfy some other criterion prescribed thereby. 3. This Convention does not apply to contracts of apprenticeship made in accordance with special provisions relating to apprenticeship contained in the regulations. 4. The competent authority may, if necessary, exclude from the application of this Convention any contract of employment under which the only or principal remuneration granted to the worker is the occupancy or use of land belonging to his employer.

139 29 Excerpts from: The Convention Concerning Penal Sanctions for Breaches of Contracts of Employment by Indigenous Workers

ILO Convention No. 65, Geneva, Switzerland, 27 June, 1939

The Convention

Article 1 1. This Convention applies to all contracts by which a worker belonging to or assimilated to the indigenous population of a dependent territory of a Member of the Organization, or belonging to or assimilated to the dependent indigenous population of the home territory of a Member of the Organization, enters the service of any public authority, individual, company or association, whether non- indigenous or indigenous, for remuneration in cash or in any other form whatsoever. 2. For the purposes of this Convention the term “breach of contract” means – (a) any refusal or failure of the worker to commence or perform the service stipulated in the contract; (b) any neglect of duty or lack of diligence on the part of the worker; (c) the absence of the worker without permission or valid reason; and (d) the desertion of the worker.

Article 2 1. All penal sanctions for any breach of contract to which this Convention applies shall be abolished progressively and as soon as possible. 2. All penal sanctions for any such breach by a non-adult person whose apparent age is less than a minimum age to be prescribed by law or regulations shall be abolished immediately.

140 30 Excerpts from: The Convention Concerning the Maximum Length of Contracts of Employment of Indigenous Workers

ILO Convention No. 86, Geneva, Switzerland, June 19, 1947

The Convention

Article 2 1. The competent authority may exclude from the application of this Convention- (a) contracts by which a worker enters the service of an indigenous employer who does not employ more than a limited number of workers prescribed by the regulations or satisfy some other criterion prescribed thereby; (b) any contract under which the only or principal remuneration granted to the worker is the occupancy or use of land belonging to his employer. 2. The competent authority may, after consultation with the employers’ and workers’ organizations representative of the interests concerned, exclude from the application of this Convention contracts entered into between employers and literate workers whose freedom of choice in employment is satisfactorily safeguarded; such exclusion may apply to the whole of the workers in a territory, to workers in any specified industry, to the workers in any specified undertaking, or to special groups of workers.

Article 3 1. The regulations shall prescribe the maximum period of service which may be stipulated or implied in any contract, whether written or oral. 2. The maximum period of service which may be stipulated or implied in any contract for employment not involving a long and expensive journey shall in no

141 case exceed twelve months if the workers are not accompanied by their families or two years if the workers are accompanied by their families. 3. The maximum period of service which may be stipulated or implied in any contract for employment involving a long and expensive journey shall in no case exceed two years if the workers are not accompanied by their families or three years if the workers are accompanied by their families.

Article 4 1. When a contract made in one territory (hereinafter called the territory of origin) relates to employment in a territory under a different administration (hereinafter called the territory of employment), the maximum period of service which may be stipulated or implied therein shall not exceed either the maximum period prescribed by the regulations of the territory of origin or the maximum period prescribed by the regulations of the territory of employment. 2. The competent authorities of the territories of origin and of employment shall, whenever necessary or desirable, enter into agreements for the purpose of regulating matters of common concern arising in connection with the application of the provisions of this Convention.

142 Context: The United Nations and Indigenous Peoples: The Sacred Trust of Civilization Continued

The UN Charter, adopted in 1945, does not mention indigenous peoples or ethnic minorities as such. In fact, it took several years before the United Nations paid attention to the problems of indigenous peoples. The reason for this was the general political reluctance towards the minority issues after the experience with instigating minority upheavals in Europe in the mid-war period. A shift of focus occurred from minority protection under the League of Nations, to individual rights and protection under the United Nations. One indication of this shift is the history of Articles 22 and 23 of the Covenant of the League of Nations. Chapter XI of the UN Charter replaced article 22 of the League Covenant: named “Declaration Regarding Non-Self Governing Territories”. The intentions with Chapter XI are not all clear, but as Bennett argues: “it might have been assumed that Chapter XI, like its predecessor, was intended to apply to all aboriginal peoples, whether in independent States or in colonial territories.”(Bennett, 1978:12) Chapter XI, Article 73, of the UN Charter, requires the member States of the UN, “responsible for the administration of territories whose people has not yet attained a full measure of self-government”, to accept the “sacred trust” as a paramount obligation, and to promote the wellbeing of the inhabitants of those territories. Chapter XI of the UN Charter thus gives a detailed expression of Francisco de Vitoria’s doctrine of guardianship of colonized peoples. At the same time, this inclusion of the guardianship principle is paradoxically a step from the exclusiveness of State sovereignty over their own territory. The previous national domestic concern became an area under UN jurisdiction. In 1960, the UN General Assembly defined the territories in which the UN was to take interest. In Resolution 1541, adopted on December 15, the UN stipulated that member states with non-self-governing territories under their jurisdiction have “an obligation to transmit information in respect of a territory which is geographically separate and is distinct ethnically and/or culturally from the country administering it”. This meant that the geographical element, the “salt-water”-doctrine, became the guiding principle whether a people has a right of self-determination or not. In combination with the ethnic element, it meant that indigenous peoples were excluded from the list of non-self-governing territories. The adoption of Resolution 1541 marked the ending of a long controversy on the definition of a non-self-governing territory and whether the UN should give special

143 emphasis to the protection of indigenous peoples or not. This controversy started in1953, when Belgium presented the “Belgian Thesis”. This thesis had two sides. First, it was an attack on Chapter XI of the UN Charter, designating it as arbitrary and discriminatory as it applied only to colonies and protectorates. The Belgian Thesis pointed out that the “primitive communities” living within many States and colonies should have the same protection offered by Chapter XI. “Colonization is no less colonization if it is made by territorial contiguity rather than by overseas expansion”. Belgium resisted the salt-water doctrine that had made its way into the international discourse of the rights of peoples of self-determination. The latter limited the beneficiaries, the peoples with a right of self- determination, to colonies defined by the European colonial powers (The Belgian Thesis, 1953). The other side of the Belgian Thesis was the implication it gave that Belgium only tried to save its own interest and to stop the decolonization by putting a very controversial issue in front of the UN. The so-called Third World countries saw this thesis as an attempt to disrupt the national integrity of the newly decolonized nations of the world. When Resolution 1541 passed the UN General Assembly in 1960, the indigenous peoples were consequently made a “minority problem” and not a “self-determination” question. Besides the self-determination controversy regarding indigenous peoples in the 1950s, the UN made an impotent effort in 1949 to try to see to the problems of the Indians on the American continent. The more recent work of the UN in this field will be discussed below.

144 31 The Fate of Minorities

United Nations Resolution 217 C (III), New York, USA, December 10, 1948

Human Rights for Individuals and Groups The Universal Declaration of Human Rights, adopted by the United Nations General Assembly December 10, 1948, does not contain any provision regarding the rights and protection of minorities or indigenous peoples as such. However, “the travaux preparatoires” of the Universal Declaration of Human Rights reveal that a number of suggestions were made to include the protection of minorities, including indigenous peoples. The minority protection proposals were criticized by the argument that minorities as such were not a problem or that the issues of minorities were not of universal relevance. It was thought that the best way to protect minorities was to promote respect for the individually based human rights. The Universal Declaration is couched mainly in an individualistic language, “all human beings”, “everyone”, “all”, are the subjects entitled to the rights and freedoms. Reference to minorities are occasionally made, as in Article 2 where it is said that the rights and freedoms of the Declaration are to be enjoyed “without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. However, minorities as such do not enjoy any rights in the Declaration. The individualistic and universalistic style of the Universal Declaration of Human Rights can be traced back to the documents of the American and French revolutions. The social contract philosophers like Grotius, Hobbes, Locke and Rousseau, with their assumption that the rule of one human being over another is legitimate only by consent as individuals and not as communities, clearly influenced the human rights ideas in the years after the Second World War (Thornberry, 1987). The result was a document making a powerful philosophical statement of a universal value valid for all human beings and cultures; universalism and individualism were emphasized. In addition, members of minorities, including indigenous peoples, had no special place within the Declaration. There was no need for special minority rights in this discourse. While leaving minorities, as such, outside the scop of the Universal Declaration of Human Rights, the United Nations did, however, acknowledge the existence of

145 minorities and indigenous peoples. As a result of the will to compromise the following resolution was adopted at the same day.

The Fate of Minorities The General Assembly, Considering that the United Nations cannot remain indifferent to the fate of minorities, Considering that it is difficult to adopt a uniform solution of this complex and delicate question, which has special aspects in each State in which it arises, Considering the universal character of the Declaration of Human Rights, Decides not to deal in a specific provision with the question of minorities in the text of this Declaration, Refers to the Economic and Social Council the texts submitted by the delegations of the Union of Soviet Socialist Republics, Yugoslavia and Denmark on this subject contained in document A/C.3/307/Rev.2, and requests the Council to ask the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities to make a thorough study of the problem of minorities, in order that the United Nations may be able to take effective measures for the protection of racial, national, religious or linguistic minorities. 183rd plenary meeting, 10 December 1948.

146 32 Study of the Social Problems of the Aboriginal Populations and other Underdeveloped Social Groups of the American Continent

United Nations Resolution 275 (III) New York, USA, May 11, 1949

The initiative to this resolution came from Bolivia. However, the objections to the study became insurmountable and resulted in a conflict leading to temporary suspension of the Sub-Commission on Prevention of Discrimination and Protection of Minorities. The debate in the Ad hoc Committee quickly assumed international political overtones between the two cold-war superpowers, which blocked any constructive discussions on the subject. The Eastern European block took the opportunity to attack the West, particularly the United States. The treatment of the North American Indians was harshly condemned, and it was suggested that an international machinery be created to secure the eradication of those injustices. The United States replied that the Economic and Social Council of the UN lacked the constitutional authority to take any definitive action in pursuance of the resolution until specifically requested to do so by the governments concerned. The Secretary-General informed the Council that no such request had been received; and none was ever made. Resolution 275 (III) quietly disappeared without creating any traces of its emergence. Still, it bears witness of the highly controversial issue to what extent and in what forms indigenous peoples should be protected from discrimination (Bennett, 1978:13-14).

The United Nations General Assembly Resolution 275 (III) Whereas the Charter sets forth as one of the objectives of the United Nations the promotion of social progress and higher standards of living throughout the world, Whereas there exist on the American continent a large aboriginal population and other under-developed social groups which face peculiar social problems that it is necessary to study in the field of international co-operation, Whereas several American nations are directly and vitally interested in that problem,

147 Whereas the material and cultural development of those populations would result in a more profitable utilization of the natural resources of America to the advantage of the world, The General Assembly Recommends that, in accordance with articles 13 and 62 of the Charter, the Economic and Social Council, with the assistance of the specialized agencies concerned, and in collaboration with the Instituto Indigenista Interamericano, study the situation of the aboriginal populations and of the above-mentioned under-developed social groups of the States of the American continent requesting such help; Invites the Secretary-General to co-operate in such studies as are deemed necessary, in consultation with the interested Member States and taking into account the studies and conclusions of the Instituto Indigenista Inter-Americano, in compliance with the terms of this resolution.

148 33 Excerpts from: The Convention Concerning the Abolition of Penal Sanctions for Breaches of Contract of Employment by Indigenous Workers

ILO Convention No. 104, Geneva, Switzerland, June 21, 1955

The Convention

Article 1 The competent authority in each country where there exists any penal sanction for any breach of a contract of employment as defined in Article 1, paragraph 2, of the Penal Sanctions (Indigenous Workers) Convention, 1939, by any worker referred to in Article 1, paragraph 1, of that Convention, shall take action for the abolition of all such penal sanctions.

Article 2 Such action shall provide for the abolition of all such penal sanctions by means appropriate measure of immediate application.

Article 3 Where an appropriate measure of immediate application is not considered to be practicable, measures shall be adopted providing for the progressive abolition of such penal sanctions in all cases.

Article 4 The measures adopted under Article 3 of this Convention shall in all cases ensure that all penal sanctions are abolished as soon as possible and in any event not later than one year from the date of the ratification of this Convention.

149 Article 5 With a view to abolishing discrimination between indigenous and non-indigenous workers, penal sanctions for breaches of contracts of employment not covered by Article 1 of this Convention which do not apply to non-indigenous workers shall be abolished for indigenous workers.

150 34 The Convention Concerning The Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries

ILO Convention No. 107, Geneva, Switzerland, June 26, 1957

This convention was the result of a worldwide study of the living and working conditions of indigenous peoples made by the ILO in 1953. The ILO wished to extend the protection of indigenous peoples to other areas than labour relations. Social, economic, land rights, and culture of indigenous peoples were topics that were not adequately protected. The convention focuses on the social position of indigenous peoples in contrast to other groups. According to the ILO, indigenous peoples required assistance and protection because of their inferior living standards and not because of their cultural difference. The intentions of the convention were to secure both protection and integration of indigenous peoples. The ILO regarded those two aims as complementary to each other. Integration was the primary goal to which protective measures were to be subordinated. First, effective integration of indigenous peoples was thought to be impossible unless they were protected from destructive consequences of the contact with non-indigenous societies. Thus, protection was needed in the process of integration from indigenous to non-indigenous. Secondly, it was argued that in the long term, indigenous peoples could only protect themselves from exploitation and oppression by integrating themselves into the non- indigenous society.

The Duty of Integration On the one hand, ILO regarded the effective integration of indigenous peoples as impossible unless their social institutions, persons, property and labour were sheltered from the destructive consequences of unregulated contact with non-indigenous societies before and during the process of integration. Indigenous peoples would disintegrate rapidly, leaving them outside the mainstream societies, unless they were protected in this

151 process, argued ILO. Integration was, according to the ILO, the main goal, to which protective measures were to be subordinated.

The Duty of Protection Article 3(1) stipulates that “special measures shall be adopted for the protection of the institutions /.../ etc”. Protection was the key to all development. Nevertheless, the convention omitted to protect the indigenous peoples from intrusions on their lands by private entrepreneurs, whether multinational corporations or individual prospectors. One reason for this, pointed out by Gordon Bennet, might have been that the ILO supported the free enterprise system in the West, and assumed indigenous peoples would benefit from this system (Bennett, 1978:16-20). Ratifications; Angola, Ghana, Guinea-Bissau, Malawi, Egypt, Iraq, Syria, Tunisia, Argentina, Bolivia, Brazil, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Mexico, Panama, Paraguay, Peru, Bangladesh, India, Pakistan, Belgium, Dominican Republic, Haiti, and Portugal.

ILO Convention No. 107, 1957 The General Conference of the International Labour Organisation; Having been convened at Geneva by the Governing Body of the International Labour Office, and having met in its Fortieth Session on 5 June 1957, and Having decided upon the adoption of certain proposals with regard to the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, which is the sixth item on the agenda of the session, and Having determined that these proposals shall take the form of an international convention, and Considering that the Declaration of Philadelphia affirms that all human beings have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity, and Considering that there exist in various independent countries indigenous and other tribal and semi-tribal populations which are not yet integrated into the national community and whose social, economic or cultural situation hinders them from benefiting fully from the rights and advantages enjoyed by other elements of the population, and Considering it desirable both for humanitarian reasons and in the interest of the countries concerned to promote continued action to improve the living and working conditions of

152 these populations by simultaneous action in respect of all the factors which have hitherto prevented them from sharing fully in the progress of the national community of which they form part, and Considering that the adoption of general international standards on the subject will facilitate action to assure the protection of the populations concerned, their progressive integration into their respective national communities, and the improvement of their living and working conditions, and Noting that these standards have been framed with the cooperation of the United Nations, the Food and Agriculture Organisation of the United Nations, the United Nations Educational, Scientific and Cultural Organisation and the World Health Organisation, at appropriate levels and in their respective fields, and that it is proposed to seek their continuing co-operation in promoting and securing the application of these standards, adopts this twenty-sixth day of June of the year one thousand nine hundred and fiftyseven, the following Convention, which may be cited as the Indigenous and Tribal Populations Convention, 1957: PART I – GENERAL POLICY

Article 1 1. This Convention applies to- (a) members of tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation to which they belong. 2. For the purposes of this Convention, the term “semi-tribal” includes groups and persons who, although they are in the process of losing their tribal characteristics, are not yet integrated into the national community.

153 3. The indigenous and other tribal or semi-tribal populations mentioned in paragraphs 1 and 2 of this Article are referred to hereinafter as “the populations concerned”.

Article 2 1. Governments shall have the primary responsibility for developing coordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries. 2. Such action shall include measures for- (a) enabling the said populations to benefit on an equal footing from the rights and opportunities, which national laws or regulations grant to the other elements of the population; (b) promoting the social, economic and cultural development of these populations and raising their standard of living; (c) creating possibilities of national integration to the exclusion of measures tending towards the artificial assimilation of these populations. 3. The primary objective of all such action shall be the fostering of individual dignity, and the advancement of individual usefulness and initiative. 4. Recourse to force or coercion as a means of promoting the integration of these populations into the national community shall be excluded.

Article 3 1. So long as the social, economic and cultural conditions of the populations concerned prevent them from enjoying the benefits of the general laws of the country to which they belong, special measures shall be adopted for the protection of the institutions, persons, property and labour of these populations. 2. Care shall be taken to ensure that such special measures of protection – (a) are not used as a means of creating or prolonging a state of segregation; and (b) will be continued only as long as there is need for special protection and only to the extent that such protection is necessary. 3. Enjoyment of the general rights of citizenship, without discrimination, shall not be prejudiced in any way by such special measures of protection.

154 Article 4 In applying the provisions of this Convention relating to the integration of the populations concerned- (a) due account shall be taken of the cultural and religious values and of the forms of social control existing among these populations, and of the nature of the problems which face them both as groups and as individuals when they undergo social and economic change; (b) the danger involved in disrupting the values and institutions of the said populations unless they can be replaced by appropriate substitutes which the groups concerned are willing to accept shall be recognised; (c) policies aimed at mitigating the difficulties experienced by these populations in adjusting themselves to new conditions of life and work shall be adopted.

Article 5 In applying the provisions of this Convention relating to the protection and integration of the populations concerned, governments shall – (a) seek the collaboration of these populations and of their representatives; (b) provide these populations with opportunities for the full development of their initiative; (c) stimulate by all possible means the development among these populations of civil liberties and the establishment of or participation in elective institutions.

Article 6 The improvement of the conditions of life and work and level of education of the populations concerned shall be given high priority in plans for the overall economic development of areas inhabited by these populations. Special projects for economic development of the areas in question shall also be so designed as to promote such improvement.

Article 7 1. In defining the rights and duties of the populations concerned regard shall be had to their customary laws.

155 2. These populations shall be allowed to retain their own customs and institutions where these are not incompatible with the national legal system or the objectives of integration programmes. 3. The application of the preceding paragraphs of this Article shall not prevent members of these populations from exercising, according to their individual capacity, the rights granted to all citizens and from assuming the corresponding duties.

Article 8 To the extent consistent with the interests of the national community and with the national legal system (a) the methods of social control practiced by the populations concerned shall be used as far as possible for dealing with crimes or offences committed by members of these populations; (b) where use of such methods of social control is not feasible, the customs of these populations in regard to penal matters shall be borne in mind by the authorities and courts dealing with such cases.

Article 9 Except in cases prescribed by law for all citizens the exaction from the members of the populations concerned of compulsory personal services in any form, whether paid or unpaid, shall be prohibited and punishable by law.

Article 10 1. Persons belonging to the populations concerned shall be specially safeguarded against the improper application of preventive detention and shall be able to take legal proceedings for the effective protection of their fundamental rights. 2. In imposing penalties laid down by general law on members of these populations account shall be taken of the degree of cultural development of the populations concerned. 3. Preference shall be given to methods of rehabilitation rather than confinement in prison. PART II – LAND

156 Article 11 The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognised.

Article 12 1. The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations. 2. When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees. 3. Persons thus removed shall be fully compensated for any resulting loss or injury.

Article 13 1. Procedures for the transmission of rights of ownership and use of land which are established by the customs of the populations concerned shall be respected, within the framework of national laws and regulations, in so far as they satisfy the needs of these populations and do not hinder their economic and social development. 2. Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members.

Article 14 National agrarian programmes shall secure to the populations concerned treatment equivalent to that accorded to other sections of the national community with regard to-

157 (a) the provision of more land for these populations when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers; (b) the provision of the means required to promote the development of the lands which these populations already possess. PART III – RECRUITMENT AND CONDITIONS OF EMPLOYMENT

Article 15 1. Each member shall, within the framework of national laws and regulations, adopt special measures to ensure the effective protection with regard to recruitment and conditions of employment of workers belonging to the populations concerned so long as they are not in a position to enjoy the protection granted by law to workers in general. 2. Each member shall do everything possible to prevent all discrimination between workers belonging to the populations concerned and other workers, in particular as regards – (a) admission to employment, including skilled employment; (b) equal remuneration for work of equal value; (c) medical and social assistance, the prevention of employment injuries, workmen’s compensation, industrial hygiene and housing; (d) the right of association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers’ organisations. PART IV – VOCATIONAL TRAINING, HANDICRAFTS AND RURAL INDUSTRIES

Article 16 Persons belonging to the populations concerned shall enjoy the same opportunities as other citizens in respect of vocational training facilities.

Article 17

158 1. Whenever programmes of vocational training of general application do not meet the special needs of persons belonging to the populations concerned governments shall provide special training facilities for such persons. 2. These special training facilities shall be based on a careful study of the economic environment, stage of cultural development and practical needs of the various occupational groups among the said populations; they shall, in particular enable the persons concerned to receive the training necessary for occupations for which these populations have traditionally shown aptitude. 3. These special training facilities shall be provided only so long as the stage of cultural development of the populations concerned requires them; with the advance of the process of integration they shall be replaced by the facilities provided for other citizens.

Article 18 1. Handicrafts and rural industries shall be encouraged as factors in the economic development of the populations concerned in a manner which will enable these populations to raise their standard of living and adjust themselves to modern methods of production and marketing. 2. Handicrafts and rural industries shall be developed in a manner which preserves the cultural heritage of these populations and improves their artistic values and particular modes of cultural expression. PART V – SOCIAL SECURITY AND HEALTH

Article 19 Existing social security schemes shall be extended progressively, where practicable, to cover – (a) wage earners belonging to the populations concerned; (b) other persons belonging to these populations.

Article 20 1. Governments shall assume the responsibility for providing adequate health services for the populations concerned. 2. The organisation of such services shall be based on systematic studies of the social, economic and cultural conditions of the populations concerned.

159 3. The development of such services shall be co-coordinated with general measures of social, economic and cultural development. PART VI – EDUCATION AND MEANS OF COMMUNICATION

Article 21 Measures shall be taken to ensure that members of the populations concerned have the opportunity to acquire education at all levels on an equal footing with the rest of the national community.

Article 22 1. Education programmes for the populations concerned shall be adapted, as regards methods and techniques, to the stage these populations have reached in the process of social, economic and cultural integration into the national community. 2. The formulation of such programmes shall normally be preceded by ethnological surveys.

Article 23 1. Children belonging to the populations concerned shall be taught to read and write in their mother tongue or, where this is not practicable, in the language most commonly used by the group to which they belong. 2. Provision shall be made for a progressive transition from the mother tongue or the vernacular language to the national language or to one of the official languages of the country. 3. Appropriate measures shall, as far as possible, be taken to preserve the mother tongue or the vernacular language.

Article 24 The imparting of general knowledge and skills that will help children to become integrated into the national community shall be an aim of primary education for the populations concerned.

Article 25

160 Educational measures shall be taken among other sections of the national community and particularly among those that are in most direct contact with the populations concerned with the object of eliminating prejudices that they may harbor in respect of these populations.

Article 26 1. Governments shall adopt measures, appropriate to the social and cultural characteristics of the populations concerned, to make known to them their rights and duties, especially in regard to labour and social welfare. 2. If necessary this shall be done by means of written translations and through the use of media of mass communication in the languages of these populations. PART VII – ADMINISTRATION

Article 27 1. The governmental authority responsible for the matters covered in this Convention shall create or develop agencies to administer the programmes involved. 2. These programmes shall include – 3. planning, co-ordination and execution of appropriate measures for the social, economic and cultural development of the populations concerned; (a) proposing of legislative and other measures to the competent authorities; (b) supervision of the application of these measures. PART VIII – GENERAL PROVISIONS

Article 28 The nature and the scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristics of each country.

Article 29 The application of the provisions of this Convention shall not affect benefits conferred on the populations concerned in pursuance of other Conventions and Recommendations.

161 Article 30 The formal ratifications of this Convention shall be communicated to the DirectorGeneral of the International Labour Office for registration.

Article 31 1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the DirectorGeneral. 2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General. 3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification has been registered.

Article 32 1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered. 2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article.

Article 33 1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation. 2. When notifying the Members of the Organisation of the registration of the second ratification communicated to him, the Director-General shall draw the attention of the Members of the Organisation to the date upon which the Convention will come into force.

162 Article 34 The Director-General of the International Labour Office shall com-municate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles.

Article 35 At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 36 1. Should the Conference adopt a new Convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides, (a) the ratification by a Member of the new revising Convention shall ipso iure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 32 above, if and when the new revising Convention shall have come into force; (b) as from the date when the new revising Convention come into force, this Convention shall cease to be open to ratification by the Members. 2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 37 The English and French versions of the text of this Convention are equally authoritative.

163 35 Recommendation Concerning the Protection and Integration of Indigenous and Other Tribal and Semi- Tribal Populations in Independent Countries

ILO Recommendation No. 104, Geneva, Switzerland, June 26, 1957

The General Conference of the International Labour Organisation Having been convened at Geneva by the Governing Body of the International Labour Office, and having met its Fortieth Session on 5 June 1957, and Having decided upon the adoption of certain proposals with regard to the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, which is the sixth item on the agenda of the session, and Having determined that these proposals shall take the form of a Recommendation, supplementing the Indigenous and Tribals Populations Convention, 1957, and Noting that the following standards have been framed with the co-operation of the United Nations, the Food and Agriculture Organisation of the United Nations, the United Nations Educational, Scientific and cultural Organisation and the World Health Organisation, at appropriate levels and in their respective fields, and that it is proposed to seek their continuing co-operation in promoting and securing the application of these standards, adopts this twenty-sixth day of June of the year one thousand nine hundred and fifty-seven, the following Recommendation, which may be cited as the Indigenous and Tribal Recommendation, 1957: The Conference recommends that each Member should apply the following provisions:

I. PRELIMINARY PROVISIONS 1. This Recommendation applies to –

164 (a) members of tribal and semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by the other sections of the national community and whose status is regulated wholly or partially but their own customs or conditions or by special laws or regulations; (b) members of tribal or semi-tribal populations in independent countries which are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nations to which they belong. 2. For the purposes of this Recommendation, the term “semi-tribal” includes groups and persons who, although they are in the process of losing their tribal characteristics, are not yet integrated into the national community. 3. The indigenous and other tribal or semi-tribal populations mentioned in subparagraphs (1) and (2) of this Paragraph are referred to hereinafter as “the populations concerned”.

II. LAND 4. Legislative or administrative measures should be adopted for the regulation of the conditions, de facto or de jure, in which the populations concerned use the land. 3. (1) The populations concerned should be assured of a land reserve adequate for the needs of shifting cultivation so long as no better system of cultivation can be introduced. (2) Pending the attainment of the objectives of a settlement policy for semi-nomadic groups, zones should be established within which livestock of such groups can graze without hindrance. 4. Members of the populations concerned should receive the same treatment as other members of the national population in relation to the ownership of underground wealth or to preference rights in the development in such wealth. 5. (1) Save in exceptional circumstances defined by law the direct or indirect lease of lands owned by members of the populations concerned to persons or bodies not belonging to these populations should be restricted. (2) In cases in which such lease is allowed, arrangements should be made to ensure that the owners will be paid equitable rents. Rents paid in respect of

165 collectively owned land should be used, under appropriate regulations, for the benefit of the group which owns it. 6. The mortgaging of land owned by members of the populations concerned to a person or body not belonging to these populations should be restricted. 7. Appropriate measures should be taken for the elimination of indebtedness among farmers belonging to the populations concerned. Co-operative systems of credit should be organised, and low-interest loans, technical aid and, where appropriate, subsidies, should be extended to these farmers to enable them to develop their lands. 8. Where appropriate, modern methods of co-operative production, supply and marketing should be adapted to the traditional forms of communal ownership and use of land and production implements among the populations concerned and to their traditional systems of community service and mutual aid.

III. RECRUITMENT AND CONDITIONS OF EMPLOYMENT 9. So long as the populations concerned are not in a position to enjoy the protection granted by law to workers in general, recruitment of workers belonging to these populations should be regulated by providing, in particular, for – a) licensing of private recruiting agents and supervision of their activities; b) safeguards against the disruptive influence of the recruitment of workers on their family and community life, including measures – i). prohibiting recruitment during specified periods and in specified areas; ii). enabling workers to maintain contact with, and participate in important tribal activities of, their communities of origin; and iii). ensuring protection of the dependants of recruited workers; a) fixing the minimum age for recruitment and establishing special conditions for the recruitment of non-adult workers; b) establishing health criteria to be fulfilled by workers at the time of recruitment; c) establishing standards for the transport of recruited workers; d) ensuring that the worker i). understands the conditions of his employment, as a result of explanation in his mother tongue;

166 ii). freely and knowingly accepts the conditions of his employment. 10. So long as the populations concerned are not in a position to enjoy the protection granted by the law to workers in general, the wages and the personal liberty of workers belonging to these populations should be protected, in particular, by providing that – a) wages shall normally be paid only in legal tender; b) the payment of any part of wages in the form of alcohol or other spirituous beverages or noxious drugs shall be prohibited; c) the payment of wages in taverns or stores, except in the case of workers employed therein, shall be prohibited; d) the maximum amounts and manner of repayment of advances on wages and the extent to which and conditions under which deductions from wages may be permitted shall be regulated; e) work stores or similar services operated in connection with the undertaking shall be supervised; f) the withholding or confiscation of effects and tools which workers commonly use, on the ground of debt or unfulfilled labour contract, without prior approval of the competent judicial or administrative authority shall be prohibited; g) interference with the personal liberty of workers on the ground of debt shall be prohibited. 11. The right to repatriation to the community of origin, at the expense of recruiter or the employer, should be ensured in all cases where the worker – a) becomes incapacitated by sickness or accident during the journey to the place of employment or in the course of employment; b) is found on medical examination to be unfit for employment c) is not engaged, after having been sent forward for engagement, for a reason for which he is not responsible; d) is found by the competent authority to have been recruited by misrepresentation or mistake. 12. Measures should be taken to facilitate the adaptation of workers belonging to the populations concerned to the concepts and methods of industrial relations in a modern society. (2) Where necessary, standard contracts of employment should be drawn up in consultation with representatives of the workers and employers concerned. Such contracts should set out the respective rights and obligations of workers and

167 employers, together with the conditions under which the contracts may be terminated. Adequate measures should be taken to ensure observance of these contracts. 13. Measures should be adopted, in conformity with the law, to promote stabilisation of workers and their families in or near employment centres, where such stabilisation is in the interests of the workers and of the economy of the countries concerned. (2) In applying such measures, special attention should be paid to the problems involved in the adjustment of workers belonging to the populations concerned and their families to the forms of life and work of their new social and economic environment. 14. The migration of workers belonging to the populations concerned should, when considered to be contrary to the interests of the workers and of their communities, be discouraged by measures designed to raise the standards of living in the areas which they traditionally occupy. 15. (1) Governments should establish public employment services, stationary or mobile, in areas in which workers belonging to the populations concerned are recruited in large numbers. (2) Such services should, in addition to assisting workers to find employment and assisting employers to find workers- a) determine the extent to which manpower shortages existing in other regions of the country could be met by manpower available in areas inhabited by the populations concerned without social or economic disturbance in these areas; b) advise workers and their employers on provisions concerning them contained in laws, regulations and contracts, relating to wages, housing, benefits for employment injuries, transportation and other conditions of employment; c) co-operate with the authorities responsible for the enforcement of laws or regulations ensuring the protection of the populations concerned and, where necessary, be entrusted with responsibility for the control of procedures connected with the recruitment and conditions ofemployment of workers belonging to these populations.

IV. VOCATIONAL TRAINING 16. Programmes for the vocational training of the populations concerned should include provision for the training of members of these populations as instructors. Instructors should be conversant with such techniques, including where possible

168 an understanding of anthropological and psychological factors, as would enable them to adapt their teaching to the particular conditions and needs of these populations. 17. The vocational training of members of the populations concerned should, as far as practicable, be carried out near the place where they live or in the place where they work. 18. During the early stages of integration this training should be given, as far as possible, in the vernacular language of the group concerned. 19. Programmes for the vocational training of the populations concerned should be co-ordinated with measures of assistance enabling independent workers to acquire the necessary materials and equipment and assisting wage earners in finding employment appropriate to their qualifications. 20. Programmes and methods of vocational training for the populations concerned should be co-ordinated with programmes and methods of fundamental education. 21. During the period of vocational training of members of the populations concerned, they should be given all possible assistance to enable them to take advantage of the facilities provided, including, where feasible, scholarships.

V. HANDICRAFTS AND RURAL INDUSTRIES 22. Programmes for the promotion of handicrafts and rural industries among the populations concerned should, in particular, aim at – a) improving techniques and methods of work as well as working conditions; b) developing all aspects of production and marketing, including credit facilities, protection against monopoly controls and against exploitation by middlemen, provision of raw materials at equitable prices, establishment of standards of craftmanship, and protection of designs and of special aesthetic features of products; and c) encouraging the formation of co-operatives.

VI. SOCIAL SECURITY AND MEASURES OF ASSISTANCE 23. The extension of social security schemes to workers belonging to the populations concerned should be preceded or accompanied, as conditions may require, by measures to improve their general social and economic conditions.

169 24. In the case of independent primary producers provision should be made for- a) instruction in modern methods of farming; b) supply of equipment, for example implements, stocks,seeds; and c) protection against the loss of livelihood resulting from natural hazards to crops or stock.

VII. HEALTH 25. The populations concerned should be encouraged to organise in their communities local health boards or committees to look after the health of their members. The formation of these bodies should be accompanied by a suitable educational effort to ensure that full advantage is taken of them. 26. (1) Special facilities should be provided for the training of members of the populations concerned as auxiliary health workers and professional medical and sanitary personnel, where these members are not in a position to acquire such training through the ordinary facilities of the country. (2) Care should be taken to ensure that the provision of special facilities does not have the effect of depriving members of the populations concerned of the opportunity to obtain their training through ordinary facilities. 27. The professional health personnel working among the populations concerned should have training in anthropological and psychological techniques which will enable them to adapt their work t the cultural characteristics of these populations.

VIII. EDUCATION 28. Scientific research should be organised and financed with a view to determining the most appropriate methods for the teaching of reading and writing to the children belonging to the populations concerned and for the utilisation of the mother tongue or the vernacular language as a vehicle of instruction. 29. Teachers working among the populations concerned should have training in anthropological and psychological techniques which will enable them to adapt their work to the cultural characteristics of these populations. These teachers should, as far as possible, be recruited from among such populations. 30. Pre-vocational instruction, with emphasis on the teaching of subjects relating to agriculture, handicrafts, rural industries and home economics, should be introduced in the programmes of primary education intended for the populations concerned.

170 31. Elementary health instruction should be included in the programme of primary education intended for the populations concerned. 32. The primary education of the populations concerned should be supplemented, as far as possible, by campaigns of fundamental education. These campaigns should be designed to help children and adults to understand the problems of their environment and their rights and duties as citizens and individuals, thereby enabling them to participate more effectively in the economic and social progress of their community.

IX. LANGUAGES AND OTHER MEANS OF COMMUNICATION 33. Where appropriate the integration of the populations concerned should be facilitated by – a) enriching the technical and juridical vocabulary of their vernacular languages and dialects; b) establishing alphabets for the writing of these languages and dialects; c) publishing in these languages and dialects readers adapted to the educational and cultural level of the populations concerned; and d) publishing bilingual dictionaries. 34. Methods of audio-visual communication should be employed as means of information among the populations concerned.

X. TRIBAL GROUPS IN FRONTIER ZONES 35. (1) Where appropriate and practicable, inter-governmental action should be taken, by means of agreements between the governments concerned, to protect seminomadic tribal groups whose traditional territories lie across international boundaries. (2) Such action should aim in particular at – i). ensuring that members of these groups who work in another country receive fair wages in accordance with the standards in operation in the region of employment; ii). assisting these workers to improve their conditions of life without discrimination on account of their nationality or of their semi-nomadic character. 36. Administrative arrangements should be made, either through government agencies specially created for the purpose or through appropriate co-ordination of the activities of other government agencies, for –

171 a) ensuring enforcement of legislative and administrative provisions for the protection and integration of the populations concerned; b) ensuring effective possession of land and use of other natural resources by members of these populations; c) administering the property and income of these populations when necessary in their interest; d) providing free legal aid for the members of the populations concerned that may need legal aid but cannot afford it; e) establishing and maintaining educational and health services for the populations concerned; f) promoting research designed to facilitate understanding of the way of life of such populations and of the process of their integration into the national community; g) preventing the exploitation of workers belonging to the populations concerned on account of their unfamiliarity with the industrial environment to which they they are introduced; h) where appropriate, supervising and co-ordinating, within the framework of the programmes of protection and integration, the activities, whether philantropic or profit-making, carried out by individuals and corporate bodies, public or private, in regions inhabited by the populations concerned. 37. (1) National agencies specifically responsible for the protection and integration of the populations concerned should be provided with regional centres, situated in areas where these populations are numerous. (2) These agencies should be staffed by officials selected and trained for the special task they have to perform. As far as possible, these officials should be recruited from among the members of the populations concerned.

172 36 Advisory Opinion on Western Sahara

International Court of Justice, The Hague, Netherlands, October 16, 1975

The ruling of the Permanent Court of Justice in the case”Legal Status of Eastern Greenland”, 1933, concerning the doctrine of terra nullius, was once again subject to discussion and elaboration when the International Court of Justice responded to a question by the UN General Assembly as to whether Western Sahara belonged to no one at the time of colonization by Spain in 1884. The Court concluded, ruling out the doctrine of terra nullius from international law: “Whatever differences of opinion there may have been among jurists, the State practice of the relevant period indicates that territories inhabited by tribes or peoples having social and political organization were not regarded as terra nullius. It shows that in the case of such territories the acquisition of sovereignty was not generally considered as effected unilaterally through “occupation” of terra nullius by original title, but through agreements concluded with local rulers. On occasion, it is true, the word “occupation” was used in a non-technical sense denoting acquisition of sovereignty through such agreements with authorities of the country was regarded as an “occupation” of a terra nullius in the proper sense of these terms. On the contrary, such agreements with local rulers, whether or not considered as an actual “cession of the territory, were regarded as derivative roots of title, and not original titles obtained by occupation of terra nullius”. Judge Ammoud, delivered a separate opinion, in which he stated; “...the concept of res nullius, employed at all periods to the brink of the twentieth century, to justify conquest and colonization, stands condemned. It is well known that in the sixteenth century Francisco de Vitoria protested against the application to the American Indians, in order to deprive them of their lands, of the concept of res nullius. This approach by the eminent Spanish jurist and canonist, which was adopted by Vattel in the nineteenth century, was hardly echoed at all at the Berlin Conference of 1885. It is however the concept which should be adopted today” (Franck, 1976:696-721). 161

173 37 Solemn Declaration and Declaration of Principles

A d o p t e d by t h e W o r l d C o u n c i l o f I n d i g e n o u s P e o p l e s , Port Alberni, Canada, 1975

The Indigenous Movement Revival

In the 1960 and 70s the indigenous peoples started to organize internationally. The internationalism of indigenous peoples came out of a growing re-examination of native policy in a national comparative framework. Initiatives came from North America, South America, and the Pacific and from Europe. George Manuel, a member of the Shushwap Tribe in British Colombia, Canada, played a major role. His experience with the meetings with Maoris in Aotearoa (New Zealand), and Aborigines of Australia convinced him of the need of an international indigenous conference:

I hope that the common history and shared values that we discovered in each other are only the seeds from which some kind of lasting framework can grow for a common alliance of Native peoples.

In the beginning of the 1970s, Manuel and others started to plan an international organization of indigenous peoples. As Douglas Sanders wrote: ”He was committed to the principle that indigenous peoples themselves organize and control the conference.” In 1975, October 27th to 31st, the Conference took place in Port Alberni, Canada. Indigenous representatives from nineteen countries attended the conference. The conference dealt with topics such as representation in the United Nations, the Charter of the World Council, social, economic and political justice and retention of cultural identity. The World Council of Indigenous Peoples consisted of Indigenous Peoples’ organizations from North and South America, Europe, Asia and the Pacific.

174 A solemn declaration was adopted at the conference in 1975. Solemn Declaration World Council of Indigenous Peoples We, the Indigenous Peoples of the world, united in this comer of our Mother the Earth in a great assembly of men of wisdom, declare to all nations: We glory in our proud past: when the earth was our nurturing mother, when the night sky formed our common roof, when Sun and Moon were our parents, when all were brothers and sisters, when our great civilizations grew under the sun, when our chiefs and elders were great leaders, when justice ruled the Law and its execution. Then other peoples arrived: thirsting for blood, for gold, for land and all its wealth, carrying the cross and the sword, one in each hand, without knowing or waiting to learn the ways of our worlds, they considered us to be lower than the animals, they stole our lands from us and took us from our lands, they made slaves of the Sons of the Sun. However, they have never been able to eliminate us, nor to erase our memories of what we were, because we are the culture of the earth and the sky, we are the ancient descent and we are the millions, and although our whole universe may be ravaged, our peoples will live on for longer than even the kingdom of death. Now, we come from the four corners of the earth, we protest before the concert of nations that, ‘We are the Indigenous Peoples, we are a People with a consciousness of culture and race, on the edge of each country’s borders and marginal to each country’s citizenship.” And rising up after centuries of oppression evoking the greatness of our ancestors, in the memory of our indigenous martyrs, and in homage to the counsel of our wise elders: We vow to control again our own destiny and recover our complete humanity and pride in being Indigenous people.

Declaration of Principles 1. All human rights of indigenous people must be respected. No form of discrimination against indigenous people shall be allowed. 2. All indigenous peoples have the right to self-determination. By virtue of this right they care freely determine their political, economic, social, religious and cultural development, in agreement with the principles stated in this declaration 3. Every nation-state within which indigenous peoples live shall recognise the population, territory and institutions belonging to said peoples.

175 4. The culture of indigenous peoples are part of mankind’s cultural patrimony. 5. The customs and usages of the indigenous peoples must be respected by the nation states and recognized as a legitimate source of rights. 6. Indigenous peoples have the right to determine witch persons) or troupes} is (are} included in it Powlation. 7. All indigenous peoples have the right to determine the form, structure and jurisdiction of their own institutions 8. The institutions of indigenous peoples, like those of a nation-state, must conform to internationally recognized human rights both individual and collective. 9. Indigenous peoples, and their individual members, have the right to participate in the political life of the nation-state in which they are located. 10. Indigenous peoples have inalienable rights over their traditional lands and over the use of their natural resources. All lands and resources which have been usurped, or taken away without the free and knowledgeable consent of Indian peoples, shall be restored to them1 11. The rights of the indigenous peoples to their lands includes: The soil, the subsoil, coastal territorial waters in the interior, and coastal economic zones all within the limits specified by international legislation. 12. All indigenous peoples have the right to freely use their natural wealth and resources in order to satisfy their needs, and, in agreement with principles 10 and 11 above. 13. No action or process shall be implemented which directly and/or indirectly would result in the destruction of land, air, water, glaciers, animal life, environment or natural resources, without the free and well informed consent of the affected indigenous peoples. 14. Indigenous peoples will re-assume original rights over their material culture, including archeological zones, artifacts, designs and other artistic expressions. 15. All indigenous peoples have the right to be educated in their own language and to establish their own educational institution. Indian people’s languages shall be respected by nation-states in all dealings between them on the basis of equality and non-discrimination. 16. All treaties reached through agreement between indigenous peoples and representatives of the nation-states will have total validity before national and international law.

176 17. Indigenous peoples have the right, by virtue of their traditions, to freely travel across international boundaries, to conduct traditional activities and maintain family links. 18. Indigenous peoples and their designated authorities have the right to be consulted and to authorize the implementation of technologic and scientific research conducted within their territories and the right to be informed Washout the result of such activities. 19. The aforementioned principles constitute the minimal rights to which indigenous peoples are entitled and must be complemented by all nation-states.

177 38 Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere

Geneva, Switzerland, September 11, 1977

One of the key events, which marked both Native American, and in global terms, indigenous peoples’ activities in international context was the 1977 International Non- Governmental Organizations Conference on Indigenous Peoples of the Americas. It was held in Geneva, and more than a hundred indigenous -representatives participated. The conference called for respect of traditional law and customs; unrestricted rights of land ownership; and control over natural resources by indigenous peoples in their territories. It was also recommended to establish a working group on indigenous populations within the United Nations and that the United Nations Special Committee on Decolonization hold hearings on all issues affecting indigenous peoples, with a view to establish United Nations trusteeship functions for the indigenous groups, a procedure which in practice had been reserved for salt-water colonies. The declaration, which came out of the conference, may be characterized as a fundamental political document of the international indigenous movement, as it spells out many of the contemporary issues that indigenous peoples and others are dealing with in this field.

Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere PREAMBLE: Having considered the problems relating to the activities of the United Nations for the promotion and encouragement of respect for human rights and fundamental freedoms, Noting that the Universal Declaration of Human Rights and related international covenants have the individual as their primary concern, and Recognizing that individuals are the foundation of cultures, societies, and nations, and Whereas, it is a fundamental right of any individual topractice and perpetuate the cultures, societies and nations into which they are born, and

178 Recognizing that conditions are imposed upon peoples that suppress, deny, or destroy the cultures, societies, or nations in which they believe or of which they are members Be it affirmed, that, 1. RECOGNITION OF INDIGENOUS NATIONS Indigenous peoples shall be accorded recognition as nations, and proper subjects of international law, provided the people concerned desire to be recognized as a nation and meet the fundamental requirements of nationhood, namely: a) Having a permanent population b) Having a defined territory c) Having a government d) Having the ability to enter into relations with other states. 2. SUBJECTS OF INTERNATIONAL LAW Indigenous groups not meeting the requirements of nationhood are hereby declared to be subjects of international law and are entitled to the protection of this Declaration, provided they are identifiable groups having bonds of language, heritage, tradition, or other common identity. 3. GUARANTEE OF RIGHTS No indigenous nation or group shall be deemed to have fewer rights, or lesser status for the sole reason that the nation or group has not entered into recorded treaties or agreements with any state. 4. ACCORDANCE OF INDEPENDENCE Indigenous nations or groups shall be accorded such degree of independence, as they may desire in accordance with international law. 5. TREATIES AND AGREEMENTS Treaties and other agreements entered into by indigenous nations or groups with other states, whether denominated as treaties or otherwise, shall be recognized and applied in the same manner and according to the same international laws and principles as the treaties and agreements entered into by other states. 6. ABROGATION OF TREATIES AND OTHER RIGHTS Treaties and agreements made with indigenous nations or groups shall not be subject to unilateral abrogation. In no event may the municipal law of any state serve as a defense to the failure to adhere to and perform the terms of treaties and agreements made with

179 indigenous nations or groups. Nor shall any state refuse to recognize and adhere to treaties or other agreements due to changed circumstances where the change in circumstances has been substantially caused by the state asserting that such change has occurred. 7. JURISDICTION No state shall assert or claim or exercise any right or jurisdiction over any indigenous nation or group or the territory of such indigenous nation or group unless pursuant to a valid treaty or other agreement freely made with the lawful representatives of the indigenous nation or group concerned. All actions on the part of any state which derogate from the indigenous nations’ or groups’ right to exercise self-determination shall be the proper concern of existing international bodies. 8. CLAIMS TO TERRITORY No state shall claim or retain, by right of discovery or other, the territories of an indigenous nation or group, except such lands as may have been lawfully acquired by valid treaty or other cession freely made. 9. SETTLEMENT OF DISPUTES All states in the Western Hemisphere shall establish through negotiation or other appropriate means of procedure for the binding settlement of disputes, claims or other matters relating to indigenous nations or groups. Such procedures shall be mutually acceptable to the parties, fundamentally fair, and consistent with international law. All procedures presently in existence which do not have the endorsement of the indigenous nations or groups concerned shall be ended, and new procedures shall be instituted consistent with this Declaration. 10. NATIONAL AND CULTURAL INTEGRITY It shall be unlawful for any state to take or permit any action or course of conduct with respect to an indigenous nation or group which will directly or indirectly result in the destruction or disintegration of such indigenous nation or group or otherwise threaten the national or cultural integrity of such nation or group, including, but not limited to, the Imposition and support of illegitimate governments and the introduction of non- indigenous religions to indigenous peoples by non-indigenous missionaries. 11. ENVIRONMENTAL PROTECTION It shall be unlawful for any state to make or permit any action or course of conduct with respect to foe territories of an indigenous nation or group which will directly or indirectly result in the destruction or deterioration of an indigenous nation or group through the effects of pollution of earth, air, water, or which in any way depletes, displaces or destroys

180 any natural resource or other resources under the dominion of, or vital to the livelihood of an indigenous nation or group. 12. INDIGENOUS MEMBERSHIP No state, through legislation, regulation, or other means, shall take actions that interfere with the sovereign power of an indigenous nation or group to determine its own membership. 13. CONCLUSION All of the rights and obligations declared herein shall be in addition to all rights and obligations existing under international law.

181 39 Excerpts from: The United Nations Declaration and Programme of Action to Combat Racism and Racial Discrimination

Geneva, Switzerland, 1978

In order to eradicate all forms of racial discrimination, dispel racial prejudices and to make the struggle against racism an international concern, the United Nations General Assembly declared 1973-83 as the decade for Action to Combat Racism and Racial Discrimination. In 1978, at midpoint in the decade, a World Conference to Combat Racism and Racial Discrimination was held in Geneva. In 1983 a second World Conference took place. As a result of that conference, a Second Decade to Combat Racism and Racial Discrimination, 1983-93 was proclaimed by the United Nations.

The Declaration

Article 21 The Conference endorses the right of indigenous peoples to maintain their traditional structure of economy and culture, including their own language, and also recognizes the special relationship of indigenous peoples to their land and stresses that their land, land rights and natural resources should not be taken away from them; PROGRAMME OF ACTION Measures at the National Level (articles 8-11) 8. The Conference urges States to recognize the following rights of indigenous peoples: a) To call themselves by their proper name and to express freely their ethnic, cultural and other characteristics; b) To have an official status and to form their own representative organization;

182 c) To carry on within their areas of settlement their traditional structure of economy and way of life; this should in no way affect their right to participate freely on an equal basis in the economic, social and political development of the country; d) To maintain and use their own language, wherever possible, for administration and education; e) To receive education and information in their own language, with due regard to their needs as expressed by themselves, and to disseminate information regarding their needs and problems. 9. Funds should be made available by the authorities for investments, the uses of which are to be determined with the participation of the indigenous peoples themselves, in the economic life of the areas concerned, as well as in all spheres of cultural activity. 10. The Conference urges States to allow indigenous peoples within their territory to develop cultural and social links with their own kith and kin everywhere with strict respect for the sovereignty, territorial integrity and political independence and non- interference in the internal affairs of those countries in which the indigenous peoples live. 11. The Conference further urges States to facilitate and support the establishment of representative international organizations for indigenous peoples, through which they can share experiences and promote common interests.

183 40 Fourth Russell Tribunal on the Rights of the Indians of the Americas

Rotterdam, Netherlands, November 24-30, 1980

An activity generated by the international indigenous movement in the 1970s was the tribunal format. Maybe the best known of these is the Russel Tribunal of 1980. The Russell Peace Foundation of Britain supported the tribunal as one of its activities to promote a peaceful world in which human rights are respected. The conference was organized by a coalition of Dutch activists, which published a seven-volume report of the proceedings. This was the fourth tribunal supported by the Russell Peace Foundation. Another tribunal that received wide publicity was the war criminals tribunal in Stockholm and Roskilde in 1967, considering specifically the US participation in the Vietnam War. The 1980 tribunal was composed of international personalities, experts and lawyers. Indian groups were asked to submit cases in advance, and from the many submitted, fourteen cases were heard in full. Almost a hundred additional cases were organized under eleven specific topics, such as the seizure of Indian lands; the appropriation of native resources; extreme oppression as cheap labour; and the pervasive existence of racism. The Indian groups who brought cases to the tribunal drew up a joint declaration. The cases covered a broad and complex set of issues, such as world peace, national liberation, international financing, transnational interventions and governmental policies towards indigenous peoples. Two of the fourteen cases received wide publicity and were generally considered the most serious in terms of the millions of Indians affected: The first case was the Guatemala case, which considered the “Spanish Embassy massacre”, of January 1980, in Guatemala City. Indians were demonstrating and peacefully occupying the Spanish Embassy. Non-Indian representatives, totally 28 people, joined the Indians. Without warning, the government of Guatemala started bombing the Embassy and sent in the police to kill the survivors. Only the Spanish ambassador and one Indian survived. The Indian were later taken from the hospital and shot. The other case was the Western Shoshones who complained that their land had been taken from them by the government, in violation of their 1868 treaty with the US, and that the government had enforced a financial settlement in order to quiet the Indians’ claim to their territory. The reason for the governmental take-over was the plan of placing the MX missile system in the area. The MX system was estimated to be the largest

184 construction project in the history of the world. Soon after the Russell Tribunal, the US government stopped specify where the MX would be placed.

The Recommendations of the Russell Tribunal A. Governments I. The Indian peoples of the Americas must be recognized according to their own understanding of themselves, rather than being defined by the perception of the value systems of alien dominant societies. II. II The States of the Americas, in any dispute about the infringement or violation of the autonomous and cultural rights of the Indian peoples must engage in good faith negotiation to seek a peaceful settlement of the dispute; must refrain from taking recourse to any procedure which is not mutually agreed upon III. “Treaties and agreements made with indigenous nations or groups shall not be subject to unilateral abrogation. In no event may municipal law of any state senate as a defence to the failure to adhere to and perform the terms of treaties and agreements made with indigenous nations or groups. Nor shall any state refuse to recognize and adhere to treaties or other agreements due to changed circumstances where the change in circumstances has been substantially caused by the state asserting that such change has occurred.” (NGO Conference on Discrimination Against Indigenous Populations, Geneva 1977). IV. States must prohibit all action or course of conduct with respect to an indigenous nation or group, or in relation to the temtones of an indigenous nation or group, which will result in the destructions disintegration or deterioration of such nation or group or otherwise threaten the national or cultural integrity of the nation or group. V. American States must immediately bring a halt to the gross and continuous violations of the rules and principles recognized under international law. States should implement measures to prevent further violations of the basic human rights and fundamental freedoms of the Indian peoples. Those existing national laws, which forcefully assimilate indigenous peoples against their will and violate their basic rights as defined by international standards, should be annulled. B. Other I. The Fourth Russell Tribunal on the rights of Indians recommends that the above findings of the gross and continuous violations of Human Rights be transmitted to the Commission of Human Rights of the United Nations, to the Inter-

185 American Commission on Human Rights and in the relevant cases to the International Labour Organization, and other appropriate bodies. II. The international multinational and intergovernmental banks (World Bank, Inter-American Bank of Development), as well as the International Monetary Fund must change their policy in order to avoid the extremely grave consequences caused by the abuse of financial development funds. Projects must be avoided which will cause serious harm to members of the indigenous Indian people. Before funding projects, these banks must ascertain whether they are a party to these serious violations of Human Rights. III. (a) All religious groups must recognize the sacred nature of land to Indian people and its necessity for their spiritual and physical survivaL b Until native groups are free to determine their own destiny, efforts of religious conversion should be halted in order to avoid becoming a partr to ethnocide and the denial of religious freedom. c The Declaration of the Pope, made in Manaos, Brazil, giving full recognition to the nation-status of indigenous peoples, should be put in effect by the Roman Catholic Church everywhere. IV. The ILO should be informed of the constant infringements of the rights of the indigenous peoples of the Americas to work (and for proper payment), to dispose freely of their means of subsistence, to associate-in whatever form they want and to choose their representatives and leaders without them having to fear for the lives of their families and themselves. V. The Commission of Human Rights is requested under ECOSOC Resolution 1503 (XLVIII) to investigate the gross and continuous violations of human nghts inflicted upon the indigenous peoples of the Americas. The ECOSOC and the International Court of Justice should provide remedies for the indigenous peoples that are not provided for in the courts of national states. C.

I. Members of the Organisation of the American States should take immediate action to halt the practices of the governments of Bolivia and Guatemala The organized massacres and the most flagrant and inhuman treatment of the indigenous people of Guatemala as reported by Amnesty International are fully supported by the evidence that has been presented through the Tribuna. II. The Sub-Commission on the Prevention of Discrimination and the Protection of Minorities of the Commission of Human Rights is requested to set up a

186 perma-nent committee for the effective and continuous protection of the rights of indigenous people. Indigenous people should have the right to communicate with this com mittee and a fund should be established to provide assistance to such groups for the purpose of these communications. III. Teachers and educators in the Americas are called upon to live up to their professional responsibilities to bring to an end the anti-indian character of instruction in the schools attended by Indian children. IV. Sterilisation campaigns directed against the indigenous populations must stop. Agencies are to halt involuntary sterilisation. V. The high infant mortality rates found among native people should be corrected by ending enforced poverty and by providing of the means for native people to have potable water and other basic essentials of public health. VI. All American States must ratify the American Convention on Human Rights.

187 41 Statement by the International NGO Conference on Indigenous People and the Land

Geneva, Switzerland, September 15-18, 1981

One of the recommendations of the 1977 Indians of the Americas conference was to organize a conference, which would focus on the land and its relationship to indigenous rights. The NGO Sub-Committee on Racism followed this recommendation and organized the International conference on indigenous land issues in 1981. The conference covered the following areas: land rights, international treaties and agreements, land reform and systems of tenure, indigenous philosophy, and the impact of the nuclear arms build- up. Participants at the 1981 conference included representatives from the Americas, Australia and Europe. In addition, governments were represented at this conference, however, fewer than in 1977, due to a call for boycott of the conference coming from the United States. The participants unanimously supported the final declaration, which manifests indigenous peoples “just struggle for self-determination and for the right to determine the development and use of their land and resources, and to live in accordance with their values and philosophy”.

The Statement The International NGO Conference on Indigenous Peoples and the Land was held from 15 to 18 September 1981 at the Palais des Nations, Geneva. More than 300 representatives of indigenous nations and groups and of international and national organizations attended. One hundred and thirty indigenous representatives came to Geneva from different parts of the world to call the attention of the international community to the desperate conditions in which they live and to their struggle to survive as nations and communities. The root of this crisis is the denial of the right to their land. Their land and resources are plundered by vested interests and particularly by transnational corporations seeking

188 maximum profits. The constant grabbing of more of their land and the denial to self- determination is destroying their traditional value systems and the very fabric of their societies. The Conference condemns the systematic repression and genocide practised against the indigenous peoples and calls for an immediate halt to these practices. It appeals to the international community, to the United Nations, to respond to the just demands of the indigenous peoples. The Conference expresses grave concern about the serious consequences of the escalating nuclear arms race on the life and land of the indigenous peoples and draws attention to the close interrelationship between the struggle for land rights and for dissrmament. The Conference declares its solidarity with the indigenous peoples in their just struggle for self-determination and for the right to determine the development and use of their land and resources, and to live in accordance with their values and philosophy. In this time of crisis indigenous peoples have much to contribute to the human and spiritual development of the world. The Conference recognizes that the United Nations had taken already a number of steps in response to the recommendations made by the 1977 NGO Conference. It notes with satisfaction the possibilities indigenous peoples had to contribute to the UN Sub- Commission’s Study of the Problem of Discrimination against Indigenous Populations. Indigenous representatives should have due participation in the process of formulation of standards incorporating the specific rights of indigenous populations envisaged by the Sub-Commission and present bodies as a result of the abovementioned study. The Conference strongly supports the recommendation of the Sub-Commission on Prevention of Discrimination and Protection of Minorities to the UN Commission on Human Rights and to ECOSOC to establish annually a working group on indigenous peoples. It would welcome further strengthening of this opportunity for indigenous nations and peoples to submit their complaints and to make their demands known. This could be achieved, inter alias by empowering the working group to: • accept information from all indigenous nations, organisations and groups; – hear testimony directly from indigenous groups concerned • recommend fact-finding missions to investigate urgent and serious situations. The Conference urges that action be taken at national and international levels to improve and widen access of indigenous peoples to all UN bodies, specialised agencies and committees and other intergovernmental organizations.

189 The Conference further requests that the question concerning indigenous peoples be given a prominent place on the agenda of the World Conference on Racism and Racial Discrimination to be held in 1983 under the auspices of the United Nations at the conclusion of the UN Decade for Action to Combat Racism and Racial Discrimination The Conference urges that in all international gatherings dealing with questions concerning indigenous peoples the widest possible participation of indigenous representatives be ensured It welcomes the growing cooperation among indigenous organizations. The Conference recommends to the United Nations to declare an International Year of Indigenous Peoples. It urges all non-governmental organizations to study the action recommendations of the four Conference commissions and take appropriate measures.

190 42 Declaration of San José

Adopted by the UNESCO meeting of Experts on Ethno Development and Ethnocide in Latin America, San José, Costa Rica, December 11, 1981

Concern has been expressed at various international forums over the problems of the loss of cultural identity among the Indian populations of Latin America. This complex process, which has historical, social, political and economic roots, has been termed ethnocide. Ethnocide means that an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, whether collectively or individually. This involves an extreme form of massive violations of human rights and, in particular, the right of ethnic groups to respect for their cultural identity, as established by numerous declarations, covenants and agreements of the United Nations and its specialized agencies, as well as various regional intergovernmental organizations and non-governmental organizations. The Declaration was a response by UNESCO to this increasing problem. The participants in the meeting, Indian and other experts came to the following conclusions: The participants addressed their appeal to Member States of the United Nations and its specialized agencies, requesting them to give special attention to the application of these principles. This appeal was also addressed to officials in the legislative, executive, administrative and legal branches and to all public servants concerned in the countries of America with the request that in the course of their daily duties they will always act in conformity with the above principles. In addition, the participants draw attention to the need to provide for due participation by indigenous representatives, in any activity that might affect their future.

Declaration of San José 1. We declare that ethnocide, that is, cultural genocide, is a violation of international law equivalent to genocide, which was condemned by the United Nations Convention on the Prevention and Punishment of the Crime of Genocide of 1948. 2. We affirm that ethno-development is an inalienable right of Indian groups. 3. By ethno-development, we mean the extension and consideration of the elements of its own culture, through strengthening the independent decision-making

191 capacity of a culturally distinct society to direct it own development and exercise self-determination, at whatever level, which implies an equitable and independent share of power. This means that the ethnic group is a political and administrative unit, with authority over its own territory and decision-making powers within the confines of its development projects, in a process of increasing autonomy and self-management. 4. Since the European invasion, the Indian peoples of America have seen their history denied or distorted, despite their great contributions to the progress of mankind, which has led to the negation of their very existence. We reject this unacceptable misrepresentation. 5. As creators, bearers and propagators of a civilizing dimension of their own, as unique and specific facets of the heritage of mankind, the Indian peoples, nations and ethnic groups of America are entitled, collectively and individually, to all civil, political, economic, social and cultural rights now threatened. We, the participants in this meeting, demand universal recognition of all these rights. 6. For the Indian peoples, the land is not only an object of possession and production. It forms the basis of their existence, both physical and spiritual, as an independent entity. Territorial space is the foundation and source of their relationship with the universe and the mainstay of their view of the world. 7. The Indian peoples have a natural and inalienable right to the territories they possess as well as the right to recover the land taken away from them. This implies the right to the natural and cultural heritage that this territory contains and the right to determine freely how it will be used and exploited. 8. An essential part of the cultural heritage of these peoples is their philosophy of life and their experience, knowledge and achievements accumulated throughout history in the cultural, social, political, legal, scientific and technological sphere. They therefore have a right to access to and use, dissemination and transmission of this entire heritage. 9. Respect for the forms of autonomy required by the Indian peoples is an essential condition for guaranteeing and implementing these rights. 10. Furthermore, the Indian peoples’ own forms of internal organization are part of their cultural and legal heritage which has contributed to their cohesion and to maintaining their socio-cultural traditions. 11. Disregard for these principles constitutes a gross violation of the right of all individuals and peoples to be different, to consider themselves as different and to be regarded as such, a right recognized in the Declaration on Race and Racial

192 Prejudice adopted by the UNESCO General Conference in 1978, and should therefore be condemned, especially when it creates a risk of ethnocide. 12. In addition, disregard for these principles creates disequilibrium and lack of harmony within society and may incite the Indian peoples to the ultimate resort of rebellion against tyranny and oppression, thereby endangering world peace. It therefore contravenes the United Nations Charter and the Constitution of UNESCO.

193 Context: The United Nations Working Group on Indigenous Populations

Because of the Martinez-Cobo report work since 1971 and its recommendations, it was decided to establish a forum within the United Nations on issues of indigenous peoples. The Working Group on Indigenous Populations (UNWGIP) had two principal objectives according to its mandate: standard setting – that is specifically to draft a declaration of the rights of indigenous peoples – and to review developments in the field of human rights concerning indigenous peoples. The UNWGIP did not contain a complaining procedure and could not deal with individual complaints as such. After the unsuccessful attempt in 1949 to deal with the issues of indigenous peoples, it was not until 1971 that they were back on the United Nations agenda. The reason for the initiation this time was the emerging international awareness of the special issues that indigenous peoples raised for the “world community”. A United Nations study of racial discrimination in the late 1960s, which called for a complete and comprehensive study of discrimination of indigenous peoples, became the symbolic start for the renewed interest of the United Nations. In Resolution 1589 (L), in 1971, the Economic and Social Council of the UN authorized the Sub-Commission on Prevention of Discrimination and Protection of Minorities to make a study on the discrimination of indigenous peoples and to suggest both national and international measures to eliminate such discrimination. This report, popularly named the Martinez-Cobo report, was later concluded in 1983. In its 1981 session, the Sub-Commission discussed the next step in regard of the Martinez-Cobo report. It decided to recommend to the Commission on Human Rights that a Working Group on Indigenous Populations be established within the Sub- Commission. The suggestion was approved first by the Commission on Human Rights, and later by the Economic and Social Council. The mandate of the UNWGIP was spelled out in the UN resolution, which established it. The UWGIP met annually, before the annual sessions of the sub-commission. The first years the sessions lasted up to five days. The last years it was extended up to 10 days. One task of the working group was to review developments concerning the promotion and protection of the human rights and fundamental freedoms of indigenous populations. This review was based both on information from observing governments and from indigenous peoples and organizations. The second task of the UNWGIP was to develop the human rights standards pertaining to indigenous peoples. In practice that meant

194 elaborating and drafting an United Nations Declaration of the Rights of Indigenous Peoples. The UNWGIP was obviously not an international court, which meant that indigenous peoples could not use it as a “chamber of complaints” of abuses of government policies in specific cases, as it had no authority to hear allegations of human rights violations. Nevertheless, direct criticism of government practices by NGOs was permitted as a means of gathering data. The UNWGIP became the primary focus of international activities by both governments and non-governmental organizations concerned with indigenous peoples. The early sessions of the UNWGIP were devoted largely to data collecting from indigenous and other NGOs as to the actual situation of indigenous peoples under assault from dominant societies. A great deal of the debate and information in the first sessions also concerned the definition of the concept of indigenous peoples. An issue, which was later put aside as it was stopping other issues from coming to the forefront. It was therefore decided that the definition was going to be left outside the scope of a future declaration. After the discussions at the second and third sessions, the UNWGIP ultimately opted for a flexible approach, which did not require a formal adoption of a definition.

195 43 Study of the Problem of Discrimination Against Indigenous Populations

United Nations Economic and Social Council Resolution, 1982/34, New York, USA, May 7, 1982

The Economic and Social Council, Recalling its resolution 1589 (L) of May 1971, resolutions 22 (XXXVII) of 10 March 1981 and 1982/19 of 10 March 1982 of the Commission on Human Rights and resolutions 8 (XXIV) of 18 August 1971, 5 (XXXIII) of 10 September 1980 and 2 (XXXIV) of 8 September 1981 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Recognizing the urgent need to promote and to protect the human rights and fundamental freedoms of indigenous populations, Bearing in mind the concerns expressed in this regard at the World Conference to Combat Racism and Racial Discrimination in 1978, Believing that special attention should be given to appropriate avenues of recourse at the national, regional and international levels in order to advance the promotion and protection of the human rights and fundamental freedoms of indigenous populations, Mindful of the conclusions of the Sub-Commission on Prevention of Discrimination and Protection of Minorities and of the Commission on Human Rights that the plight of indigenous peoples is of a serious and pressing nature and that special measures are urgently needed to promote and protect the human rights and fundamental freedoms of indigenous populations, 1. Authorizes the Sub-Commission on Prevention of Discrimination and Protection of Minorities to establish annually a working group on indigenous populations which shall meet for up to five working days before the annual sessions of the SubCommission in order to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations, including information requested by the Secretary-General annually from Governments, specialized agencies, regional intergovernmental organizations and non-governmental in consultative status, particularly those of indigenous peoples, to analyze such materials, and to submit its conclusions to

196 the Sub-Commission bearing in mind the report of the Special Rapporteur of the Sub-Commission; 2. Decides that the Working Group shall give special attention to the evolution of standards concerning the rights of indigenous populations, taking account of both the similarities and the differences in the situations and aspirations of indigenous populations throughout the world; 3. Requests the Secretary-General to assist the working group on indigenous populations and make all necessary arrangements to enable it to carry out its functions. 28th plenary meeting, 7 May 1982

197 44 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin (The Miskito Indian Case)

Inter-American Commission on Human Rights, 1984

The Inter-American Commission on Human Rights (IACHR) was for quite a long time the only international body to have directly addressed the legal issue of whether indigenous peoples have the right to self-determination. In the Miskito Indian case, complaints were alleged of various human rights violations by Nicaragua, primarily in 1981-82. The IACHR considered “whether or not ethnic groups also have additional rights (beyond those set forth in art. 27 of the Covenant on Civil and Political Rights), particularly the right to self-determination or political autonomy” (IACHR, 1984: 78). IACHR denied a right of self-determination for the Miskito, but also said that there may be situations where self-determination is a legally based right for indigenous peoples.

The Commission declared

The present status of international law does recognize observance of the principle of self- determination of peoples, which it considers to be the right of a people to independently choose their form of political organization and to freely establish the means it deems appropriate to bring about their economic, social and cultural development. This does not mean, however, that it recognizes the right to self-determination of any ethnic group as such (IACHR, 1984:78-79).

IACHR concluded that the right to self-determination could never justify disrupting the territorial integrity of a sovereign state. However, the IACHR went on to note that the absence of any such right to autonomy or self-determination does not grant to Nicaragua “an unrestricted right to impose complete assimilation on those Indians.”

Although the current status of international law does not allow the view that the ethnic groups of the Atlantic zone of Nicaragua have a right to political autonomy and self- determination, special legal protection is recognized for the use of their language, the

198 observance of their religion, and in general, all those aspects related to the preservation of their cultural identity. To this should be added the aspects linked to productive organization, which includes, among other things, the issue of the ancestral and communal lands...[I]t is fundamental to establish new conditions for coexistence between the ethnic minorities and the Government of Nicaragua, in order to settle historic antagonisms and the serious difficulties present today. In the opinion of the IACHR, the need to preserve and guarantee the observance of these principles in practice entails the need to establish an adequate institutional order as part of the structure of the Nicaraguan state (IACHR, 1984:81-82).

The discussion by the IACHR of “external” contra “internal” self-determination was important and addressed the complexity of the issues involved in the case. Even if it was considered that the Miskito Indians did not have a right to external self-determination, which meant that the commission did not consider that indigenous peoples did not have a general right to opt for independence, internal self-determination is more likely to be more significant for the future of the Indian groups in the Miskito region. In 1987, the Sandinista government in Nicaragua adopted the “Autonomy Statutes” for the Miskito region. The implementation started in 1990. This means that the Miskito region today has an “internal” self-determination in Nicaragua.

199 45 Resolution on the United Nations Voluntary Fund for Indigenous Populations

United Nations, New York, USA, UNGA Resolution 40/ 131, 1985

The General Assembly, Taking note of Economic and Social Council resolution 1982/34 of 7 May 1982, by which the Council authorized the Sub-Commission on Prevention of Discrimination and Protection of Minorities to establish annually a working group on indigenous populations, Taking note of Commission on Human Rights resolution 1984/32 of 12 March 1984, Convinced that the establishment of a voluntary trust fund for indigenous populations would constitute a significant development for the future promotion and protection of the human rights of indigenous populations, Decides to establish a voluntary trust fund in accordance with the following criterias: a) The name of the fund shall be the United Nations Voluntary Fund for Indigenous Populations; b) The purpose of the Fund shall be to assist representatives of indigenous communities and organizations to participate in the deliberations of the Working Group on Indigenous Populations by providing them with financial assistance, funded by means of voluntary contributions from Governments, non- governmental organizations and other private or public entities; c) The only type of activity to be supported by the Fund is that described in subparagraph (b) above; d) The only beneficiaries of assistance from the Fund shall be representatives of indigenous peoples’ organizations and communities: i). who are so considered by the Board of Trustees of the United Nations Voluntary Fund for Indigenous Populations described in sub-paragraph (e) below;

200 ii). who would not, in the opinion of the Board, be able to attend the sessions of the Working Group without the assistance provided by the Fund; iii). who would be able to contribute to a deeper knowledge on the part of the Working Group of the problems affecting indigenous populations and who would secure a broad geographical representation; e) The Fund shall be administered in accordance with the Financial Regulations and Rules of the United Nations and other relevant provisions set forth in the annex to the note by the Secretary-General, with the advice of a Board of Trustees composed of five persons with relevant experience on issues affecting indigenous populations, who will serve in their personal capacity; the members of the Board of Trustees shall be appointed by the Secretary-General for a three-year term renewable in consultation with the current Chairman of the Sub-Commission; at least one member of the Board shall be a representative of a widely recognized organization of indigenous people.

201 46 Recommendations from the Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States

Geneva, Switzerland, January 16-20, 1989

Independent experts, governmental observers, representatives of United Nations organ, representatives of specialized agencies, and representatives of indigenous people’s organizations were participating at the seminar. The seminar discussed the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and states. The conclusions of the seminar were that indigenous peoples has been and still are victims of racism and racial discrimination; that relations between indigenous peoples and states should be based upon free and informed consent; co-operation and not merely consultations; and that indigenous peoples should be recognized as subjects of international law with their own collective rights.

Recommendations of the Seminar i). Recommends that States implement the principle that their relations with indigenous peoples will be based upon free and informed consent and cooperation, rather than merely consultation and participation and that this be respected as a right; ii). Recommends that indigenous peoples be recognized as proper subjects of international law; iii). Confirms the need to recognize the collective rights of indigenous peoples; iv). Calls upon the international community, particularly States, to explicitly recognize indigenous rights, and apply comprehensively existing international human rights instruments for the promotion and protection of the rights of

202 indigenous peoples; and recommends that appropriate and practical mechanisms for assuring compliance be established; calls upon those States which have not yet acceded to the relevant international human rights instruments, including the two Covenants and the Optional Protocol to the International Covenant on Civil and Political Rights, to do so and to implement them accordingly; v). Supports the decision by the Working Group on Indigenous Populations that the drafting of a universal declaration on the rights of indigenous peoples should be completed, with full participation of indigenous peoples, at the earliest possible time and should be the first step in standard-setting in the field of indigenous peoples’ rights; the adoption and proclamation by the United Nations General Assembly of the universal declaration should be followed by the elaboration and adoption of an international convention on the rights of indigenous peoples; the draft universal declaration is strongly supported in principle as a most positive contribution; vi). Recognizes that a limited monitoring capacity has been established at the international level, but calls for more efficient and comprehensive means of monitoring, to prevent violations of indigenous peoples’ rights through, for example, the appointment of a United Nations commissioner for indigenous peoples; vii). Recommends that a commissioner should be appointed by the United Nations Secretary-General and be attached to the United Nations Centre for Human Rights, in order to study the treatment, problems and developments concerning the recognition, protection, realization and restoration of indigenous peoples’ rights; and to prepare, when necessary, reports with comments, observations and suggestions to the United Nations Commission on Human Rights and to the Governments concerned; viii). Confirms the need to devise new communications procedures, to facilitate and maximize the access of indigenous peoples to these procedures, at the United Nations, its affiliated agencies, and other organs, with a view to providing redress for grievances; ix). Requests that the United Nations undertake, in consultation with indigenous non-governmental organizations, a public information programme on the rights of indigenous peoples, and assure the dissemination of information on indigenous peoples’rights as widely as possible; x). Requests that United Nations seminars and training courses in the field of human rights should be held within indigenous communities;

203 xi). Calls for the establishment of programmes of affirmative action on the part of international, regional and national organizations and Governments, for the practical realization of indigenous people’s rights; xii). Cites the utility of co-ordinated action in the field of indigenous peoples’ rights by international, regional and intergovernmental organizations; xiii). Demands full recognition of, and respect for, the right to human dignity of all indigenous peoples and particularly the individual and collective right of indigenous peoples to life; xiv). Urgently calls upon the international community to take immediate measures to assure that the basis rights of indigenous peoples to food, shelter, health care and other basic needs are attained and treated with the highest priority, and that adequate resources be allocated with the full consent of indigenous peoples; xv). Recommends that indigenous peoples are entitled to longterm sustainable incomes by their communities without external interference; xvi). Demands that all States and relevant entities recognize and respect indigenous peoples’ rights to lands and resources, and provide for just restitution and compensation for past infringements of these rights; xvii). Recognizes the fundamental relationship between respect for indigenous peoples’ rights and protection of the world’s environment, and recommends that this relationship be recognized explicitly in the work of the United Nations Environment Programme, in co-operation with indigenous peoples’ organizations; xviii). Condemns the imposition of non-indigenous social, cultural and economic judgments and values upon indigenous peoples, and calls for the prohibition of assistance and support by United Nations agencies and other international, regional and national organizations for projects and development that threaten the human rights and fundamental freedoms of indigenous peoples, or adversely affect indigenous social, cultural, and economic rights; xix). Urges full recognition of the indigenous peoples’ right to development, and the requirement for the full participation and consent of indigenous peoples in the selection, planning, implementation, and evaluation of development projects, consistent with the indigenous peoples’ right to benefit from and control their own lands and resources;

204 xx). Requests that every possible effort be taken by States, national, regional and international organizations, to prevent foreign or alien adoption of indigenous children, which is prohibited as a genocidal practice; xxi). Recommends the incorporation of indigenous rights in the work of all States and international organizations involved with the development process, with the direct participation of indigenous peoples, and calls for closer cooperation among States and international organizations to utilize their resources more effectively to promote indigenous peoples’ rights; xxii). Requests the United Nations Secretary-General to organize an international conference with the participation of competent United Nations bodies and those of the United Nations system, Governments and indigenous peoples in order to develop concrete measures for the implementation of recommendation (xxi); xxiii). Recommends that the advisory services programme of the United Nations in the field of human rights, and other international technical assistance programmes, should be made available to indigenous peoples to promote and protect human rights; xxiv). Calls upon States and all international agencies to include indigenous peoples’ rights and participation as a key component of development planning, in particular, in national development plans and regional and global development strategies; and to emphasize their interrelationship with human resources development; xxv). Requests that Governments recognize that the realization of indigenous peoples’rights in the economic, social and cultural fields will result in breaking the cycle of poverty and misery; xxvi). Requests the United Nations Secretary-General to give the report of this Seminar the widest distribution possible, including distribution to: the United Nations General Assembly at its 44th session; the United Nations Commission on Human Rights at its 45th session; the United Nations Sub-Commission on the Prevention of Discrimination and Protection of Minorities at its 41st session; and to the Working Group on Indigenous Populations, Governments and competent international and regional organizations; and that this report be issued as a United Nations publication.

205 47 ILO Convention No. 169 Concerning Indigenous Peoples and Tribal Peoples in Independent Countries

Geneva, Switzerland, June 27, 1989

The ILO Conventions No. 107 and 169 are the only international legal instruments adopted, so far, specifically concerning indigenous peoples.

Partial Revision of ILO Convention No. 107 of 1957

ILO Convention 107 of 1957 attracted broad criticism of its ethnocentric conceptions and programme of assimilation of indigenous peoples. Rather than providing a source of rights for indigenous peoples, who were seeking to retain territorial, political, social and cultural integrity, Convention 107 provided a mandate for states for gradual integration of indigenous individuals into national societies and economies. Thus, Convention 107 was seen as legitimizing the gradual extinction of indigenous peoples as such. Convention 107 contained certain requirements of protection of the lives of indigenous peoples, but the protection was a temporary regime and transitional, intended only to ameliorate the consequences of the rapid loss of their culture during the integration process. During the revision process in the ILO, starting in 1986, three main questions crystallized: the change of term of the beneficiary from “population” to “peoples”; the requirement of consultation and participation of indigenous peoples regarding major projects in the territories of indigenous peoples; and the question of land rights. Following the preferences of indigenous peoples, the International Labour Office, the administrative body of the ILO, proposed that the beneficiaries of the convention, in Article 1, should be termed “peoples” and not “populations”. This proposal came under strong attack from government and employer representatives, as it implies a connection with the international regime on the right of all peoples of selfdetermination. A use of the term peoples, it was argued, would imply a right of indigenous peoples to secede from the states they are living in. At the same time was it seen as necessary to update the language of Convention 107. The chairman of the committee on the revision of Convention 107, argued that “the inclusion of the term ‘peoples’ represented” a substantial

206 progress and expressed a recognition of the rights of indigenous peoples to their culture and self-determination which were needed by all peoples of the world.” The result of the deliberation in this part was adoption of the term peoples, but with a qualifying clause. The second major question during the conference in 1989 was the consultation clause in Article 6. In 1986, the ILO Committee of Experts pointed out that self-determination “has been in the focal point” of much of the development of indigenous rights after 1957. The Committee of Experts proposed self-determination as the organizing theme of a revised convention on indigenous peoples. A provocative proposal that was too progressive, and still is, it seems, for the international community of states. In close relation to self-determination, the concept of indigenous self-control developed. However, indigenous consent was not made a precondition for government action, affecting even the most fundamental interests of indigenous peoples. The question of the requirement of consultations between governments and indigenous peoples appears under the term “consent” and its legal meaning. The language included in the convention does not stipulate any right of consultation and consent, but merely a procedural requirement for governments to consult indigenous peoples before any action that might affect them is taken. In its language, Article 6 underscores the continued recognition of unilateral state power. Thus, in place of rights to consent and control, the Convention offers procedural requirements of consultation between governments and indigenous peoples, but, it should be noted that no procedural right to consultation has been acknowledged in the ILO Convention No.169 (Berman, 1988:54-55). The third issue that aroused intensive discussions at the 1989 conference was the question of land and territorial rights of indigenous peoples. After 1957, indigenous rights to ancestral areas have been defined legally in terms of territorial rather than proprietary possession, i.e. private ownership to land. It has been argued that territoriality is better reflects the complex relationship between indigenous peoples and the land, waters, sea areas, plants, animals and other natural resources that form the social and cultural parts of indigenous life. However, the proposed used of the term “territory” suggested implications of sovereignty to a number of governments at the conference. Eventually the amendment in article 7 was adopted. But the International Labour Office preface to the draft convention describes the disagreement on the meaning of the terms, and it recommended the following understanding of the uses of the concepts of land and territory: “It appears that the issues /.../ may be resolved if the words ‘lands’ were used in connection with the establishment of legal rights, while ‘territories’ could be used when describing a physical space, when discussing the environment as a whole or when discussing the relationship of these peoples to the territories they occupy.” The International Labour Office recommended that “territories” should be understood as a descriptive or symbolic term, while rights would only concern “land”. The revised

207 convention provides a stronger guarantee of state recognition and protection of ownership and possessory rights of indigenous peoples than Convention 107. The revised convention continues to authorize state power over the exploration for and extraction of subsoil resources within indigenous territories. Article 14 of Convention 169 seems to attract most discussions and interpretations of its national legal implications.

Implementation of ILO Conventions

ILO has established a supervisory machinery to examine the implementation of the Conventions by the countries, which have ratified them. The supervisory process identifies possible difficulties and constraints and devises suitable national solutions. Recently, the ILO has taken steps to enhance the effectiveness of the supervisory process concerning the implementation of Convention 169. Other UN agencies have agreed to provide more detailed information to the ILO concerning indigenous peoples. Ratifying countries are also eligible to report on the development of the national implementation of conventions to the ILO Expert Committee. The communication works both ways, as the Expert Committee can ask for clarifications of the reports, visit the country, and ask for information from the indigenous peoples concerned.

ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries The General Conference of the International Labour Organisation, Having been convened at Geneva by the Governing Body of the Inter-national Labour Office, and having met in its 76th Session on 7 June 1989, and Noting that international standards contained in the indigenous and Tribal Populations Convention and Recommendation, 1957, and Recalling the terms of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and the many international instruments on the prevention of discrimination, and Considering that the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards, and

208 Recognizing the aspirations of these peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live, and Noting that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the State within which they live, and that their laws, values, customs and perspectives have often been eroded, and Calling attention to the distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind and to international cooperation and understanding, and Noting that the following provisions have been framed with co-operation of the United Nations, the Food and Agriculture Organization of the United Nations, the United Nations Educational, Scientific and Cultural Organisation and the World Health Organisation, as well as of Inter-American Indian Institute, at appropriate levels and respective fields, and that it is proposed to continue this co-operation in promoting and securing the application of these provisions, and Having decided upon the adoption of certain proposals with regard to the partial revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), which is the fourth item on the agenda of the session, and Having determined that these proposals shall take the form of an international Convention revising the Indigenous and Tribal Populations Convention, 1957; adopts this twenty-seventh day of June of the year one thousand nine hundred and eighty- nine the following Convention, which may be cited as the Indigenous and Tribal Peoples Convention, 1989:

PART I – GENERAL POLICY

Article 1 1. This Convention applies to: a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

209 b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political insti-tutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of the Convention apply. 3. The use of the term “peoples” in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

Article 2 1. Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. 2. Such action shall include measures for: a) ensuring that members of these peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population; b) promoting the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions; c) assisting the members of the peoples concerned to eliminate socio-economic gaps that may exist between indigenous and other members of the national community, in a manner compatible with their aspirations and ways of life.

Article 3 1. Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples.

210 2. No form of force or coercion shall be used in violation of the human rights and fundamental freedoms of the peoples concerned, including the rights contained in this Convention.

Article 4 1. Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned. 2. Such special measures shall not be contrary to the freely expressed wishes of the peoples concerned. 3. Enjoyment of the general rights of citizenship, without discrimination, shall not be prejudiced in any way by such special measures.

Article 5 In applying the provisions of this Convention: a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals; b) the integrity of the values, practices and institutions of these peoples shall be respected; c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and cooperation of the peoples affected.

Article 6 1. In applying the provisions of this Convention, governments shall: a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect directly; b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them:

211 c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

Article 7 1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing and the land they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. 2. The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of the areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvement. 3. Governments shall ensure that, wherever appropriate, studies are carried out, in cooperation with the peoples concerned to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. 4. Governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.

Article 8 1. In applying national laws and regulations to the people concerned, due regard shall be had to their customs or customary laws. 2. These peoples shall have the right to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with internationally recognised human rights. Procedures shall be established, whenever necessary, to resolve conflicts which may arise in the application of the principle.

212 3. The application of paragraphs 1 and 2 of this Article shall not prevent members of these peoples from exercising the rights granted to all citizens and from assuming the corresponding duties.

Article 9 1. To the extent compatible with the national legal system and internationally recognised human rights, the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected. 2. The customs of these peoples in regard to penal matters shall be taken into consideration by the authorities and courts dealing with such cases.

Article 10 1. In imposing penalties laid down by general law on members of these peoples account shall be taken of their economic, social and cultural characteristics. 2. Preference shall be given to methods of punishment other than confinement in prison.

Article 11 The exaction from members of the peoples concerned of compulsory personal service in any form, whether paid or unpaid, shall be prohibited and punishable by law, except in cases prescribed by law for all citizens.

Article 12 The people concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings, either individually or through their representative bodies, for the effective protection of these rights. Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings, where necessary through the provision of interpretation or by other effective means.

213 PART II – LAND

Article 13 1. In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship. 2. The use of the term “lands” in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned or otherwise use.

Article 14 1. The right of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect. 2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

Article 15 1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. 2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate

214 in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.

Article 16 1. Subject to the following paragraphs of this Article, the peoples concerned shall not be removed from the lands which they occupy. 2. Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquires where appropriate which provide the opportunity for effective representation of the peoples concerned. 3. Whenever possible, these peoples shall have the right to return to their traditional lands, as soon as the grounds for relocation cease to exist. 4. When such return is not possible, as determined by agreement or, in the absence of such agreements, through appropriate procedures, these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. Where the peoples concerned express a preference for compensation in money or in kind, they shall be so compensated under appropriate guarantees. 5. Persons thus relocated shall be fully compensated for any resulting loss or injury.

Article 17 1. Procedures established by the peoples concerned for the transmission of land rights among members of these peoples shall be respected. 2. The peoples concerned shall be consulted whenever consideration is being given to their capacity to alienate their lands or otherwise transmit their rights outside their own community. 3. Persons not belonging to these peoples shall be prevented from taking advantage of their customs or of lack of understanding of the laws on the part of their members to secure the ownership, possession or use of land belonging to them.

215 Article 18 Adequate penalties shall be established by law for unauthorised intrusion upon, or use of, the lands of the people concerned, and governments shall take measures to prevent such offences.

Article 19 National agrarian programmes shall secure to the peoples concerned treatment equivalent to that accorded to other sectors of the population with regard to: a) the provision of more land for these peoples when they have not the area necessary for providing the essentials of a normal existence, or for any possible increase in their numbers; b) the provision of the means required to promote the development of the lands which these peoples already possess.

PART III – RECRUITMENT AND CONDITIONS OF EMPLOYMENT

Article 20 1. Governments shall, within the framework of national laws and regulations, and in cooperation with the peoples concerned, adopt special measures to ensure the effective protection with regard to recruitment and conditions of employment of workers belonging to these peoples, to the extent that they are not effectively protected by laws applicable to workers in general. 2. Governments shall do everything possible to prevent any discrimination between workers belonging to the peoples concerned and other workers, in particular as regards: a) admission to employment, including skilled employment, as well as measures for promotion and advancement; b) equal remuneration for work of equal value; c) medical and social assistance, occupational safety and health, all social security benefits and any other occupationally related benefits, and housing; d) the right of association and freedom for all lawful trade union activities, and the right to conclude collective agreements with employers or employers’ organisations.

216 3. The measures taken shall include measures to ensure: a) that workers belonging to the peoples concerned, including seasonal, casual and migrant workers in agricultural and other employments, as well as those employed by labour contractors, enjoy the protection afforded by national law and practice to other such workers in the same sectors, and that they are fully informed of their rights and labour legislation and of the means of redress available to them; b) that workers belonging to these peoples are not subjected to working conditions hazardous to their health, in particular through exposure to pesticides or other toxic substances; c) that workers belonging to these peoples are not subjected to coercive recruitment systems, including bonded labour and other forms of debt servitude; d) that workers belonging to these peoples enjoy equal opportunities and equal treatment in employment for men and women, and protection from sexual harassment. 4. Particular attention shall be paid to the establishment of adequate labour inspection services in areas where workers belonging to the peoples concerned undertake wage employment, in order to ensure compliance with the provisions of this Part of this Convention.

PART IV – VOCATIONAL TRAINING, HANDICRAFTS AND RURAL INDUSTRIES

Article 21 Members of the peoples concerned shall enjoy opportunities at least equal to those of other citizens in respect of vocational training measures.

Article 22 1. Measures shall be taken to promote the voluntary participation of members of the peoples concerned in vocational training programmes of general application. 2. Whenever existing programmes of vocational training of general application do not meet the special needs of the peoples concerned, governments shall, with the participation of these peoples, ensure the provision of special training programmes and facilities.

217 3. Any special training programmes shall be based on the economic environment, social and cultural conditions and practical needs of the peoples concerned. Any studies made in this connection shall be carried out in co-operation with these peoples, who shall be consulted on the organisation and operation of such programmes. Where feasible, 4. these peoples shall progressively assume responsibility for the organisation and operation of such special training programmes, if they so decide.

Article 23 1. Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concerned, such as hunting, fishing, trapping and gathering, shall be recognised as important factors in the maintenance of their cultures and in their economic self-reliance and development. Governments shall, with the participation of these people and whenever appropriate, ensure that these activities are strengthened and promoted. 2. Upon the request of the peoples concerned, appropriate technical and financial assistance shall be provided wherever possible, taking into account the traditional technologies and cultural characteristics of these peoples, as well as the importance of sustainable and equitable development.

PART V – SOCIAL SECURITY AND HEALTH

Article 24 Social security schemes shall be extended progressively to cover the peoples concerned, and applied without discrimination against them.

Article 25 1. Governments shall ensure that adequate health services are made available to the peoples concerned, or shall provide them with resources to allow them to design and deliver such services under their own responsibility and control, so that they may enjoy the highest attainable standard of physical and mental health. 2. Health services shall, to the extent possible, be community-based. These services shall be planned and administered in co-operation with the peoples concerned and take into account their economic, geographic, social and cultural conditions as well as their traditional preventive care, healing practices and medicines.

218 3. The health care system shall give preference to the training and employment of local community health workers, and focus on primary health care while maintaining strong links with other levels of health care services. 4. The provision of such health services shall be co-ordinated with other social, economic and cultural measures in the country.

PART VI – EDUCATION AND MEANS OF COMMUNICATION

Article 26 Measures shall be taken to ensure that members of the peoples concerned have the opportunity to acquire education at all levels on at least an equal footing with the rest of the national community.

Article 27 1. Education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their further social, economic and cultural aspirations. 2. The competent authority shall ensure the training of members of these peoples and their involvement in the formulation and implementation of education programmes, with a view to the progressive transfer of responsibility for the conduct of these programmes to these peoples as appropriate. 3. In addition, governments shall recognise the right of these peoples to establish their own educational institutions and faciities, provided that such institutions meet minimum standards established by the competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose.

Article 28 1. Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.

219 2. Adequate measures shall be taken to ensure that these peoples have the opportunity to attain fluency in the national language or in one of the official languages of the country. 3. Measures shall be taken to preserve and promote the development and practice of the indigenous languages of the peoples concerned.

Article 29 The imparting of general knowledge and skills that will help children belonging to the peoples concerned to participate fully and on an equal footing in their own community and in the national community shall be an aim of education for these peoples.

Article 30 1. Governments shall adopt measures appropriate to the traditions and cultures of the peoples concerned, to make known to them their rights and duties, especially in regard to labour, economic opportunities, education and health matters, social welfare and their rights deriving from this Convention. 2. If necessary, this shall be done by means of written translations and through the use of mass communications in the languages of these peoples.

Article 31 Educational measures shall be taken among all sections of the national community, and particularly among those that are in most direct contact with the peoples concerned, with the object of eliminating prejudices that they may harbour in respect of these peoples. To this end, efforts shall be made to ensure that history textbooks and other educational materials provide a fair, accurate and informative portrayal of the societies and cultures of these peoples.

PART VII – CONTACTS AND CO-OPERATION ACROSS BORDERS

Article 32 Governments shall take appropriate measures, including by means of international agreements, to facilitate contacts and co-operation between indigenous and tribal peoples across borders, including activities in the economic, social, cultural, spiritual and environmental fields.

220

PART VIII – ADMINISTRATION

Article 33 1. The governmental authority responsible for the matter covered in this Convention shall ensure that agencies or other appropriate mechanisms exist to administer the programmes affecting the peoples concerned, and shall ensure that they have the means necessary for the proper fulfillment of the functions assigned to them. 2. These programmes shall include: a) the planning, co-ordination, execution and evaluation, in co-operation with the peoples concerned, of the measures provided for in this Convention; b) the proposing of legislative and other measures to the competent authorities and supervision of the application of the measures taken, in co-operation with the peoples concerned.

PART IX – GENERAL PROVISIONS

Article 34 The nature and scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country.

Article 35 The application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and Recommendations, international instruments, treaties, or national laws, awards, custom or agreements.

PART X – FINAL PROVISIONS

Article 36 This Convention revises the Indigenous and Tribal Populations Convention 1957.

221 Article 37 The formal ratifications of this Convention shall be communicated to the DirectorGeneral of the International Labour Office for registration.

Article 38 1. This Convention shall be binding only upon those Members of the International Labour Organisation whose ratifications have been registered with the Director General. 2. It shall come into force twelve months after the date on which the ratifications of two Members have been registered with the Director-General. 3. Thereafter, this Convention shall come into force for any Member twelve months after the date on which its ratification has been registered.

Article 39 1. A Member which has ratified this Convention may denounce it after the expiration of ten years from the date on which the Convention first comes into force, by an act communicated to the Director-General of the International Labour Office for registration. Such denunciation shall not take effect until one year after the date on which it is registered. 2. Each Member which has ratified this Convention and which does not, within the year following the expiration of the period of ten years mentioned in the preceding paragraph, exercise the right of denunciation provided for in this Article, will be bound for another period of ten years and, thereafter, may denounce this Convention at the expiration of each period of ten years under the terms provided for in this Article.

Article 40 1. The Director-General of the International Labour Office shall notify all Members of the International Labour Organisation of the registration of all ratifications and denunciations communicated to him by the Members of the Organisation. 2. When notifying the Members of the Organisation of the registration of the second ratification communicated to him, the Director-General shall draw the attention of

222 the Members of the Organisation to the date upon which the Convention will come into force.

Article 41 The Director-General of the International Labour Office shall commu-nicate to the Secretary-General of the United Nations for registration in accordance with Article 102 of the Charter of the United Nations full particulars of all ratifications and acts of denunciation registered by him in accordance with the provisions of the preceding Articles.

Article 42 At such times as it may consider necessary the Governing Body of the International Labour Office shall present to the General Conference a report on the working of this Convention and shall examine the desirability of placing on the agenda of the Conference the question of its revision in whole or in part.

Article 43 1. Should the Conference adopt a new convention revising this Convention in whole or in part, then, unless the new Convention otherwise provides- a) the ratification by a Member of the new revising Convention shall ipso jure involve the immediate denunciation of this Convention, notwithstanding the provisions of Article 39 above, if and when the new revising Convention shall have come into force: b) as from the date when the new revising Convention comes into force this Convention shall cease to be open to ratification by the Members. 2. This Convention shall in any case remain in force in its actual form and content for those Members which have ratified it but have not ratified the revising Convention.

Article 44 The English and French versions of the text of this Convention are equally authoritative.

223 48 Excerpt from: Convention on the Rights of the Child

New York, USA, November 20, 1989

The Convention on the Rights of the Child goes further than previous instruments by making states, which accept the Convention legally accountable for their actions towards children. The Convention is demanding highest priority to be given to efforts of promotion and protection of child rights. The Convention also established a Committee of ten experts who will generate a dialogue with all the parties to the convention. The committee will also monitor progress in each state. State parties accept to submit regular reports directly to the committee.

Convention on the Rights of the Child

Article 30 In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

224 49 The World Bank Operational Directive (OD) 4.20: Indigenous Peoples

Adopted by The World Bank, Washington DC, USA, September 17, 1991

World Economy, Development and Indigenous Peoples

After the Second World War, a series of meetings were held by the Western powers to outline a new international economic framework. These meetings, known as the Bretton Woods Conference, established the World Bank in 1946. The first purpose of the World Bank was to help finance the reconstruction and development of war-ravaged Europe. The International Monetary Fund (IMF) was also established, to stabilize currencies and provide short-term balance of payment loans. However, today most of the Bank’s projects are in the developing countries. The World Bank, is the single largest international development organization in the world. The World Bank’s principal relationships are with governments: those that contribute resources to the World Bank and those that borrow funds to finance projects in their countries. Development projects, assisted by the World Bank, are often directed to remote, marginal areas of the rural environment. Without special precautions, such development projects will affect indigenous peoples. It is difficult to anticipate the nature and dimension of the impact a project will have on indigenous peoples. Until the beginning of the 1980s, development planning did not address adequately the human, economic and social aspects of projects affecting the lives of indigenous peoples. In February 1982, the World Bank issued a brief operational manual statement (OMS 2.34) “Tribal People in Bank financed Projects”, which outlined some protective measures for the rights of “tribal people” in World Bank- financed development projects. The World Bank noted in that statement that: “tribal people are more likely to be harmed than helped by development projects that are intended for beneficiaries other than themselves”. The 1982 statement built on the “protection-assimilation” policy of the 1957 ILO Convention No. 107. The concept “tribal” according to the Bank’s directive of 1982 referred to those groups that have “stable, low-energy, sustained-yield economic systems,” and may have in varying degrees, the following characteristics; a) geographically isolated or semi-isolated;

225 b) unacculturated or only partially acculturated into the societal norms of the dominant society; c) nonmonetised, or only partially monetised; production largely for subsistence, and independent of the national economic system; d) ethnically distinct from the national society; e) nonliterate and without a written language; f) linguistically distinct from the wider society; g) identifying closely with one particular territory; h) having an economic lifestyle largely dependent on the specific natural environment; i) possessing indigenous leadership, but little or no national representation, and few, if any, political rights as individuals or collectively, partly because they do not participate in the political process; and, j) having loose tenure over their traditional lands, which for the most part is not accepted by the dominant society nor accommodated by its courts; and having weak enforcement capabilities against encroachers, even when tribal areas have been delineated. The World Bank also noted that it was the responsibility of national governments to implement measures that will “effectively safeguard the integrity and well-being of the tribal people”. The Bank also made it clear that it would follow a middle-stream policy. It would not support “either those that perpetuate isolation from the national society /.../ or those promoting forced, accelerated acculturation unsuited to the future well being of the affected tribal people”. This policy, as was said earlier, was much influenced by the early ILO Convention on indigenous and tribal populations. The main World Bank principle on development projects, according to the 1982 statement was “adequate time and conditions for acculturation”. The acculturation needed to be “slow and gradual”. Thus, there was no question of perpetuation of long-term multicultural policy. According to the World Bank, integration and assimilation of indigenous and tribal people was seen as inevitable. In the 1986 review of the implementation of the 1982 policy statement, the World Bank found that the issuing of the OMS 2.34 had increased the identification of development projects affecting indigenous and tribal peoples. Before 1982, the Bank had assumed that all rural populations in developing countries had similar problems and living conditions. It saw no need of a distinction between tribals and others. However, that view slowly changed within the World Bank. In 1983, 15 World Bank financed projects were

226 identified as having tribal peoples affected. In 1984, it was 36, and in 1986 it had risen to 53. (Davis, 1994:78) The findings of the reviews of development projects in the late 1980s affecting indigenous and tribal peoples led to a revised Operational Directive 4.20 on Indigenous Peoples, in 1991, much more detailed than the 1982 OMS. It is also more updated to current thinking on the rights and conditions of indigenous and tribal peoples. The former – protection leading to assimilation – policy is at least formally abandoned. Now the World Bank calls for the “informed participation” and recognition of the preferences of indigenous peoples, through direct consultation, incorporation of indigenous knowledge into project approaches, and appropriate use of experienced specialists.

The 1991 OD 4.20 contains four major changes in the World Bank policy in development projects affecting indigenous peoples: 1. The definition of indigenous peoples is broader. The working definition of the World Bank is found in paragraph 3 of the OD. 2. The World Bank recognizes the need both to protect indigenous peoples against potential harm caused by development projects, and to provide them with opportunities to participate in the planning of new projects. 3. Aspects pertaining to Indigenous peoples should be incorporated also in other matters than direct development projects. Areas where this could be relevant were mentioned by the World Bank, such as threats to their environment and natural resources which could be identified through environmental assessments. (See Operational Directive 4.01) 4. Concerning the the ways of incorporating indigenous people’s concerns in projects, the Bank issued a requirement that special Indigenous Peoples Development Plans (IPDP) should be prepared for all World Bank funded projects which affect the lands, resources and cultures of indigenous peoples. OD 4.20 is most often brought into play when indigenous peoples are the targeted beneficiaries of a Bank-funded development project, the main purpuse being to create participation and negotiation if a project might adversely affect indigenous peoples. Problems have arisen in applying OD 4.20 when Bank loans and projects are not specifically directed at indigenous peoples, and have potentially adverse impacts on their societies or territories. Projects of this kind include funding for infrastructure projects, such as roads or dams; or sectoral loans, such as forestry, energy, industrial development, water resources, agriculture and environmental management; as well as technical

227 assistance to support privatization, modernization of the state or economic structural adjustment. World Bank financed projects should include an Environmental Assessment. The Environmental Assessment Sourcebook of 1991 describes World Bank policy regarding projects on indigenous lands:

Bank Policy: The World Bank will not assist development projects that knowingly involve encroachment on lands being used or occupied by vulnerable indigenous, tribal, low-caste or ethnic minority people, unless adequate safeguards are provided to at least mitigate the negative or adverse effects of such projects on these people, their cultures and their environments. This is particularly applicable to development projects which affect relatively isolated and unacculturated indigenous groups (Vol.I, chapter 3, page 116, para. 6).

One of the most controversial questions, and for indigenous peoples, the most important, is the issue of involuntary resettlement. In a 1994 review of its resettlement policy, the World Bank noted: “Often the displaced are rural and poor because new projects are brought to the most underdeveloped, poorest areas, where infrastructure is largely lacking and where land and political costs are lowest /.../ The remote locations of many dam sites [for example] are often inhabited by indigenous people, ethnic minorities, or pastoral groups, which explains why issues pertaining to tribal and cultural differences are so prominent in resettlement” (Resettlement and Development, ch.2, page 9) The World Bank Operational Directive 4.30 of June, 1990, acknowledges the negative impacts of involuntary resettlement on peoples, while at the same time concluding that good planning can minimize those impacts. The first policy consideration that should be taken into account in assessing a Bank project is that “involuntary resettlement should be avoided or minimized where feasible, exploring all viable alternative designs” (OD 4.30, para.3.).

World Bank Operational Directive 4.20: Indigenous Peoples Introduction 1 1. This directive describes Bank1 policies and processing procedures for projects that affect indigenous peoples. It sets out basic definitions, policy objectives, guidelines for the design and implementation of project provisions or components for indigenous peoples, and processing and documentation requirements. 2. The directive provides policy guidance to (a) ensure that indigenous people benefit from development projects, and (b) avoid or mitigate potentially adverse effects on indigenous people caused by Bank assisted activities. Special action is required where

1 “Bank” includes IDA, (International Development Association)and “loans” include credits.

228 Bank investments affect indigenous peoples, tribes, ethnic minorities, or other groups whose social and economic status restricts their capacity to assert their interests and rights in land and other productive resources. Definitions 3. The terms “indigenous peoples”, “indigenous ethnic minorities”, “tribal groups”, and “scheduled tribes” describe social groups with a social and cultural identity distinct from the dominant society that makes them vulnerable to being disadvantaged in the development process. For the purposes of this directive, “indigenous peoples” is the term that will be used to refer to these groups. 4. Within their national constitutions, statutes, and relevant legislation, many of the Bank’s borrower countries include specific definitional clauses and legal frameworks that provide a preliminary basis for identifying indigenous peoples. 5. Because of the varied and changing contexts in which indigenous peoples are found, no single definition can capture their diversity. Indigenous people are commonly among the poorest segments of a population. They engage in economic activities that range from shifting agriculture in or near forests to wage labor or even small-scale market oriented activities. Indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics: a) a close attachment to ancestral territories and to the natural resources in these areas; b) self-identification and identification by others as members of a distinct cultural group; c) an indigenous language, often different from the national language; d) presence of customary social and political institutions; and e) primarily subsistence-oriented production. Task managers (TMs) must exercise judgment in determining the populations to which this directive applies and should make use of specialized anthropological and sociological experts throughout the project cycle. Objective and policy 6. The Bank’s broad objective towards indigenous people, as for all the people in its member countries, is to ensure that the development process fosters full respect for their dignity, human rights, and cultural uniqueness. More specifically, the objective at the center of this directive is to ensure that indigenous people do not suffer adverse

229 effects during the development process, particularly from Bank-financed projects, and that they receive culturally compatible social and economic benefits. 7. How to approach indigenous peoples affected by development projects is a controversial issue. Debate is often phrased as a choice between two opposed positions. One pole is to insulate indigenous populations whose cultural and economic practices makes it difficult for them to deal with powerful outside groups. The advantages of this approach are the special protections that are provided and the preservation of cultural distinctiveness; the costs are the benefits foregone from development programs. The other pole argues that indigenous people must be acculturated to dominant society values and economic activities so that they can participate in national development. Here the benefits can include improved social and economic opportunities, but the cost is often the gradual loss of cultural differences. 8. The Bank’s policy is that the strategy for addressing the issues pertaining to indigenous peoples must be based on the informed participation of the indigenous peoples themselves. Thus, identifying local preferences through direct consultation, incorporation of indigenous knowledge into project approaches, and appropriate early use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources. 9. Cases will occur, especially when dealing with the most isolated groups, where adverse impacts are unavoidable and adequate mitigation plans have not been developed. In such situations, the Bank will not appraise projects until suitable plans are developed by the borrower and reviewed by the Bank. In other cases, indigenous people may wish to be and can be incorporated into the development process. In sum, a full range of positive actions by the borrower must ensure that indigenous people benefit from development investments. Bank Role 10. The Bank addresses issues on indigenous peoples through (a) country economic and sector work, (b) technical assistance, and (c) investment project components or provisions. Issues concerning indigenous peoples can arise in a variety of sectors that concern the Bank; those involving, for example, agriculture, road construction, forestry, hydropower, mining, tourism, education, and the environment should be 2 carefully screened.2 Issues related to indigenous peoples are commonly identified

2 Displacement of indigenous people can be particularly damaging, and special efforts should be made to avoid it. See OD 4.30, Involuntary Resettlement, for additional policy guidance on resettlement issues involving indigenous people.

230 through the environmental assessment or social impact assessment processes, and appropriate measures should be taken under environmental mitigation actions (see OD 4.01, Environmental Assessment, to be issued). 11. Country Economic and Sector Work. Country departments should maintain information on trends in government policies and institutions that deal with indigenous peoples. Issues concerning indigenous peoples should be addressed explicitly in sector and sub sector work and brought into the Bank-country dialogue. National development policy frameworks and institutions for indigenous peoples often need to be strengthened in order to create a stronger basis for designing and processing projects with components dealing with indigenous peoples. 12. Technical Assistance. Technical assistance to develop the borrower’s abilities to address issues on indigenous peoples can be provided by the Bank. Technical assistance is normally given within the context of project preparation, but technical assistance may also be needed to strengthen the relevant government institutions or to support development initiatives taken by indigenous peoples themselves. 13. Investment projects. For an investment project that affects indigenous peoples, the borrower should prepare an indigenous peoples development plan that is consistent with the Bank’s policy. Any project that affects indigenous peoples is expected to include components or provisions that incorporate such a plan. When the bulk of the direct project beneficiaries are indigenous people, the Bank’s concerns would be addressed by the project itself and the provisions of this OD would thus apply to the project in its entirety. Indigenous Peoples Development Plan3

Prerequisites

14. Prerequisites of a successful development plan for indigenous peoples are as follows: a) The key step in project design is the preparation of a culturally appropriate development plan based on full consideration of the options preferred by the indigenous people affected by the project.

3 Regionally specific technical guidelines for preparing indigenous peoples components, and case studies of best practices, are available from the Regional environment divisions (REDs).

231 b) Studies should make all efforts to anticipate adverse trends likely to be induced by the 4 project and develop the means to avoid or mitigate harm. c) The institutions responsible for government interaction with indigenous peoples should possess the social, technical, and legal skills needed for carrying out the proposed development activities. Implementation arrangements should be kept simple. they should normally involve appropriate existing institutions, local organizations, and nongovernmental organizations (NGOs) with expertise in matters relating to indigenous peoples. d) Local patterns of social organization, religious beliefs, and resource use should be taken into account in the plan’s design. e) Development activities should support production systems that are well adapted to the needs and environment of indigenous peoples, and should help production systems under stress to attain sustainable levels. f) The plan should avoid creating or aggravating the dependency of indigenous people on project entities. Planning should encourage early handover of project management to local people. As needed, the plan should include general education and training in management skills for indigenous people from the onset of the project. g) Successful planning for indigenous peoples frequently requires long lead times, as well as arrangements for extended follow-up. Remote or neglected areas where little previous experience is available often require additional research and pilot programs to fine-tune development proposals. h) Where effective programs are already functioning, Bank support can take the form of incremental funding to strengthen them rather that the development of entirely new programs. Contents 15. The development plan should be prepared in tandem with the preparation of the main investment. In many cases, proper protection of the rights of indigenous people will require the implementation of special project components that may lie outside the primary project’s objectives. These components can include activities related to health and nutrition, productive infrastructure, linguistic and cultural preservation,

4 For guidance on indigenous peoples and environmental assessment procedures, see OD 4.01, Environmental Assessment, and Chapter 7 of World Bank, Environmental Assessment Sourcebook, Technical Paper No. 139 (Washington D.C., 1991).

232 entitlement to natural resources, and education. The project component for indigenous peoples development should include the following elements, as needed: a) Legal Framework The plan should contain an assessment of (i) the legal status of the groups covered by this OD, as reflected in the country’s constitution, legislation, and subsidiary legislation (regulations, administrative orders, etc.); and (ii) the ability of such groups to obtain access to and effectively use the legal system to defend their rights. Particular attention should be given to the rights of indigenous peoples to use and develop the lands that they occupy, to be protected against illegal intruders, and to have access to natural resources (such as forests, wildlife, and water) vital to their subsistence and reproduction. b) Baseline Data Baseline data should include (i) accurate, up-to-date maps and aerial photographs of the area of project influence and the areas inhabited by indigenous peoples; (ii) analysis of the social structure and income sources of the population; (iii) inventories of the resources that indigenous people use and technical data on their production systems; and (iv) the relationship of indigenous peoples to other local and national groups. It is particularly important that baseline studies capture the full range of production and marketing activities in which indigenous people are engaged. Site visits by qualified social and technical experts should verify and update secondary sources. c) Land Tenure When local legislation needs strengthening, the Bank should offer to advise and assist the borrower in establishing legal recognition of the customary or traditional land tenure systems of indigenous peoples. Where the traditional lands of indigenous peoples have been brought by law into the domain of the state and where it is inappropriate to convert traditional rights into those of legal ownership, alternative arrangements should be implemented to grant long-term, renewable rights of custodianship and use to indigenous peoples. These steps should be taken before the initiation of other planning steps that may be contingent on recognized land titles. d) Strategy for Local Participation Mechanisms should be devised and maintained for participation by indigenous people in decision-making throughout project planning, implementation, and evaluation. Many of the larger groups of indigenous people have their own representative organizations that provide effective channels for communicating local preferences. Traditional leaders occupy pivotal positions for mobilizing people and should be brought into the planning process, with due concern for ensuring genuine representation of the indigenous

233 population.5 No foolproof methods exist, however, to guarantee full local-level participation. Sociological and technical advice provided through the Regional environment divisions (REDs) is often needed to develop mechanisms appropriate for the project area. e) Technical Identification of Development or Mitigation Activities Technical proposals should proceed from on-site research by qualified professionals acceptable to the Bank. Detailed descriptions should be prepared and appraised for such proposed services as education, training, health, credit, and legal assistance. Technical descriptions should be included for the planned investments in productive infrastructure. Plans that draw upon indigenous knowledge are often more successful than those introducing entirely new principles and institutions. For example, the potential contribution of traditional health providers should be considered in planning delivery systems for health care. f) ) Institutional Capacity The government institutions assigned responsibility for indigenous peoples are often weak. Assessing the track record, capabilities, and needs of those institutions is a fundamental requirement. Organizational issues that need to be addressed through Bank assistance are the (i) availability of funds for investments and field operations; (ii) adequacy of experienced professional staff; (iii) ability of indigenous peoples’ own organizations, local administration authorities, and local NGOs to interact with specialized government institutions; (iv) ability of the executing agency to mobilize other agencies involved in the plan’s implementation; and (v) adequacy of field presence. g) Implementation Schedule Components should include an implementation schedule with benchmarks by which progress can be measured at appropriate intervals. Pilot programs are often needed to provide planning information for phasing the project component for indigenous peoples with the main investment. The plan should pursue the long-term sustainability of project activities subsequent to completion of disbursement. h) Monitoring and Evaluation 6 Independent monitoring capacities are usually needed when the institutions responsible for indigenous populations have weak management histories. Monitoring by representatives of indigenous peoples’own organizations can be an efficient way for the project management to absorb the perspectives of indigenous beneficiaries and is

5 See also “Community Involvement and the Role of Nongovernmental Organizations in Environmental Assessment” in World Bank, Environmental Sourcebook, Technical Paper No. 139 (Washington D.C., 1991). 6 See OD 10.70, Project Monitoring and Evaluation.

234 encouraged by the Bank. Monitoring units should be staffed by experienced social science professionals, and reporting formats and schedules appropriate to the project’s needs should be established. Monitoring and evaluation reports should be reviewed jointly by the senior management of the implementing agency and by the Bank. The evaluation reports should be made available to the public. i) Cost Estimates and Financing Plan The plan should include detailed cost estimates for planned activities and investments. The estimates should be broken down into unit costs by project year and linked to a financing plan. Such programs as revolving credit funds that provide indigenous people with investment pools should indicate their accounting procedures and mechanisms for financial transfer and replenishment. It is usually helpful to have as high a share as possible of direct financial participation by the Bank in project components dealing with indigenous peoples. Project Processing and Documentation Identification

16. During project identification, the borrower should be informed of the Bank’s policy for indigenous peoples. The approximate number of potentially affected people and their location should be determined and shown on maps of the project area. The legal status of any affected groups should also be discussed. TMs should ascertain the relevant government agencies, and their policies, procedures, programs, and plans for indigenous peoples affected by the proposed project (see paras. 11 and 15(a)). TMs should also initiate anthropological studies necessary to identify local needs and preferences (see para. 15(b)). TMs, in consultation with the REDs, should signal indigenous peoples issues and the overall project strategy in the Initial Executive Project Summary (IEPS). Preparation 17. If it is agreed in the IEPS meeting that special action is needed, the indigenous peoples development plan or project component should be developed during project preparation. As necessary, the Bank should assist the borrower in preparing terms of reference and should provide specialized technical assistance (see para.12). Early involvement of anthropologists and local NGOs with expertise in matters related to indigenous peoples is a very useful way to identify mechanisms for effective participation and local development opportunities. In a project that involves the land rights of indigenous peoples, the Bank should work with the borrower to clarify the steps needed for putting land tenure on a regular footing as early as possible, since land disputes frequently lead to delays in executing measures that are contingent on proper land titles (see para. 15(c)).

235 Appraisal 18. The plan for the development component for indigenous peoples should be submitted to the Bank along with the project’s overall feasibility report, prior to project appraisal. Appraisal should assess the adequacy of the plan, the suitability of policies and legal frameworks, the capabilities of the agencies charged with implementing the plan, and the adequacy of the allocated technical, financial, and social resources. Appraisal teams should be satisfied that indigenous people have participated meaningfully in the development of the plan as described in para. 14 (a) (also see para. 15(d)). It is particularly important to appraise proposals for regularizing land access and use. Implementation and Supervision 19. Supervision planning should make provisions for including the appropriate anthropological, legal, and technical skills in Bank supervision missions during project implementation (see para.15(g) and (h), and OD 13.05, Project Supervision). Site visits by TMs and specialists are essential. Midterm and final evaluations should assess progress and recommend corrective actions when necessary. Documentation 20. The borrower’s commitments for implementing the indigenous peoples development plan should be reflected in the loan documents; legal provisions should provide Bank staff with clear benchmarks that can be monitored during supervision. The Staff Appraisal Report and the Memorandum and Recommendation of the President should summarize the plan or project provisions

236 Context: Indigenous Peoples and the Right to Self- Determination

From Decolonization to Human Rights Indigenous peoples and organizations have encountered numerous difficulties in claiming the right of self-determination as defined by the United Nations. The narrow definition, applied by the United Nations since its inception, and later expressed in the 1960 “Decolonization Declaration”, prevails, and includes nation-state territorial integrity and political decolonization. As was mentioned earlier, a precondition for the latter is the “salt- water” doctrine, which in practice requires separation by water between the colonial territory and the colonizing territory, for it to be defined as a colony. In 1966, the right of all peoples to self-determination became also a human right. The United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights both state in their respective first Articles, first paragraphs:

All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Accordingly, peoples are the beneficiaries of the right of self-determination. But the controversial issue remaining is whether indigenous peoples can be included in this category. The term “peoples” is not defined in the human rights covenants. In the drafting of the Covenants, the Western view of the definition of peoples was voiced by Canada:

It would be a serious matter indeed if, through a decision of the UN, member countries were placed in a position of being morally and perhaps legally bound to grant to those minority groups the right to determine their own institutions without consideration for the wishes of the community as a whole. (Official Records of the UNGA, 3rd Comm., 5th sess., 310th meeting).

However, it is difficult to pursue a consequent policy on self-determination. In the Congo crisis, in 1960, in which the UN later was involved, the Western view at the beginning of the conflict argued for tribal groups within independent states to be included under article 73(c) of the UN Charter. This article requires governments to provide information relating to economic, social and educational conditions in dependent territories.

237 However, the UN took the government side in the Congo conflict, which called for the maintenance of the territorial integrity of Congo. The attempted secession by the Katanga was declared illegal according to the international law at that moment. A few years later, the UN in the Biafra war in Nigeria took the same position. An interesting exception is the Bangladesh secession from Pakistan, which became effective in 1971, with the support of the international community. This secession became effective and was recognized by the international community, despite the recent adoption in 1970 by the UN of the “Friendly-Relations”-Declaration, which called for recognition of the territorial integrity and national unity of the nationstates of the world.

What a Difference an ‘S’ makes The UN and State practice has in its definition of peoples relied on territorial entities with an historical or administrative background. The 1960 “Decolonization Declaration” and the 1970 “Friendly Relations”-Declaration, confirm this. For some time the term “populations” eliminated the self-determination issue as it immediately left indigenous groups outside the scope of this right. The term population is still contained in the name of the UN Working Group and its auxiliary Voluntary Fund. When the ILO took the first step to using the term “peoples”, though with a qualifying clause, it nevertheless created much confusion and verbal creativity on behalf of the governments. How was it possible to eliminate the self-determination implications of the change of terms? The solution was as simple as effective: the use of the singular “people” would directly eliminate the implications of indigenous groups from the right of the plural “peoples” in international law. The first time this use of the singular “people” in connection with indigenous came in use was in the 1992 Rio Declaration on Environment and Development and in the Agenda 21. Later it has been used in the celebration of the “International Year of the World’s Indigenous People”; in the 1993 Vienna Declaration and Programme of Action of Human Rights; and in the ongoing “International Decade of the World’s Indigenous People 1994-2004”. The Cree ambassador, Chief Ted Moses, responded to this verbal “creativity” in a speech before the World Conference on Human Rights, Vienna, in 1993;

They have called us ‘populations’, ‘communities’, ‘groups’, ‘societies’, ‘persons’, ethnic minorities’; now they have decided to call us ‘people’, in the singular. In short, they will use any name they can think of, as long as it is not ‘peoples’ with an ‘s’. They are willing to turn universality on its head to avoid recognizing our right of self-determination. They will call us anything but what we are – peoples (Seeds of a New Partnership: Indigenous Peoples and the United Nations, UN, New York, 1994, at p. 42).

238 Obviously, the member states of the UN wants to avoid the implications of the existing international law on self-determination.

External v. Internal Self-Determination During the last decade or so, some of the academia concerned with indigenous peoples’ issues from an international legal perspective have tried to loosen the noose self- determination is holding on the governments of the world. A new distinction – external/internal self-determination – has made its way into the discussions. One can say that the ‘s’ debate was a result of the fear of external self-determination, which implies political secession. Despite this, there are good arguments for an introduction of external self-determination of indigenous peoples: why should indigenous peoples be denied what others enjoy who have been colonized; why should they not be subject to decolonization even if they do not fulfill the salt-water doctrine? (Alfredsson, 1993:46-47). As Gudmundur Alfredsson noted: these why-not questions make good sense with regard to indigenous peoples who entered as equals into treaties of peace and friendship with the colonizing powers or with the successor states (Alfredsson, 1993:47). The arguments against external self-determination for indigenous peoples are founded on the international instruments adopted by the UN. After all, international law in its dogmatic state-positivism is made by states for states. International law in this perspective is designed to preserve the interests of states. Seeing international law from this perspective, the ‘s’ debate seems highly understandable, as territorial integrity and national unity are two basic elements on which the modernistic nation-state concept is built. Shortly after his inauguration as Secretary-General of the UN, Boutros-Boutros Ghali, in An Agenda for Peace, 1992, expressed a desire of continuation of the UN territorial integrity-position regarding the problem of ethnic groups demanding secession or self- determination. He pointed out that there would be no limit to fragmentation if every ethnic, religious or linguistic group claimed statehood. His argument is well situated in the traditional UN view on the question of self-determination and “minorities” in independent countries. Another way for governments to come around the problem of external self- determination for indigenous peoples, is the rather new concept of ”internal self- determination”. A conservative analysis of the self-determination issue will conclude that governments will never voluntarily accept an international regime that threatens the territorial integrity and national unity of the state. As a response to that conclusion, it is well understood that a new interpretation of self-determination takes shape: a more limited version of self-determination, confined to indigenous peoples as beneficiaries. The UN instruments do not distinguish between external and internal self-determination, so

239 the field is open to interpretations of what self-determination can contain in practice. What does internal self-determination really mean? Is it just another fraudulent verbal creativity of the governments that once more enters the international scene? Maybe the concept was not exclusively a governmental invention in the first place. Looking into the statements presented at the UN Working Group on Indigenous Populations, it is clear that many see this conceptualization as a rescuing back-door policy for governments in need of verbal and legal development in the field of self-determination. Nevertheless, a considerable effort has been made to explain what internal self- determination may or can mean. Two concepts have taken a paramount place in that discussion: 1) democratic government and 2) group autonomy within existing national borders. The Australian government has expressed its view on the content and why it considers internal self-determination to be such a good idea:

Realization of the right of self-determination is not limited in time to the process of decolonization nor is it accomplished solely by a single act or exercise. Rather it entails the continuing right of all peoples and individuals within each state to participate fully in the political process by which they are governed. Clearly, enhancing popular participation in this decision-making is an important factor in realizing the right of self-determination. It is evident that even in some countries, which are formally, fully democratic, structural, attitudinal and procedural barriers inhibit the full democratic participation of particular groups (Report of the WGIP, 1993).

This is clearly a democratic argument with an emphasis on a representative government, representing all people of a nation-state. This interpretation of the Australian government is not surprising, as it has been argued in some international legal quarters that self- determination of a minority in an independent state may be legitimate if the government does not represent also the minorities or is systematically discriminating it. Arguments many indigenous peoples of the world could use. The other understanding of internal self-determination, and maybe the most debated conceptualization of it today, is the question of autonomy of indigenous peoples within the state in which they are located. The UN Draft Declaration on the rights of indigenous peoples contains this understanding in Article 31. Internal self-determination is also referred to as self-government, self-management, home-rule or autonomy. The label may differ, but the idea is that it is a delegation of powers to a municipal authority. There are today, broadly speaking, three models of internal self-determination working in practice. It must be remembered that in this categorization, no evaluation of the merits of the different models is made. There are two territory and one community based models. Territorial internal self- determination can be confined either to one indigenous group, or to all groups in the

240 defined area. The reserves of North America, the Kuna Comarca of Panama, and the Miskito Autonomy Region in Nicaragua, are examples of the first. In those areas, you find one defined group exhibiting self-government. Examples of the other form of territorial self-government is the Greenland Home-rule in Denmark and the Nunavuut territory in Canada, which both contain non-indigenous peoples in the self-government model. The third model, or the community based internal self-determination is found in the Sami Parliaments in Finland, Norway and Sweden. That means that the self- government is not confined to a specific area, but relates to the whole of the indigenous community, regardless where they live in the country. How these different models of self-government function in practice may be subject to different opinions. Nevertheless, they show that some efforts are made to overcome the historical and present discriminatory policies regarding indigenous peoples. On the other hand, this does not mean that these models are not open to criticism.

241 50 The Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self-Government

Nuuk, Greenland, September 28, 1991

The participants generally agreed that this meeting had contributed towards a better understanding of how autonomy and self-government could be implemented within existing State structures. It was felt that self-government of indigenous peoples could be achieved without endangering the unity and territorial integrity of the State, provided legislators had the political will. Questions remained, however, about the different types of self-government arrangement and it was thought that further reflection and study were necessary. In that respect, participants agreed that the publication of a manual or handbook on experiences of self-government of indigenous peoples might be useful. The representative of the International Labour Office, seconded by numerous speakers, proposed that idea and it was suggested that it would be particularly helpful if the manual included a summary of the different existing self-governing arrangements. Further exchange of information on that important question was deemed necessary.

The Nuuk Conclusions and Recommendations on Indigenous Autonomy and Self- Government The United Nations Meeting of Experts, meeting at Nuuk, Greenland, from 24 to 28 September 1991, recognises that indigenous peoples are historically self-governing with their own languages, cultures, laws and traditions. The Meeting of Experts shares the view that indigenous peoples constitute distinct peoples and societies, with the right to self-determination, including the rights of autonomy, self-government, and self-identification. The Meeting of Experts recognises that serious problems faced by indigenous peoples are specific for each country and region of the world and there cannot be a single and uniform solution for them. On this basis the Meeting adopts the following Conclusions and recommendations to be implemented with due consideration to the specificity of each

242 situation without detracting from the established minimum standards set out in international instruments on human rights. I. 1. The self-determination of peoples is a precondition for freedom, justice and peace, both within States and in the international community. 2. Indigenous peoples have the right to self-determination as provided for in the International Covenants on Human Rights and public international law and as a consequence of their continued existence as distinct peoples. This right shall be implemented with due consideration to other basic principles of international law. An integral part of this is the inherent and fundamental right to autonomy and self- government. 3. Self-government, self-administration and self-management of indigenous peoples constitute elements of political autonomy. The realization of this right should not pose a threat to the territorial integrity of the State. 4. For indigenous peoples, autonomy and self-government are prerequisites for achieving equality, human dignity, freedom from discrimination and the full enjoyment of all human rights. 5. Indigenous territory and the resources it contains are essential to the physical, cultural and spiritual existence of indigenous peoples and to the construction and effective exercise of indigenous autonomy and self-government. This territorial and resource base must be guaranteed to these peoples for their subsistence and the ongoing development of indigenous societies and cultures. Where appropriate the foregoing should not be interpreted as restricting the development of self-government and selfmanagement arrangements not tied to indigenous territory and resources. 6. The autonomy and self-government of indigenous peoples are beneficial to the protection of the natural environment and the maintenance of ecological balance which helps to ensure sustainable development. 7. Indigenous autonomies and self-governments must, within their jurisdiction, assure the full respect of all human rights and fundamental freedoms and popular participation in the conduct of public affairs. 8. Autonomy and self-government can be built on treaties, constitutional recognition or statutory provisions recognizing indigenous rights. Further, it is necessary for the treaties, conventions and other constructive arrangements entered into in various historical circumstances to be honored, in so far as such instruments establish and confirm the institutional and territorial basis for guaranteeing the right of indigenous peoples to autonomy and self-government.

243 9. 9 Autonomy and self-government are essential for the survival and further development of indigenous peoples and are a basis for internationaI cooperation and bilateral and multilateral legal arrangements. 10. lO. Indigenous peoples have the right to be different, to consider themselves as different and to be considered and respected as such, as recognized in the Declaration on Race and Racial Prejudice, adopted by the United Nations Educational, Scientific and Cultural Organization in 1978. 11. Within States, autonomy and self-government for indigenous peoples contribute to peaceful and equitable political, cultural, spiritual, social and economic development. 12. Subject to the freely expressed desire of the indigenous peoples concerned, autonomy and self-government include, inter alia, jurisdiction over or active and effective participation in decision-making on matters concerning their land, resources, environment, development, justice, education, information, communications, culture, religion, health, housing, social welfare, trade, traditional economic systems, including hunting, fishing, herding, trapping and gathering, and other economic and management activities, as well as the right to guaranteed financial arrangements and, where applicable, to levy taxes for financing these functions. 13. Autonomy and self-government arrangements are to be faithfully respected. They may only be amended by a new agreement between the parties to the original agreement or in accordance with established constitutional or legal procedures. 14. Arrangements should be made for the prevention of potential conflicts of competence. An effective, independent and impartial mechanism for solving disputes between the self-government and the State should be established by constitutional provisions or by law. Equal representation of the self-government in this mechanism should be guaranteed. 15. Where autonomies and self-governments are affected by matters outside their jurisdiction, including actions taken by the regional and local governments of federated States, they should be closely involved in the planning stages of these activities and their consent should be obtained by States before these activities are implemented. II. 16. The Meeting of Experts recommends that States should undertake, if they have not already done so, regular periodic reviews, together with indigenous peoples through their own organisations, of the obstacles to autonomy and self-government and take the measures agreed upon to overcome them and to promote fully significant processes of construction of autonomy or self-government.

244 17. The Meeting of Experts recommends that where State borders pose obstacles to free movement, trade and communications among members of indigenous autonomies and self-governments, States must undertake arrangements to eliminate these obstacles. 18. The Meeting of Experts furthermore recommends that States should consider favorably the ratification of international instruments relevant to the situation of indigenous peoples, including the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, and Convention No. 169 of the International Labour Organisation. 19. The Meeting of Experts recommends that States should cooperate by providing the means for training necessary to assist indigenous peoples in the exercise of autonomy and self-government. 20. The Meeting of Experts invites Governments to support, by providing adequate resources, the United Nations Centre for Human Rights and the International Labour Office with the publication and distribution of a manual on autonomy and selfgovernment. 21. The Meeting of Experts recommends that existing advisory services and technical assistance programmes within the United Nations system should be used and enlarged, if need be, to finance training for indigenous peoples and autonomous and self-governmental institut. 22. The Meeting of Experts recommends that the question of the rights of indigenous peoples and the protection thereof should be dealt with on a permanent basis within the United Nations. The Meeting recommends to the Commission on Human Rights that it consider the possibility of establishing international monitoring mechanisms to deal with indigenous peoples. 23. The Meeting of Experts recommends that the conclusions and recommendations of the Meeting be considered for inclusion among the themes of the International Year for the World’s Indigenous Peoples 1993. 24. The Meeting of Experts requests the Secretary-General to give the widest possible distribution to the report, recommendations and working papers of this Meeting, including distribution of the report and recommendations to the General Assembly at its forty seventh session, the Commission on Human Rights at its forty-eighth session, the Sub-Commission on Prevention of Discrimination and Protection of Minorities at its forty-fourth session, and the Working Group on Indigenous Populations at its tenth session, and to Governments and competent international, intergovernmental and non-governmental and regional organisations and other

245 international forums; and that the present report, recommendations and working papers be issued as a United Nations publication.’

246 51 Indigenous Peoples and the Quincentenary 1992

European Parliament Resolution, Strasbourg, France, March 12, 1992

The European Union and Indigenous Peoples

The European Union is a supranational organization, which presently has twenty-seven Member States. This means that the members of the European Union (EU) have transferred some of their sovereign powers to the Union. The EU’s decision-making process involves the European Commission, the European Parliament, the European Court of Justice and the Council of Ministers. The Commission is the executive branch, which has the principal tasks: i. to propose measures for the development of Union policies; ii. to implement Union policies on the basis of the decisions taken by the Council of Ministers or following from Treaty provisions. (Treaty of Rome) iii. to manage the funds and common policies which account for most of the EU budget. iv. to ensure that EU rules and the principles of the common market are observed. The Council of Ministers is the principle legislative and decision-making institution. It is composed of the Ministers from the Member States. The European Parliament is the second legislative body, after the Council of Ministers. The Members of the European Parliament are elected every five years. The Parliament has the following major roles: i. legislative ii. budgetary iii. iii) political force. Besides these three decision-making assemblies, the EU has two additional important institutions: i) the European Investment Bank, which is the financial institution and helps to implement the policies of the EU by providing loans for projects.

247 ii) the European Court of Justice, which is the “Supreme Court” and final arbiter of Union law.

The European Parliament The European Parliament have during the last 5-7 years adopted an increasing number of resolutions on human rights violations in the world, and in particular on the situation of indigenous peoples. Hesitant declarations in the beginning have developed into a much more forceful and outspoken position against the discrimination of indigenous peoples. This shows a growing awareness of the situation, not only of the American Indians, but also of the indigenous groups in Africa, Asia and in Oceania. The resolutions of the European Parliament include the situation of many different peoples in the world: Penan, Kelabit and Kayan in Sarawak, Malaysia; Yanomami and Awa Guaja in Brazil; Mohawks and Inuit in Canada; Tuareg in Mali and Niger; Huaorani and Shiwiar in Ecuador; and the Nagas in India; Karen in Myanmar/ Burma and the Paez in Colombia. In addition to these specific resolutions, the Parliament has twice initiated major reports to study and monitor the overall situation of indigenous peoples in the world and make recommendations for European Community/Union (EU) policy: the 1992 “Indigenous peoples and the Quincentenary” and the 1994 resolution “On action required internationally to provide effective protection for indigenous peoples”. In the former resolution, concern is expressed of human rights violations against indigenous peoples. Governments of countries including indigenous peoples are requested to settle disputes over land before they engage in economic activities in those areas where indigenous peoples claim to have title to the land and where the intended activities are not supported by the majority of the indigenous population concerned. Moreover, the European Commission is requested to comply with the Parliament’s wish to allocate funding for special projects with indigenous peoples. The second resolution mentions the general situation and task of providing an effective protection preventing discrimination against indigenous peoples.

The Impact of European Parliament Resolutions Basically, parliament resolutions are likely to have two consequences: 1. Inter-institutional: Representatives of the European Commission and Council are present to respond to resolutions debated by the Parliament, to answer questions and to explain past and future policies. The Parliament is a democratically elected assembly, but has a very limited portion of direct impact on the policies of the European Union.

248 2. Political: Resolutions express the political will and ideas of the Parliament, and often reflect concerns of citizens and organizations of the European Union and human rights organizations outside the EU. 3. Maybe the most important factor is the EP’s power to accept or reject some Cooperation Agreements with third states, for example under the Lomé Convention, which deals with 69 countries from Africa, the Pacific and the Caribbean; the ALA Agreement, which operates in Asia and Latin America; and the TACIS Agreement, which deals with cooperation with countries of the former Soviet Union. (Fliert, 1994:11-53)

Resolution on 1992, indigenous peoples and the quincentenary The European Parliament, A. having regard to 1992, the year of the commemoration of the 500th anniversary of the arrival of Europeans in America and its impact on the indigenous civilizations, B. having regard to 1993, which will be proclaimed by the UN as the “year of the indigenous peoples” C. having regard to UN estimates of 300 million indigenous peoples in the world, including over 60 million Amerindians in the Americas D. mindful of its recommendations in its past resolutions of 14 April 1989 on the position of the world’s Indians (‘), 10 January 1990 on the situation of the Yanomami Indians in Brazil (r), 13 September 1990 on the Canadian Indians (3), 25 October 1990 on the environmental problems in the Amazon region (4), 25 October 1990 on measures to protect the ecology of the tropical forests (5), 25 October 1990 on the conservation of tropical forests (6), 13 December 1990 on Commission participation in the 1992 Genoa International Exhibition (7); E. mindful of the response of indigenous peoples’ organizations to the planned celebrations to commemorate Columbus’ voyage to the Americas; F. concerned at reports from Amnesty International and Survival International of human rights violations against indigenous peoples 1. Welcomes the progress made by, inter alias the Governments of Brazil (land for the Yanomami people), Argentina (land for the Guarani people in the province of Missiones), Canada (land for the Innuit called Nunavut) and Colombia (the establishment of ‘resguardos’), in granting indigenous people large territories for autonomy;

249 2. Calls for the right of indigenous peoples to their territory to be recognized and calls for disputes regarding territory to be resolved as soon as possible; 3. Calls upon governments of countries with indigenous peoples to settle disputes over land before engaging in economic activities in those areas where indigenous people claim to have titles to the land and where the activities are not supported by the majority of the indigenous population; 4. Calls upon those governments to comply with and implement international human rights instruments; 5. Calls on the European Community Institutions to comply with the wish of this Parliament and allocate funding for special projects with indigenous peoples, developed by and for native communities; 6. Calls on international organizations and governments to consult indigenous peoples on any economic exploitation, any planning project and any other project concerning them; 7. Instructs its Subcommittee on Human Rights to invite experts to one of its meetings in 1992 to study and discuss in detail the human rights situation of indigenous peoples in the world; 8. Requests the European Commission, the World Bank and the IMF to include in their criteria for financing development programmes both environmental impact assessments and indigenous peoples’ impact analyses; 9. Calls upon the Community to organize activities that take account both of the present situation of indigenous peoples in the world and the historic context and requests the European Commission and Council to implement its recommendations of earlier resolutions; 10. Expresses its solidarity with the ‘Earth Parliament’ which will be organized by the indigenous peoples during the UNCED in Brazil; 11. Instructs its human rights unit to provide a background document on the situation of indigenous peoples – and its competent committee to appoint a rapporteur to analyse the human, territorial and cultural rights of the indigenous peoples of the Americas; 12. Instructs its President to forward this resolution to the Commission, the Council, the Foreign Ministers meeting in EPC, the ILO, the World Bank, the International Monetary Fund and the Governments of Brazil, Argentina, Canada and Colombia

250 Context: Indigenous Peoples, Development, Environment and Intellectual Property

Maybe the most intense arena of conflict where indigenous peoples are involved today is the exploitation of natural resources on indigenous lands and territories by external interests. Indigenous peoples often live on lands that still are lightly exploited, and then only for local indigenous use. Multinational corporations searching for cheap natural resources and national governments in the Third World, driven by trade deficits and foreign debts, are eager to extract as much of the natural resources as possible, often with destructive consequences for the total environment and the living conditions of the indigenous peoples and their cultures. Thus, the building of highways and hydroelectric plants, mining operations, lumbering, agribusiness, all intrude on indigenous lands and territories. Once thought of as barren wastelands of little economic and political value, indigenous territories have during the last decades been identified as areas of vital national, and even international, importance. Large development projects are often introduced into indigenous lands to meet the needs of other segments of the national population. To make the life better for the indigenous peoples may often be seen as a rationalization of projects that would have been carried out regardless of their impact on the local population. It is clear that many of the projects were designed without input from the indigenous peoples to be affected by them. The last frontiers of forest, desert, mountain and tundra are now being opened up for outside commercial interests. The impact of this exploitation is farreaching. With no areas to retreat to, the indigenous peoples have been forced to accept these invasions reluctantly, or to fight back. The concern for these issues has led to some internationally initiated action regarding development and the environment. Although the specific problems of indigenous peoples may not be in the focus of global concern, their issues are to some extent taken up and dealt with in international fora. During the 1990s, there has been a constant flow of international political and legal documents that express a concern for the destruction of the environment and cultures of indigenous peoples all over the world. The most famous document, Agenda 21, adopted by the 1992 Rio Conference on Environment and Development, is only one out of several that are compiled in this publication. It is noteworthy that indigenous peoples themselves have paid a great deal of attention to these issues in several international indigenous documents and fora. Indigenous peoples have formed organizations and international strategies to force the international community to take note of their efforts in a wide range of issues – from deforestation to the commercial

251 genetic exploitation of human beings and natural resources. The special situation of indigenous peoples is acknowledged, as they are partially objects of the major international legal and political documents adopted during the last five years. The prime factor of interest in indigenous peoples’ land are the economic possibilities. After the Second World War, when the economic growth and the increasing demand for services and consumer goods led to the search for cheap natural resources, the lands of indigenous peoples have become interesting for major exploitation and development projects all over the world. It started in North America in the 1950s, when minerals, especially uranium, were found on Indian reservations. It is estimated that 40 per cent of all uranium deposits in the United States are situated on Indian reserves. The story is similar in other parts of the world and concerns today forest logging, hydroelectric plants, mining, oil exploitation, and golf courses on old burial sites. In the Amazons, Indians have been pushed aside for mining companies, logging, hydroelectric plants and oil extraction. In India, about 50 per cent of the mineral resources are on indigenous lands in the state of Bihar. Yet the indigenous peoples benefit little from the wealth and employment generated in the regions. The last example is maybe a sign of the times. The international Human Genome Diversity Project, also known as Hugo, has been extracting blood from more than 700 indigenous groups, all over the world. The Hugo-project is a billion dollar project, which aims to answer questions like where homo sapiens originated from, how populations have migrated and if cultural diversity can be explained by genetic differences. The issues of environment, development and intellectual property create a wide range of problems for indigenous peoples. These are by no means solved.

252 52 Excerpts from: The Convention on Biological Diversity

Nairobi, Kenya, May 22, 1992

The Emerging Discourse on Biodiversity and Conservation of Nature

A few days before the Rio conference, the United States announced that it would not sign the Convention on Biological Diversity. The objections centered on the controversial provisions in the convention dealing with biotechnology. Moreover, maybe the major reason for the US to object to signing the convention was the demand by the Third World countries for access to biotechnology on preferential terms. The refusal of the US to sign the biodiversity convention contributed to an atmosphere of a north-south confrontation at the Rio Earth Summit. This weakened the efforts towards other areas of concern such as an effective protection of the world’s forests. There has also been some concern that the Convention left the door open for countries to patent genetic material and charge royalties for its use. This fear seems mostly to come from multinational corporations who in that case will see their profits reduced as they develop such material into saleable products. Against the odds, the United Nations Environmental Programme (UNEP) and the International Union of Conservation of Nature (IUCN) were able to present a draft of a text in the spring of 1992, at a conference in Nairobi, Kenya. The conference agreed upon the text and the Convention on Biological Diversity was open for signature at the Earth Summit in Rio a few weeks later. As important as the Rio Earth Summit itself is, the ongoing negotiation (currently in progress) concerning the framework in which the biodiversity convention is supposed to work in may be more so (Conference of the Parties, art.23). In general, it can be said the biodiversity process is attempting to appropriate national resources for universal access and use. As has been implied earlier, the biodiversity convention raises some fundamental questions in the perspective of indigenous peoples. Indigenous peoples now not only have to deal with national policies in each country, today international opinion and politics, and the commercial interests of transnational corporation are just as important. For

253 instance, tropical and other forests which contain large numbers of plant and animal species and indigenous cultures, have been issues over which the sovereignty of nation- states has been expressly acknowledged. The economic, agricultural and pharmaceutical value of many of the plants found in tropical forests is based largely on the knowledge of subsistence farmers and forest-dwelling indigenous peoples. While corporations and researchers from the North have benefited enormously from this knowledge, and the genetic resources in the development of improved plant and animal breeds, pharmaceutical products etc., the nations of the South, and maybe indigenous peoples in particular, are yet to be adequately compensated for providing the basic knowledge and resources. The question of access to biotechnology and compensation for biological resources points to very serious inconsistencies in the policies of the North regarding biodiversity and intellectual property rights. The biodiversity convention process is pointing to positions where the North’s objective is to turn national resources of the South and indigenous peoples into global commons, with free access for all nations (Biodiversity Convention art. 15). At the same time, international intellectual property rights negotiations are pushing for stringent private property rights and global monopoly privileges of technology for the North (in contradistinction and overruling art. 16 of the Biodiversity convention). The attempt to privatize knowledge and gene resources is supported by the process of the Biodiversity Convention (see, art.15). The Convention provides free access to the rich genetic pool of developing countries and, thus, of indigenous peoples, and allows their export to gene banks in the developed countries (so-called “ex-situ conservation”, art.9), which eventually leads to their privatization. This trend of privatization of knowledge and gene resources is a serious threat to the development, life, culture and communities of indigenous peoples, and probably to the South as a whole. The negotiation process of the biodiversity convention should therefore concentrate on the following two basic elements: 1. There should also be a development of special intellectual property rights and appropriate compensation mechanisms for the biological resources provided by indigenous peoples, and 2. Mechanisms that will provide Indigenous Peoples free and informed participation in the process of developing gene resources located in their areas. 3. These may be strong demands on behalf of the indigenous groups, but as it considers the long-term cultural survival, they must nevertheless be seen as minimum- standards.

254 Excerpts from Convention on Biological diversity; Preamble The Contracting Parties, /—/ Recognising the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources, and the desirability of sharing equitably benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components, /—/ Have agreed as follows: Article 1. Objectives The objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding. /—/ Article 3. Principle States have, in accordance with Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. /—/ Article 5. Cooperation Each Contracting Party shall, as far as possible and as appropriate, cooperate with other Contracting Parties, directly or, where appropriate, through competent international organizations, in respect of areas beyond national jurisdiction and on other matters of mutual interest, for the conservation and sustainable use of biological diversity. /—/ Article 8. In-situ Conservation

255 Each Contracting Party shall, as far as possible and as appropriate: /—/ Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices; /—/ Article 9. Ex-situ Conservation Each Contracting Part shall, as far as possible and as appropriate, and predominantly for the purpose of complementing in-situ measures: a) Adopt measures for the ex-situ conservation of components of biological diversity, preferably in the country of origin of such components; b) Establish and maintain facilities for ex-situ conservation of and research on plants, animals and micro-organisms, preferably in the country of origin of such components; c) Adopt measures for the recovery and rehabilitation of threatened species and for their reintroduction into their natural habitats under appropriate conditions; d) Regulate and manage collection of biological resources from natural habitats for ex-situ conservation purposes so as not to threaten ecosystems and in-situ populations of species, except where special temporary ex-situ measures are required under subparagraph (c) above; and e) Cooperate in providing financial and other support for ex-situ conservation outlined in subparagraphs (a) to (d) above and in the establishment and maintenance of ex-situ conservation facilities in developing countries. Article 10. Sustainable Use of Components of Biological Diversity Each Contracting Party shall, as far as possible and as appropriate: /—/ c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements;

256 d) Support local populations to develop and implement remedial action in degraded areas where biological diversity has been reduced; and e) Encourage cooperation between its governmental authorities and its private sector in developing methods for sustainable use of biological resources. /—/ Article 15. Access to Genetic Resources 1. Recognising the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation. 2. Each Contracting Party shall endeavour to create conditions too facilitate access to genetic resources for environmentally sound uses by other Contracting Parties and not to impose restrictions that run counter to the objectives of this Convention. /—/ 3. Access to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources, unless otherwise determined by that Party. 4. Each Contracting Party shall endeavour to develop and carry out scientific research based on genetic resources provided by other Contracting Parties with the full participation of, and where possible in, such Contracting Parties. 5. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, and in accordance with Articles 16 and 19 and, where necessary, through the financial mechanism established by Articles 20 and 21 with the aim of sharing in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources with the Contracting Party providing such resources. Such sharing shall be upon mutually agreed terms. Article 16. Access to and Transfer of Technology 1. Each Contracting Party, recognizing that technology includes biotechnology, and that both access to and transfer of technology among Contracting Parties are essential elements for the attainment of the objectives of this Convention, undertakes subject to the provisions of this Article to provide and/or facilitate access for and transfer to other Contracting Parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources and do not cause significant damage to the environment.

257 2. Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and /or facilitated under fair and most favorable terms, including on concessional and preferential terms where mutually agreed, and where necessary, in accordance with the fiancial mechanism established by Articles 20 and 3. In the case of technology subject to patents and other intellectual property rights, such access and transfer shall be provided on terms which recognize and are consistent with the adequate and effective protection of intellectual property rights. The application of this paragraph shall be consistent with paragraphs 3, 4 and 5 below. 4. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that Contracting Parties, in particular those that are developing countries, which provide genetic resources are provided access to and transfer of technology which makes use of those resources, on mutually agreed terms, including technology protected by patents and other intellectual property rights, where necessary, through the provisions of Articles 20 and 21 in accordance with international law and consistent with paragraphs 4 and 5 below. 5. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, with the aim that the private sector facilitates access to, joint development and transfer of technology referred to in paragraph 1 above for the benefit of both governmental institutions and the private sector of developing countries and in this regard shall abide by the obligations included in paragraphs 1,2 and 3 above. 6. The Contracting Parties, recognizing that patents and other intellectual property rights may have an influence on the implementation of this Convention, shall cooperate in this regard subject to national legislation and international law in order to ensure that such rights are supportive of and do not run counter to its objectives.

Article 17. Exchange of Information 1. The Contracting Parties shall facilitate the exchange of information, from all publicly available sources, relevant to the conservation and sustainable use of biological diversity, taking into account the special needs of developing countries. 2. Such exchange of information shall include exchange of results of technical, scientific and socio-economic research, as well as information on training and surveying programmes, specialized knowledge, indigenous and traditional knowledge as such and in combination with the technologies referred to in Article 16, paragraph 1. It shall also, where feasible, include repatriation of information.

258 Article 18. Technical and Scientific Cooperation 1. The Contracting Parties shall promote international technical and scientific cooperation in the field of conservation and sustainable use of international and national institutions. 2. Each Contracting Party shall promote technical and scientific cooperation with other Contracting Parties, in particular developing countries, in implementing this Convention, inter alia, through the development and implementation of national policies. In promoting such cooperation, special attention should be given to the development and strengthening of national capabilities, by means of human resources development and institution building. 3. The Conference of the Parties, at its first meeting, shall determine how to establish a clearing-house mechanism to promote and facilitate technical and scientific cooperation. 4. The Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. For this purpose, the Contracting Parties shall also promote cooperation in the training of personnel and exchange of experts. 5. The Contracting Parties shall, subject to mutual agreement, promote the establishment of joint research programmes and joint ventures for the development of technologies relevant to the objectives of this Convention.

Article 19. Handling of Biotechnology and Distribution of its Benefits 1. Each Contracting Party shall take legislative, administrative or policy measures, as appropriate, to provide for the effective participation in biotechnological research activities by those Contracting Parties, especially developing countries, which provide the genetic resources for such research, and where feasible in such Contracting Parties. 2. Each Contracting Party shall take all practicable measures to promote and advance priority access on a fair and equitable basis by Contracting Parties, especially developing countries, to the results and benefits arising from biotechnologies based upon genetic resources provided by those Contracting Parties. Such access shall be on mutually agreed terms. /—/

259 Article 20. Financial Resources 1. Each Contracting Party undertake to provide, in accordance with its capabilities, financial support and incentives in respect of those national activities which are intended to achieve the objectives of this Convention, in accordance with its national plans, priorities and programmes. 2. The developed country Parties shall provide new and additional financial resources to enable developing country Parties to meet the agreed full incremental costs to them of implementing measures which fulfill the obligations of this Convention and to benefit from its provisions and which costs are agreed between a developing country Party and the institutional structure referred to in Article 21, in accordance with policy, strategy, programme priorities and eligibility criteria and an indicative list of incremental costs established by the Conference of the Parties. Other Parties, including countries undergoing the process of transition to a market economy, may voluntarily assume the obligations of the developed country Parties. For the purpose of this Article, the Conference of the Parties, shall at its first meeting establish a list of developed country Parties and other Parties which voluntarily assume the obligations of the developed country Parties. The Conference of the Parties shall periodically review and if necessary amend the list. Contributions from other countries and sources on a voluntary basis would also be encouraged. The implementation of these commitments shall take into account the need for adequacy, predictability and timely flow of funds and the importance of burden sharing among the contributing Parties included in the list. /—/

Article 23. Conference of the Parties 1. A Conference of the Parties is hereby established. The first meeting of the Conference of the Parties shall be convened by the Executive Director of the United Nations Environment Programme not later than one year after the entry into force of this Convention. Thereafter, ordinary meetings of the Conference of the Parties shall be held at regular intervals to be determined by the Conference at its first meeting. /—/

260 53 Indigenous Peoples Earth Charter

World Conference of Indigenous Peoples on Territory, Environment and Development, Kari-Oca, Brazil, May 25-30, 1992

The World Conference of Indigenous Peoples at Kari-Oca gathered more than eight hundred indigenous peoples, representing 82 organizations, from five continents. The main objective of Kari-Oca was to draw up an Indigenous Charter and distribute it to all indigenous peoples of the world. It would also be presented at the Earth Summit in Rio and at the United Nations Working Group of Indigenous Populations in Geneva. The document is divided into five parts after the preamble and the declaration. The parts are: 1) human rights and international law, which among other things declares that the concept of terra nullius ought to be erased from all national and international legal textbooks (art.6), 2) Lands and territory, where the indigenous peoples want to emphasize and maintain the strong relationship to their land and territories and the importance of it in their cultures, 3) Biodiversity and conservation, which rejects of making indigenous peoples parts of the new biodiversity discourse as folkloristic objects. They also demand some influence in the national policies of environment and biodiversity, 4) Development strategies underline the importance of including indigenous peoples in developments projects that affect them. A policy of informed consent should always be required before starting new projects, and 5) Culture, science and intellectual property, where they underline the importance of their own knowledge for their cultures. Education, language and traditional knowledge are keywords to the indigenous cultures, without which they will not survive as distinct peoples and cultural groups.

Indigenous Peoples Earth Charter Declaration We the indigenous peoples walk to the future in the footprints of our ancestors. From the smallest to the largest living being, from the four directions. From the aired the land and the mountains, the creator has placed us, the indigenous peoples upon our mother the earth. The footprints of our ancestors are permanently etched upon the lands of our peoples.

261 We, the indigenous peoples maintain our inherent right to self-determination. We have always had the right to decide our own forms of government, to use our own ways to raise and educate our Children to our own cultural identity without interference. We continue to maintain our rights as people despite centuries of deprivation, assimilation and genocide. We maintain our inalienable rights to our lands and territories, to all of our resources above and below – and to our waters. We assert our ongoing responsibility to pass these on to future generations. We cannot be removed from our lands. We, the indigenous peoples, are connected by the circle of life to our lands and environments. We, the indigenous peoples, walk to the future in the footprints of our ancestors. Human rights and international law 1. We demand the right to life. 2. International law must deal with the collective human rights of indigenous peoples. 3. There are many international instruments which deal with the rights of individuals but there are no declarations to recognize collective human rights. Therefore, we urge Governments to support the United Nations Working Group on Indigenous Peoples’ (UNWGIP) Universal Declaration of Indigenous Rights, which is presently in draft form. 4. There exist many examples of genocide against indigenous peoples. Therefore, the Convention against Genocide must be changed to include the genocide of indigenous peoples. 5. The United Nations should be able to send indigenous peoples representatives in a peacekeeping capacity into indigenous territories where conflicts arise. This would be done at the request and consent of the indigenous peoples concerned. 6. The concept of terra nullius must be eliminated from international law usage. Many State governments have used internal domestic laws to deny us ownership of our own lands. These illegal acts should be condemned by the world. 7. Where small numbers of indigenous peoples are residing within State boundaries, so-called democratic countries have denied indigenous peoples the right of consent about their future using the notion of majority rules to decide the future of indigenous peoples. Indigenous peoples’ right of consent to projects in their areas must be recognized.

262 8. We must promote the term “indigenous peoples” at all forums; the use of the term “indigenous peoples” must be without qualifications. 9. We urge governments to ratify International Labour Organisation (ILO) Convention 169 to guarantee an international legal instrument for indigenous peoples. 10. Indigenous peoples’ distinct and separate rights within their own territories must be recognized. 11. We assert our right to free passage through State imposed political boundaries dividing our traditional territories. Adequate mechanisms must be established to secure this right. 12. The colonial systems have tried to dominate and assimilate our peoples. However, our peoples remain distinct despite this pressure. 13. Our indigenous governments and legal systems must be recognized by the United Nations, State governments and international legal instruments. 14. Our right to self-determination must be recognised. 15. We must be free from population transfer. 16. We maintain our right to our traditional way of life. 17. We maintain our right to our spiritual way of life. 18. We maintain the right to be free from pressures from multinational (transnationals) corporations upon our lives and lands. All multinational (transnationals) corporations which are encroaching upon indigenous lands should be reported to the United Nations transnational office. 19. We must be free from racism. 20. We maintain the right to decide the direction of our communities. 21. The United Nations should have a special procedure to deal with issues arising from violations of indigenous treaties. 22. Treaties signed between indigenous peoples and non-indigenous peoples must be accepted as treaties under international law. 23. The United Nations must exercise the right to impose sanctions against governments that violate the rights of indigenous peoples. 24. we urge the United Nations to include the issue of indigenous peoples in the agenda of the World Conference of Human Rights to be held in 1993. The work

263 done so far by the United Nations Inter-American Commission of Human Rights and the Inter-American Institute of Human Rights should be taken into some consideration. 25. Indigenous peoples should have the right to their own knowledge, language, and culturally appropriate education, including bicultural and bilingual education, through recognizing both formal and informal ways, the participation of family and community is guaranteed. 26. Our health rights must include the recognition and respect of traditional knowledge held by indigenous healers. This knowledge, including our traditional medicines and their preventive and spiritual healing powers must be recognized and protected against exploitation. 27. The world court must extend its powers to include complaints by indigenous peoples. 28. There must be a monitoring system from this Conference to oversee the return of delegates to their territories. The delegates should be free to attend and participate in international indigenous conferences. 29. Indigenous women’s rights must be respected. Women must be included in all local, national, regional and international Organisations. 30. The above-mentioned historical rights of indigenous peoples must be guaranteed in national legislation. Lands and territories 31. Indigenous peoples were placed upon our mother, the earth by the Creator. We belong to the land. We cannot be separated from our lands and territories. 32. Our territories are living totalities in permanent vital relation between human beings and nature. Their possession produce the development of our culture. Our territorial property should be inalienable, unceasable and not denied title. Legal economic and technical backup are needed to guarantee this. 33. Indigenous peoples’ inalienable rights to land and resources confirm that we have always had ownership and stewardship over our traditional territories. We demand that this be respected. 34. We assert our rights to demarcate our traditional territories. The definition of territory includes space (air), land and sea. We must promote a traditional analysis of traditional land rights in all our territories.

264 35. Where indigenous territories have been degraded, resources must be made available to restore them. The recuperation of those affected territories is the duty of the respective jurisdiction in all nation States which cannot be delayed. Within this process of recuperation the compensation for the historical ecological debt must be taken into account, nation States must revise in depth the agrarian, mining and forestry policies. 36. Indigenous peoples reject the assertion of non-indigenous laws onto our lands. States cannot unilaterally extend their jurisdiction over our lands and territories, the concept of terra nullius should be forever erased from the law books of States. 37. We, as indigenous peoples, must never alienate our lands. We must always maintain control over the land for future generations. 38. If a non-indigenous government, individual or corporation wants to use our lands, then there must be a formal agreement which sets out the terms and conditions. Indigenous peoples maintain the right to be compensated for the use of their lands and resources. 39. Traditional indigenous territorial boundaries, including the waters, must be respected. 40. There must be some control placed upon environmental groups who are lobbying to protect our territories and the species within those territories. In many instances, environmental groups are more concerned about animals than human beings. We call for indigenous peoples to determine guidelines prior to allowing environmental groups into their territories. 41. Parks must not be created at the expense of indigenous peoples. There is no way to separate indigenous peoples from their lands. 42. Indigenous peoples must not be removed from their lands in order to make it available to settlers or other forms of economic activity on their lands. 43. In many instances, the numbers of indigenous peoples have been decreasing due to encroachment by non-indigenous peoples. 44. Indigenous peoples should encourage their peoples to cultivate their own traditional forms of products rather than to use imported exotic crops which do not benefit local peoples. 45. Toxic wastes must not be deposited in our areas. Indigenous peoples must realize that chemicals, pesticides and hazardous wastes do not benefit the peoples.

265 46. Traditional areas must be protected against present and future forms of environmental degradation. 47. There must be a cessation of all uses of nuclear material. 48. Mining of products for nuclear production must cease. 49. Indigenous lands must not be used for the testing or dumping of nuclear products. 50. Population transfer policies by State Governments in our territories are causing hardship. Traditional lands are lost and traditional livelihoods are being destroyed. 51. Our lands are being used by State Governments to obtain funds from the World Bank, the International Monetary Fund, the Asian-Pacific Development Bank and other institutions which have led to a loss of our lands and territories. 52. In many countries our lands are being used for military purposes. This is an unacceptable use of the lands. 53. The Coloniser governments have changed the names of our traditional and sacred areas. Our children learn these foreign names and start to lose their identity. In addition, the changing of the name of a place diminishes respect for the spirits which reside in those areas. 54. Our forests are not being used for their intended purposes. The forests are beinq used to make money. 55. Traditional activities, such as making pottery, are being destroyed by the importation of industrial goods. This impoverishes the local peoples. Biodiversity and conservation 56. The vital circles are in a continuous interrelation in such way that the change of one of its elements affects the whole. 57. Climatic changes affect indigenous peoples and all humanity. In addition ecological systems and their rhythms are affected which contribute to the deterioration of our quality of life and increase our dependency. 58. The forests are being destroyed in the name of development and economical gains without considering the destruction of ecological balance. These activities do not benefit human beings, animals, birds and fish. The logging concessions and incentives to the timber, cattle and mining industries affecting the ecosystems and the natural resources should be cancelled.

266 59. We value the efforts of protection of the biodiversity but we reject to be included as part of an inert diversity which pretend to be maintained for scientific and folkloric purposes. 60. The indigenous peoples’ strategies should be kept in a reference framework for the formulation and application of national policies on environment and biodiversity. Development Strategies 61. Indigenous peoples must consent for all projects in our territories. Prior to consent being obtained the people must be fully and entirely involved in any decisions. They must be given all the information about the project and its effects. Failure to do so should be considered a crime against the indigenous peoples. The person or persons who violate this should be tried in a world tribunal within the control of indigenous peoples set for such a purpose. This could be similar to the trials held after World War II. 62. We have the right to our own development strategies based on our cultural practices and with a transparent, efficient and viable management and with economical and ecological viability. 63. Our development and life strategies are obstructed by the interests of the governments and big companies and by the neo-liberal policies. Our strategies have, as fundamental condition, the existence of international relationship based on justice, equity and solidarity between the human beings and the nations. 64. Any development strategy should prioritize the elimination of poverty the climatic guarantee, the sustainable manageability of natural resources r the continuity of democratic societies and the respect of cultural differences. 65. The global environmental facility should assign at best 20 per cent for indigenous peoples’ strategies and programmes of environmental emergency, improvement of life quality, protection of natural resources and rehabilitation of ecosystems. This proposal in the case of South America and the Caribbean should be concrete in the 66. indigenous development fund as a pilot experience in order to be extended to the indigenous peoples of other regions and continents. 67. The concept of development has meant the destruction of our lands. We reject the current definition of development as being useful to our peoples. Our cultures are not static and we keep our identity through a permanent recreation of our life conditions; but all of this is obstructed in the name of so-called developments.

267 68. Recognizing indigenous peoples harmonious relationship with nature, indigenous sustainable development models, development strategies and cultural values must be respected as distinct and vital sources of knowledge. 69. Indigenous peoples have been here since the time before time began. We have come directly from the Creator. We have lived and kept the earth as it was on the first day. Peoples who do not belong to the land must go out from the lands because those things (so-called “development” on the land) are against the laws of the Creator. (a) In order for indigenous peoples to assume control, management and administration of their resources and territories development projects must be based on the principles of self-determination and self- management. (b) Indigenous peoples must be self-reliant. 70. If we are going to grow crops, these crops must feed the people. It is not appropriate that the lands be used to grow crops which do not benefit the local peoples. (a) Regarding indigenous policies, State governments must cease attempts of assimilation and integration. (b) Indigenous peoples must consent to all projects in their territories. Prior to consent being obtained, the peoples must be fully and entirely involved in any decisions. They must be given all the information about the project and its effects. Failure to do so should be considered a crime against indigenous peoples. The person or persons responsible should be tried before a world tribunal with a balance of indigenous peoples, set up for such a purpose. This could be similar to the trials held after the Second World war. 71. We must never use the term “land claims”. It is the non-indigenous people which do not have any land. All the land is our land. It is non-indigenous peoples who are making claims to our lands. We are not making claims to our lands. 72. There should be a monitoring body within the United Nations to monitor all the land disputes around the world prior to development. 73. There should be a United Nations conference on the topic of “indigenous lands and development”. 74. Non-indigenous peoples have come to our lands for the purpose of exploiting these lands and resources to benefit themselves, and to the impoverishment of our peoples. Indigenous peoples are victims of development. In many cases indigenous

268 peoples are exterminated in the name of a development programme. There are numerous examples of such occurrences. 75. Development that occurs on indigenous lands, without the consent of indigenous peoples, must be stopped. 76. Development which is occurring on indigenous lands is usually decided without local consultation by those who are unfamiliar with local-conditions and needs. 77. The Eurocentric notion of ownership is destroying our peoples. We must return to our own view of the worlds of the land and of development. The issue cannot be separated from indigenous peoples rights. 78. There are many different types of so called development: road construction, communication facilities such as electricity, telephones. These allow developers easier access to the areas, but the effects of such industrialization destroy the lands. 79. There is a worldwide move to remove indigenous peoples from their lands and place them in villages. The relocation from the traditional territories is done to facilitate development. 80. It is not appropriate for governments or agencies to move into our territories and to tell our people what is needed. 81. In many instances, the State-governments have created artificial entities such as redistrict council” in the name of the State-government in order to deceive the international community. These artificial entities then are consulted about development in the area. The State-governments, then, claim that indigenous peoples were consulted about the project. These lies must be exposed to the international community. 82. There must be an effective network to disseminate material and information between indigenous peoples. This is necessary in order to keep informed about the problems of other indigenous peoples. 83. Indigenous peoples should form and direct their own environmental network. Culture, science and intellectual property 84. We feel the earth as if we are within our mother. When the earth is sick and polluted, human health is impossible to heal ourselves, we must heal the planet and to heal the planet we must heal ourselves. 85. We must begin to heal from the grass roots level and work towards the international level.

269 86. The destruction of the culture has always been considered an internally domestic problem within national States. The United Nations must set up a tribunal to review the cultural destruction of the indigenous peoples. 87. We need to have foreign observers come into our indigenous territories to oversee national State elections to prevent corruption. 88. The human remains and artifacts of indigenous peoples must be returned to their Original peoples. 89. Our sacred and ceremonial sites should be protected and considered as the patrimony of indigenous peoples and humanity. The establishment of a set of legal and operational instruments at both national and international levels would guarantee this. 90. The use of existing indigenous languages is our right. These languages must be protected. 91. States that have outlawed indigenous languages and their alphabets should be censored by the United Nations. 92. We must not allow tourism to be used to diminish our culture. Tourists come into the communities and view the people as if indigenous peoples were part of a zoo. Indigenous peoples have the right to allow or to disallow tourism within their areas. 93. Indigenous peoples must have the necessary resources and control over their own education systems. 94. Elders must be recognized and respected as teachers of the young people. 95. Indigenous wisdom must be recognized and encouraged. 96. The traditional knowledge of herbs and plants must be protected and passed on to future generations. 97. Traditions cannot be separated from land, territory or science. 98. Traditional knowledge has enabled indigenous peoples to survive. 99. The usurping of traditional medicines and knowledge from indigenous peoples should be considered a crime against peoples. 100. Material culture is being used by the non-indigenous to gain access to our lands and resources, thus destroying our cultures.

270 101. Most of the media at this Conference were only interested in the pictures which will be sold for profit. This is another case of exploitation of indigenous peoples. This does not advance the cause of indigenous peoples. 102. As creators and carriers of Civilisations which have given and continue to share knowledge, experience and values with humanity, we require that our right to intellectual and cultural properties be guaranteed and that the mechanism for each implementation be in favour of our peoples and studied in depth and implemented. This respect must include the right over genetic resources, gene banks, biotechnology and knowledge of biodiversity programmes. 103. We should list the suspect museums and institutions that have misused our cultural and intellectual properties. 104. The protection, norms and mechanisms of artistic and artisan creation of our peoples must be established and implemented in order to avoid plunder, plagiarism, undue exposure and use. 105. When indigenous peoples leave their communities, they should make every effort to return to the community. 106. In many instances, our songs, dances and ceremonies have been viewed as the only aspects of our lives. In some instances, we have been asked to change a ceremony or a song to suit the occasion. This is racism. 107. At local, national, international levels, governments must commit funds to new and existing resources to education and training for indigenous peoples. To achieve their sustainable development, to contribute and to participate in sustainable and equitable development at all levels. Particular attention should be given to indigenous women, children and youth. 108. All kinds of folkloric discrimination must be stopped and forbidden. 109. The United Nations should promote research into indigenous knowledge and develop a network of indigenous sciences.

271 54 Excerpts from: The Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all types of Forests

Text discussed at the Rio Earth Summit, Rio de Janeiro, Brazil, June 14, 1992

A committee under the chairmanship of the former Swedish Prime Minister Ola Ullsten first seriously proposed the idea of a world forest treaty, in May 1990. The committee at the time was reviewing the “Tropical Forestry Action Plan” (TFAP), which was run by the Food and Agricultural Organization (FAO), as its proposal of a world forest treaty was endorsed by the G7 meeting in Houston, Texas in June 1990. The G7 leaders called for negotiations as soon as possible, so that it could be signed at the Rio Earth Summit in 1992. However, the proposal met serious opposition from some of the major rainforest countries in Asia, and from the United States and United Kingdom. The opposition continued in the preparatory process of the Rio Earth Summit, and it resulted in the present document, which was by no means agreed, despite its non-legally binding status. This discussion around the “forest statement” reveals a crucial issue in the debate on international environmental law and politics in general and the relationship and power balance between North and South. An “innocent” non-legally binding statement can become something else. In another setting, these instruments can become de facto binding on the countries of the South, while remaining mere statements of intention, which can be ignored, by countries of the North. A statement of conservation of forest can be turned into an instrument stipulating conditions for loans and thus become an added element of conditionality against the developing countries, in the hands of international financial institutions, which are controlled by the countries of the North. From that perspective, it

272 not as uncontroversial as it may seem to sign a non-legally binding document (South Centre, 1991).

Excerpts from: The Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all types of Forest PREAMBLE a) The subject of forests is related to the entire range of environmental and development issues and opportunities, including the right to socio-economic development on a sustainable basis. b) The guiding objective of these principles is to contribute to the management, conservation and sustainable development of forests and to provide for their multiple and complementary functions and uses. c) Forestry issues and opportunities should be examined in a holistic and balanced manner within the overall context of environment and development, taking into consideration the multiple functions and uses of forests, including traditional uses, and the likely economic and social stress when these uses are constrained or restricted, as well as the potential for development that sustainable forest management can offer. d) These principles reflect a first global consensus on forests. In committing themselves to the prompt implementation of these principles, countries also decide to keep them under assessment for their adequacy with regard to further international cooperation on forest issues. e) These principles should apply to all types of forests, both natural and planted, in all geographic regions and climatic zones, including austral, boreal, sub temperate, temperate, subtropical and tropical. f) All types of forests embody complex and unique ecological processes which are the basis for their present and potential capacity to provide resources to satisfy human needs as well as environmental values, and as such their sound management and conservation is of concern to the Governments of the countries to which they belong and are of value to local communities and to the environment as a whole. g) Forests are essential to economic development and the maintenance of all forms of life. h) Recognizing that the responsibility for forest management, conservation and sustainable development is in many States allocated among federal/national,

273 state/provincial and local levels of government, each State, in accordance with its constitution and/or national legislation, should pursue these principles at the appropriate level of government. PRINCIPLES/ELEMENTS /—/ 2. (d) Governments should promote and provide opportunities for the participation of interested parties, including local communities and indigenous people, industries, labour, non-governmental organizations and individuals, forest dwellers and women, in the development, implementation and planning of national forest policies. /—/ 5. (a) National forest policies should recognize and duly support the identity, culture and the rights of indigenous people, their communities and other communities and forest dwellers. Appropriate conditions should be promoted for these groups to enable them to have an economic stake in forest use, perform economic activities, and achieve and maintain cultural identity and social organisation, as well as adequate levels of livelihood and well-being, through, inter alia, those land tenure arrangements which serve as incentives for the sustainable management of forests. /—/ 12. (d) Appropriate indigenous capacity and local knowledge regarding the conservation and sustainable development of forests should, through institutional and financial support, and in collaboration with the people in local communities concerned, be recognized, respected, recorded, developed and, as appropriate, introduced in the implementation of programmes. Benefits arising from the utilization of indigenous knowledge should therefore be equitably shared with such people.

274 55 Excerpts from: The Rio Declaration on Environment and Development

United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, June 14, 1992

The Rio Declaration represents a delicate balance of principles considered important by both developed and developing countries. Although many of the 27 principles for state and inter-state behaviour had never been universally accepted previously, the text, as such, was nevertheless accepted in the last minute by the participating states. The United States filed some “interpretative statements for the record” regarding the text. These include an opposition to the right of development (principle 3), the rejection of any interpretation that would imply US recognition of any international obligations and liabilities, or any diminution of the responsibilities of the developing countries (principle 7); as well as the insistence that trade measures may be an effective means of dealing with environmental issues (principle 12). It was only the US that insisted upon reopening substantive issues at the actual conference in Rio. The text had been prepared during deliberations before the conference, and settled at the fourth preparatory committee meeting in New York, two months before Rio. Concerning indigenous peoples, it must be remembered that the approved text represents an attempt to balance the sometimes-contradictory concerns of the North and South. Indigenous peoples were not in focus, but their issues were dealt with to some extent. Besides the statement of using indigenous knowledge as a tool in environmental policies, the South obtained some agreement on the policy of eradication of poverty as a part of sustainable development; humans as the centre of concern for sustainable development, and recognition of the special needs of developing countries. Even though the effect of these principles may be questioned (Johnson, 1993:117).

275 The Rio Declaration on Environment and Development /—/ Proclaims that: /—/ Principle 13 States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction. /—/ Article 22 Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. /—/

276 56 Excerpts from: Agenda 21

The United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, June 14, 1992

It has been said that few conferences have been as comprehensively prepared as the 1992 Earth Summit. Moreover, much of the preparatory work was devoted to the preparation of Agenda 21. Agenda 21 is maybe the most ambitious action plan of any of the World Summits that the United Nations have produced during its more than 50 years of international work. The draft of the Agenda, which was presented to the delegates in Rio, was almost 600 pages long. It was divided into four parts (later renamed sections): Section I. Social and economic dimensions; Section II. Conservation and management of resources for development; Section III. Strengthening the role of major groups; and Section IV. Means of implementation. The preparatory process of the Earth Summit, from August 1990 to April 1992, established several working parties of individuals who possessed knowledge, experience or insights, which would help the work of building the Agenda 21. Government representatives as such did not participate at the preparatory meetings. The governmental officials participating at the meeting acted in their personal capacities. However, their participation may have injected some political realism into the work. All who participated were aware that the agreements made by the working parties did not necessarily imply the endorsement of any particular text at the government level. Agenda 21, as well as the Rio Declaration, nevertheless contains an effort to balance the environmental and developmental interests of almost all states of the world. Only a few did not participate at the conference. The text and aims of the Agenda 21 are impressive, but the implementation was not as impressive.

Agenda 21 Section I: Social and Economic Dimensions

Chapter 6 Protection and promotion of human health /—/ Protecting vulnerable groups Objectives

277 The general objectives of protecting vulnerable groups are to ensure that all such individuals should be allowed to develop to their full potential (including healthy physical, mental and spiritual development); to ensure that young people can develop, establish and maintain healthy lives; to allow women to perform their key role in society; and to support indigenous people through educational, economic and technical opportunities. /—/ Section II: Conservation and management of resources for development

Chapter 11 Combating Deforestation

A. Sustaining the multiple roles and functions of all types of forests, forestlands and woodlands. Basis for Action 11.1. There are major weaknesses in the policies, methods and mechanisms adopted to support and develop the multiple ecological, economic, social and cultural roles of trees, forests and forestland... More effective measures and approaches are often required at the national level to improve and harmonise policy formulation, planning and programming; ...participation of the general public, especially women and indigenous people... a) Management related activities b) Promoting participation of the private sector, labour unions, rural cooperatives, local communities, indigenous people, youth, women, user groups and non- governmental organisations in forest-related activities, and access to information and training programmes within the national context; /—/ (g) Establishing and strengthening capabilities for research related to the different aspects of forests and forest products, for example, on the sustainable management of forests, research on biodiversity, on the effects of air-borne pollutants, on traditional uses of forest resources by local populations and indigenous people, and on improving market returns and other non-market values from the management of forests; (b) Data and information (a) Collecting, compiling and regularly updating and distributing information on land classification and land use, including data on forest cover, areas suitable for afforestation, endangered species, ecological values, traditional/indigenous land use values, biomass and productivity, correlating demographic, socio-economic and forest resources information at the micro-and macro-levels, and undertaking periodic analyses of forest programmes;

278 B. Enhancing the protection, sustainable management and conservation of all forests, and the greening of degraded areas, through forest rehabilitation, afforestation, reforestation and other rehabilitative means. (a) Management related activities 11.13 Governments should recognize the importance of categorising forests, within the framework of long-term forests conservation and management policies, into different forest types and setting up sustainable units in every region/watershed with a view to securing the conservation of forests. Governments, with the participation of the private sector, NGOs, local community groups, indigenous people, women, local government units and the public at large, should act to maintain and expand the existing vegetative cover wherever ecologically, socially and economically feasible, through technical cooperation and other forms of support. Major activities to be considered include: /—/ (b) Establishing, expanding and managing, as appropriate to each national context, protected area systems, which includes systems of conservation units for their environmental, social and spiritual functions and values, including conservation of forests in representative ecological systems and landscapes, primary old-growth forest, conservation and management of wildlife, nomination of World Heritage Sites under the World Heritage Convention, as appropriate, conservation of genetic resources involving in situ and ex situ measures and undertaking supportive measures to ensure sustainable utilisation of biological resources and conservation of biological diversity and the traditional forest habitats of indigenous people, forest dwellers and local communities; /—/ (i) Launching or improving opportunities for participation of all people, including youth, women, indigenous people and local communities in the formulation, development and implementation of forest-related programmes and other activities, taking due account of the local needs and cultural values; (b) Data and information 11.14. Management-related activities should involve collection, compilation and analysis of data/information, including baseline surveys. Some of the specific activities include; (d) Carrying out surveys and research on local/indigenous knowledge of trees and forests and their uses to improve the planning and implementation of sustainable forest management; (c) International and regional cooperation and coordination

279 /—/ (c) Human resource development (c) Supporting local organisations, communities, NGOs and private land owners, in particular women, youth, farmers and indigenous people/shifting cultivators, through extension and provision of inputs and training. (d) Capacity building 11.19. National governments, the private sector, local organisations/communities, indigenous people, labour unions and NGOs should develop capacities, duly supported by relevant international organisations, to implement the programme activities. Such capacities should be developed and strengthened in harmony with the programme activities. Capacity-building activities include policy and legal frameworks, national institution building, human resource development, development of research and technology, development of infrastructure, enhancement of public awareness etc. C. Promoting efficient utilisation and assessment to recover the full valuation of the goods and services provided by forests, forestlands and woodlands. (a)Management related activities 11.22. Governments, with the support of the private sector, scientific institutions, indigenous people, NGOs, cooperatives and entrepreneurs, where appropriate, should undertake the following activities, properly coordinated at the national level, with financial and technical cooperation from international organisations: (a) Carrying our detailed investment studies, supply-demand harmonisation and environmental impact analysis... (b) Formulating scientifically sound criteria and guidelines for the management, conservation and sustainable development of all types of forests; (c) Improving environmentally sound methods and practices of forest harvesting... /—/ (h) Promoting and supporting the management of wildlife, as well as eco-tourism, including farming, and encouraging and supporting the husbandry and cultivation of wild species, for improved rural income and employment, ensuring economic and social benefits without harmful ecological impacts, etc; /—/

280 Chapter 12. Managing fragile ecosystems: combating desertification and drought. C. Developing and strengthening integrated development programmes for the eradication of poverty and promotion of alternative livelihood systems in areas prone to desertification. Objectives The objectives of this programme area are: (a) To create the capacity of village communities and pastoral groups to take charge of their development and the management of their land resources on a socially equitable and ecologically sound basis; /—/ F. Encouraging and promoting popular participation and environmental education, focusing on desertification control and management of the effects of drought. Objectives /—/ (d) To support local communities in their own efforts in combating desertification, and to draw on the knowledge and experience of the populations concerned, ensuring the full participation of women and indigenous populations. /—/ Chapter 13. Managing fragile ecosystems: sustainable mountain development /—/ B. Promoting integrated watershed development and alternative livelihood opportunities. Objectives (b) To promote income-generating activities, such as sustainable tourism, fisheries and environmentally sound mining, and to improve infrastructure and social services, in particular to protect the livelihoods of local communities and indigenous people; /—/ Chapter 14. Promoting sustainable agriculture and rural development. /—/ B. Ensuring people’s participation and promoting human resource development for sustainable agriculture.

281 Objectives To promote greater public awareness of the role of people’s participation and people’s organizations, especially women’s groups, youth, indigenous people and people under occupation, local communities and small farmers, in sustainable agriculture and rural development; To ensure equitable access of rural people, particularly women, small farmers, landless and indigenous people and people under occupation, to land, water and forest resources and to technologies, financing, marketing, processing and distribution; Chapter 15. Conservation of biological diversity. Objectives Governments at the appropriate level, with the cooperation of the relevant United Nations bodies and regional, intergovernmental and non-governmental organizations, the private sector and financial institutions, and taking into consideration indigenous people and their communities, as well as social and economic factors, should: /—/ (g) Recognize and foster the traditional methods and the knowledge of indigenous people and their communities, emphasizing the particular role of women, relevant to the conservation of biological diversity and the sustainable use of biological resources, and ensure the opportunity for the participation of those groups in the economic and commercial benefits derived from the use of such traditional methods and knowledge; /—/ Chapter 16. Environmentally sound management of bio-technology. Programme areas. /—/ E. Establishing enabling mechanisms for the development and the environmentally sound application of biotechnology. Objectives The objectives are as follows: (a) To promote the development and application of biotechnologies, with special emphasis on developing countries, by: /—/

282 (vi) Recognizing and fostering the traditional methods and the knowledge of indigenous people and their communities and ensuring the opportunity for their participation in the economic and commercial benefits arising from developments in biotechnology. SECTION III. STRENGTHENING THE ROLE OF MAJOR GROUPS /—/ Chapter 26. Recognizing and strengthening the role of indigenous people and their communities. Basis for action 26.1 Indigenous people and their communities have an historical relationship with their lands and are generally descendants of the original inhabitants of such lands. In the context of this chapter the term “lands” is understood to include the environment of the areas which the people concerned traditionally occupy. Indigenous people and their communities represent a significant percentage of the global population. They have developed over many generations a holistic traditional scientific knowledge of their lands, natural resources and environment. Indigenous people and their communities shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. Their ability to participate fully in sustainable development practices on their lands has tended to be limited as a result of factors of an economic, social and historical nature. In view of the interrelationship between the natural environment and its sustainable development and the cultural, social, economic and physical well-being of indigenous people, national and international efforts to implement environmentally sound and sustainable development should recognize, accommodate, promote and strengthen the role of indigenous people and their communities. 26.2 Some of the goals inherent in the objectives and activities of this programme area are already contained in such international legal instruments as the ILO Indigenous and Tribal Peoples Convention (No. 169) and are being incorporated into the draft universal declaration on indigenous rights, being prepared by the United Nations working group on indigenous populations. The International Year for the World’s Indigenous People (1993), proclaimed by the General Assembly in its resolution 45/164 of 18 December 1990, presents a timely opportunity to mobilize further international technical and financial cooperation. Objectives 26.3 in full partnership with indigenous people and their communities, Governments and, where appropriate, intergovernmental organizations should aim at fulfilling the following objectives:

283 (a) Establishment of a process to empower indigenous people and their communities through measures that include: i. Adoption or strengthening of appropriate policies and/or legal instruments at the national level; ii. Recognition that the lands of indigenous people and their communities should be protected from activities that are environmentally unsound or that the indigenous people concerned consider to be socially and culturally inappropriate; iii. Recognition of their values, traditional knowledge and resource management practices with a view to promoting environmentally sound and sustainable development; iv. Recognition that traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic and physical well being of indigenous people and their communities; v. Development and strengthening of national dispute-resolution arrangements in relation to settlement of land and resource-management concerns; vi. Support for alternative environmentally sound means of production to ensure a range of choices on how to improve their quality of life so that they effectively participate in sustainable development; vii. Enhancement of capacity-building for indigenous communities, based on the adaption and exchange of traditional experience, knowledge and resource- management practices, to ensure their sustainable development; (b) Establishment, where appropriate, of arrangements to strengthen the active participation of indigenous people and their communities in the national formulation of policies, laws and programmes relating to resource management and other development processes that may affect them, and their initiation of proposals for such policies and programmes; (c) Involvement of indigenous people and their communities at the national and local levels in resource management and conservation strategies and other relevant programmes established to support and review sustainable development strategies, such as those suggested in other programme areas of Agenda 21. Activities 26.4 Some indigenous people and their communities may require, in accordance with national legislation, greater control over their lands, self-management of their resources,

284 participation in development decisions affecting them, including, where appropriate, participation in the establishment or management of protected areas. The following are some of the specific measures which Governments could take: (b) Consider the ratification and application of existing international conventions relevant to indigenous people and their communities (where not yet done) and provide support for the adoption by the General Assembly of a declaration on indigenous rights; (c) Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices. 26.5 United Nations organizations and other international development and finance organizations and Governments should, drawing on the active participation of indigenous people and their communities, as appropriate, take the following measures, inter alia, to incorporate their values, views and knowledge, including the unique contribution or indigenous women, in resource management and other policies and programmes that may affect them: (a) Appoint a special focal point within each international organization, and organize annual interorganizational coordination meetings in consultation with Governments and indigenous organizations, as appropriate, and develop a procedure within and between operational agencies for assisting Governments in ensuring the coherent and coordinated incorporation of the views of indigenous people in the design and implementation of policies and programmes. Under such procedure, indigenous people and their communities should be informed and consulted and allowed to participate in national decision-making, in particular regarding regional and international cooperative efforts. In addition, these policies and programmes should take fully into account strategies based on local indigenous initiatives; (b) Provide technical and financial assistance for capacity-building programmes to support the sustainable self-development of indigenous people and their communities; (c) Strengthen research and education programmes aimed at: i. Achieving a better understanding of indigenous people’s knowledge and management experience related to the environment, and applying this to contemporary development challenges; ii. Increasing the efficiency of indigenous people’s resource management systems, for example, by promoting the adaptation and dissemination of suitable technological innovations;

285 (d) Contribute to the endeavours of indigenous people and their communities in resource management and conservation strategies (such as those that may be developed under appropriate projects funded through the Global Environmental Facility and Tropical Forestry Action Plan) and other programme areas of Agenda 21, including programmed to collect, analyse and use data and other information in support of sustainable development projects. 26.6 Governments, in full partnership with indigenous people and their communities should, where appropriate: (a) Develop or strengthen national arrangements to consult with indigenous people and their communities with a view to reflecting their needs and incorporating their values and traditional and other knowledge and practises in national policies and programmes in the field of natural resource management and conservation and other development programmes affecting them; (b) Cooperate at the regional level, where appropriate, to address common indigenous issues with a view to recognizing and strengthening their participation in sustainable development. Means of implementation (a) Financing and cost evaluation 26.7 The UNCED Secretariat has estimated the average total annual cost (19932000) of implementing the activities of this chapter to be about $ 3 million from the international community on grant or concessional terms. These are indicative and order of magnitude estimates only and have not been reviewed by governments. Actual costs and financial terms, including any that are non-concessional, will depend upon, inter alia, the specific strategies and programmes governments decide upon for implementation. (b) Legal and administrative frameworks 26.8 Governments should incorporate, in collaboration with the indigenous people affected, the rights and responsibilities of indigenous people and their communities in the legislation of each country, suitable to the country’s specific situation. Developing countries may require technical assistance to implement these activities. (c) Human resource development 26.9 International development agencies and Governments should commit financial and other resources to education and training for indigenous people and their communities to develop their capacities to achieve their sustainable self-development, and to contribute to and participate in sustainable and equitable development at the national level. Particular attention should be given to strengthening the role of indigenous women.

286 57 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

Adopted by General Assembly resolution 47/135, New York, 18 December 1992

The General Assembly, Reaffirming that one of the basic aims of the United Nations, as proclaimed in the Charter, is to promote and encourage respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion, Reaffirming faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, Desiring to promote the realization of the principles contained in the Charter, the Universal Declaration of Human Rights, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, and the Convention on the Rights of the Child, as well as other relevant international instruments that have been adopted at the universal or regional level and those concluded between individual States Members of the United Nations, Inspired by the provisions of article 27 of the International Covenant on Civil and Political Rights concerning the rights of persons belonging to ethnic, religious and linguistic minorities, Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States in which they live, Emphasizing that the constant promotion and realization of the rights of persons belonging to national or ethnic, religious and linguistic minorities, as an integral part of the development of society as a whole and within a democratic framework based on the rule of law, would contribute to the strengthening of friendship and cooperation among peoples and States,

287 Considering that the United Nations has an important role to play regarding the protection of minorities, Bearing in mind the work done so far within the United Nations system, in particular by the Commission on Human Rights, the Sub-Commission on Prevention of Discrimination and Protection of Minorities and the bodies established pursuant to the International Covenants on Human Rights and other relevant international human rights instruments in promoting and protecting the rights of persons belonging to national or ethnic, religious and linguistic minorities, Taking into account the important work which is done by intergovernmental and non- governmental organizations in protecting minorities and in promoting and protecting the rights of persons belonging to national or ethnic, religious and linguistic minorities, Recognizing the need to ensure even more effective implementation of international human rights instruments with regard to the rights of persons belonging to national or ethnic, religious and linguistic minorities, Proclaims this Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities:

Article 1 1. States shall protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity. 2. States shall adopt appropriate legislative and other measures to achieve those ends. Article 2 1. Persons belonging to national or ethnic, religious and linguistic minorities (hereinafter referred to as persons belonging to minorities) have the right to enjoy their own culture, to profess and practise their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination. 2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. 3. Persons belonging to minorities have the right to participate effectively in decisions on the national and, where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. 4. Persons belonging to minorities have the right to establish and maintain their own associations.

288 5. Persons belonging to minorities have the right to establish and maintain, without any discrimination, free and peaceful contacts with other members of their group and with persons belonging to other minorities, as well as contacts across frontiers with citizens of other States to whom they are related by national or ethnic, religious or linguistic ties. Article 3 1. Persons belonging to minorities may exercise their rights, including those set forth in the present Declaration, individually as well as in community with other members of their group, without any discrimination. 2. No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration. Article 4 1. States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms without any discrimination and in full equality before the law. 2. States shall take measures to create favourable conditions to enable persons belonging to minorities to express their characteristics and to develop their culture, language, religion, traditions and customs, except where specific practices are in violation of national law and contrary to international standards. 3. States should take appropriate measures so that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to have instruction in their mother tongue. 4. States should, where appropriate, take measures in the field of education, in order to encourage knowledge of the history, traditions, language and culture of the minorities existing within their territory. Persons belonging to minorities should have adequate opportunities to gain knowledge of the society as a whole. 5. States should consider appropriate measures so that persons belonging to minorities may participate fully in the economic progress and development in their country. Article 5 1. National policies and programmes shall be planned and implemented with due regard for the legitimate interests of persons belonging to minorities. 2. Programmes of cooperation and assistance among States should be planned and implemented with due regard for the legitimate interests of persons belonging to minorities.

289 Article 6 States should cooperate on questions relating to persons belonging to minorities, inter alia , exchanging information and experiences, in order to promote mutual understanding and confidence. Article 7 States should cooperate in order to promote respect for the rights set forth in the present Declaration. Article 8 1. Nothing in the present Declaration shall prevent the fulfilment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfil in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties. 2. The exercise of the rights set forth in the present Declaration shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms. 3. Measures taken by States to ensure the effective enjoyment of the rights set forth in the present Declaration shall not prima facie be considered contrary to the principle of equality contained in the Universal Declaration of Human Rights. 4. Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States. Article 9 The specialized agencies and other organizations of the United Nations system shall contribute to the full realization of the rights and principles set forth in the present Declaration, within their respective fields of competence.

290 Context: The Regionalization of the Rights of Indigenous Peoples

Since the 1990s have regional instruments on indigenous peoples been developed, especially in Africa, America and Europe. In addition, the Arctic Council have referred to the situation of indigenous peoples in the Arctic region. While the international elaboration on the rights of indigenous peoples have been considerable, the regional institutions of human rights were for a long time sceptical about developing group rights in general, and rights of indigenous peoples, in particular. While, for instance, the Council of Europe has no specific standards or mechanisms devoted to indigenous peoples, the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms contains relevant legally binding human rights standards, including non-discrimination and the right to respect for private and family life. The European Court of Human Rights has developed some jurisprudence concerning indigenous peoples. Furthermore, the monitoring bodies of the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages have addressed human rights concerns of indigenous peoples during their country visits and in their findings. In 2009 the European Union adopted the Charter of Fundamental Rights which includes rights of cultural diversity, while not directly mention indigenous peoples. In Africa, the African Commission on Human Rights have initiated several resolutions and projects concerning indigenous peoples. In 2016, the OAS finally adopted the American Declaration on the Rights of Indigenous Peoples in 2016 after many years of deliberations.

291 58 European Charter for Regional or Minority Languages

Adopted by the Council of Europe, Strasbourg, France, November 5, 1992

Preamble

The member States of the Council of Europe signatory hereto,

• Considering that the aim of the Council of Europe is to achieve a greater unity between its members, particularly for the purpose of safeguarding and realising the ideals and principles which are their common heritage; • Considering that the protection of the historical regional or minority languages of Europe, some of which are in danger of eventual extinction, contributes to the maintenance and development of Europe's cultural wealth and traditions; • Considering that the right to use a regional or minority language in private and public life is an inalienable right conforming to the principles embodied in the United Nations International Covenant on Civil and Political Rights, and according to the spirit of the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms; • Having regard to the work carried out within the CSCE and in particular to the Helsinki Final Act of 1975 and the document of the Copenhagen Meeting of 1990; • Stressing the value of interculturalism and multilingualism and considering that the protection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them; • Realising that the protection and promotion of regional or minority languages in the different countries and regions of Europe represent an important contribution to the building of a Europe based on the principles of democracy and cultural diversity within the framework of national sovereignty and territorial integrity;

292 • Taking into consideration the specific conditions and historical traditions in the different regions of the European States, Have agreed as follows: Part I – General provisions Article 1 – Definitions For the purposes of this Charter: (a) a."regional or minority languages" means languages that are:

i. i traditionally used within a given territory of a State by nationals of that State who form a group numerically smaller than the rest of the State's population; and

ii. ii different from the official language(s) of that State; it does not include either dialects of the official language(s) of the State or the languages of migrants; (b) "territory in which the regional or minority language is used" means the geographical area in which the said language is the mode of expression of a number of people justifying the adoption of the various protective and promotional measures provided for in this Charter; (c) "non-territorial languages" means languages used by nationals of the State which differ from the language or languages used by the rest of the State's population but which, although traditionally used within the territory of the State, cannot be identified with a particular area thereof. Article 2 – Undertakings 1. Each Party undertakes to apply the provisions of Part II to all the regional or minority languages spoken within its territory and which comply with the definition in Article 1. 2. In respect of each language specified at the time of ratification, acceptance or approval, in accordance with Article 3, each Party undertakes to apply a minimum of thirty-five paragraphs or sub-paragraphs chosen from among the provisions of Part III of the Charter, including at least three chosen from each of the Articles 8 and 12 and one from each of the Articles 9, 10, 11 and 13.

293 Article 3 – Practical arrangements 1. Each Contracting State shall specify in its instrument of ratification, acceptance or approval, each regional or minority language, or official language which is less widely used on the whole or part of its territory, to which the paragraphs chosen in accordance with Article 2, paragraph 2, shall apply. 2. Any Party may, at any subsequent time, notify the Secretary General that it accepts the obligations arising out of the provisions of any other paragraph of the Charter not already specified in its instrument of ratification, acceptance or approval, or that it will apply paragraph 1 of the present article to other regional or minority languages, or to other official languages which are less widely used on the whole or part of its territory. 3. The undertakings referred to in the foregoing paragraph shall be deemed to form an integral part of the ratification, acceptance or approval and will have the same effect as from their date of notification. Article 4 – Existing regimes of protection 1. Nothing in this Charter shall be construed as limiting or derogating from any of the rights guaranteed by the European Convention on Human Rights. 2. The provisions of this Charter shall not affect any more favourable provisions concerning the status of regional or minority languages, or the legal regime of persons belonging to minorities which may exist in a Party or are provided for by relevant bilateral or multilateral international agreements. Article 5 – Existing obligations Nothing in this Charter may be interpreted as implying any right to engage in any activity or perform any action in contravention of the purposes of the Charter of the United Nations or other obligations under international law, including the principle of the sovereignty and territorial integrity of States. Article 6 – Information The Parties undertake to see to it that the authorities, organisations and persons concerned are informed of the rights and duties established by this Charter.

294 Part II – Objectives and principles pursued in accordance with Article 2, paragraph 1 Article 7 – Objectives and principles 1. In respect of regional or minority languages, within the territories in which such languages are used and according to the situation of each language, the Parties shall base their policies, legislation and practice on the following objectives and principles: (b) he recognition of the regional or minority languages as an expression of cultural wealth; (c) the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question; (d) the need for resolute action to promote regional or minority languages in order to safeguard them; (e) the facilitation and/or encouragement of the use of regional or minority languages, in speech and writing, in public and private life; (f) the maintenance and development of links, in the fields covered by this Charter, between groups using a regional or minority language and other groups in the State employing a language used in identical or similar form, as well as the establishment of cultural relations with other groups in the State using different languages; (g) the provision of appropriate forms and means for the teaching and study of regional or minority languages at all appropriate stages; (h) the provision of facilities enabling non-speakers of a regional or minority language living in the area where it is used to learn it if they so desire; (i) the promotion of study and research on regional or minority languages at universities or equivalent institutions; (j) the promotion of appropriate types of transnational exchanges, in the fields covered by this Charter, for regional or minority languages used in identical or similar form in two or more States.

295 2. The Parties undertake to eliminate, if they have not yet done so, any unjustified distinction, exclusion, restriction or preference relating to the use of a regional or minority language and intended to discourage or endanger the maintenance or development of it. The adoption of special measures in favour of regional or minority languages aimed at promoting equality between the users of these languages and the rest of the population or which take due account of their specific conditions is not considered to be an act of discrimination against the users of more widely-used languages. 3. The Parties undertake to promote, by appropriate measures, mutual understanding between all the linguistic groups of the country and in particular the inclusion of respect, understanding and tolerance in relation to regional or minority languages among the objectives of education and training provided within their countries and encouragement of the mass media to pursue the same objective. 4. In determining their policy with regard to regional or minority languages, the Parties shall take into consideration the needs and wishes expressed by the groups which use such languages. They are encouraged to establish bodies, if necessary, for the purpose of advising the authorities on all matters pertaining to regional or minority languages. 5. The Parties undertake to apply, mutatis mutandis, the principles listed in paragraphs 1 to 4 above to non-territorial languages. However, as far as these languages are concerned, the nature and scope of the measures to be taken to give effect to this Charter shall be determined in a flexible manner, bearing in mind the needs and wishes, and respecting the traditions and characteristics, of the groups which use the languages concerned.

Part III – Measures to promote the use of regional or minority languages in public life in accordance with the undertakings entered into under Article 2, paragraph 2 Article 8 – Education 1. With regard to education, the Parties undertake, within the territory in which such languages are used, according to the situation of each of these languages, and without prejudice to the teaching of the official language(s) of the State:

296 A i. to make available pre-school education in the relevant regional or minority languages; or ii. to make available a substantial part of pre-school education in the relevant regional or minority languages; or iii. to apply one of the measures provided for under i and ii above at least to those pupils whose families so request and whose number is considered sufficient; or iv. if the public authorities have no direct competence in the field of pre-school education, to favour and/or encourage the application of the measures referred to under i to iii above; B i. to make available primary education in the relevant regional or minority languages; or ii. to make available a substantial part of primary education in the relevant regional or minority languages; or iii. to provide, within primary education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or iv. to apply one of the measures provided for under i to iii above at least to those pupils whose families so request and whose number is considered sufficient; C i. to make available secondary education in the relevant regional or minority languages; or ii. to make available a substantial part of secondary education in the relevant regional or minority languages; or iii. to provide, within secondary education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or iv. to apply one of the measures provided for under i to iii above at least to those pupils who, or where appropriate whose families, so wish in a number considered sufficient;

297 i. to make available technical and vocational education in the relevant regional or minority languages; or ii. to make available a substantial part of technical and vocational education in the relevant regional or minority languages; or iii. to provide, within technical and vocational education, for the teaching of the relevant regional or minority languages as an integral part of the curriculum; or iv. to apply one of the measures provided for under i to iii above at least to those pupils who, or where appropriate whose families, so wish in a number considered sufficient; E i. to make available university and other higher education in regional or minority languages; or ii. to provide facilities for the study of these languages as university and higher education subjects; or iii. if, by reason of the role of the State in relation to higher education institutions, sub-paragraphs i and ii cannot be applied, to encourage and/or allow the provision of university or other forms of higher education in regional or minority languages or of facilities for the study of these languages as university or higher education subjects; F i. to arrange for the provision of adult and continuing education courses which are taught mainly or wholly in the regional or minority languages; or ii. offer such languages as subjects of adult and continuing education; or iii. if the public authorities have no direct competence in the field of adult education, to favour and/or encourage the offering of such languages as subjects of adult and continuing education; G to make arrangements to ensure the teaching of the history and the culture which is reflected by the regional or minority language;

298 H to provide the basic and further training of the teachers required to implement those of paragraphs a to g accepted by the Party; I to set up a supervisory body or bodies responsible for monitoring the measures taken and progress achieved in establishing or developing the teaching of regional or minority languages and for drawing up periodic reports of their findings, which will be made public. 2. With regard to education and in respect of territories other than those in which the regional or minority languages are traditionally used, the Parties undertake, if the number of users of a regional or minority language justifies it, to allow, encourage or provide teaching in or of the regional or minority language at all the appropriate stages of education. Article 9 – Judicial authorities 1. The Parties undertake, in respect of those judicial districts in which the number of residents using the regional or minority languages justifies the measures specified below, according to the situation of each of these languages and on condition that the use of the facilities afforded by the present paragraph is not considered by the judge to hamper the proper administration of justice: A. In criminal proceedings: i. to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or ii. to guarantee the accused the right to use his/her regional or minority language; and/or iii. to provide that requests and evidence, whether written or oral, shall not be considered inadmissible solely because they are formulated in a regional or minority language; and/or iv. to produce, on request, documents connected with legal proceedings in the relevant regional or minority language, if necessary by the use of interpreters and translations involving no extra expense for the persons concerned;

299 B. In civil proceedings: i. to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or ii. to allow, whenever a litigant has to appear in person before a court, that he or she may use his or her regional or minority language without thereby incurring additional expense; and/or iii. to allow documents and evidence to be produced in the regional or minority languages, if necessary by the use of interpreters and translations; C. In proceedings before courts concerning administrative matters: i. to provide that the courts, at the request of one of the parties, shall conduct the proceedings in the regional or minority languages; and/or ii. to allow, whenever a litigant has to appear in person before a court, that he or she may use his or her regional or minority language without thereby incurring additional expense; and/or iii. to allow documents and evidence to be produced in the regional or minority languages, if necessary by the use of interpreters and translations; D. to take steps to ensure that the application of sub-paragraphs i and iii of paragraphs b and c above and any necessary use of interpreters and translations does not involve extra expense for the persons concerned.

2. The Parties undertake:

A Not to deny the validity of legal documents drawn up within the State solely because they are drafted in a regional or minority language; or B Not to deny the validity, as between the parties, of legal documents drawn up within the country solely because they are drafted in a regional or minority language, and to provide that they can be invoked against interested third parties who are not users of these languages on condition that the contents of the document are made known to them by the person(s) who invoke(s) it; or

300 C Not to deny the validity, as between the parties, of legal documents drawn up within the country solely because they are drafted in a regional or minority language. 3. The Parties undertake to make available in the regional or minority languages the most important national statutory texts and those relating particularly to users of these languages, unless they are otherwise provided. Article 10 – Administrative authorities and public services 1. Within the administrative districts of the State in which the number of residents who are users of regional or minority languages justifies the measures specified below and according to the situation of each language, the Parties undertake, as far as this is reasonably possible: A i. to ensure that the administrative authorities use the regional or minority languages; or ii. to ensure that such of their officers as are in contact with the public use the regional or minority languages in their relations with persons applying to them in these languages; or iii. to ensure that users of regional or minority languages may submit oral or written applications and receive a reply in these languages; or iv. to ensure that users of regional or minority languages may submit oral or written applications in these languages; or v. to ensure that users of regional or minority languages may validly submit a document in these languages; B To make available widely used administrative texts and forms for the population in the regional or minority languages or in bilingual versions; C To allow the administrative authorities to draft documents in a regional or minority language. 2. In respect of the local and regional authorities on whose territory the number of residents who are users of regional or minority languages is such as to justify the measures specified below, the Parties undertake to allow and/or encourage:

301 (b) the use of regional or minority languages within the framework of the regional or local (c) the possibility for users of regional or minority languages to submit oral or written (d) the publication by regional authorities of their official documents also in the relevant regional or minority languages; (e) the publication by local authorities of their official documents also in the relevant regional or minority languages; (f) the use by regional authorities of regional or minority languages in debates in their assemblies, without excluding, however, the use of the official language(s) of the State; (g) the use by local authorities of regional or minority languages in debates in their assemblies, without excluding, however, the use of the official language(s) of the State; (h) the use or adoption, if necessary in conjunction with the name in the official language(s), of traditional and correct forms of place-names in regional or minority languages.

3. With regard to public services provided by the administrative authorities or other persons acting on their behalf, the Parties undertake, within the territory in which regional or minority languages are used, in accordance with the situation of each language and as far as this is reasonably possible:

(b) to ensure that the regional or minority languages are used in the provision of the service; or (c) to allow users of regional or minority languages to submit a request and receive a reply in these languages; or (d) to allow users of regional or minority languages to submit a request in these languages. 4. With a view to putting into effect those provisions of paragraphs 1, 2 and 3 accepted by them, the Parties undertake to take one or more of the following measures: (b) translation or interpretation as may be required; (c) recruitment and, where necessary, training of the officials and other public service employees required;

302 (d) compliance as far as possible with requests from public service employees having a knowledge of a regional or minority language to be appointed in the territory in which that language is used. 5. The Parties undertake to allow the use or adoption of family names in the regional or minority languages, at the request of those concerned. Article 11 – Media 1. The Parties undertake, for the users of the regional or minority languages within the territories in which those languages are spoken, according to the situation of each language, to the extent that the public authorities, directly or indirectly, are competent, have power or play a role in this field, and respecting the principle of the independence and autonomy of the media: A i. to the extent that radio and television carry out a public service mission: ii. to ensure the creation of at least one radio station and one television channel in the regional or minority languages; or iii. to encourage and/or facilitate the creation of at least one radio station and one television channel in the regional or minority languages; or iv. to make adequate provision so that broadcasters offer programmes in the regional or minority languages; B

i. to encourage and/or facilitate the creation of at least one radio station in the regional or minority languages; or ii. to encourage and/or facilitate the broadcasting of radio programmes in the regional or minority languages on a regular basis;

C i. to encourage and/or facilitate the creation of at least one television channel in the regional or minority languages; or ii. to encourage and/or facilitate the broadcasting of television programmes in the regional or minority languages on a regular basis; D To encourage and/or facilitate the production and distribution of audio and audiovisual works in the regional or minority languages;

303 E i. to encourage and/or facilitate the creation and/or maintenance of at least one newspaper in the regional or minority languages; or ii. to encourage and/or facilitate the publication of newspaper articles in the regional or minority languages on a regular basis; F i. to cover the additional costs of those media which use regional or minority languages, wherever the law provides for financial assistance in general for the media; or ii. to apply existing measures for financial assistance also to audiovisual productions in the regional or minority languages; G To support the training of journalists and other staff for media using regional or minority languages. 1. The Parties undertake to guarantee freedom of direct reception of radio and television broadcasts from neighbouring countries in a language used in identical or similar form to a regional or minority language, and not to oppose the retransmission of radio and television broadcasts from neighbouring countries in such a language. They further undertake to ensure that no restrictions will be placed on the freedom of expression and free circulation of information in the written press in a language used in identical or similar form to a regional or minority language. The exercise of the above-mentioned freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. 2. The Parties undertake to ensure that the interests of the users of regional or minority languages are represented or taken into account within such bodies as may be established in accordance with the law with responsibility for guaranteeing the freedom and pluralism of the media. Article 12 – Cultural activities and facilities 1. With regard to cultural activities and facilities – especially libraries, video libraries, cultural centres, museums, archives, academies, theatres and cinemas, as well as literary work and film production, vernacular forms of cultural expression, festivals

304 and the culture industries, including inter alia the use of new technologies – the Parties undertake, within the territory in which such languages are used and to the extent that the public authorities are competent, have power or play a role in this field: a) to encourage types of expression and initiative specific to regional or minority languages and foster the different means of access to works produced in these languages; b) to foster the different means of access in other languages to works produced in regional or minority languages by aiding and developing translation, dubbing, post-synchronisation and subtitling activities; c) to foster access in regional or minority languages to works produced in other languages by aiding and developing translation, dubbing, post-synchronisation and subtitling activities; d) to ensure that the bodies responsible for organising or supporting cultural activities of various kinds make appropriate allowance for incorporating the knowledge and use of regional or minority languages and cultures in the undertakings which they initiate or for which they provide backing; e) to promote measures to ensure that the bodies responsible for organising or supporting cultural activities have at their disposal staff who have a full command of the regional or minority language concerned, as well as of the language(s) of the rest of the population; f) to encourage direct participation by representatives of the users of a given regional or minority language in providing facilities and planning cultural activities; g) to encourage and/or facilitate the creation of a body or bodies responsible for collecting, keeping a copy of and presenting or publishing works produced in the regional or minority languages; h) if necessary, to create and/or promote and finance translation and terminological research services, particularly with a view to maintaining and developing appropriate administrative, commercial, economic, social, technical or legal terminology in each regional or minority language. 1. In respect of territories other than those in which the regional or minority languages are traditionally used, the Parties undertake, if the number of users of a regional or minority language justifies it, to allow, encourage and/or provide appropriate cultural activities and facilities in accordance with the preceding paragraph. 2. The Parties undertake to make appropriate provision, in pursuing their cultural policy abroad, for regional or minority languages and the cultures they reflect.

305 Article 13 – Economic and social life 1. With regard to economic and social activities, the Parties undertake, within the whole country: a) to eliminate from their legislation any provision prohibiting or limiting without justifiable reasons the use of regional or minority languages in documents relating to economic or social life, particularly contracts of employment, and in technical documents such as instructions for the use of products or installations; b) to prohibit the insertion in internal regulations of companies and private documents of any clauses excluding or restricting the use of regional or minority languages, at least between users of the same language; c) to oppose practices designed to discourage the use of regional or minority languages in connection with economic or social activities; d) to facilitate and/or encourage the use of regional or minority languages by means other than those specified in the above sub-paragraphs.

2. With regard to economic and social activities, the Parties undertake, in so far as the public authorities are competent, within the territory in which the regional or minority languages are used, and as far as this is reasonably possible:

a) to include in their financial and banking regulations provisions which allow, by means of procedures compatible with commercial practice, the use of regional or minority languages in drawing up payment orders (cheques, drafts, etc.) or other financial documents, or, where appropriate, to ensure the implementation of such provisions; b) in the economic and social sectors directly under their control (public sector), to organise activities to promote the use of regional or minority languages; c) to ensure that social care facilities such as hospitals, retirement homes and hostels offer the possibility of receiving and treating in their own language persons using a regional or minority language who are in need of care on grounds of ill-health, old age or for other reasons; d) to ensure by appropriate means that safety instructions are also drawn up in regional or minority languages; e) to arrange for information provided by the competent public authorities concerning the rights of consumers to be made available in regional or minority languages.

306 Article 14 – Transfrontier exchanges The Parties undertake:

a) to apply existing bilateral and multilateral agreements which bind them with the States in which the same language is used in identical or similar form, or if necessary to seek to conclude such agreements, in such a way as to foster contacts between the users of the same language in the States concerned in the fields of culture, education, information, vocational training and permanent education; b) for the benefit of regional or minority languages, to facilitate and/ or promote cooperation across borders, in particular between regional or local authorities in whose territory the same language is used in identical or similar form.

Part IV – Application of the Charter Article 15 – Periodical reports 1. The Parties shall present periodically to the Secretary General of the Council of Europe, in a form to be prescribed by the Committee of Ministers, a report on their policy pursued in accordance with Part II of this Charter and on the measures taken in application of those provisions of Part III which they have accepted. The first report shall be presented within the year following the entry into force of the Charter with respect to the Party concerned, the other reports at three-yearly intervals after the first report. 2. The Parties shall make their reports public. Article 16 – Examination of the reports Article 17 – Committee of experts 1. The committee of experts shall be composed of one member per Party, appointed by the Committee of Ministers from a list of individuals of the highest integrity and recognised competence in the matters dealt with in the Charter, who shall be nominated by the Party concerned. 2. Members of the committee shall be appointed for a period of six years and shall be eligible for reappointment. A member who is unable to complete a term of office shall be replaced in accordance with the procedure laid down in paragraph 1, and the replacing member shall complete his predecessor's term of office. 3. The committee of experts shall adopt rules of procedure. Its secretarial services shall be provided by the Secretary General of the Council of Europe.

307 Part V – Final provisions Article 18 This Charter shall be open for signature by the member States of the Council of Europe. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe. Article 19

1 This Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date on which five member States of the Council of Europe have expressed their consent to be bound by the Charter in accordance with the provisions of Article 18.

2 In respect of any member State which subsequently expresses its consent to be bound by it, the Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval. Article 20 1 After the entry into force of this Charter, the Committee of Ministers of the Council of Europe may invite any State not a member of the Council of Europe to accede to this Charter. 2 In respect of any acceding State, the Charter shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe. Article 21 1 Any State may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, make one or more reservations to paragraphs 2 to 5 of Article 7 of this Charter. No other reservation may be made. 2 Any Contracting State which has made a reservation under the preceding paragraph may wholly or partly withdraw it by means of a notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take effect on the date of receipt of such notification by the Secretary General.

308 Article 22 1 Any Party may at any time denounce this Charter by means of a notification addressed to the Secretary General of the Council of Europe. 2 Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General. Article 23 The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to this Charter of: a) any signature; b) the deposit of any instrument of ratification, acceptance, approval or accession; c) any date of entry into force of this Charter in accordance with Articles 19 and 20; d) any notification received in application of the provisions of Article 3, paragraph 2;

e) e any other act, notification or communication relating to this Charter. In witness whereof the undersigned, being duly authorised thereto, have signed this Charter. Done at Strasbourg, this 5th day of November 1992, in English and French, both texts being equally authentic, in a single copy, which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to any State invited to accede to this Charter.

309 Context: The Self-Determination Revival of Indigenous Peoples

The 1990s saw an increasing amount of international declarations presented by indigenous peoples themselves in an effort to elaborate alternatives to the state- government documents. The primary aim of this political action is generally to present their own views of the situation in which they find themselves. Thus, the texts of indigenous peoples became a kind of alternative politics to the discourse presented by states and governments. In the governmentally based declarations, indigenous peoples are generally presented as victims, as we have seen in the legal, political and religious texts presented above. In addition, indeed, many observers have in this century, predicted the virtual extinction of indigenous peoples. However, in the 1970s, something happened that changed this picture. Then indigenous peoples who had experienced overwhelming external pressures against their cultures began forming new political structures that would promote an accommodation with the national states surrounding them. In one respect, this has been called the “self-determination revival”, which aimed at safeguarding indigenous ways of life. The general approach of indigenous peoples to self-determination has been to see it as a way to local political, economic and cultural autonomy. This has not, except in a few cases, meant a struggle for political isolation from the rest of the nation-states, but rather, a local control of affairs, on their own terms within their territories. Regaining control of their destinies, while retaining vital elements of indigenous culture, is a difficult task, but it is fought with vigour by the “international indigenous people’s movement”, which takes part in government forum as in the United Nations, and in their own forums all over the world. The indigenous discourse on self-determination is not a secessionist discourse, as some may fear. On the contrary, their discourse is pointing at existing discriminatory practices and to possibilities of multiculturalism within existing nation states. The B’okob Declaration is a good example of this discursive practice of indigenous peoples to self- determination.

310 59 The B’okob Declaration

Adopted by the First World Summit of Indigenous Peoples, B’okob (Chimaltenango), Guatemala, May 27, 1993

The B’okob Declaration; In Bókob (Chimaltenango), territory of the Maya-Kaqchikeles in the martyred and heroic land of Guatemala, today in a state of Emergency, we held the First World Summit of Indigenous Peoples from May 24 to 28 with representatives from the four corners of the universe responding to the invitation of our sister Rigoberta Menchú Tum, Nobel Peace Prize and Good Will Ambassador of the International Year of Indigenous Peoples representing the Secretary General of the United Nations. This first Summit was carried out as one of the satellite meeting of the World Conference on Human Rights scheduled for June 14 through 26, 1993, in Vienna, Austria, it created a space for us to bring together our words, our wisdom, our projects and our work for life and peace in the world. In analyzing the current situation, we agreed that we live in constant danger of death as demonstrated in various ways: the increase in the most perverse and irrational of human activity; the rise of racism; the environmental destruction that threatens the future of the planet; the obscene opulence existing next to extreme misery and poverty; the voracious search for easy money that stops at nothing and tramples the weakest members of our societies as we can see in the trade of children etc. To summarise: we face worldwide disorder that is creating an unprecedented global crisis. As we approach the twenty-first century, we, the indigenous peoples of the world are deeply concerned about the systematic violation of the rights of indigenous peoples, the increase in violence against indigenous women and children, the marginalisation that we suffer in decision-making, the increasing discrimination we face, and the various forms of exploitation carried out by Nation-States and transnational corporations against our peoples. Before this disturbing situation, the ancient cultures which our peoples embody are merging with a message of hope for a more equal and just future. We are living examples that such a future is possible, as we have demonstrated throughout our histories, with our efforts, our values, our worldview. We hope for a future in which our mother earth becomes healthy again, in which we enjoy equal relationships, mutual respect, and solidarity among individuals, peoples and the different nations of the world.

311 Despite the advances of the past years in spreading the voices and demands of the indigenous peoples, we still suffer notable inequalities in how our problems are responded to at the national and international levels. As a result of our efforts, the United Nations has created several instruments meant to protect the specific rights of the indigenous peoples. However, there are many States which have still not ratified these instruments and others which have responded only in a formal manner, without incorporating these instruments into their practices. Despite our efforts the marginalisation of the indigenous peoples continues. While the declaration of the International Year of the Indigenous Peoples constituted an important step forward, in practice we have found that one year is not enough to effectively develop the “new relationships” that we are proposing.

Taking this situation into consideration, the First Summit of the Indigenous Peoples resolves: 1. To establish the Decade of Indigenous Peoples from 1994 to 2004, and to urge the United Nations to endorse this decade. 2. To reaffirm the rights of Indigenous Peoples to political, economic, social and cultural development based on full participation in the decision-making process and self-determination. 3. To urge all governments to ratify all international instruments that promotes respect for indigenous peoples’ rights. 4. To support the convening of summits of indigenous peoples at the national level to encourage unity and the struggles of indigenous peoples. 5. To create the High Commission on Indigenous Peoples meant to ensure respect for indigenous peoples’ rights. 6. To declare December 10th of every year International Day of the Indigenous Peoples of the World. We also call on the United Nations to ratify, endorse and support this Declaration. We propose the following goals for the International Decade of Indigenous Peoples: 1. To sensitise the world’s peoples to the reality and the perspectives of the indigenous peoples through the development of educational campaigns directed towards the entire society, as well as education among indigenous peoples directed towards affirming their identities and their rights.

312 2. To demand that the United Nations approve the Universal Declaration of the Rights of Indigenous Peoples and the respective ratifications and implementations on the part of the various States. 3. To demand that the United Nations continue and strengthen the Working Group on Indigenous Peoples as a permanent institution working to monitor and ensure the fulfilment of the rights stated in the declaration. 4. Urge the United Nations, governments and multilateral agencies to guarantee and ensure the access and participation of the indigenous peoples’ delegations to the decision-making bodies. 5. To support a worldwide campaign against racism. 6. To encourage the building of strong linkages and exchange networks among indigenous peoples. 7. To develop more effective communication systems for the exchange of information among indigenous peoples. 8. To foster the human development of the indigenous peoples. 9. To create, approve and subsequently ratify an international convention for the elimination of discrimination against indigenous peoples. 10. This Decade is not meant to benefit only indigenous peoples, but instead represents an effort to find creative alternatives to the problems faced by all people who are politically marginalised, economically exploited and culturally discriminated against. Our contribution to the creation of a new model of society must be accompanied by the support and solidarity of the entire society, of the Nation-States, and the different international organisations so that we can establish new relations within a pluri-linguistic and multi-cultural framework. Indigenous brothers and sisters: from the land of the Mayan chiefs Kahib’Imox and B’elejeb’K’at, drawing on the strength, heroism, and wisdom of our ancestors, we call on you to continue to work with us to consolidate our unity. Our struggle and our energy must go from now on to the creation and implementation of activities that will ensure the development and the future of our peoples.

313 Context: Indigenous Peoples and Traditional Knowledge

Traditional Knowledge and Indigenous Peoples

A burning issue for indigenous peoples is the question of their right to their own traditional knowledge and bodies. Only a few decades ago, indigenous peoples were considered a hindrance to modern development. However, the recent concept of sustainable development points to the fact that modern development planning has failed at many levels. For development to succeed, the beneficiaries of development programmes must also be closely involved in their design and implementation. Agenda 21 adopted in 1992 and the Convention on Biological Diversity acknowledged the importance of indigenous knowledge in environmental issues and in the planning of sustainable development. This is by no means an exaggeration. It has become obvious, that indigenous knowledge has a crucial role to play, not only in biodiversity projects, but also in “high tech” biotechnology industry. The pharmaceutical industry has understood that working with indigenous communities provides an access to plants that can be useful in developing new medical drugs. Another interest is seeds. The Rural Advancement Foundation International (RAFI) has estimated that “80 percent of the world’s people continue to rely on indigenous knowledge for their medical needs and as much as two thirds of the world’s people could not survive without the foods provided through indigenous knowledge of plants, animals, insects, microbes and farming systems”. This indicates that knowledge of indigenous peoples is a vital part of the modern biotechnological industry. Moreover, recent developments in science show an increase of the demand for plant and animals, nurtured or known by indigenous communities (RAFI-UNDP, 1994: i). Another area of problems for indigenous peoples is the international regime on intellectual property rights developed during the last years by WTO (former GATT). In the new regime, the scope of the patent system is becoming limitless, which eventually leads to the creating of monopolies by multinational corporations over the patenting of genes.

314 Patents, Genes and Indigenous Peoples

The search for genes does not only cover plants, but has also made its way into the bodies and blood of many of the world’s indigenous peoples. The most widespread gene hunting which directly affected indigenous peoples was perpetrated in the Human Genome Diversity Project (HUGO-Project), an international informal consortium of universities and scientists in Europe and North America. This consortium launched a project to take blood, tissue and hair samples from hundreds of “endangered and unique human communities” located over the world. The multibillion-dollar project was an initiative to map the human genetic structure known as HUGO – Human Genome Organization. The sampling of human genetic material for scientific research had serious implications for indigenous peoples. Products and processes developed from the collected material had enormous commercial value. The material itself was targeted for patenting. Other questions concerned the ethics of the project: Would large international corporations make profits from the genes of indigenous peoples whose physical survival was at stake even by the project itself. Who will have access to the stored genetic material? Where will it be located? What benefits will accrue to the indigenous peoples from whom DNA samples are taken? More than 700 indigenous communities were targeted for DNA collection in the HUGO-project:

Africa 165 Asia 212 South America 114 Oceania 101 North America 107 Europe 23

Total: 722

(RAFI Communiqué, May 1993)

The Human Genome Diversity-project

Over the last 30 years or so, researchers have devised powerful new techniques for probing the genetic structure of human beings, commonly known as DNA fingerprinting. Another use of this technology today is the emerging”gene therapy”. For instance, there are clinical trials underway to treat cystic fibrosis, one of the most common genetic diseases, with this new therapy. Researchers are today so confident of their powers to analyse human genes that they have started this very ambitious project, to sort through

315 all the genes that constitute a human being. The genes we have inherited from our parents are known as our genome. The HUGO-project cost more than 3 billion dollars and was completed in the first years of the 21st century. Since 1900, 90 of Brazil’s estimated 270 indigenous communities have met physical and cultural extinction. Today, more than two thirds of the remaining 180 communities have less than 1000 members. The economic incentives to collect and preserve human genetic diversity have arisen from the development of new biotechnologies and the formation of HUGO. Medical science has long been working along the hypothesis that there is not just one human genetic map. Each ethnic group may have slightly different genetic composition. Some of the differences and mutations can prove to be invaluable to medicine. White blood cells from each of the 10-15 000 human “specimens” was to be preserved”in vitro” at the American Type Culture Collection in Rockville, Maryland, USA. Human tissue, scraped from the cheek, and hair root sampling, is used in shorter-term studies. Human blood can only survive 48 hours outside storage, and this has led to careful planning of the sampling:” One person can bleed 50 people and get to the airport in one day” (RAFI, 1993:2). In 1991, when the HUGO-project was in its initial phase, population geneticists realized that blood samples from indigenous peoples would yield the bulk of DNA analysis, because the genes which have evolved in indigenous peoples, like the Yanomami Indians of the Amazonian rainforest, which were facing extinction.

”Isolates of Historic Interest”

...the establishment of permanent cell lines needs to be explained in terms that are understandable, but that do not mislead subjects in any population. English terms such as ”immortalization” of cell lines can be badly misunderstood /.../ Similarly, there is no fully acceptable way to refer to populations that are in danger of physical extinction or of disruption as integral genetic units (gene pools) /.../ In this Report, we refer to such groups as ”Isolates of Historic Interest” (IHI’s), because they represent groups that should be sampled before they disappear as integral units so that their role in human history can be preserved (Draft proceedings of the Second Human Genome Diversity Workshop).

Concerning the efforts to collect and conserve plant genetic resources, the international working concept was sustainable development, or in other words, conservation and use of genetic resources must be carried out as a process for development, rather than as an ultimate attempt to preserve biodiversity. When indigenous peoples are concerned, however, as the citation above indicates, a need for preservation comes in focus. In the HUGO-project, there was an underlying assumption that many or most of the human

316 populations are inevitably going to disappear. The project’s emphasis on ”preservation” and its insensitivity to indigenous peoples is very well exhibited. The idea of the HUGO-project, regarding indigenous peoples, was to create a global map of human genetic variation, by analysing and comparing thousands of DNA samples from more than 700 indigenous communities. The controversy is that many of the communities targeted for the project are on the verge of physical and cultural extinction. The scientists in the project are not flying to remote areas with the ambition to do something for the people and community and their possibilities to survive, but only with the interest of collecting DNA samples for preservation in laboratories in Europe and North America. The project certainly raises the question of which is the most valuable – the DNA samples or the human being in whose body that DNA naturally resides? The chemical molecule becomes more important than the people from whom the substance comes from. The DNA may be cheaper and easier to maintain, but the ethical issues for Western science was if researchers could extract samples from people who most often did not have any say in the project? The prior informed consent, which is part of any research project involving people, was not adequately protected in many cases. Another problem with the project was that it did not refer to intellectual property issues. It ignored the fact that products and processes derived from the collected material (cell lines) could be patented in Europe or North America. The patenting of plants and animals is already a controversial topic worldwide. The patenting of human genetic material is far more controversial: especially as corporations and even governments, holding patents, can earn royalties from products derived from the genes of poor people whose physical survival is in question. RAFI reported that already by 1992 more than 1 000 human cell lines were stored at the American Type Culture Collection (ATCC) and that more than one third of the entries are identified as being subject to patent application. Moreover, for 12 500 dollars each, it is possible to store the genetic heritage of all indigenous communities threatened with extinction. Representatives of indigenous peoples are outraged, and fear that the HUGO-project could lead to callous and cynical thinking – that DNA preservation is cheaper than actually maintaining and allowing indigenous peoples’ development. It is far cheaper to keep them in racks in laboratories than have real people occupying rainforests and other land areas, which are interesting for commercial exploitation. Thus, indigenous peoples may have some ground in their fear that the very existence of the HUGO-project accelerates the destruction and extinction of indigenous peoples (Wilkie, 1994:8f). It is in the light of these fears the Maatatua Declaration of indigenous peoples should be read. In addition, these were not groundless fears. More than 150 delegates attended the First International Conference on the Cultural and Intellectual property Rights of

317 Indigenous peoples from 14 countries, including representative from Japan, Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Suriname, USA and New Zealand. The conference met for six days to consider a wide range of burning issues, such as the ones mentioned above, customary environmental management, arts, music, language and other physical and spiritual cultural forms. On the final day, the following declaration was passed by the plenary.

318 60 The Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples

Adopted by the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane, Aotearoa (New Zealand), June 12-18, 1993

The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples In recognition that 1993 is the United Nations International Year for the World’s Indigenous Peoples, the Nine Tribes of Mataatua in the Bay of Plenty region of Aotearoa (New Zealand) convened the First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples, (12-18 June 1993, Whakatane). Over 150 delegates from 14 countries attended, including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Suriname, the United States and Aotearoa. The Conference met over six days to consider a range of significant issues, including: the value of indigenous knowledge, biodiversity and biotechnology, customary environmental management, arts, music, language and other physical and spiritual cultural forms. On the final day, the following Declaration was passed by the Plenary. Preamble Recognizing that 1993 is the United Nations International Year for the World’s Indigenous Peoples Reaffirming the undertaking of the Member States of the United Nations to: “Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices.” (United Nations Conference on Environmental Development (UNCED), Agenda 21 (26.4b)), Noting the working principles that emerged from the United Nations Technical Conference on Indigenous Peoples and the Environment in Santiago, Chile from 18-22 May 1992,

319 Endorsing the recommendations on culture and science from the World Conference of Indigenous Peoples on Territory, Environment and Development (Kari-Oca, Brazil, 25- 30 May 1992), WE Declare that indigenous peoples of the world have the right to self-determination, and in exercising that right must be recognized as the exclusive owners of their cultural and intellectual property; Acknowledge that indigenous peoples have a commonality of experiences relating to the exploitation of their cultural and intellectual property; Affirm that the knowledge of the indigenous peoples of the world is of benefit to all humanity; Recognize that indigenous peoples are capable of managing their traditional knowledge themselves, but are willing to offer it to all humanity provided their fundamental rights to define and control this knowledge are protected by the international community; Insist that the first beneficiaries of indigenous knowledge (cultural and intellectual property rights) must be the direct indigenous descendants of such knowledge; Declare that all forms of discrimination and exploitation of indigenous peoples, indigenous knowledge and indigenous cultural and intellectual property rights must cease. 1. Recommendations to indigenous peoples In the development of policies and practices, indigenous peoples should: 1.1 Define for themselves their own intellectual and cultural property. 1.2 Note that existing protection mechanisms are insufficient for the protection of Indigenous Peoples’ intellectual and cultural property rights. 1.3 Develop a code of ethics which external users must observe when recording (visual audio, written) their traditional and customary knowledge. 1.4 prioritises the establishment of indigenous education, research and training centres to promote their knowledge of customary environmental and cultural practices. 1.5 Reacquire traditional indigenous lands for the purpose of promoting customary agricultural production. 1.6 Develop and maintain their traditional practices and sanctions for the protection preservation and revitalisation of their traditional intellectual and cultural properties.

320 1.7 Assess existing legislation with respect to the protection of antiquities. 1.8 Establish an appropriate body with appropriate mechanisms to: (a) Preserve and monitor the commercialism or otherwise of indigenous cultural properties in the public domain; (b) Generally advise and encourage indigenous peoples to take steps to protect their cultural heritage; (c) Allow a mandatory consultative process with respect to any new legislation affecting indigenous peoples’ cultural and intellectual property rights. 1.9 Establish international indigenous information centres and networks. 1.10 Convene a Second International Conference (Hui) on the Cultural and Intellectual Property Rights of Indigenous Peoples to be hosted by the Coordinating Body for the Indigenous Peoples Organizations of the Amazon Basin (COICA). 2. Recommendations to States, national and international agencies In the development of policies and practices, States, national and international agencies must: 2.1 Recognize that indigenous peoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge. 2.2 Recognize that indigenous peoples also have the right to create new knowledge based on cultural traditions. 2.3 Note that existing protection mechanisms are insufficient for the protection of indigenous peoples’ cultural and intellectual property rights. 2.4 Accept that the cultural and intellectual property rights of indigenous peoples are vested with those who created them. 2.S Develop in full cooperation with indigenous peoples an additional cultural and intellectual property rights regime incorporating the following: Collective (as well as individual) ownership and origin; Retroactive coverage of historical as well as contemporary works; Protection against debasement of culturally significant items; Cooperative rather than competitive framework; First beneficiaries to be the direct descendants of the traditional guardians of that knowledge; Multigenerational coverage span. Biodiversity and Customary environmental management

321 2.6 Indigenous flora and fauna is inextricably bound to the territories of indigenous communities and any property right claims must recognize their traditional guardianship. 2.7 Commercialization of any traditional plans and medicines of indigenous peoples must be managed by the indigenous peoples who have inherited such knowledge. 2.8 A moratorium on any further Commercialisation of indigenous medicinal plants and human genetic materials must be declared until indigenous communities have developed appropriate protection mechanisms 2.9 Companies and institutions, both governmental and private, must not undertake experiments or Commercialisation of any biogenetic resources without the consent of the appropriate indigenous peoples. 2.10 Prioritize settlement of any outstanding land and natural resources claims of indigenous peoples for the purpose of promoting customary, agricultural and marine production. 2.11 Ensure current scientific environmental research is strengthened by increasing the involvement of indigenous communities and of customary environmental knowledge. Cultural objects 2.12 A11 human remains and burial objects of indigenous peoples held by museums and other institutions must be returned to their traditional areas in a culturally appropriate manner. 2.13 Museums and other institutions must providers to the country and indigenous peoples concerned, an inventory of any indigenous cultural objects still held in their possession. 2.14 Indigenous cultural objects held in museums and other institutions must he offered back to their traditional owners. 3. Recommendations to the United Nations In respect for the rights of indigenous peoples, the United Nations should: 3.1 Ensure the process of participation of indigenous peoples in United Nations fora is strengthened so their views are fairly represented. 3.2 Incorporate the Mataatua Declaration in its entirety in the United Nations study on cultural and intellectual property of indigenous peoples. 3.3 Monitor and take action against any States whose persistent policies and activities damage the cultural and intellectual property rights of indigenous peoples.

322 3.4 Ensure that indigenous peoples actively contribute to the way in which indigenous cultures are incorporated into the 1995 United Nations International Year of Culture. 3.5 Call for an immediate halt to the ongoing “Human Genome Diversity Project” (HUGO) until its moral, ethical, socio-economic, physical and political implications have been thoroughly discussed, understood and approved by indigenous peoples. 4. Conclusion 4.1 The United Nations, international and national agencies and States must provide additional funding to indigenous communities in order to implement these recommendations.

323 61 Excerpts from: The Vienna Declaration and Programme of Action on Human Rights

Adopted by the World Conference on Human Rights, Vienna, Austria, June 25, 1993

Human Rights of Indigenous Peoples

Representatives of 171 states adopted by consensus the Vienna Declaration and Programme of Action of the World Conference on Human Rights. Before its conclusion, the debate on the final “s” in indigenous peoples had going on for two weeks. The discussion which had started at Rio one year earlier now continued and infected the discussions on the human right of indigenous peoples in general, and the question of self- determination and its interpretation and implementation in particular. Halfway into the proclaimed “International Year of Indigenous People” the human rights conference tried to take the edge of the indigenous argument on a close and intimate relationship between indigenous peoples and the general international legal term “peoples”. It soon became clear the Vienna Conference was not convened for the elaboration of new categories of rights. Enthusiasm among governments for the conference ranged from non-existent to indifferent. The preparatory discussions concluded with a draft report and recommendations that were so qualified, that there was some question whether the conference could achieve any kind of meaningful consensus. The Western group, supported by the East European and South American groups, settled on a strategy not to allow any reopening of discussion on controversial items. The paragraphs relating to indigenous peoples, except technical corrections, could therefore not be reopened even if they fell far short of what indigenous representatives were seeking. Indigenous representatives sought without success to place their issues on the main agenda. Still, the inclusion of indigenous concerns in the final conference report were significant achievements. 283

324 The World Conference on Human Rights, Welcoming the International Year of the World’s Indigenous People 1993 as a reaffirmation of the international community to ensure their enjoyment of all human rights and fundamental freedoms and to respect the value and diversity of their cultures and identities, /—/ 20. The World Conference on Human Rights recognizes the inherent dignity and the unique contribution of indigenous people to the development and plurality of society and strongly reaffirms the commitment of the international community to their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. Considering the importance of the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non- discrimination, and recognize the value and diversity of their distinct identities, cultures and social organization. /—/ 2. Persons belonging to national or ethnic, religious and linguistic minorities. /—/ Indigenous people 28. The World Conference on Human Rights calls on the Working Group on Indigenous Populations of the Sub commission on Prevention of Discrimination and Protection of Minorities to complete the drafting of a declaration on the rights of indigenous people at its eleventh session. 29. The World Conference on Human Rights recommends that the Commission on Human Rights consider the renewal and updating of the mandate of the Working Group on Indigenous Populations upon completion of the drafting of a declaration on the rights of indigenous people. 30. The World Conference on Human Rights also recommends that advisory services and technical assistance programmes within the United Nations system respond positively to requests by States for assistance which would be of direct benefit to indigenous people. The World Conference on Human Rights further recommends that adequate human and financial resources be made available to the

325 Centre for Human Rights within the overall framework of strengthening the Centre’s activities as envisaged by this document. 31. The World Conference on Human Rights urges States to ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. 32. The World Conference on Human Rights recommends that the General Assembly proclaim an international decade of the world’s indigenous people, to begin from January 1994, including action-orientated programmes, to be decided upon in partnership with indigenous people. An appropriate voluntary trust fund should be set up for this purpose. In the framework of such a decade, the establishment of a permanent forum for indigenous people in the United Nations system should be considered. /—/

326 62 Voices of the Earth

Indigenous Peoples, New partners, the Right to Self-Determination in Practice, Amsterdam, The Netherlands, November 11, 1993

This NGO declaration is another example of the emerging discourse on indigenous peoples and the question of self-determination. Indigenous peoples and their organizations and international NGO: s are constantly presenting alternative visions and discourses of the right of self-determination. This declaration also shows that self-determination does not necessarily involve claims of political and geographical secession of indigenous peoples from the states in which they are living today. The declaration is aiming at a more diverse interpretation and implementation of self-determination, which in many parts reflects the views presented by indigenous peoples themselves, as we previously have seen in statements of indigenous peoples.

Declaration of the Conference”Voices of the earth” Preamble We, the indigenous peoples assembled at the Congress “Voices of the Earth; Indigenous Peoples, new partners, the right to self-determination in practice”, hereby declare the results of our deliberations as an important contribution and milestone in our struggle for promotion, protection and recognition of our inherent rights. We, the indigenous participants consider the outcome of our meeting as a continuation of ALL indigenous conferences during this important United Nations Year of the World’s Indigenous Peoples We, the indigenous peoples devote the results of our deliberations to our ancestors and our children in our common struggle for our right to determine our future. We, the indigenous peoples express our deep gratitude to the moral and political support of those who have contributed to this Congress. As we continue to walk to the future in the footprints of our ancestors, we spoke in Amsterdam on November 10 and 1, 1993.

327 Recommendations 1. The right of indigenous peoples to self-determination as stated in the Preamble of the Kari-Oca Declaration and Indigenous Peoples Earth Charter and in article 3 of the Draft UN Declaration on the Rights of Indigenous Peoples must be fully recognised. 2. Indigenous peoples are clearly to be distinguished from minorities. Therefore the protection of their rights cannot be adequately considered under article 27 of the Covenant on Civil and Political Rights. 3. Procedures should be developed for indigenous peoples to bring conflicts with national government concerning political self-determination and other questions before an independent international body such as the International Court of Justice. The European Community, the Dutch government and all other governments should take the initiative to work toward the establishment of those procedures. 4. Indigenous peoples should be provided with legal and technical assistance, at their request, to effectively defend their rights. 5. The European Community, the Dutch government and all other governments should fully support the UN Draft Declaration on the Rights of Indigenous Peoples that will be for adoption by the UN Working Group on Indigenous Populations at its 1994 session. 6. The European Community, the Dutch government and all other governments should work toward facilitating open access and full participation for indigenous peoples in the entire process of debate concerning the adoption of the UN Declaration and in all other forums discussing indigenous issues. 7. The European Community, the Dutch government and all other governments should support the designation of an International Decade of Indigenous Peoples by the UN General Assembly. This Decade should start in 1995 with a preparatory year in 1994. 8. The European Community, the Dutch government and all other governments should take the initiative for the implementation of the recommendation of the Vienna World Conference on Human Rights that a permanent forum be established in the United Nations for the rights of indigenous peoples, in cooperation with the representatives of indigenous peoples. 9. The European Community should also recognise the full right to self-determination of the indigenous peoples presently living on European Community territory (New Caledonia, French Polynesia and French Guyana).

328 Economic Rights: The effective enjoyment of the economic rights of indigenous peoples depends on a recognition of their right to self-determination. Territories: 1. Indigenous peoples’ rights to their territories, meaning full ownership of their lands and natural resources above and below the earth and waters, must be fully recognised. 2. Control: 3. Indigenous peoples’ rights to control the use of resources in their territories must be fully recognized. 4. Trade offs: 5. These rights are non negotiable and cannot be traded off in the name of development of the nation state or other sectors. However, indigenous peoples may choose to promote the use of their resources in ways that benefit others: they need to be assured that they enter such discussions from a position of power. 6. Private sector: 7. The private sector must assume responsibility for its activities. A wider notion of profit should be a condition of investment practice, giving emphasis to the quality of life, not just the quantity of money. 8. NGOs monitoring transnational corporations should focus more on indigenous peoples and share information widely with them. 9. in developing Codes of Conduct companies must engage in dialogue with indigenous peoples and create mechanisms that allow public scrutiny of their adherence to these codes. 10. v) An organisation parallel to the International Centre for the Settlement of Investment Disputes must be established to resolve conflicts between Trans National Corporations and indigenous peoples. 11. Role of the State: 12. States should provide adequate assistance to indigenous peoples to enable them to develop their own economic base and power. Control over this process must be vested with the indigenous peoples concerned to avoid the creation of dependency.

329 Environment: 1. Bearing in mind the two major international human rights covenants of December 1966, according to which, Part 1, Article 1 in both covenants, no peoples may under any circumstances be deprived of its own means of subsistence, Conscious that the 1992 Rio Summit recognised the valuable role of indigenous peoples in maintaining a sustainable use of natural resources, and underlined in Principle 22, the pressing need for indigenous peoples’ active participation in environmental management, Acknowledging the Brundtland Commission’s report’s recommendation of 1987 about the empowerment of vulnerable groups, Aware that the World Conservation Strategy of 199l, ‘Caring for the Earth’, supports a special role for indigenous peoples in global efforts for a sound environment. Mindful that the World Conservation Union (IUCN) on its 18th General Assembly unanimously adopted two resolutions supporting the indigenous peoples’ cause, including their right to use nature’s resources wisely Conscious of the Biodiversity Convention and ILO Convention 169, both of which lend support to indigenous peoples and their role in sustainable development, Pointing to the fact that as a general rule, ecosystems that appear as the most sound. are also those which are under indigenous control Now, Therefore, the ‘Voices of the Earth’ Congress, assembled in Amsterdam, calls on governments; i). to heed the concerns of indigenous peoples worldwide, ii). to give effect in their respective national policies to the above cited international instru-ments to which they have given their assent, iii). to properly protect the market access for indigenous peoples’ products derived from a sustainable and wise use of nature, and iv). to give financial support to the UN’s decade for indigenous peoples. International legislation: 1. States should recognise the Declaration on the Rights of Indigenous Peoples as presently drafted. It was suggested that an ombudsman be nominated to oversee the adherence of States to this Declaration. An independent tribunal might also review adherence to the Declaration. Demilitarisation:

330 1. There should be a demilitarization of indigenous territories, including cessation of nuclear testing on indigenous territories. In this respect it is the special responsibility of the Dutch government to immediately stop the low-level flying activities of the Royal Dutch Air Force above the territories of the Innu people in Canada. Compulsory military service for indigenous people must be abolished. Dutch Government’s responsibilities: 10. In addition to observing the above recommendations, the Dutch Government is urged to press for an enhanced allocation to indigenous peoples of the resources of the UN agencies and other multilateral bodies. Cultural. Scientific and Intellectual Property 1. All relevant agencies and programs of the Dutch Government, European Community and the United Nations (e.g. World Bank, WIPO, UPOV, UNCTAD, UNEP, UNDP, Human Rights Centre, ILO, GATT, etc.) should develop a common policy, based on dialogue with and consent of indigenous peoples, on how protection of and compensation for indigenous intellectual, scientific, and cultural property can be established and effected. 2. A Council on Indigenous Intellectual, Cultural and Scientific Property Rights”, composed of indigenous people, should be established, funded and given special international status in order to: (a) develop educational materials on intellectual, cultural and scientific property rights; (b) develop mechanisms for protection and compensation; (c) advise indigenous and traditional communities on legal and political actions; (d) monitor unethical activities by individuals, institutions and governments that are misusing intellectual, scientific and cultural property; (e) develop mechanisms for enforcement of rules, regulations and laws for protection and compensation, including legal advice and counsel; and (f) establish a network to exchange information about successful and unsuccessful attempts by local communities to secure their rights. 3. Governmental and non-governmental organizations, as well as scientific and professional groups, should develop Codes of Ethics & Conduct regarding respect for indigenous peoples and their intellectual, cultural and scientific property. Funding agencies should require that effective measures for protection and compensation for intellectual, cultural and scientific property be an integral part of all projects and such measures be a requirement for funding. 4. Rights of indigenous peoples to their traditional properties supersede the rights of anyone, including the rights of museums to possess these properties. No international or national agencies may infringe on the right of indigenous peoples to refuse to share

331 their intellectual, cultural and scientific properties. Museums all over the world should cooperate fully with indigenous peoples to reidentify their cultural heritage and recognise their right to repossess it. 5. All governments, international institutions, non-governmental organisations and indigenous peoples are called upon to establish the “University of the Earth” which shall incorporate the values and the knowledge of both indigenous and non- indigenous peoples. This University need not have a specific location but would take the form of a Global Network of journalists, farmers, foresters, engineers, shaman, hunters, scientists, artists and others who will exchange information through journals, television, films, videos, conferences and other forms of mass media. The mission of this “University of the Earth” will be to enhance all peoples’ respect for and knowledge of the Earth. The European Community and the Dutch government are called upon to strengthen indigenous peoples newspapers and other forms of information dissemination. Right to self-development 1. Effective enjoyment of indigenous peoples right to self-development depends on the recognition of the right of indigenous peoples to self-determination. 2. International institutions and funding agencies should adopt their requirements, structures and policies to the cultures, needs and aspirations of indigenous peoples. 3. Indigenous peoples must have full control over the planning, implementation, monitoring, evaluation and follow-up of projects affecting them. 4. Indigenous peoples’ knowledge and culture should be fully taken into consideration before entering into development relations with indigenous peoples. 5. Results of studies, carried out with the full participation of indigenous peoples, concerning the impacts of development projects on indigenous peoples should be carefully taken into account before implementing a proposed project. 6. The European Community, the Dutch government and all other governments should respect the indigenous peoples’ social and political organisations, and assist them to give these institutions an impulse by institution building for the sake of sustainable, ‘grassroots development. 7. A code of conduct for international institutions such as the Worldbank, the IMF, the EC Development Fund and the UNDP, must be established in collaboration with indigenous peoples to ensure that funding for development activities does not infringe on the territorial and environmental integrity of indigenous peoples.

332 8. The European community, the Dutch government and all other governments should take into consideration the actual situation of indigenous peoples in developed countries. Indigenous peoples in developed countries should not be overlooked or discriminated against by funding institutions because they may be in circumstances similar to those in developing countries. 9. The European Community, the Dutch government and all other governments, international institutions and founding agencies should take into consideration the specific interests of indigenous women and children in planning and implementation of development projects.

333 63 The International Decade of the World’s Indigenous People

United Nations General Assembly resolution, 48/163, New York, USA, December 21, 1993

The Antecedent of the International Decade

The UN has decided that an International Decade of the World’s Indigenous People be proclaimed for the period 1995-2004. It was inaugurated December 10, 1994. There is also a programme of activities attached to the resolution of the decade. As the Decade is an extension of 1993 – the International Year of the World’s Indigenous People, it might be informative to review some of the issues of the Year before turning into the Decade. When the proposal of an international year first came up on the international agenda, there was some hesitation on behalf of certain states. The persistence of the indigenous and their support groups stirred up interest among other countries, and some states started to work at a consensus decision among UN member states. The reasons for the reluctance to initiate an international year may be found in that few government representatives in Geneva and New York had much knowledge on indigenous matters. The issues had barely been put at the tables of the world organization. They did not have any experience with public consultations as the work in the Working Group, and many states hesitated in front of this new political situation. Finally, the resolutions for the International Year evolved around the issue of the formulation of reinforcing international cooperation to find solutions for the problems of indigenous peoples in areas such as human rights, the environment, economic development, education and health. These aims for the Year have also been adopted for the Decade, with specific amendments, such as the adoption of the draft declaration and the establishment of a permanent forum within the UN on indigenous issues.

334 The Decade: “Opening of Doors of Opportunity and New Partnerships?”

In the presentation of the adoption of the resolution of the International Year, the Canadian minister for external relations set as her theme, the “Opening of Doors of Opportunity” as a primary objective of the Year. Even though the Year did not open all the necessary doors, the Year provided a start for a much longer process (Marantz, 1996:33). The International Year passed by rather unnoticed, but some indigenous issues were confirmed: the need to address the development problems of indigenous peoples on a longer term basis and that a decade was needed to accomplish what the Year could not. Many indigenous peoples complained that the Year had failed them because permanent solutions to their needs had not been found. What the Year accomplished was an international awareness and the acceptance of dealing with indigenous issues on the international agenda, such as the major UN conferences held in the first half of the 1990s. This awareness became the basis, when the proposal of a Decade entered the Vienna World Conference on Human Rights, in the summer of 1993. After the Vienna Conference, the process entered the UN system and the first step was taken at the autumn 1993 session of the UN General Assembly. Australia was particularly active, and drafted and introduced the first resolution, which incorporated all the elements of the Year, including the theme, goal and objectives. A year was set aside to provide the time and the opportunity for indigenous groups to plan the activities and to set their objectives before the actual start of the Decade on December 10, 1994. The original objectives of the Decade, as set out and specified mainly at the Technical Meeting preceding the 13th session, 1995, of the Working Group, are to: • Strengthen international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, health, culture and education; • Bilateral and multilateral development agencies should devote special attention to development activities of benefit to indigenous communities; • Educate indigenous and non-indigenous societies concerning the situation, cultures, languages, rights and aspirations of indigenous people; • Promote and protect the rights of indigenous people and their empowerment to make choices between retention of their cultural identity while participating in national life;

335 • Further the implementation of the recommendations pertaining to indigenous people of all high level conferences, in particular the establishment of a permanent forum; and • Adopt the draft declaration on the right of indigenous peoples, develop further international standards and national legislation for the protection and promotion of the human rights of indigenous people, including effective means of monitoring and guaranteeing those rights (UNWGIP, Technical Meeting, 1995). The issues of the establishment of a permanent forum and the adoption of the draft declaration are today singled out, as governments actively consider these items. There might not be so much more to tell about the general objectives of the Decade, but there is little evidence that thought has been given to programmes and activities that benefit communities in material ways. Conferences, workshops, technical meetings, etc., are easy to convene, and may be substitutes for the hard slogging negotiations required for community development. It may be noticed that the Decade programme is long and full of process and fine objectives, but short of substance. However, that does not necessarily mean that the outcome of the Decade will not bring something positive for the development of the World’s Indigenous People.

The General Assembly Bearing in mind that one of the purposes of the United Nations, as set forth in its Charter, is the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion, Recalling its resolution 45/164 of 18 December 1990, in which it proclaimed 1993 as the International Year of the World’s Indigenous People, with a view to strengthening international cooperation for the solution of problems faced by indigenous people in the areas, inter alia, of human rights, the environment, development, education and health, Acknowledging the significance of the Year in raising international awareness of the contribution of, and problems faced by, indigenous people throughout the world, and aware of the need to build on the results and lessons of the year, Recognizing the importance of consulting with indigenous people, the need for financial support from the international community, including support from within the United Nations system and the specialized agencies, the need for a strategic planning framework and the need for adequate coordination and communication channels,

336 Expressing its appreciation of the work undertaken by the Coordinator of the year, the Centre for Human Rights, the Goodwill Ambassador, Ms. Rigoberta Menchú, and the Working group on Indigenous Populations of the Commission on Human Rights, Recognizing the value and the diversity of the cultures and the forms of social organization of the world’s indigenous people, Welcoming the report of the United Nations Conference on Environment and Development, in which the vital role of indigenous people and their communities in the interrelationship between the natural environment and its sustainable development is recognized, including their holistic traditional scientific knowledge of their lands, natural resources and environment, Recognizing the importance of considering the establishment of a permanent forum for indigenous people in the framework of an international decade, Noting the recommendations included in the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights to proclaim an international decade of the world’s indigenous people, to begin from 1994, including action-oriented programmes to be decided upon in partnership with indigenous people, a) Proclaims the international Decade of the World’s Indigenous People, commencing on 10 December 1994, the period from 1 January to 9 December 1994 to be set aside for planning for the Decade in partnership with indigenous people; b) Decides that the goal of the Decade should be the strengthening of international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, education and health; c) Also decides that, beginning in the first year of the Decade, one day of every year shall be observed as the International Day of Indigenous people; d) Requests the Commission on Human Rights, at its fiftieth session, to invite the Working Group on Indigenous Populations to identify at its next session an appropriate date for this purpose; e) Requests the Secretary-General to appoint the Assistant Secretary-General for Human Rights as the Coordinator of the Decade; f) Requests the Coordinator to coordinate the programme of activities for the Decade in full collaboration and consultation with Governments, competent bodies, the international Labour Organization and other specialized agencies of the United Nations, and indigenous and non-governmental organizations;

337 g) Requests competent United Nations bodies and specialized agencies to designate focal points for coordination with the Centre for Human Rights of activities related to the Decade; h) Invites Governments to ensure that activities and objectives for the Decade are planned and implemented on the basis of full consultation and collaboration with indigenous people; i) Requests specialized agencies, regional commissions and other organizations of the United Nations system to consider with Governments and in partnership with indigenous people how they can contribute to the success of the Decade, and to transmit their recommendations to the Economic and Social Council;

338 64 European Parliament Resolution on Action Required Internationally to Provide Effective Protection for Indigenous Peoples

Strasbourg, France, February 9, 1994

The European Parliament − having regard to the motion for a resolution by Mr Christiansen and others on the implementation of effective international legislation on the environment and the rights of indigenous peoples in the world in order to protect our planet and all its inhabitants (B3-1519/91), − having regard to its numerous resolutions on the protection of human rights, − having regard to its resolution of 12 March 1992 on 1992, indigenous peoples and the quincentenary, − having regard to Rule 45 of its Rules of Procedure, − having regard to the report of the Committee on Foreign Affairs and Security and the opinion of the Committee on Development and Cooperation (A30059/94), A. Whereas the most commonly used definition of indigenous peoples is that given in ILO Convention No. 169; whereas, according to UN estimates, such communities represent 300 million individuals spread over almost 4000 peoples, B. Convinced that all peoples contribute to the diversity and richness of the civilizations and cultures which constitute mankind’s common heritage, C. Whereas many international texts, in particular the UN Charter, the Universal Declaration of Human Rights and ILO Covention No. 169, set out in detail the inalienable basic rights of all human beings, including that of determining their political status by freely choosing their way of economic, cultural and social development,

339 D. Whereas the United Nations Organization, despite its name, represents only states and not peoples, and solutions to many problems concerning peoples, particularly indigenous peoples, are therefore difficult to find within it, E. Regretting that, in general, international treaties quite simply neglect the rights of indigenous peoples, even if it is they who must bear the direct or indirect consequences thereof, F. Noting that certain states have concluded treaties with indigenous peoples in the past and that some of those treaties have been shamelessly violated; whereas in this connection, in the context of increasing impoverishment, indigenous peoples are often the first to be dispossessed of rights, land and resources, G. Dismayed by the violence of every kind to which indigenous peoples have been subjected in the past, and still are; whereas, in this connection, the UN has recognized the right to intervene when fundamental human rights are under serious threat, 1. Adopts the definition of indigenous peoples given by the ILO in its Convention No. 169 and believes that this convention together with the Kari Oca Declaration (Rio, June 1992) and the declaration of the UN conference in Vienna on the rights of indigenous peoples (June 1993) are the benchmark texts in this regard; 2. Declares that pursuant to UN provisions, and in the context of a non-violent and fully democratic procedure with due regard for the rights of other citizens, indigenous peoples have the right to determine their own destiny by choosing their institutions, their political status and that of their territory; 3. Takes the view that the UN must take advantage of its 50th anniversary to make its bodies more democratic and more effective by enabling peoples without a state, in particular indigenous peoples, to be better represented, especially by involving them in the work of the General Assembly; 4. Solemnly reaffirms that those belonging to indigenous peoples have, just as any other human being has, the right to life, to respect, the right to freedom of thought and action, to physical security, to health, to justice and to equality concerning the right to work, to housing, to education and to culture; this right to a separate culture must involve the right to use and disseminate their mother tongue and to have the tangible and intangible features of thelr culture protected and disseminated and to have their religious rights and their sacred land respected; 5. Calls for censuses to be taken of indigenous peoples in the states in which they are established;

340 6. Calls for indigenous peoples to be given help in marketing the craft t products made by indigenous peoples, with verification of origin; 7. Declares that indigenous peoples have the right to the common ownership of their traditional land sufficient in terms of area and quality for the preservation and development of their particular ways of life, such land to be placed at their disposal free of charge; it will therefore be indivisible, non-transferable, imprescriptibly and cannot be rented; 8. Takes the view that, with regard to lega1 matters, those belonging to indigenous peoples have the right to a qualified defence lawyer and to full information about their rights, with the assistance of an interpreter if necessary, and that, as far as is compatible with the Universal Declaration of Human Rights, preference should be given to the use of customary law to judge their offences; 9. Declares that indigenous peoples who have been robbed of their rights must be able to obtain fair compensation; if deprivation involves the loss of land, this will be made good, first and foremost, by returning the land in question or, alternatively, by providing land at least equal in terms of quality and size to that which has been lost; 10. Calls in the strongest possible terms on states which in the past have signed treaties with indigenous peoples to honour their un-dertakings, which remain imprescriptible, and in this connection gives its firm backing to the UN special rapporteur responsible for studying and resolving this problem; 11. Reaffirms the positive contribution of indigenous peoples’ civilizations to mankind’s common heritage and the essential role which they have played and which they must continue to play in the conservation of their natural environment: 12. Considers that the European Union, but also the United Nations, should take all possible steps to ensure that international treaties, policies and the activities of commercial undertakings do not, either directly or indirectly, adversely affect the rights of indigenous peoples; calls in this connection for the Council and the Commission to make a precise political statement on indigenous peoples; 13. Calls on the Commission and the Council to make a tangible contribution to the International Year of Indigenous Peoples and to this end calls for: • criteria to be drawn up for the financing of Community projects in the light of the rights of indigenous peoples,

341 • indigenous peoples to be directly involved, as part of development and cooperation policy, in projects concerning them, • European officials to be given special training and assigned for following-up questions concerning indigenous peoples, • the technical and legal information intended for indigenous peoples’ representatives to be enhanced, • appropriate budget lines to be clearly allocated for the defence of the rights of these peoples; 14. Undertakes to set up, at the beginning of the next parliamentary term, an interparliamentary delegation composed of Members of this Parliament and representatives of indigenous peoples and instructs its Subcommittee on Human Rights to monitor questions concerning their rights very closely; 15. Calls on the Member States of the European Union to show their determination to provide tangible protection for indigenous peoples by acceding to ILO Convention No. 169 and by calling on other states to do the same; 16. Instructs its President to forward this resolution to the Council, the Commission, the Secretary-General of the UN, the Secretary of the UN Subcommittee on Sustainable Development and the Secretary of the UN Commission on Human Rights.

342 65 Resolution of the Indigenous Initiative for Peace

Mexico City, Mexico, May 11, 1994

The Indigenous Initiative for Peace is an indigenous, international, independent and permanent body, committed to work for the protection of the Indigenous peoples rights. The organization is committed to contribute to the establishment of legal instruments, standards and efficient mechanisms for the protection and recognition of these rights. and to monitor violations of the rights of indigenous peoples and to promote peaceful resolution of conflicts. It is comprised of people who are active in the defense of the rights of indigenous peoples and they are participating on an individual basis. Among the founding members are Rigoberta Menchú Tum, Ted Moses, Ole Henrik Magga, Victoria Tauli Corpuz, Mick Dodson, and Myrna Cunningham.

Resolution of Indigenous Initiative for Peace, Relating to the Creation of a Mechanism for the Prevention of Conflict and the Mediation and Resolution of Disputes between Indigenous Peoples and Nation States: Acknowledging the stated goals of the Indigenous Initiative for Peace, specifically: “To monitor violations of the rights of Indigenous Peoples and promote peaceful solutions of conflicts affecting Indigenous Peoples in countries around the world.” “To work for the recognition and protection of the rights of Indigenous Peoples, both at the international and national levels”. Recognizing that no effective and accessible mechanism currently exists for the peaceful resolution, mediation or prevention of conflict between States and Indigenous Peoples in the United Nations proper, the World Court or within many States. The Members of the Indigenous Initiative for Peace hereby resolve the following: 1. To promote the creation of a permanent international mechanism and forum for the prevention and resolution of conflicts and disputes between Indigenous Peoples and States, within the UN System and within States;

343 2. To assist and facilitate States and Indigenous Peoples in conflict in beginning a dialogue regarding issues in dispute and to propose peaceful solutions to conflicts, including armed conflict; 3. To intervene, at the request of Indigenous Peoples, in any conflict between Indigenous peoples and States for the purpose of suspending conflict and proposing peaceful solutions to disputes; 4. To seek the assistance of individuals and organizations with expertise in mediation, arbitration, negotiation and conflict resolution, toward the goal of creating a process for global application wherever disputes arise between Indigenous Peoples and States.

344 66 Excerpts from: The United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa

Adopted by the Intergovernmental Negotiating Committee for a Convention to Combat Desertification, June 17, 1994

/—/

Article 3 Principles In order to achieve the objective of this Convention and to implement its provisions, the Parties shall be guided, inter alia, by the following: (a) the parties should ensure that decisions on the design and implementation of programmes to combat desertification and (or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels;

Article 10 National Action Programs /—/ 2. National action programs shall specify the respective roles of government, local communities and land users and the resources available and needed. They shall, inter alia: e) promote policies and strengthen institutional frameworks which develop cooperation and coordination, in a spirit of partnership, between the donor community, governments at all levels, local populations and community groups,

345 and facilitate access by local populations to appropriate information and technology; f) provide for effective participation at the local, national and regional levels of nongovernmental organizations and local populations, both women and men, particularly resource users, including farmers and pastoralists and their representative organizations, in policy planning, decision-making, and implementation and review of national action programmes;

346 67 Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples

Adopted by the United Nations, New York, USA, July 8, 1994

Principles and guidelines for the protection of the heritage of indigenous people PRINCIPLES 1. The effective protection of the heritage of the indigenous peoples of the world benefits all humanity. Cultural diversity is essential to the adaptability and creativity of the human species as a whole. 2. To be effective, the protection of indigenous peoples’ heritage should be based broadly on the principle of self-determination, which includes the right and the duty of indigenous peoples to develop their own cultures and knowledge systems, and forms of social organization. 3. Indigenous peoples should be recognized as the primary guardians and interpreters of their cultures, arts and sciences, whether created in the past, or developed by them in the future. 4. International recognition and respect for indigenous peoples’ own customs, rules and practices for the transmission of their heritage to future generations are essential to these peoples’ enjoyment of human rights and human dignity. 5. Indigenous peoples’ ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people. 6. The discovery, use and teaching of indigenous peoples’ knowledge, arts and cultures are inextricably connected with the traditional lands and territories of each people. Control over traditional territories and resources are essential to the continued transmission of indigenous peoples’ heritage to future generations, and its full protection.

347 7. To protect their heritage, indigenous peoples must control their own means of cultural transmission and education. This includes their right to the continued use and, wherever necessary, the restoration of their own languages and orthographies. 8. To protect their heritage, indigenous peoples must also exercise control over all research conducted within their territories, or which uses their people as subjects of study. 9. The free and informed consent of the traditional owners should be an essential precondition of any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage. 10. Any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage must be revocable, and ensure that the peoples concerned continue to be the primary beneficiaries of commercial application. 11. The heritage of indigenous peoples is comprised of all objects, sites and knowledge the nature or use of which has been transmitted from generation to generation, and which is regarded as pertaining to a particular people or its territory. The heritage of an indigenous people also includes objects, knowledge and literary or artistic works which may be created in the future based upon its heritage. 12. The heritage of indigenous peoples includes all moveable cultural property as defined by the relevant conventions of UNESCO; all kinds of literary and artistic works such as music, dance, song. ceremonies, symbols and designs, narratives and poetry; all kinds of scientific, agricultural, technical and ecological knowledge, including cultigens, medicines and the rational use of flora and fauna; human remains; immoveable cultural property such as sacred sites, sites of historical significance, and burials; and documentation of indigenous peoples’ heritage on film, photographs, videotape, or audiotape. 13. Every element of an indigenous people’s heritage has traditional owners, which may be the whole people, a particular family or clan, an association or society, or individuals who have been specially taught or initiated to be its custodians. The traditional owners of heritage must be determined in accordance with indigenous peoples’ own customs, laws and practices.

348 TRANSMISSION OF HERITAGE 14. Indigenous peoples’ heritage should continue to be learned by the means customarily employed by its traditional owners for teaching, and each indigenous people’s rules and practices for the transmission of heritage and sharing of its use should be incorporated in the national legal system. 15. In the event of a dispute over the custody or use of any element of an indigenous people’s heritage, judicial and administrative bodies should be guided by the advice of indigenous elders who are recognized by the indigenous communities or peoples concerned as having specific knowledge of traditional laws. 16. Governments, international organizations and private institutions should support the development of educational, research, and training centres which are controlled by indigenous communities, and strengthen these communities’ capacity to document, protect, teach and apply all aspects of their heritage. 17. Governments, international organizations and private institutions should support the development of regional and global networks for the exchange of information and experience among indigenous peoples in the fields of science, culture, education and the arts, Including support for systems of electronic information and mass communication. 18. Governments, with international cooperation. should provide the necessary financial resources and institutional support to ensure that every indigenous child has the opportunity to achieve full fluency and literacy in his/her own language, as well as an official language. RECOVERY AND RESTITUTION OF HERITAGE 19. Governments, with the assistance of competent international organizations, should assist indigenous peoples and communities in recovering control and possession of their moveable cultural property and other heritage. 20. In cooperation with indigenous peoples, UNESCO should establish a programme to mediate the recovery of moveable cultural property from across international borders, at the request of the traditional owners of the property concerned. 21. Human remains and associated funeral objects must be returned to their descendants and territories in a culturally appropriate manner, as determined by the indigenous peoples concerned. Documentation may be retained, displayed or otherwise used only in such form and manner as may be agreed upon with the peoples concerned. 22. Moveable cultural property should be returned wherever possible to its traditional owners, particularly if shown to be of significant cultural, religious or historical value

349 to them. Moveable cultural property should only be retained by universities, museums, private institutions or individuals in accordance with the terms of a recorded agreement with the traditional owners for the sharing of the custody and interpretation of the property. 23. Under no circumstances should objects or any other elements of an indigenous people’s heritage be publicly displayed, except in a manner deemed appropriate by the peoples concerned. 24. In the case of objects or other elements of heritage which were removed or recorded in the past, the traditional owners of which can no longer be identified precisely, the traditional owners are presumed to be the entire people associated with the territory from which these objects were removed or recordings were made. NATIONAL PROGRAMMES AND LEGISLATION 25. National laws should guarantee that indigenous peoples can obtain prompt, effective and affordable judicial or administrative action in their own languages to prevent, punish and obtain full restitution and just compensation for the acquisition, documentation or use of their heritage without proper authorization of the traditional owners. 26. National laws should deny to any person or corporation the right to obtain patent, copyright or other legal protection for any element of indigenous people heritage without adequate documentation of the free and informed consent of the traditional owners to an arrangement for the sharing of ownership, control, use and benefits. 27. National laws should ensure the labelling and correct attribution of indigenous peoples’ artistic, literary and cultural works whenever they are offered for public display or sale. Attribution should be in the form of a trademark or an appellation of origin, authorized by the peoples or communities concerned. 28. National laws for the protection of indigenous peoples’ heritage should be adopted following consultations with the peoples concerned, in particular the traditional owners and teachers of religious, sacred and spiritual knowledge, and, wherever possible, should have the informed consent of the peoples concerned. 29. National laws should ensure that the use of traditional languages in education, arts and the mass media is respected and, to the extent possible, promoted and strengthened. 30. Governments should provide indigenous communities with financial and institutional support for the control of local education, through communitymanaged programmes, and with use of traditional pedagogy and languages.

350 31. Governments should take immediate steps, in cooperation with the indigenous peoples concerned, to identify sacred and ceremonial sites, including burials, healing places, and traditional places of teaching, and to protect them from unauthorized entry or use. RESEARCHERS AND SCHOLARLY INSTITUTIONS 32. All researchers and scholarly institutions should take immediate steps to provide indigenous peoples and communities with comprehensive inventories of the cultural property, and documentation of indigenous peoples’ heritage, which they may have in their custody. 33. Researchers and scholarly institutions should return all elements of indigenous peoples’ heritage to the traditional owners upon demand, or obtain formal agreements with the traditional owners for the shared custody, use and interpretation of their heritage. 34. Researchers and scholarly institutions should decline any offers for the donation or sale of elements of indigenous peoples’ heritage, without first contacting the peoples or communities directly concerned and ascertaining the wishes of the traditional owners. 35. Researchers and scholarly institutions must refrain from engaging in any study of previously undecided species or cultivated varieties of plants, animals or microbes, or naturally occurring pharmaceuticals, without first obtaining satisfactory documentation that the specimens were acquired with the consent of the traditional owners. 36. Researchers must not publish information obtained from indigenous peoples or the results of research conducted on flora, fauna, microbes or materials discovered through the assistance of indigenous peoples, without identifying the traditional owners and obtaining their consent to publication. 37. Researchers should agree to an immediate moratorium on the Human Genome Diversity Project. Further research on the specific genotypes of indigenous peoples should be suspended unless and until broadly and publicly supported by indigenous peoples to the satisfaction of United Nations human rights bodies. 38. Researchers and scholarly institutions should make every possible effort to increase indigenous peoples’ access to all forms of medical, scientific and technical education, and participation in all research activities which may affect them or be of benefit to them. 39. Professional associations of scientists, engineers and scholars, in collaboration with indigenous peoples, should sponsor seminars and disseminate publications to

351 promote ethical conduct in conformity with these guidelines and discipline members who act in contravention. BUSINESS AND INDUSTRY 40. In dealings with indigenous peoples, business and industry should respect the same guidelines as researchers and scholarly institutions. 41. Business and industry should agree to an immediate moratorium on making contracts with indigenous peoples for the rights to discover, record and use previously undescribed species or cultivated varieties of plants, animals or microbes, or naturally occurring pharmaceuticals. No further contracts should be negotiated until indigenous peoples and communities themselves are capable of supervising and collaborating in the research process. 42. Business and industry should refrain from offering incentives to any individuals to claim traditional rights of ownership or leadership within an indigenous community, in violation of their trust within the community and the laws of the indigenous peoples concerned. 43. Business and industry should refrain from employing scientists or scholars to acquire and record traditional knowledge or other heritage of indigenous peoples in violation of these guidelines. 44. Business and industry should contribute financially and otherwise to the development of educational and research institutions controlled by indigenous peoples and communities. 45. All forms of tourism based on an indigenous people’s heritage must be restricted to activities which have the approval of the peoples and communities concerned, and which are conducted under their supervision and control. ARTISTS, WRITERS AND PERFORMERS 46. Artists, writers and performers should refrain from incorporating elements derived from indigenous heritage into their works without the informed consent of the traditional owners. 47. Artists, writers and performers should support the full artistic and cultural development of indigenous peoples, and encourage public support for the development and greater recognition of indigenous artists, writers and performers. 48. Artists, writers and performers should contribute, through their individual works and professional organizations, to the greater public understanding and respect for the indigenous heritage associated with the country in which they live.

352 PUBLIC INFORMATION AND EDUCATION 49. The mass media in all countries should take effective measures to promote understanding of and respect for indigenous peoples’ heritage, in particular through special broadcasts and public-service programmes prepared in collaboration with indigenous peoples. 50. Journalists should respect the privacy of indigenous peoples, in particular concerning traditional religious, cultural and ceremonial activities, and refrain from exploiting or sensationalizing indigenous peoples’ heritage. 51. Journalists should actively assist indigenous peoples in exposing any activities, public or private, which destroy or degrade indigenous peoples’ heritage. 52. Educators should ensure that school curricula and textbooks teach understanding and respect for indigenous peoples’ heritage and history and recognize the contribution of indigenous peoples to creativity and cultural diversity. INTERNATIONAL ORGANIZATIONS 53. The Secretary-General should ensure that the task of coordinating international cooperation in this field is entrusted to appropriate organs and specialized agencies of the United Nations, with adequate means of implementation. 54. In cooperation with indigenous peoples, the United Nations should bring these principles and guidelines to the attention of all Member States through, inter alia, international, regional and national seminars and publications, with a view to promoting the strengthening of national legislation and international conventions in this field. 55. The United Nations should publish a comprehensive annual report, based upon information from all available sources, including indigenous peoples themselves, on the problems experienced and solutions adopted in the protection of indigenous peoples’ heritage in all countries. 56. Indigenous peoples and their representative organizations should enjoy direct access to all intergovernmental negotiations in the field of intellectual property rights, to share their views on the measures needed to protect their heritage through international law. 57. In collaboration with indigenous peoples and Governments concerned, the United Nations should develop a confidential list of sacred and ceremonial sites that require special measures for their protection and conservation, and provide financial and technical assistance to indigenous peoples for these purposes.

353 58. In collaboration with indigenous peoples and Governments concerned, the United Nations should establish a trust fund with a mandate to act as a global agent for the recovery of compensation for the unconsented or inappropriate use of indigenous peoples’ heritage, and to assist indigenous peoples in developing the institutional capacity to defend their own heritage. 59. United Nations operational agencies, as well as the international financial institutions and regional and bilateral development assistance programmes, should give priority to providing financial and technical support to indigenous communities for capacity-building and exchanges of experience focused on local control of research and education. 60. The United Nations should consider the possibility of drafting a convention to establish international jurisdiction for the recovery of indigenous peoples’ heritage across national frontiers, before the end of the International Decade of the World’s Indigenous People (E/CN.4/Sub.2/1994/31).

354 68 Excerpts from: Programme of Actions of the United Nations International Conference on Population and Development

Adopted by the International Conference on Population and Development, Cairo, Egypt, September 13, 1994

/—/ D. Indigenous people Basis for action 6.21 Indigenous people have a distinct and important perspective on population and development relationships, frequently quite different from those of the populations with which they interrelate within national boundaries. In some regions of the world, indigenous people, after long periods of population loss, are experiencing steady and in some places rapid population growth resulting from declining mortality, although morbidity and mortality are generally still much higher than for other sections of the national population. In other regions, however, they are still experiencing a steady population decline as a result of contact with external diseases, loss of land and resources, ecological destruction, displacement, resettlement and disruption of their families, communities and social systems. 6.22 The situation of many indigenous groups is often characterized by discrimination and oppression, which are sometimes even institutionalised in national laws and structures of governance. In many cases, unsustainable patterns of production and consumption in the society at large are a key factor in the ongoing destruction of the ecological stability of their lands, as well as in an ongoing exertion of pressure to displace them from those lands. Indigenous people believe that recognition of their rights to their ancestral lands is inextricably linked to sustainable development. Indigenous people call for increased respect for indigenous culture, spirituality, lifestyles and sustainable development models, including traditional systems of land tenure, gender relations, use of resources and knowledge and practice of family planning. At national, regional and international levels,

355 the perspectives of indigenous people have gained increasing recognition, as reflected, inter alia, in the presence of the Working Group on Indigenous Populations at the United Nations Conference on Environment and Development, and the proclamation by the General Assembly of the year 1993 as the International Year of the World’s Indigenous People. 6.22 The decision of the international community to proclaim an International Decade of the World’s Indigenous People, to commence on 10 December 1994, represents a further important step towards fulfilment of the aspirations of indigenous people. The goal of the Decade, which is the strengthening of international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, education and health, is acknowledged as directly related to the purpose of the International Conference on Population and Development and the present Programme of Action. Accordingly, the distinct perspectives of indigenous people are incorporated throughout the Programme of Action within the context of its specific chapters. Objectives 6.24 The objectives are: a) To incorporate the perspectives and needs of indigenous communities into the design, implementation, monitoring and evaluation of the population, development and environment programmes that affect them; b) To ensure that indigenous people receive populationand development-related services that they deem socially, culturally and ecologically appropriate; c) To address social and economic factors that act to disadvantage indigenous people. Actions 6.25 Governments and other important institutions in society should recognize the distinct perspective of indigenous people on aspects of population and development and, in consultation with indigenous people and in collaboration with concerned non- governmental and intergovernmental organisations, should address their specific needs, including needs for primary health care and reproductive health services. All human rights violations and discrimination, especially all forms of coercion, must be eliminated. 6.26 Within the context of the activities of the International Decade of the World’s Indigenous People, the United Nations should, in full cooperation and collaboration with indigenous people and their relevant organisations, develop an enhanced understanding of indigenous people and compile data on their demographic characteristics, both current and historical, as a means of improving the understanding of the population status of

356 indigenous people. Special efforts are necessary to integrate statistics pertaining to indigenous populations into the national data-collection system. 6.27 Governments should respect the cultures of indigenous people and enable them to have tenure and manage their lands, protect and restore the natural resources and ecosystems on which indigenous communities depend for their survival and well-being, and, in consultation with indigenous people, take this into account in the formulation of national population and development policies.

357 69 Establishment of a Working Group of the Commission on Human Rights to elaborate a Draft Declaration in accordance with operative paragraph 5 of the General Assembly resolution 49/214 of 23 December 1994

United Nations Commission on Human Rights, Geneva, Switzerland, March 3, 1995

The Open-Ended Inter-Sessional Working Group

The process of the drafting of the United Nations Declaration on the rights of indigenous peoples proceeded from the UNWGIP, via the Sub-Commission, to the elaboration in the Commission on Human Rights, which appointed a special working group of states for the drafting. The Working Group of States was “open-ended” as to its elaborations and results, and is meeting “inter-sessional”, which means between the sessions of the Commission on Human Rights (Since 2006 it is named the “Human Rights Council”) which holds its annual session in February-March. Unlike the UNWGIP, which was composed of experts appointed by the Sub- Commission on Prevention of Discrimination and Protection of Minorities, the Working Group of the Commission on Human Rights was composed of government representatives. It was constituted as a committee to which every member of the Commission on Human Rights (constituting authority) had a right of participation and the right to vote. The Commission on Human Rights was a political body with 53 member states. Many sceptics concluded that progressive work rarely leaved the Commission. The Commission was an important political battleground over hard-boiled issues in the field of human rights, and compromise with a big C was the key word. The political controversies surrounding the Commission on Human Rights led to a major review of the political aspects of the human rights work within the UN. In 2006 the new body, the Human Rights Council was established as a successor to the

358 Commission. However, many of the critical points that existed in the Commission, for instance, that non-democratic governments could take a leading political role in the international human rights field, still exists.

The Commission on Human Rights Bearing in mind General Assembly resolution 47/75 of 14 December 1992 and part II, paragraph 28 of the Vienna Declaration and Programme of Action (A/ CONF.157/23), Recalling its resolution 1994/29 of 4 March 1994, in which it urged the Sub- Commission on Prevention of Discrimination and Protection of Minorities to complete its consideration of the draft declaration on the rights of indigenous people and submit to the Commission at its fifty-first session the draft declaration together with any recommendations thereon, Welcoming Sub-Commission resolution 1994/45 of 26 August 1994 in which the Sub-Commission decided to adopt the draft declaration as agreed upon by the members of the Working Group on Indigenous Populations and to submit it to the Commission at its fifty-first session, Recalling General Assembly resolution 49/214 of 23 December 1994, in which the Assembly encouraged the Commission to consider the draft declaration with the participation of representatives of indigenous people, on the basis of and in accordance with appropriate procedures to be determined by the Commission, Emphasizing the importance and special nature of the draft declaration as a standard- setting exercise specifically for indigenous people, Recognizing that organizations of indigenous people have special knowledge and understanding of the current situation of the world’s indigenous people and their human rights needs, Expressing its appreciation to the Working Group on Indigenous Populations for its contribution to the process of elaboration of the draft declaration, 1. Decides to establish, as a matter of priority and from within existing overall United Nations resources, an open-ended inter-sessional working group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, entitled “United Nations declaration on the rights of indigenous peoples” for consideration and adoption by the General Assembly within the International Decade of the World’s Indigenous People; 2. Encourages the Working Group to consider in this context all aspects of the draft declaration, including its scope of application;

359 3. Requests that the Working Group meet for 10 working days at the earliest possible date in 1995; 4. Also requests that the Working Group recommend to the Commission the time and duration of its meetings in subsequent years; 5. Further requests the Working Group to submit a progress report to the Commission on Human Rights for consideration at its fifty-second session; (1996) 6. Invites relevant United Nations organs, bodies, programmes and specialized agencies and non-governmental organizations in consultative status with the Economic and Social Council which are interested in contributing to the activities of the Working Group to participate in its work, in accordance with established practice; 7. Decides that participation of other relevant organizations of indigenous people, in addition to non-governmental organizations in consultative status with the economic and Social Council, should be in accordance with the relevant provisions of Economic and Social Council resolution 1296 (XLIV) of 23 May 1968 and the procedures set out in the annex to the present resolution, and invites such organizations to submit applications as soon as possible; 8. Requests the Secretary-General to invite Governments, intergovernmental organizations, non-governmental organizations in consultative status with the Economic and Social Council and organizations of indigenous people authorized to participate to submit, for consideration by the Working Group, comments on the draft declaration submitted by the Sub-Commission; 9. Recommends that the Economic and Social Council take the appropriate steps to expedite the implementation of the present resolution; 10. Decides to consider the question again at its fifty-second session under an appropriate agenda item to be decided upon; 11. Recommends the following draft decision to the Economic and Social Council for adoption: “The Economic and Social Council, Recalling Commission on Human Rights resolution 1995/32 of 3 March 1995, Reaffirming its resolution 1296 (XLIV) of 23 May 1968, entitled “Arrangements for consultation with non-governmental organizations”, in particular its paragraphs 9, 19, and 33,

360 Recalling the mandate of the Council Committee on Non-Governmental Organizations, especially as contained in paragraph 40(e) of resolution 1296 (XLIV), 1. Endorses Commission on Human Rights resolution 1995/32 of 3 March 1995; 2. Authorizes the establishment, as a matter of priority and from within existing overall United Nations resources, of an open-ended inter-sessional working group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26 August 1994 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, entitled “United Nations declaration on the rights of indigenous peoples” for consideration and adoption by the General Assembly within the International Decade of the World’s Indigenous People and operating in accordance with the procedures established by the Commission on Human Rights in the annex to resolution 1995/32; 3. Also authorizes the open-ended Working Group to meet for 10 days at the earliest possible date in 1995; 4. Invites applications from organizations of indigenous people not in consultative status with the Economic and Social Council which are interested in participating in the Working Group; 5. Requests the Coordinator of the International Decade, in accordance with the procedures established by the Commission on Human Rights in resolution 1995/32 and following consultations with the States concerned, in accordance with Article 71 of the Charter of the United Nations, to forward all applications and information received to the Council Committee on Non-Governmental Organizations; 6. Requests the Council Committee on Non-Governmental Organizations to meet as necessary to examine the applications and, having considered all relevant information, including any views received from the States concerned, to recommend to the Economic and Social Council those organizations of indigenous people which should be authorized to participate in the Working Group, including at the first session in 1995; 7. Decides on the basis of the recommendations of the Council Committee on NonGovernmental Organizations, to authorize the participation in the work of the Working Group of interested organizations of indigenous people, in accordance with rules 75 and 76 of the rules of procedure of the functional commissions of the Economic and Social Council;

361 8. Requests the Commission on Human Rights at its fifty-second session to review the progress of the Working Group and to transmit its comments to the economic and Social Council at its substantive session for 1996; 9. Requests the Secretary-General to provide the necessary services and facilities for the implementation of the present resolution.” 53rd meeting 3 March 1995 [adopted without a vote.]

Annex Participation of Organizations of Indigenous People in the Open-Ended Inter-Sessional Working Group 1. The procedures contained in the present annex are adopted solely to authorize the participation of organizations of indigenous people not in consultative status with the Economic and Social Council. 2. These procedures are consistent with the procedures set forth in resolution 1296 (XLIV) of 23 May 1968 of the Economic and Social Council and do not constitute a precedent in any other situation. They shall apply only to the Working Group created by the Council resolution... and they shall remain in effect for the duration of the Working Group. 3. Organizations of indigenous people not in consultative status wishing to participate in the Working Group may apply to the Coordinator of the International Decade. Such applications must include the following information concerning the organization concerned: a) The name, headquarters or seat, address and contact person for the organization;

b) The aims and purposes of the organization (these should be in conformity with the spirit, purposes, and principles of the Charter of the United Nations); c) Information on the programmes and activities of the organization and the country or countries in which they are carried out or to which they apply; d) A description of the membership of the organization, indicating the total number of members. 1. Upon receipt of applications, the Coordinator of the International Decade should consult with any State concerned pursuant to Article 71 of the Charter of the United Nations and paragraph 9 of resolution 1296 (XLIV) of the Economic and Social Council. The Coordinator should promptly forward all applications and information

362 received to the Council Committee on Non-Governmental Organizations for its decision. 2. Authorization to participate shall remain valid for the duration of the Working Group subject to the relevant provisions of part VIII of resolution 1296(XLIV) of the Economic and Social Council. 3. The activities of organizations of indigenous people authorized to participate in the Working Group pursuant to these procedures shall be governed by rules 75 and 76 of the rules of procedure of the functional commissions of the Economic and Social Council. 4. Organizations of indigenous people authorized to participate in the Working Group will have the opportunity to address the Working Group, consistent with the relevant provisions of paragraphs 31 and 33 of Council resolution 1296 (XLIV), and are encouraged to organize themselves into constituencies for this purpose. 5. Organizations of indigenous people may make written presentations which, however, will not be issued as official documents. 6. States having indigenous populations should take effective measures to bring the invitation to participate and these procedures to the attention of organizations of indigenous people potentially interested in contributing to and participating in the Working Group.

363 70 Excerpts from: Copenhagen Declaration and Programme of Action for Social Development

Adopted by the World Summit for Social Development, Copenhagen, Denmark, March 12, 1995

For the first time a conference of this magnitude recognized the significance of social development and human well-being for all. However, criticism says that it is only words without any significant meaning in practice. Nevertheless, social development is central to many of the problems that indigenous peoples are facing.

The Declaration /—/ B. PRINCIPLES AND GOALS 25. We Heads of State and Government are committed to a political, economic, ethical and spiritual vision for social development based on human dignity, human rights, equality, respect, peace, democracy, mutual responsibility and cooperation, and full respect for the various religious and ethical values and cultural backgrounds of people. Accordingly, we will give the highest priority in national, regional and international policies and actions to the promotion of social progress, justice and the betterment of the human condition, based on full participation by all. 26. To this end we will create a framework for action to: /—/ (m) Recognize and support indigenous people in their pursuit of economic and social development with full respect for their identity, traditions, forms of social organization and cultural values; Commitment 4 We commit ourselves to promoting social integration by fostering societies that are stable, safe and just and based on the promotion and protection of all human rights, and on non-

364 discrimination, tolerance, respect for diversity, equality of opportunity, solidarity, security and participation of all people, including disadvantaged and vulnerable groups and persons. To this end, at the national level, we will: /—/ (f) Recognize and respect the right of indigenous people to maintain and develop their identity, culture and interests, support their aspirations for social justice and provide an environment that enables them to participate in the social, economic and political life of their country; /—/ Commitment 6 We commit ourselves to promoting and attaining the goals of universal and equitable access to quality education, the highest attainable standard of physical and mental health and the access of all to primary health care, making particular efforts to rectify inequalities relating to social conditions and without distinction as to race, national origin, gender, age or disability; respecting and promoting our common and particular cultures; striving to strengthen the role of culture in development; preserving the essential bases of people- centred sustainable development and contributing to the full development of human resources and to social development. The purpose of these activities is to eradicate poverty, promote full and productive employment and foster social integration. To this end, at the national level, we will: /—/ (g) Recognize and support the right of indigenous people to education in a manner that is responsive to their specific needs, aspirations and cultures, and ensure their full access to health care;

The Copenhagen Programme of Action for Social Development The programme of action outlines policies, actions and measures to implement the principles and fulfil the commitments enunciated in the Declaration adopted by the World Conference for Social Development. Chapter 1 A favourable national and international economic environment /—/

365 12. Making economic growth and the interaction of market forces more conductive to social development requires the following actions: /—/ (i) Supporting the economic activities of indigenous people, improving their conditions and development and securing their safe interaction with larger economies; Chapter 2. Eradication of Poverty Improved Access to Productive Resources and Infrastructure /—/ 32. Rural Poverty should be addressed by: /—/ (f) Protecting, within the national context, the traditional rights to land and other resources of pastoralists, fishery workers and nomadic and indigenous people, and strengthening land management in the areas of pastoral or nomadic activity, buildning on traditional communal practices, controlling encroachment by others, and developing improved systems of range management and access to water, markets, credit, animal production, veterinary services, health including health services, education and information; (g) Promoting education, research and development on farming systems and smallholder cultivation and animal husbandry techniques, particularly in environmentally fragile areas, building on local and traditional practices of sustainable agriculture and taking particular advantage of women’s knowledge; (h) Strengthening agricultural training and extension services to promote a more effective use of existing technologies and indigenous knowledge systems and to disseminate new technologies in order to reach both men and women farmers an other agricultural workers, including through the hiring of more women as extension workers; C Meeting the basic human needs of all 35. Governments, in partnership with all other development actors, in particular organizations of and people living in poverty, should cooperate to meet the basic human needs of all, including people living in poverty and vulnerable groups, by: /—/ (e) Taking particular actions to enhance the productive capacities if indigenous people, ensuring their full and equal access to social services and their participation in the elaboration and implementation of policies that affect their development, with full respect

366 for their cultures, languages, traditions and forms of social organizations, as well as their own initiatives; /—/ Chapter 3. The Expansion of Productive Employment and the reduction of Unemployment /—/ Enhanced employment opportunities for groups with specific needs /—/ 61. The full participation of indigenous people in the labour market and their equal access to employment opportunities requires developing comprehensive employment, education and training programmes that take account of the particular needs of indigenous people. /—/ Chapter IV. SOCIAL INTEGRATION Basis for Action and Objectives 66. The aim of social integration is to create “a society for all”, where every individual, each with rights and responsibilities, has an active role to play. Such an inclusive society must be based upon respect for all human rights and fundamental freedoms, cultural and religious diversity, social justice and the special needs of vulnerable and disadvantaged groups, democratic participation and the rule of law. The pluralistic nature of most societies has at times resulted in problems for the different groups to achieve and maintain harmony and cooperation, and to have equal access to all resources in society. Full recognition of each individual’s right in the context of the rule of law has not always been fully guaranteed. Since the founding of the United Nations, this quest for humane, stable, safe, tolerant and just societies has shown at best a mixed record. 67. Nevertheless, progress has been noted, as shown in the continuation of the ongoing process of decolonization; the elimination of apartheid; the spread of democracy; wider recognition of the need to respect human dignity, all human rights and fundamental freedoms and cultural diversity; the unacceptability of discrimination; increasing recognition of the unique concerns of indigenous people in the world; an expanded notion of collective responsibility for all members of a society; expanded economic and educational opportunities and the globalization of communication; and greater possibility for social mobility, choice and autonomy of action. /—/

367 C. Equality and social justice 74. Governments should promote equality and social justice by: /—/ (h) Expanding basic education by developing special measures to provide schooling the children and youth living in sparsely populated and remote areas, for children and youth of nomadic, pastoral, migrant or indigenous parents, and for street children, children and youth working or looking after younger siblings and disabled or aged parents, and disabled children and youth; establishing, in partnership with indigenous people, educational systems that will meet the unique needs of their cultures; /—/ D Responses to special social needs 75. Governmental responses to special needs of social groups should include: /—/ (g) Promoting and protecting the rights of indigenous people, and empowering them to make choices that enable them to retain their cultural identity while participating in national, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organization;

368 71 The Beijing Declaration of Indigenous Women

Adopted by 135 indigenous women from 26 countries, at the NGO- Forum, at the Fourth World Conference on Women (September 4-15, 1995), Beijing, China, September 7, 1995

The Rights of Indigenous Women

The Fourth World Conference on Women was attended by 17,000 women at the official conference and an estimated 30,000 at the NGO-Forum. For two weeks, government representatives and NGO representatives discussed issues of concern to women. The outcome of the official conference was the Beijing Declaration on Women and the Platform for Action. The main advancement of the Beijing Declaration is the expression that women’s rights are considered to be part of the international human rights caucus. The indigenous women present at the Beijing conference took the stand that there was no recognition of the world’s current economic and political forces as the main cause of indigenous women’s problems. They decided to work on their own alternative declaration. The declaration of indigenous women underlines some special areas of concern to indigenous women. It is also critical to the official documents of the conference, especially of the Platform of Action, which they argued, does not reflect the special needs and problems of indigenous women. The indigenous women declaration is therefore primarily an attempt to reflect other aspects of the situation of indigenous women than the ones presented in the Beijing Declaration and Platform of Action. The issue of special provisions on gender equality is not uncontroversial. For instance, the inclusion of an article on gender equality, which came in the last minute, in the draft declaration on the rights of indigenous peoples, illustrates one aspect of the work of indigenous representatives with government representatives. This also illustrates how the provisions on gender equality have been looked at. No special attention has been made to these issue until lately. At the 11th session in 1993 of the Working Group, it was brought to attention that the declaration did not contain any article on gender equality. The Canadian observer proposed an additional paragraph, almost in the same wording as the article on gender equality in the Canadian Constitution. By the end of the session, after some rewording the article was included in the draft declaration.

369 The article on gender equality was not uncontroversial. There was even some resistance among indigenous representatives at the working group (Draft Declaration art.43) (Marantz, 1996:62). This shows that for the future, it is desirable to conceive of a section on gender equality that enfolds more specific protection than the one included in the present UN draft declaration.

The Beijing Declaration of Indigenous Women 1. The Earth is our mother. From her we get our life, and our ability to live. It is our responsibility to care for our mother and caring for our mother, we care for ourselves. Women, all females are manifestations of Mother Earth in human form. 2. We, the daughters of Mother Earth, the indigenous women present at the NGO Forum of the UN Fourth World Conference on Women in Beijing, have come together to collectively decide what we can do to bring about a world which we would like our children to live in. We acknowledge and build upon earlier declarations, which evolved from earlier meetings and conferences, like the 1990 Declaration of the Second International Indigenous Women’s Conference, the Kari-Oca Declaration of 1992, and those of various regional conferences done in preparation for this Beijing Conference. 3. This declaration is drafted in recognition of the existence of the UN Declaration of the International Decade of the World’s Indigenous People, the Convention of the Elimination of All Forms of Discrimination Against Women, the Nairobi Forward Looking Strategies for the Advancement of Women, Agenda 21 and the Rio Declaration on Environment and Development, the Cairo Declaration, and Copenhagen Social Summit Declaration. While we agree with most of the provisions of ILO Convention 169, we cannot fully endorse a Convention which remains silent on how nation-states use military force to remove indigenous peoples from their territories. 4. We stand in unity behind this “1995 Beijing Declaration of Indigenous Women” which is the fruit of our collective efforts to understand the world and our situation as indigenous women, critique the Draft Platform for Action, and articulate our demands to the international community, the governments, and the NGOs. 5. We, the women of the original peoples of the world have struggled actively to defend our rights to self-determination and to our territories which have been invaded and colonized by powerful nations and interests. We have been and are continuing to suffer from multiple oppression; as indigenous peoples, as citizens of colonized and neo-colonial countries, as women, and as members of the poorer classes of society. In

370 spite of this, we have been and continue to protect, transmit, and develop our indigenous cosmovision, our science and technologies, our arts and culture, and our indigenous socio-political and economic systems, which are in harmony with the natural laws of mother earth. We still retain the ethical and aesthetic values, the knowledge and philosophy, the spirituality, which conserves and nurtures Mother Earth. We are persisting in our struggles for self-determination and for our rights to our territories. This has been shown in our tenacity and capacity to withstand and survive the colonization happening in our lands in the last 500 years. 6. The “New World Order” which is engineered by those who have abused and raped Mother Earth, colonized, marginalized, and discriminated against us, is being imposed on us viciously. This is recolonization coming under the name of globalization and trade liberalization. The forces behind this are the rich industrialized nation-states, their transnational corporations, financial institutions which they control like the World Bank, the International Monetary Fund and the World Trade Organization (WTO). They will cooperate and compete among themselves to the last frontiers of the world’s natural resources located on our lands and waters. 7. The Final Agreement of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) and the establishment of the WTO has created new instruments for the appropriation and privatization of our community intellectual rights through the introduction of the trade-related intellectual property rights (TRIPS). This facilitates and legitimizes the piracy of our biological, cultural, and intellectual resources and heritage by transnational corporations. Our indigenous values and practice of sharing knowledge among ourselves, and mutual exchange will become things of the past because we are being forced to play by the rules of the market. 8. Bioprospecting, which is nothing but the alienation of our invaluable intellectual and cultural heritage through scientific collection missions and ethnobotanical research, is another feature of recolonization. After colonizing our lands and appropriating our natural resources, they are now appropriating our human genetic resources, through the Human Genetic Diversity Project. Their bid for the patenting of life forms is the ultimate colonization and commodification of everything we hold sacred. It won’t matter any more that we will disappear because we will be “immortalized” as “isolates of historic interest” by the Human Genetic Diversity Project”. 9. It is an imperative for us, as Indigenous Peoples, to stand in their way, because it means more ethnocide and genocide for us. It will lead to the disappearance of the diverse biological and cultural resources in this world which we have sustained. It will cause the further erosion and destruction of our indigenous knowledge, spirituality,

371 and culture. It will exacerbate the conflicts occurring on our lands and communities and our displacement from our ancestral territories. Critique of the Beijing Draft Platform for Action 10. The Beijing Draft Platform for Action, unfortunately, is not critical at all of the “New World Order”. It does present a comprehensive list of issues confronting women and even longer list of actions which governments, the UN and its agencies, multilateral financing institutions, and NGOs should do. It identifies “the persistent and increasing burden of poverty” as the number one critical concern. It acknowledges that “most of the goals of the Nairobi Forward Looking Strategies have not been achieved”. It also acknowledged that “in the past decade the number of women living in poverty has increased disproportionately to the number of men”. 11. However, it does not acknowledge that this poverty is caused by the same powerful nations and interests who have colonized us and are continuing to recolonize, homogenize, and impose their economic growth development model and monocultures on us. It does not present a coherent analysis of why is it that the goals of “equality, development, and peace”, becomes more elusive to women each day in spite of three UN conferences on women since 1975. While it refers to structural adjustment programmes (SAP), it only talks about mitigating its negative impacts, not questioning the basic framework underlying SAPs. It even underscores the importance of trade liberalization and access to open, and dynamic markets, which to us, pose the biggest threat to our rights to our territories, resources, intellectual and cultural heritage. 12. The clear bias of the New World Order for big industries, big agri-business corporations, etc., has meant the decimation of traditional livelihood and economic activities of indigenous peoples like hunting, food gathering and harvesting, reindeer herding, subsistence agriculture, fishing, small handicraft businesses, etc. the noneconomic activities of indigenous women have been ignored and rendered invisible, although these sustain the existence of indigenous peoples. Our dispossession from our territorial land and water base, upon which our existence and identity depends, must be addressed as a key problem. the Platform is very vague on this. 13. The critical areas of concern it has identified are also critical for indigenous women. While it correctly identifies unequal access to education and health as areas of concern, it does not question the basic Western orientation of the prevailing education and health systems. It does not reflect the fact that these systems have perpetuated the discrimination against indigenous peoples. It also does not

372 acknowledge the role of Western media, education, and religion, in eroding the cultural diversity which exists among indigenous peoples. These Western systems hasten ethnocide. It does not give proper recognition and importance to indigenous health care systems and the role of its practitioners. 14. The violence and sexual trafficking of indigenous women and the increasing numbers of indigenous women becoming labour exports, has been aggravated by the perpetuation of an economic growth development model which is export-oriented, import-dependent, and mired in foreign debt. Military operations conducted on indigenous peoples lands use rape, sexual-slavery, and sexual trafficking of indigenous women, to further subjugate indigenous peoples. The development of tourism to attract foreign capital has also led to the commodification of indigenous women and the dramatic increase in the incidence of HIV/AIDS. This reality is not addressed by the Platform. Domestic violence and the increasing suicide rates among indigenous women, especially those who are in highly industrialized countries are caused by psychological alienation and assimilationist policies characteristic of these countries. 15. While it talks about the effects of persecution and armed conflict, it does not acknowledge that many of these armed conflicts are occurring on indigenous peoples’ lands. These armed conflicts are the result of the aggressive actions of transnational corporations and governments to appropriate the remaining resources on indigenous peoples’ territories despite the assertion of indigenous peoples to their right to control these resources. It does not recognize that the resolution of armed conflict especially those happening on indigenous peoples lands, lies in the recognition of our rights to self-determination and to our lands and waters. The phrase “internally displaced” in the text is bracketed, when in fact, this is the reality for many indigenous peoples all over the world. 16. Its recommended “strategic objectives” and actions focus on ensuring women’s equal access and full participation in decision making, equal status, equal pay, and in integrating and mainstreaming gender perspectives and analysis. These objectives are hollow and meaningless if the inequality between nations, races, classes, and genders, are not challenged at the same time. Equal pay and equal status in the so-called First World is made possible because of the perpetuation of a development model which is not only unsustainable but causes the increasing violation of the human rights of women, indigenous peoples, and nations elsewhere. the Platform’s overemphasis on gender discrimination and gender equality depoliticizes the issues confronting indigenous women.

373 Indigenous Women’s Proposals and Demands 17. Within the context of our understanding of our situation and our critique of the “New World Order” and of the Beijing Draft Platform for Action, we present the following demands; Recognize and Respect our Right to Self-Determination 18. That all governments and international non-governmental and governmental organizations recognize the right of indigenous peoples to self-determination, and enshrine the historical, political, social, cultural, economic, and religious rights of the indigenous peoples in their constitutions and legal systems. 19. That the governments ratify and implement ILO Convention 169 only after thorough consultations with indigenous peoples and that eventually it should be improved to condemn the use of military force to displace indigenous peoples. 20. That the 1994 Final Draft Declaration on the Rights of Indigenous Peoples be adopted and ratified by governments without any revisions and reservations. That the full participation of indigenous peoples in the open-ended working group of the Commission on Human Rights to further elaborate on the draft will be ensured. 21. That the “s” in term indigenous peoples be put in all United Nations documents, declarations, and conventions. That, hereafter, we will not be referred to as ethnic minorities or cultural communities but as indigenous peoples. Recognize and Respect our Right to our Territories, and Right to Development, Education, Health 22. We demand that the international community and governments recognize and respect our rights to our territories. This includes our right to decide what to do with our lands and territories and to develop in an integrated, sustainable way, according to our own cosmovision. 23. We urge the governments who are opening up our territories to foreign investors especially to mining corporations, to respect these rights. Full disclosure of development projects and investments to be put into our territories should be done. We should be fully involved in making decisions on these matters. Indigenous peoples’ lands which have been ravaged by mining corporations, or which have become dumping sites of toxic, radioactive and hazardous wastes, should be rehabilitated by the corporations or the governments which allowed this devastation. 24. That the governments, international organizations and NGOs assume their responsibility to alter their policies and allocate resources for the intercultural and bilingual educational system and the development of indigenous health care systems

374 according to our cultural principles and cosmovision. That books, audio and video materials, etc., be screened and purged of discriminatory, racist, and sexist, content. 25. That the governments implement realistic policies which will solve the problem of illiteracy among indigenous and peasant women, providing them access to intercultural and bilingual education which respects indigenous cosmologies, promotes non-sexist formative education which puts women and men in touch with the land. 26. That the governments and international community implement health policies which guarantee accessible, appropriate, affordable and quality services for indigenous peoples and which respect and promote the reproductive health of indigenous women. That budget allocations to health and other social services be increased to at least 20per cent of the national budget and that a significant amount of this goes to indigenous peoples communities. 27. That the indigenous health care systems and practices of indigenous peoples be accorded the proper recognition and respect and the roles of indigenous health practitioners and healers be further enhanced. 28. That the dumping of hazardous drugs, chemicals and contraceptives on indigenous peoples’ communities be stopped. We demand that coercive family planning services, like mass sterilization of indigenous women, coercive abortion programs, be stopped. That population policies like transmigration be condemned and halted. 29. We demand that uranium mining taking place in our lands and nuclear testing in our territories and waters be stopped. If no uranium mining is done then there will be no nuclear weapons, nuclear reactors, and nuclear accidents. Stop Human Rights Violations and Violence Against Indigenous Women 30. That the United Nations create the necessary mechanisms to monitor the indigenous peoples situation especially those facing the threat of extinction and human rights violations and to stop these ethnocidal and genocidal practices. 31. Call on all the Media and Communications systems to realize that Indigenous Women refuse to continue to be treated and considered as exotic, decorative, sexual objects, or study objects, but instead to be recognized as human beings with their own thinking and feeling capabilities and abilities for personal development, spiritually, intellectually and materially. 32. Demand for an investigation of the reported cases of sexual slavery and the rape of indigenous women by the military men happening in areas of armed conflict, such as those within Karen territories in Burma, Chittagong Hill Tracts in Bangladesh, etc.

375 The perpetrators should be persecuted and the survivors be provided justice and rehabilitation services. 33. Demand for an investigation of the forcible mass sterilization and anti-fertility programs done among indigenous women. Identify which international and national agencies are responsible for these and make them accountable. 34. That all acts of discrimination against Indigenous Women be considered and punished as a crime. 35. That the governments create juridical and social instruments adequate to protect women from domestic and state violence. 36. That indigenous customary laws and justice systems which are supportive of women victims of violence be recognized and reinforced. That indigenous laws, customs, and traditions which are discriminatory to women be eradicated. 37. That all internally displaced indigenous peoples be allowed to return to their own communities and the necessary rehabilitation and support services be provided to them. Recognize and Respect our Rights to our Intellectual and Cultural Heritage and our Rights to Control the Biological Diversity in our Territories 38. We demand that our inalienable rights to our intellectual and cultural heritage be recognized and respected. We will resist all processes seeking to destroy this heritage and alienate our resources and knowledge from us. 39. We demand that the western concept and practice of intellectual property rights as defined by the TRIPS in GATT, not be applied to indigenous peoples communities and territories. We demand that the World Trade Organization recognize our intellectual and cultural rights and not allow the domain of private intellectual rights and corporate monopolies to violate these. 40. We call for a stop to the patenting of all life forms. This to us, is the ultimate commodification of life which we hold sacred. 41. We demand that the Human Genetic Diversity Project be condemned and stopped. Those responsible for this project should be asked to make an accounting of all the genetic collections they have taken from indigenous peoples and have these returned to the owners of these genes. The applications for patents to these genetic materials should be stopped and no applications, thereafter, should be accepted and processed. Indigenous peoples should be invited to participate in the ongoing discussions in UNESCO on the bioethics of the Human Genome.

376 42. We demand that governments at the local, regional, and national levels, recognize our intellectual community rights and support us in our defense of these rights, an obligation which they have undertaken as Parties to the Biodiversity Convention. 43. We will continue to freely use our biodiversity for meeting our local needs, while ensuring that the biodiversity base of our local economies will not be eroded. We will revitalize and rejuvenate our biological and cultural heritage and continue to be the guardians and custodians of our knowledge and biodiversity. Ensure Political Participation of Indigenous Women and enhance their capabilities and access to resources 44. We demand equal political participation in the indigenous and modern structures of socio-political structures and systems at all levels. 45. We will dialogue with non-indigenous women’s organizations and formations to implement a realistic plan of solidarity with us. 46. We ask that NGOs that work with Indigenous Women be guided by principles of mutual respect and promote the full participation of Indigenous Women in action and in articulating issues regarding Indigenous Women and Indigenous Peoples. 47. Call on the funding agencies and donor agencies that support and promote women’s organizations and programs, to share space and financial resources in order to promote the development of Indigenous Women. 48. We will work towards reinforcing our own organizations, enhancing communications between us, and gain the space that is rightfully ours, as members of specific identities (nations and cultures) within the Decade of Indigenous Peoples and other institutions that represent governmental and non-governmental organizations. 49. We will work towards the holding of an International Conference of Indigenous Women which will be held as part of the celebration of the International Decade of the World’s Indigenous Peoples. 50. We express our sincere thanks to the Chinese Organizing Committee and the Chinese people for their effort in hosting and providing hospitality to us.

377 72 Excerpts from: The Beijing Declaration and Platform for Action

Adopted by the Fourth World Conference on Women, Beijing, China, September 15, 1995

The Beijing Declaration /—/ We are determined to: /—/ 32. Intensify efforts to ensure equal enjoyment of all human rights and fundamental freedoms for all women and girls who face multiple barriers to their empowerment and advancement because of such factors as their race, age, language, ethnicity, culture, religion, or disability, or because they are indigenous people; /—/

Platform for Action; /—/ Chapter Two Global Framework 8. The Platform for Action recognizes the importance of the agreements reached at the World Summit for Children, the United Nations Conference on Environment and Development, the World Conference on Human Rights, the International Conference on Population and Development and the World Summit for Social Development, which set out specific approaches and commitments to fostering sustainable development and international cooperation and to strengthening the role of the United Nations to that end. Similarly, the Global Conference on the Sustainable Development of Small Island Developing States, the International Conference on Nutrition, the International Conference on Primary Health Care and the World Conference on Education for All have addressed the various facets of development and human rights, within their specific perspectives, paying significant attention to the role of women and girls. In addition, the International Year for the World’s Indigenous People, the International Year of the

378 Family, the United Nations Year for Tolerance, the Geneva Declaration for Rural Women, and the Declaration on the Elim-ination of Violence against Women have also emphasized the issues of women’s empowerment and equality. 32. The past decades has also witnessed a growing recognition of the distinct interests and concerns of indigenous women, whose identity, cultural traditions and forms of social organization enhance and strengthen the communities in which they live. Indigenous women often face barriers both as women and as members of indigenous communities. 34. The continuing environmental degradation that affects all human lives often has a more direct impact on women. Women’s health and their livelihood are threatened by pollution and toxic wastes, large-scale deforestation, desertification, drought and depletion of the soil and of coastal and marine resources, with a rising incidence of environmentally related health problems and even death reported among women and girls. Those most affected are rural and indigenous women, whose livelihood and daily subsistence depends directly on sustainable ecosystems. Chapter Four Strategic Objectives and Actions Strategic Objective A.1. Review, adopt and maintain macroeconomic policies and development strategies that address the needs and efforts of women in poverty Actions to be taken 59 By multilateral financial development institutions, including the World Bank, the International Monetary Fund and regional development institutions, and through bilateral development cooperation: e) Ensure that structural adjustment programmes are designed to minimize their negative effects on vulnerable and disadvantaged groups and communities and to assure their positive effects on such groups and communities by preventing their marginalization in economic and social activities and devising measures to ensure that they gain access to and control over economic resources and economic and social activities; take actions to reduce inequality and economic disparity; f) Review the impact of structural adjustment programmes on social development by means of gender-sensitive social impact assessments and other relevant methods, in order to develop policies to reduce their negative effects and improve their positive impact, ensuring that women do not bear a disproportionate burden of transition costs; complement adjustment lending with enhanced, targeted social development lending;

379 59 By national and international non-governmental organizations and women’s groups: (a) Mobilize all parties involved in the development process, including academic institutions, non-governmental organizations and grass-roots and women’s groups, to improve the effectiveness of anti-poverty programmes directed towards the poorest and most disadvantaged groups of women, such as rural and indigenous women, female heads of household, young women and older women, refugees and migrant women and women with disabilities, recognizing that social development is primarily the responsibility of Governments; Strategic Objective A.2. Revise laws and administrative practices to ensure women’s equal rights and access to economic resources Actions to be taken 61. By Governments: (c) Consider ratification of Convention No. 169 of the International Labour Organization (ILO) as part of their efforts to promote and protect the rights of indigenous people. Strategic objective B.4. Develop non-discriminatory education and training Actions to be taken 83. By Governments, educational authorities and other educational and academic institutions: (n) Recognize and support the right of indigenous women and girls to education and promote a multicultural approach to education that is responsive to the needs, aspirations and cultures of indigenous women, including by developing appropriate education programmes, curricula and teaching aids, to the extent possible in the languages of indigenous people, and by providing for the participation of indigenous women in these processes; (o) Acknowledge and respect the artistic, spiritual and cultural activities of indigenous women; Strategic objective B.6. Promote lifelong education and training for girls and women Actions to be taken (by Governments, educational institutions and communities:) 89. Women have the right to the enjoyment of the highest attainable standard of physical and mental health. The enjoyment of this right is vital to their life and wellbeing and their

380 ability to participate in all areas of public and private life. Health is a state of complete physical, mental and social well being and not merely the absence of disease or infirmity. Women’s health involves their emotional, social and physical well-being and is determined by the social, political and economic context of their lives, as well as by biology. However, health and well-being elude the majority of women. A major barrier for women to the achievement of the highest attainable standard of health is inequality, both between men and women and among women in different geographical regions, social classes and indigenous and ethnic groups. In national and international forums, women have emphasized that to attain optimal health throughout the life cycle, equality, including the sharing of family responsibilities, development and peace are necessary conditions. Strategic objective H.3. Generate and disseminate gender-disaggregated data and information for planning and evaluation 225. Many women face additional barriers to the enjoyment of their human rights because of such factors as their race, language, ethnicity, culture, religion, disability or socio-economic class or because they are indigenous people, migrants, including women migrant workers, displaced women or refugees. They may also be disadvantaged and marginalized by a general lack of knowledge and recognition of their human rights as well as by the obstacles they meet in gaining access to information and recourse mechanisms in case of violation of their rights. Strategic objective J.1. Increase the participation and access of women to expression and decision-making in and through the media and new technologies of communication Actions to be taken 239. By Governments: (g) Encourage and provide the means or incentives for the creative use of programmes in the national media for the dissemination of information on various cultural forms of indigenous people and the development of social and educational issues in this regard within the framework of national law; Chapter Five Institutional Arrangements 293. Governments have the primary responsibility for implementing the Platform for Action. Commitment at the highest political level is essential to its implementation, and Governments should take a leading role in coordinating, monitoring and assessing progress in the advancement of women. The Fourth World Conference on Women is a conference of national and international commitment and action. This requires

381 commitment from Governments and the international community. The Platform for Action is part of a continuing process and has a catalytic effect, as it will contribute to programmes and practical outcomes for girls and women of all ages. States and the international community are encouraged to respond to this challenge by making commitments for action. As part of this process, many States have made commitments for action as reflected, inter alia, in their national statements.

382 73 Framework Convention for the Protection of National Minorities

Adopted by the Council of Europe, Strasbourg, February 1, 1995

The Framework Convention for the Protection of National Minorities, drawn up within the Council of Europe by Ad Hoc Committee for the Protection of National Minorities (CAHMIN) under the authority of the Committee of Ministers, was adopted by the Committee of Ministers of the Council of Europe on 10 November 1994 and opened for signature by the member States of the Council of Europe on 1 February 1995.

Framework Convention for the Protection of National Minorities The member States of the Council of Europe and the other States, signatories to the present framework Convention, Considering that the aim of the Council of Europe is to achieve greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage; Considering that one of the methods by which that aim is to be pursued is the maintenance and further realisation of human rights and fundamental freedoms; Wishing to follow-up the Declaration of the Heads of State and Government of the member States of the Council of Europe adopted in Vienna on 9 October 1993; Being resolved to protect within their respective territories the existence of national minorities; Considering that the upheavals of European history have shown that the protection of national minorities is essential to stability, democratic security and peace in this continent; Considering that a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity; Considering that the creation of a climate of tolerance and dialogue is necessary to enable cultural diversity to be a source and a factor, not of division, but of enrichment for each society;

383 Considering that the realisation of a tolerant and prosperous Europe does not depend solely on co-operation between States but also requires transfrontier co-operation between local and regional authorities without prejudice to the constitution and territorial integrity of each State; Having regard to the Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto; Having regard to the commitments concerning the protection of national minorities in United Nations conventions and declarations and in the documents of the Conference on Security and Co-operation in Europe, particularly the Copenhagen Document of 29 June 1990; Being resolved to define the principles to be respected and the obligations which flow from them, in order to ensure, in the member States and such other States as may become Parties to the present instrument, the effective protection of national minorities and of the rights and freedoms of persons belonging to those minorities, within the rule of law, respecting the territorial integrity and national sovereignty of states; Being determined to implement the principles set out in this framework Convention through national legislation and appropriate governmental policies, Have agreed as follows:

Section I

Article 1 The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation.

384 Article 2 The provisions of this framework Convention shall be applied in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between States.

Article 3 1. Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice. 2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.

Section II

Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.

Article 5 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. 2. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons

385 belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.

Article 6 1. The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media. 2. The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.

Article 7 The Parties shall ensure respect for the right of every person belonging to a national minority to freedom of peaceful assembly, freedom of association, freedom of expression, and freedom of thought, conscience and religion.

Article 8 The Parties undertake to recognise that every person belonging to a national minority has the right to manifest his or her religion or belief and to establish religious institutions, organisations and associations.

Article 9 1. The Parties undertake to recognise that the right to freedom of expression of every person belonging to a national minority includes freedom to hold opinions and to receive and impart information and ideas in the minority language, without interference by public authorities and regardless of frontiers. The Parties shall ensure, within the framework of their legal systems, that persons belonging to a nationalminority are not discriminated against in their access to the media. 2. Paragraph 1 shall not prevent Parties from requiring the licensing, without discrimination and based on objective criteria, of sound radio and televisionbroadcasting, or cinema enterprises. 3. The Parties shall not hinder the creation and the use of printed media by persons belonging to national minorities. In the legal framework of sound radio and television

386 broadcasting, they shall ensure, as far as possible, and taking into account the provisions of paragraph 1, that persons belonging to national minorities are granted the possibility of creating and using their own media. 4. In the framework of their legal systems, the Parties shall adopt adequate measures in order to facilitate access to the media for persons belonging to national minorities and in order to promote tolerance and permit cultural pluralism.

Article 10 1. The Parties undertake to recognise that every person belonging to a national minority has the right to use freely and without interference his or her minority language, in private and in public, orally and in writing. 2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities. 3. The Parties undertake to guarantee the right of every person belonging to a national minority to be informed promptly, in a language which he or she understands, of the reasons for his or her arrest, and of the nature and cause of any accusation against him or her, and to defend himself or herself in this language, if necessary with the free assistance of an interpreter.

Article 11 1. The Parties undertake to recognise that every person belonging to a national minority has the right to use his or her surname (patronym) and first names in the minority language and the right to official recognition of them, according to modalities provided for in their legal system. 2. The Parties undertake to recognise that every person belonging to a national minority has the right to display in his or her minority language signs, inscriptions and other information of a private nature visible to the public. 3. In areas traditionally inhabited by substantial numbers of persons belonging to a national minority, the Parties shall endeavour, in the framework of their legal system, including, where appropriate, agreements with other States, and taking into account their specific conditions, to display traditional local names, street names and other

387 topographical indications intended for the public also in the minority language when there is a sufficient demand for such indications.

Article 12 1. 1 The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. 2. In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. 3. The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities.

Article 13 1. 1 Within the framework of their education systems, the Parties shall recognise that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments. 2. The exercise of this right shall not entail any financial obligation for the Parties.

Article 14 1. 1 The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language. 2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that 3. persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language. 4. Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language.

388 Article 15

The Parties shall create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them.

Article 16 The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention.

Article 17 1. The Parties undertake not to interfere with the right of persons belonging to national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other States, in particular those with whom they share an ethnic, cultural, linguistic or religious identity, or a common cultural heritage. 2. The Parties undertake not to interfere with the right of persons belonging to national minorities to participate in the activities of non-governmental organisations, both at the national and international levels.

Article 18 1. 1 The Parties shall endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned. 2. Where relevant, the Parties shall take measures to encourage transfrontier cooperation.

Article 19 The Parties undertake to respect and implement the principles enshrined in the present framework Convention making, where necessary, only those limitations, restrictions or derogations which are provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, in so far as they are relevant to the rights and freedoms flowing from the said principles.

389 Section III

Article 20 In the exercise of the rights and freedoms flowing from the principles enshrined in the present framework Convention, any person belonging to a national minority shall respect the national legislation and the rights of others, in particular those of persons belonging to the majority or to other national minorities.

Article 21 Nothing in the present framework Convention shall be interpreted as implying any right to engage in any activity or perform any act contrary to the fundamental principles of international law and in particular of the sovereign equality, territorial integrity and political independence of States.

Article 22 Nothing in the present framework Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any Contracting Party or under any other agreement to which it is a Party.

Article 23 The rights and freedoms flowing from the principles enshrined in the present framework Convention, in so far as they are the subject of a corresponding provision in the Convention for the Protection of Human Rights and Fundamental Freedoms or in the Protocols thereto, shall be understood so as to conform to the latter provisions. Section IV

Article 24 1. The Committee of Ministers of the Council of Europe shall monitor the implementation of this framework Convention by the Contracting Parties. 2. The Parties which are not members of the Council of Europe shall participate in theimplementation mechanism, according to modalities to be determined.

390 Article 25 1. Within a period of one year following the entry into force of this framework Convention in respect of a Contracting Party, the latter shall transmit to the Secretary General of the Council of Europe full information on the legislative and other measures taken to give effect to the principles set out in this framework Convention. 2. Thereafter, each Party shall transmit to the Secretary General on a periodical basis and whenever the Committee of Ministers so requests any further information of relevance to the implementation of this framework Convention. 3. The Secretary General shall forward to the Committee of Ministers the information transmitted under the terms of this Article.

Article 26 1. In evaluating the adequacy of the measures taken by the Parties to give effect to the principles set out in this framework Convention the Committee of Ministers shall be assisted by an advisory committee, the members of which shall have recognised expertise in the field of the protection of national minorities. 2. The composition of this advisory committee and its procedure shall be determined by the Committee of Ministers within a period of one year following the entry into force of this framework Convention.

Section V

Article 27 This framework Convention shall be open for signature by the member States of the Council of Europe. Up until the date when the Convention enters into force, it shall also be open for signature by any other State so invited by the Committee of Ministers. It is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.

Article 28 1. This framework Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which twelve member States of the Council of Europe have expressed their consent to be bound by the Convention in accordance with the provisions of Article 27.

391 2. In respect of any member State which subsequently expresses its consent to be bound by it, the framework Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of ratification, acceptance or approval.

Article 29 1. After the entry into force of this framework Convention and after consulting the Contracting States, the Committee of Ministers of the Council of Europe may invite to accede to the Convention, by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe, any non-member State of the Council of Europe which, invited to sign in accordance with the provisions of Article 27, has not yet done so, and any other non-member State. 2. In respect of any acceding State, the framework Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of the instrument of accession with the Secretary General of the Council of Europe.

Article 30 1. 1 Any State may at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories for whose international relations it is responsible to which this framework Convention shall apply. 2. Any State may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this framework Convention to any other territory specified in the declaration. In respect of such territory the framework Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General. 3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.

392 Article 31 1. Any Party may at any time denounce this framework Convention by means of a notification addressed to the Secretary General of the Council of Europe. 2. Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General.

Article 32 The Secretary General of the Council of Europe shall notify the member States of the Council, other signatory States and any State which has acceded to this framework Convention, of: a any signature; b the deposit of any instrument of ratification, acceptance, approval or accession; c any date of entry into force of this framework Convention in accordance with Articles 28, 29 and 30; d any other act, notification or communication relating to this framework Convention. In witness whereof the undersigned, being duly authorised thereto, have signed this framework Convention. Done at Strasbourg, this 1st day of February 1995, in English and French, both texts being equally authentic, in a single copy which shall be deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certified copies to each member State of the Council of Europe and to any State invited to sign or accede to this framework Convention. Explanatory report BACKGROUND 1. The Council of Europe has examined the situation of national minorities on a number of occasions over a period of more than forty years. In its very first year of existence (1949), the Parliamentary Assembly recognised, in a report of its Committee on Legal and Administrative Questions, the importance of “the problem of wider protection of the rights of national minorities”. In 1961, the Assembly recommended the inclusion of an article in a second additional protocol to guarantee to national minorities certain rights not covered by the European Convention on Human Rights (ECHR). The latter simply refers to “association with a national minority” in the non-discrimination clause provided for in Article 14. Recommendation 285 (1961) proposed the following wording for the draft article on

393 the protection of national minorities: “Persons belonging to a national minority shall not be denied the right, in community with the other members of their group, and as far as compatible with public order, to enjoy their own culture, to use their own language, to establish their schools and receive teaching in the language of their choice or to profess and practise their own religion.” 2. The committee of experts, which had been instructed to consider whether it was possible and advisable to draw up such a protocol, adjourned its activities until a final decision had been reached on the Belgian linguistics cases concerning the language used in education (European Court of Human Rights. Judgment of 27 July 1968, Series A No. 6). In 1973 it concluded that, from a legal point of view, there was no special need to make the rights of minorities the subject of a further protocol to the ECHR. However, the experts considered that there was no major legal obstacle to the adoption of such a protocol if it were considered advisable for other reasons. 3. More recently, the Parliamentary Assembly recommended a number of political and legal measures to the Committee of Ministers, in particular the drawing up of a protocol or a convention on the rights of national minorities. Recommendation 1134 (1990) contains a list of principles which the Assembly considered necessary for the protection of national minorities. In October 1991, the Steering Committee for Human Rights (CDDH) was given the task of considering, from both a legal and a political point of view, the conditions in which the Council of Europe could undertake an activity for the protection of national minorities, taking into account the work done by the Conference on Security and Co-operation in Europe (CSCE) and the United Nations, and the reflections within the Council of Europe. 4. In May 1992, the Committee of Ministers instructed the CDDH to examine the possibility of formulating specific legal standards relating to the protection of national minorities. To this end, the CDDH established a committee of experts (DH-MIN) which, under new terms of reference issued in March 1993, was required to propose specific legal standards in this area, bearing in mind the principle of complementarity of work between the Council of Europe and the CSCE. The CDDH and the DH- MIN took various texts into account, in particular the proposal for a European Convention for the Protection of National Minorities drawn up by the European Commission for Democracy through Law (the so-called Venice Commission), the Austrian proposal for an additional protocol to the ECHR, the draft additional protocol to the ECHR included in Assembly Recommendation 1201 (1993) and other proposals.This examination culminated in the report of the CDDH to the Committee of Ministers of 8 September 1993, which included various legal standards which might be adopted in this area and the legal instruments in which they could

394 be laid down. In this connection, the CDDH noted that there was no consensus on the interpretation of the term “national minorities”. 5. The decisive step was taken when the Heads of State and Government of the Council of Europe’s member States met in Vienna at the summit of 8 and 9 October 1993. There, it was agreed that the national minorities which the upheavals of history have established in Europe had to be protected and respected as a contribution to peace and stability. In particular, the Heads of State and Government decided to enter into legal commitments regarding the protection of national minorities. Appendix II of the Vienna Declaration instructed the Committee of Ministers: – to draft with minimum delay a framework convention specifying the principles 6. which contracting States commit themselves to respect, in order to assure the protection of national minorities. This instrument would also be open for signature by non-member States; – to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities. 7. On 4 November 1993, the Committee of Ministers established an ad hoc Committee for the Protection of National Minorities (CAHMIN). Its terms of reference reflected the decisions taken in Vienna. The committee, made up of experts from the Council of Europe’s member States, started work in late January 1994, with the participation of representatives of the CDDH,the Council for Cultural Co-operation (CDCC), the Steering Committee on the Mass Media (CDMM) and the European Commission for Democracy through Law. The High Commissioner on National Minorities of the CSCE and the Commission of the European Communities also took part, as observers. 8. On 15 April 1994, CAHMIN submitted an interim report to the Committee of Ministers, which was then communicated to the Parliamentary Assembly (Doc. 7109). At its 94th session in May 1994, the Committee of Ministers expressed satisfaction with the progress achieved under the terms of reference flowing from the Vienna Declaration. 9. A certain number of provisions of the framework Convention requiring political arbitration as well as those concerning the monitoring of the implementation were drafted by the Committee of Ministers (517bis meeting of Ministers’ Deputies, 7 October 1994). 10. At its meeting from 10 to 14 October 1994, CAHMIN decided to submit the draft framework Convention to the Committee of Ministers, which adopted the text at the

395 95th Ministerial Session on 10 November 1994. The framework Convention was opened for signature by the Council of Europe’s member States on 1 February 1995.

396 74 Programme of Activities for the International Decade of the World’s Indigenous People

United Nations General Assembly Resolution 50/157, New York, USA, December 21, 1995

The rather unsuccessful passing of the International Indigenous People’s Year 1993 learned that nothing on the agenda of indigenous peoples would come to the international political foreground, unless the UN takes any measures in information and programmes of action of the world’s indigenous peoples. This resolution can be seen as a response to the lack of information and programme of activities during 1993. What happens at the international arena are important, but as important is what happens nationally, as this resolution of activities during the Decade spells out. The national arena is the one indigenous peoples are facing in their daily lives. Nevertheless, this programme of activities presented an ambitious task on behalf of the world organization. The UN also spelled out some activities that should come to the fore, by other actors, such as governments, NGOs and indigenous peoples themselves.

The General Assembly Bearing in mind that one of the purposes of the United Nations, as set forth in the Charter, is the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character and in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Recalling its resolutions 48/163 of 21 December 1993 and 49/214 of 23 December 1994 on the International Decade of the World’s Indigenous People, and Commission on Human Rights resolution 1991/28 of 3 March 1995, Recalling also that the goal of the Decade is to strengthen international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, education, and health, and that the theme of the Decade is “Indigenous people: partnership in action”,

397 Recognizing the importance of consultation and cooperation with indigenous people in planning and implementing the programme of activities for the Decade, the need for adequate financial support from the international community, including support from within the United Nations and the specialized agencies, and the need for adequate coordination and communication channels, Recalling its invitation to organizations of indigenous people and other non-governmental organizations concerned to consider the contributions they can make to the success of the Decade, with a view to presenting them to the Working Group on Indigenous Populations, Taking note of Economic and Social Council decision 1992/255 of 20 July 1992, in which the Council requested United Nations bodies and specialized agencies to ensure that all technical assistance financed or provided by them was compatible with international instruments and standards, and encouraged efforts to promote coordination in this field and greater participation of indigenous people in the planning and implementation of projects affecting them, Mindful of the relevant recommendations of the World Conference on Human Rights, the United Nations Conference on Environment and Development, the International Conference on Population and Development, the Fourth World Conference on Women and the World Summit on Social Development, and of the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, Recognizing the value and diversity of the cultures and forms of social organization of indigenous people, and convinced that the development of indigenous people within their countries will contribute to the socio-economic, cultural and environmental advancement of all the countries of the world, 1. Takes note of the final report of the Secretary-General on a comprehensive programme of action for the International Decade of the World’s Indigenous People and the annexes to that report; 2. Decides to adopt the programme of activities for the Decade contained in the annex to the present resolution; 3. Also decides that the programme of activities for the Decade may be reviewed and updated throughout the Decade and that at the mid-point of the Decade the Economic and Social Council and the General Assembly should review the results of the activities to identify obstacles to achievement of the goals of the Decade and to recommend solutions for overcoming those obstacles; 4. Affirms as a major objective of the decade the adoption by the General Assembly of a declaration on the rights of indigenous people; 5. Welcomes the establishment of an open-ended inter-sessional Working Group of the Commission on Human Rights with the sole purpose of elaborating a draft declaration, considering the draft contained in the annex to resolution 1994/45 of 26

398 August 1994 of the Subcommission on Prevention of Discrimination and Protection of Minorities, entitled “Draft United Nations Declaration on the Rights of Indigenous Peoples”, for consideration and adoption by the General Assembly within the Decade; 6. Also welcomes the decisions of the Economic and Social Council to approve the participation of some organizations of indigenous people in the open-ended intersessional Working Group, and encourages the continuing cooperation of the Economic and Social Council, the Committee on Non-Governmental Organizations and the Centre for Human Rights of the Secretariat in processing further applications as a matter of priority in accord with the relevant: resolutions of the Commission on Human Rights and the Economic and Social Council; 7. Recognizes among the important objectives of the Decade the consideration of the possible establishment of a permanent forum for indigenous people within the United Nations, as recommended in the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, held at Vienna from 14 to 25 June 1993, and welcomes the report of the workshop on the possible establishment of a permanent forum for indigenous people held at Copenhagen from 26 to 28 June 1995 and the ongoing dialogue on this subject; 8. Recommends that the Secretary-General, drawing on the expertise of the Commission on Human Rights as well as the Commission for Sustainable Development and other relevant bodies, undertake a review, in close consultation with Governments and taking into account the views of indigenous people, of the existing mechanisms, procedures and programmes within the United Nations concerning indigenous people, and report to the General Assembly at its fifty-first session; 9. Also recommends that the Commission on Human Rights, drawing on the results of the review and the Copenhagen workshop, consider the convening of a second workshop on the possible establishment of a permanent forum for indigenous people with the participation of independent experts as well as representatives of Governments, organizations of indigenous people and other non-governmental organizations concerned and United Nations bodies and specialized agencies; 10. Recognizes the importance of strengthening the human and institutional capacity of indigenous people to develop their own solutions to their problems and, for these purposes, recommends that the United Nations University consider the possibility of sponsoring, in each region, one or more institutions of higher educations as centres of excellence and the diffusion of expertise, and invites the Commission on Human Rights to recommend appropriate means of implementation;

399 11. Recommends that special attention be given to improving the extent and effectiveness of the participation of indigenous people in planning and implementing the activities for the Decade, including through the recruitment, where appropriate, by relevant United Nations bodies and specialized agencies of staff from among indigenous nationals of Member States, consistent with Article 101 of the Charter of the United Nations and within existing resources and staff levels; 12. Recommends that the Secretary-General: a Request United Nations representatives in countries where there are indigenous people to promote, through the appropriate channels, greater participation of indigenous people in the planning and implementation of projects affecting them; b Ensure coordinated follow-up to the recommendations concerning indigenous people of relevant world conferences, namely the World Conference on Human Rights, the United Nations Conference on Environment and Development, the International Conference on Population and Development, the Fourth World Conference on Women and the World Summit for Social Development; c Urge relevant United Nations conferences to promote and facilitate to the extent possible and as appropriate the effective input of the views of indigenous people; d Ensure that information about the programme of activities for the Decade, and opportunities for indigenous people to participate in those activities, is disseminated in all countries and to the greatest possible extent in indigenous languages, to be financed from within existing budgetary resources; e Report on progress made at the national, regional and international levels in accomplishing these objectives to the General Assembly at its fifty-first session; 13. Requests the United Nations High Commissioner for Human Rights to promote the objectives of the Decade, taking into account the special concerns of indigenous people, in the fulfilment of his functions; 14. Requests the Assistant Secretary-General for Human Rights, in his capacity as Coordinator of the Decade, bearing in mind the contribution that indigenous people have the capacity to make, to establish within existing resources, a unit within the Centre for Human Rights, including indigenous persons, to support its activities related to indigenous people, in particular to plan, coordinate and implement activities for the Decade;

400 15. Invites the Assistant Secretary-General for Human Rights to consider the appointment of a fund-raiser who could develop new sources of funding for the Decade; 16. Requests the Administrative Committee on Coordination, through its interagency process, to consult and coordinate on the Decade, with a view to assisting the Coordinator of the Decade to fulfil his function, and to report on activities of the United Nations system in relation to the Decade to the General Assembly in each year of the Decade; 17. Invites the United Nations financial and development institutions, operational programmes and specialized agencies, in accordance with the existing procedures of their governing bodies: (a) To give increased priority and resources to improving the conditions of indigenous people, with particular emphasis on the needs of those people in developing countries, including by the preparation of specific programmes of action for the implementation of the goals of the Decade, within their areas of competence; (b) To launch special projects through appropriate channels and in collaboration with indigenous people, for strengthening their community-level initiatives, and to facilitate the exchange of information and expertise among indigenous people and other relevant experts; (c) To designate focal points for coordination with the Centre for Human Rights of activities related to the Decade; 18. Emphasizes the important role of action at the national level to the implementation of the goals and activities of the Decade and the rights, well-being and sustainable development of indigenous people; 19. Also emphasizes the importance of action at the national level to the implementation of the goals and activities of the Decade; 20. Encourages Governments to support the Decade by: (a) Contributing to the United Nations Trust Fund for the Decade; (b) Preparing relevant programmes, plans and reports in relation to the Decade, in consultation with indigenous people; (c) Seeking means in consultation with indigenous people, of giving indigenous people greater responsibility for their own affairs and an effective voice in decisions on matters which affect them;

401 (d) Establishing national committees or other mechanisms involving indigenous people to ensure that the objectives and activities of the Decade are planned and implemented on the basis of full partnership with indigenous people; 21. Also encourages Governments to consider contributing, as appropriate, to the Fund for the Development of Indigenous Peoples of Latin America and the Caribbean, in support of the achievement of the goals of the Decade; 22. Appeals to Governments and intergovernmental and non-governmental organizations to support the Decade by identifying resources for activities designed to implement the goals of the Decade, in cooperation with indigenous people; 23. Decides to include in the provisional agenda of its fifty-first session the item entitled “Programme of activities of the International Decade of the World’s Indigenous People”. Annex Programme of activities for the International Decade of the World’s Indigenous People A. Objectives 1. Taking into account General Assembly resolution 48/163 of 21 December 1993, the main objective of the International Decade of the World’s Indigenous People is the strengthening of international cooperation for the solution of problems faced by indigenous people in such areas as human rights, the environment, development, health, culture and education. 2. The specialized agencies of the United Nations system and other international and national agencies, as well as communities and private enterprises, should devote special attention to development activities of benefit to indigenous communities. 3. A major objective of the Decade is education of indigenous and non-indigenous societies concerning the situation, cultures, languages, rights and aspirations of indigenous people. In particular, efforts should be made to cooperate with the United Nations Decade for Human Rights Education. 4. An objective of the Decade is the promotion and protection of the rights of indigenous people, and their empowerment to make choices that enable them to retain their cultural identity while participating in political, economic and social life, with full respect for their cultural values, languages, traditions and forms of social organization. 5. An objective of the Decade is to further the implementation of the recommendations pertaining to indigenous people of all high-level international conferences, including

402 the United Nations Conference on Environment and Development, the World Conference on Human Rights, in particular its recommendations that consideration be given to the establishment of a permanent forum for indigenous people in the United Nations system, the United Nations Conference on Population and Development and the World Summit for Social Development as well as all future high-level meetings. 6. An objective of the Decade is the adoption of the draft “United Nations Declaration on the Rights of Indigenous Peoples” and the further development of international standards as well as national legislation for the protection and promotion of the human rights of indigenous people, including effective means of monitoring and guaranteeing those rights. 7. The objectives of the Decade should be assessed by quantifiable outcomes that will improve the lives of indigenous people and that can be evaluated halfway through the Decade and at its end. B. Activities to be undertaken by the major actors United Nations observances 8. A formal observance each year on the International Day of the World’s Indigenous People, in New York, Geneva and other offices of the United nations. 9. Official observance of the Decade as part of the Fourth World Conference on Women, the United Nations Conference on Human Settlements (Habitat II) and other international conferences related to the aims and themes of the Decade. 10. Issuance of a special series of stamps by the United Nations Postal Administration highlighting the goals and themes of the Decade. Activities of the Coordinator and the Centre for Human Rights 11. Establish, as a matter of urgency, an adequately staffed and resourced indigenous people’s unit. 12. Request Governments to second qualified indigenous people, in consultation with interested national indigenous organizations, to assist in the administration of the Decade. 13. Create a fellowship programme, in collaboration with the Advisory Services of the Central for Human rights of the Secretariat and Governments, to assist indigenous people wishing to gain experience in the different branches of the Centre, and in other parts of the United Nations system. Such fellowship might be available for indigenous research and other similar activities.

403 14. Open a roster of indigenous experts in various fields who might be available to assist United Nations agencies, in collaboration with Governments as appropriate, as partners or consultants. 15. Create an advisory group of persons with relevant knowledge of indigenous issues, acting in their personal capacity, to advise the Coordinator for the Decade and United Nations organizations, at their request. The members of this advisory group could include eminent indigenous persons, governmental representatives, independent experts and officials of the specialized agencies. 16. Consider the need to hold coordination meetings of Governments, organizations of the United Nations system and indigenous and non-governmental organizations, as necessary, to consider, examine and evaluate Decade activities and to develop an integrated, action-oriented strategy to advance the interests of indigenous people. The Economic and Social Council should hold mid-term and end-term reviews of the Decade in accordance with its resolution 1988/63 of 27 July 1988. The Working Group on Indigenous Populations should review international activities undertaken during the Decade and receive information from Governments on the implementation of the goals of the Decade in their respective countries. 17. Compile, because of communications of the focal points in the United Nations system, a regular news-sheet containing information about meetings of interest, major or innovatory projects, new sources of funding, policy developments and other news to be widely distributed. 18. Encourage the development of partnership projects in association with Governments to address specific regional or thematic issues bringing together Governments, indigenous people and appropriate United Nations agencies. 19. Establish an information programme linking the Coordinator to focal points of the United Nations system, national committees for the Decade and through appropriate channels, indigenous networks; also develop a database of indigenous organizations and other relevant information, in cooperation with indigenous people, Governments, academic institutions and other relevant bodies. 20. Organize meetings on relevant themes of concern to indigenous people with indigenous participation. 21. Launch a series of publications on indigenous issues to inform policy makers, opinion-formers, students and other interested people. 22. Develop, in collaboration with Governments, training programmes on human rights for indigenous people, including the preparation of relevant training materials, when possible in indigenous languages.

404 23. Establish a board of trustees or advisory group, including indigenous people, to assist the Coordinator of the Voluntary Fund for the International Decade. 24. Encourage the development of projects and programmes, in collaboration with Governments, and taking into account the views of indigenous people and the appropriate United Nations agencies, for support by the Voluntary Fund for the Decade. 25. Ensure, in coordination with Governments and indigenous organizations, the necessary measures to guarantee financing of the objectives of the Decade. 26. United Nations public information activities 27. Produce and disseminate a series of posters on the Decade using designs by indigenous artists. 28. Organize a lecture series at United Nations information centres and campuses linked to the United Nations University, using indigenous speakers. 29. Publish in indigenous languages the Universal Declaration of Human Rights, international human rights conventions and, upon its adoption, the United Nations declaration on the rights of indigenous people. Consider the use of audiovisual material for this purpose. Consider also the involvement of indigenous experts and their own information networks to disseminate information about the Decade. 30. Prepare, in collaboration with the Centre for Human Rights, information about indigenous people for distribution to the general public. 31. Operational activities of the United Nations system 32. Establish focal points for indigenous issues in all appropriate organizations of the United Nations system. 33. Adopt programmes of action for the Decade in the governing bodies of specialized agencies of the United Nations system in their own fields of competence, in close cooperation with indigenous people. 34. Urge Governments to ensure that the programmes and budgets or relevant intergovernmental organizations give priority and devote sufficient resources for furthering the aims of the Decade, and request that regular reports on the action taken be submitted to the governing body or executive council of each organization. 35. Prepare, publish and disseminate a manual containing practical information for indigenous people on the operations and procedures of United Nations agencies.

405 36. Develop research on the socio-economic conditions of indigenous people, in collaboration with indigenous organizations and other appropriate partners, with a view to publishing regular reports in order to contribute to the solution of problems faced by indigenous people, taking into account paragraph 6.26 of the Programme of Action of the International Conference on Population and Development, held at Cairo from 5 to 13 September 1994. 37. Encourage Governments to establish appropriate mechanisms and practices to ensure the participation of indigenous people in the design and implementation of national and regional programmes of concern to them. 38. Hold regular inter-agency consultations, in collaboration with Governments and indigenous people, to exchange views and develop strategies on the programme of action of the Decade. 39. Hold consultations with Governments to examine, with national committees and development agencies, possibilities of cooperation in the activities of the Decade. 40. Develop training materials for indigenous people on human rights, including the translation of the main international instruments into different languages, and give them wide distribution. Consider the possibility of using radio programmes in order to gain access to indigenous communities not having written languages. 41. Prepare a database on national legislation on matters of particular relevance to indigenous people. 42. Hold consultations on all interested parties on the themes of human rights, development, the environment, health and education, and culture, with a view to elaborating programmes in these areas. Activities of regional organizations 43. Implement existing and develop new regional programmes of action to promote and support the objectives of the Decade. 44. Hold regional meetings on indigenous issues with existing regional organizations with a view to strengthening coordination, taking advantage of the machinery of the United Nations system and promoting the direct and active participation of indigenous people of the different regions in collaboration with Governments. The Working Group on Indigenous Populations could consider the possibility of holding its sessions in conjunction with these meetings. 45. Develop training courses and technical assistance programmes for indigenous people in areas such as project design and management, environment, health and education,

406 and promote the exchange of skills and experiences of indigenous people from different regions. 46. Make funds available at the regional level to activities benefiting indigenous people. 47. Encourage regional organizations to draw up regional instruments for the promotion and protection of indigenous people in the framework of their own structures, and promote existing regional instruments. 48. Activities of Member states 49. Establish national committees for the Decade or similar mechanisms, to include indigenous people, all relevant departments and other interested parties duly convened by Governments, to mobilize public support for the various activities connected with the Decade. 50. Intensify coordination and communication at the national level between relevant ministries, agencies and regional and local authorities by establishing focal points or other mechanisms for coordination and dissemination of information. 51. Use part of the resources of existing programmes and of international assistance for activities of direct benefit to indigenous people and, where possible, provide additional funds for specific activities. 52. Develop, in collaboration with indigenous communities, national plans for the Decade, including main objectives and targets, fixing quantitative outcomes and taking into account the need for resources and possible sources of financing. 53. Provide appropriate resources for indigenous institutions, organizations and communities to develop their own plans and actions according to their own priorities. 54. Adopt measures, in cooperation with indigenous people, to increase knowledge, starting at the elementary-school level and in accord with the age and development of schoolchildren, concerning the history, traditions, culture and rights of indigenous people, with special emphasis on the education of teachers at all levels, and adopt measures to restore indigenous place names. 55. Consider ratification and implementation of the International Labour Organization Convention (No.169) on Indigenous and Tribal Peoples and other international and regional instruments in close consultation with the indigenous organizations of each country. 56. Recognize the existence, identity and rights of indigenous people through constitutional reforms or the adoption of new laws, when appropriate, to improve

407 their legal status and guarantee their economic, social, cultural, political and civil rights. 57. Implement chapter 26 of Agenda 21, adopted by the United Nations Conference on Environment and Development, and the relevant provisions of the Convention on Biological Diversity, the Vienna Declaration and Programme of Action, the Programme of Action of the International Conference on Population and Development, the Programme of Action of the World Summit for Social Development, as well as the relevant provisions of future high-level conferences. Activities of organizations of indigenous people 58. Establish an information network which can be linked to the Coordinator and facilitate communications between the United Nations system, relevant governmental departments and indigenous communities. 59. Indigenous organizations and international indigenous networks should develop information for local communities concerning the goals of the Decade and the activities of the United Nations. 60. Establish and support indigenous schools and university-level institutions and collaborate with the relevant United Nations agencies; participate in the revision of school texts and the contents of programmes of study in order to eliminate discriminatory content and promote the development of indigenous cultures and, where appropriate, in indigenous languages and scripts; develop indigenous curricula for schools and research institutions. 61. Create documentation centres, archives and in situ museums concerning indigenous people, their cultures, laws, beliefs and values, with material that could be used to inform and educate non-indigenous people on these matters. Indigenous people should participate on a preferential basis in the administration of these centres. 62. Establish and promote networks of indigenous journalists and launch indigenous periodicals at the regional and international levels. 63. Indigenous people may transmit to Governments, the United Nations and the specialized agencies and regional organizations their views on the programmes concerning their priority rights. Activities of non-governmental organizations and other interested parties, including education establishments, the media and business 64. Cooperate with indigenous organizations, communities and people in the planning of activities for the Decade.

408 65. Non-Governmental organizations working with indigenous people should involve indigenous people in the activities. 66. Create radio and television centres in indigenous regions when appropriate and in accordance with national legislation to provide information on the problems and proposals of indigenous people and to improve communications between indigenous communities. 67. Promote indigenous cultures with due respect for intellectual property rights through the publication of books, the production of compact discs, and the organization of various artistic and cultural events which enhance knowledge of and serve to develop indigenous cultures and establish indigenous cultural and documentation centres. 68. Involve different social and cultural groups in the activities planned for the Decade.

409 75 Excerpts from: The Habitat Agenda and The Global Plan of Action

Adopted by the Second United Nations Conference on Human Settlements, Istanbul, Turkey, June 14, 1996

The Habitat Plan of Action /—/ 14. In shelter and urban development and management policies, particular attention should be given to the needs and participation of indigenous people. These policies should fully respect their identity and culture and provide an appropriate environment that enables them to participate in political, social and economic life. /—/ 36. In implementing these commitments special attention should be given to the circumstances and needs of people living in poverty, people who are homeless, women, older people, indigenous people, refugees, displaced persons, persons with disabilities, and those belonging to vulnerable and disadvantaged groups. Special consideration should also be given to the needs of migrants. Furthermore, we shall give special attention to the specific needs and circumstances of children, particularly street children. /—/ 38. We further commit ourselves to the objectives of: (1) Promoting shelter and supporting basic services and facilities for education and health for the homeless, displaced persons, indigenous people, women and children who are survivors of family violence, persons with disabilities, older persons, victims of natural and man-made disasters, and to those belonging to vulnerable and disadvantaged groups, including temporary shelter and basic services for refugees; /—/ (m) Protecting within the national context, the legal traditional rights of indigenous people to land and other resources, as well as strengthening of land management; /—/

410 41. We further commit ourselves to the objectives of: /—/ (r) Protecting and maintaining the historic, cultural and natural heritage, including traditional shelter and settlement patterns, as appropriate, of indigenous and other people, as well as landscapes and urban flora and fauna in open and green spaces; /—/ 43. We further commit ourselves to the objectives of: /—/ (h) Institutionalizing a participatory approach to sustainable human settlements development and management, based on a continuing dialogue among all actors involved in urban development (the public sector, the private sector and communities), especially women, persons with disabilities and indigenous people, including the interests of children and youth; /—/ 100. At the United Nations Conference on Environment and Development, the international community agreed on a set of objectives and actions aimed at promoting sustainable human settlements development. In chapter 7 of Agenda 21, the concept of an ”enabling approach” in the human settlements sector was developed, whereby a partnership among the public, private and community sectors sought to improve the social, economic and environmental quality of human settlements and the living and working environments of all people, in particular persons living in poverty in urban and rural areas. Particular emphasis was given to participation in the decisionmaking process by community groups, women, indigenous people, the elderly and people with disabilities. The ”local Agenda 21” framework emphasizes the need for local authorities to work in cooperation with all interested parties, including individuals, social groups and the private sector, to promote and implement effective strategies for sustainable development. /—/ 102. Increasingly, cities have a network of linkages that extends far beyond their boundaries. Sustainable urban development requires consideration of the carrying capacity of the entire ecosystem supporting such development, including the prevention and mitigation of adverse environmental impacts occurring outside urban areas. The unsafe disposal of waste leads to the degradation of the natural environment: aquifers, coastal zones, ocean resources, wetlands, natural habitats, forests and other fragile ecosystems are affected, as are the homelands of indigenous people. All transboundary

411 movements of hazardous waste and substances should be carried out in accordance with relevant international agreements by parties to those agreements. Rapid urbanization in coastal areas is causing the rapid deterioration of coastal and marine ecosystems. 113. To promote equal access to and fair and equitable provision of services in human settlements, Governments at the appropriate level, including local authorities, should: b) Where appropriate, redirect public resources to encourage community-based management of services and infrastructure and promote the participation of the private sector and local residents, including people living in poverty, women, people with disabilities, indigenous people and members of disadvantaged groups, in the identification of public service needs, spatial planning and the design, provision and maintenance of urban infrastructure and open and green spaces. 119. In order to promote the continuing progress of indigenous people and to ensure their full participation in the development of the rural and urban areas in which they live, with full respects for their cultures, languages, traditions, education, social organizations, and settlement patterns, governments and leaders of indigenous communities, within the national context, should: Take particular actions to enhance their productive capacities, ensuring their full and equal access to social and economic services and their participation in the elaboration and implementation of policies that affect their development: Support the economic activities of indigenous people, to improve their conditions and development, and to ensure their safe interaction with larger economies: Integrate indigenous women, their perspectives and knowledge, on an equal basis with men, in decision-making regarding human settlements, including sustainable resource management and the development of policies and programmes for sustainable development, including in particular those designed to address and prevent environmental degradation of land; Address the particular needs of indigenous children and their families, especially those living in poverty, thereby enabling them to benefit fully from economic and social development programmes. /—/ 161. In many countries, rural populations, including indigenous people, play an important role in ensuring food security and in sustaining the social and ecological balance over large tracts of land and thus contribute significantly to the task of protecting biodiversity and fragile ecosystems and to the sustainable use of biological resources. /—/

412 164. In establishing policies for sustainable regional development and management. Governments at the appropriate levels, including local authorities, should: /—/ (a) Promote education and training programmes and establish procedures for the full participation of rural and indigenous people in the setting of priorities for balanced and ecologically viable regional development: /—/ 179. To encourage and support participation, civic engagement and the fulfilment of governmental responsibilities, national Governments, local authorities and/or civil society organizations should put into effect, at appropriate levels, institutional and legal frameworks that facilitate and enable the broad-based participation of all people and their community organizations in decision-making and in the implementation and monitoring of human settlements strategies, policies and programmes; these institutional and legal frameworks would be specifically aimed at, inter alia: /—/ (h) Establishing agenda-setting participatory mechanisms enabling individuals, families, communities, indigenous people and civil society to play a proactive role in identifying local needs and priorities and formulating new policies, plans and projects; /—/ 181. To facilitate capacity-building and institutional development for the improvement of human settlements planning and management. Governments at the appropriate levels, including local authorities and their associations, should: /—/ (c) Promote comprehensive training, education and human resources development policies and programmes which are gender-sensitive and involve local authorities and their associations/networks, as well as academic, research, training and educational institutions, community-based organizations and the private sector, focusing on: /—/ (i) The development of a multi-sectoral approach to human settlements development that includes the unique contributions and institutions of indigenous and immigrant people: 210. Governments have the primary responsibility to implementing the Habitat Agenda. Governments as enabling partners should create and strengthen effective partnerships with women, youth, the elderly, persons with disabilities, vulnerable and disadvantage

413 groups, indigenous peoples and communities, local authorities, the private sector, and non- governmental organizations in each country. National mechanisms should be established or improved, as appropriate, to coordinate actions at all relevant government levels that have an impact on human settlements and to assess this impact prior to governmental actions. Local authorities should be supported in their efforts towards implementing the Habitat Agenda inasmuch as local action is required. All appropriate participatory mechanisms, including local Agenda 21s, should be developed and employed. Governments may wish to coordinate the implementation of their national plans of action through enhanced cooperation and partnerships with sub-regional, regional and international organizations, the United Nations system, including the Bretton Woods institutions, which have a very important role to play in a number of countries.

414 76 Resolution on Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States

Adopted by the Commission of the European Communities, November 5, 1998, Brussels, Belgium

In order to facilitate implementation of a comprehensive policy on indigenous peoples in the development cooperation of the European Community and the Member States specific guidelines procedures, methodological tools and principles was worked out by the Commission of the European Communities. Resolution: 1. The Council recalls the conclusion of 5 June 1997 inviting the Commission to present a policy paper on cooperation with and support for indigenous peoples. The Council welcomes the Working Document of the Commission on support for indigenous peoples in the development cooperation of the Community and the Member States. 2. The Council also takes note of the international instruments addressing indigenous peoples, in particular the UN Resolution on the International Decade of the World’s Indigenous People, the 1992 Rio Declaration, together with the Convention on Biological Diversity, the 1993 Vienna Declaration and the ILO Convention 169 on Indigenous and Tribal Peoples. These call for the international community to ensure the economic, social and cultural well-being of indigenous peoples, their enjoyment of the fruits of sustainable development and their full and free participation in all aspects of society. Indigenous cultures constitute a heritage of diverse knowledge and ideas, which is a potential resource to the entire planet. Consequently, the Council acknowledges the importance that indigenous peoples attach to the affirmation of their ”self-development”, that is to say, the shaping of their own social, economic and cultural development and their own cultural identities. This approach also recognises their own diverse concepts of development, and asserts

415 that they should participate fully and freely in the development process. It is also important to take into account the various country contexts in which indigenous peoples live and to encourage the full participation of indigenous peoples in the democratic processes of their country. To overlook their participation may have unforeseen or even negative impacts on indigenous peoples. 3. The Council recognises that many indigenous peoples live in developing countries where they often experience economic, social and political marginalisation and are exposed to recurrent violations of human rights 4. Furthermore, many indigenous peoples inhabit areas crucial for the conservation of biodiversity, and maintain social and cultural practices by way of which indigenous peoples have a special role in maintaining and enhancing biological diversity and in providing unique sustainable development models. The Council reiterates the political will of the EU and its Member States to participate actively in the initiatives in the framework of the Convention on Biological Diversity for supporting local and indigenous peoples in their contribution to the conservation and sustainable use of biological diversity. 5. The Council recognises that cooperation with and support for the establishment of partnerships with indigenous peoples is essential for the objectives of poverty elimination, sustainable development of natural resources, the observance of human rights and the development of democracy. The Council notes in particular: • the key role played by indigenous peoples in the conservation and sustainable use of natural resources; • the positive contribution of indigenous peoples in the development process; • the vulnerability of indigenous peoples, and the risk that development programmes may disadvantage them; • that indigenous peoples have the same rights as everybody else to a secure livelihood, and the lifestyle of their choice, and should be treated equally in the legal framework; they should also have access, on a non-discriminatory basis, to the opportunities and natural resources, required to achieve these aspirations, as well as multilingual education and health services; • that indigenous peoples have the right to choose their own development paths, which includes the right to object to projects, in particular in their traditional areas. This includes compensation where projects negatively affects the livelihoods of indigenous peoples.

416 6. The Council acknowledges that the development cooperation should contribute to enhancing the right and capacity of indigenous peoples to their ”self- development”. This implies integrating the concern for indigenous peoples as a crosscutting aspect at all levels of development cooperation, including policy dialogue with partner countries and enhancing the capacities of indigenous peoples’ organisations to take an effective part in the planning and implementation of development programmes. 7. A number of international development agencies and various EU Member States have already developed policies and strategies to improve the positive impact of development cooperation on indigenous peoples. The European Commission is cooperating with and supporting indigenous peoples through a wide range of policies, programmes and projects and has taken several initiatives in order to prepare a more comprehensive approach towards indigenous peoples. 8. The Council also recognises the importance of coordination between the Community and the Member States to avoid duplication of efforts and to increase the effectiveness and adequacy of development support for indigenous peoples. This will require mechanisms for consultation, coordination and implementation. 9. The Council recognises the need for a comprehensive policy, including gender aspects for working with indigenous peoples, and invites the Commission to develop further with Member States and in cooperation with indigenous peoples the comprehensive policy outlined in the Commissions’ Working Paper, with particular emphasis on practical ways to implement this policy. The primary focus should be on integrating the concern for indigenous peoples in existing procedures, guidelines and manuals for development cooperation. This will require further development of methodology in order to ensure indigenous peoples are able to offer an informed view on activities envisaged so that their full participation throughout the project cycle is ensured. Bearing in mind the extreme heterogeneity of the various indigenous peoples in different parts of the world, consideration should be given to the development of specific strategies for specific circumstances. 10. In this context the Commission and Member States should as soon as possible examine the means to produce specific practical procedures for its aid practitioners, illustrating key issues to be considered in order to ensure that the particular needs of indigenous peoples are fully taken into account throughout the project cycle, drawing on the tools used in the participatory approach to development and social impact assessments. The Council suggests that the

417 measures proposed should be discussed with indigenous peoples and other partners who have interest in the integration of indigenous peoples into the development process, including local population, regional and local authorities, NGOs and other actors in civil society and the private sector. The expert group on social development should examine the feasibility of these measures, review the status of implementation of the action plan outlined in the working document on a regular basis and suggest, where appropriate, further action to implement the policy guidance on cooperation with and support of indigenous peoples. 11. The Commission is asked to report back to the Council with a review of progress in working with indigenous peoples in the second half of the year 2000.

418 77 Excerpts from: Cartagena Protocol on Biosafety to the Convention on Biological Diversity

Adopted January 29, 2000, Montreal, Canada

Background

The Conference of the Parties (COP) to the Convention on Biological Diversity adopted a supplementary agreement to the Convention known as the Cartagena Protocol on Biosafety on 29 January 2000. The Protocol seeks to protect biological diversity from the potential risks posed by living modified organisms resulting from modern biotechnology. It establishes a procedure for ensuring that countries are provided with the information necessary to make informed decisions before agreeing to the import of such organisms into their territory. It was hailed as a breakthrough in that it enshrines the “precautionary approach” as a principle of international environmental law and puts environment on a par with trade-related issues in the international area. The Protocol also established a Biosafety Clearing-House to facilitate the exchange of information on living modified organisms and to assist countries in the implementation of the Protocol.

The Cartagena Protocol: The Parties to this Protocol, Being Parties to the Convention on Biological Diversity, hereinafter referred to as “the Convention”, Recalling Article 19, paragraphs 3 and 4, and Articles 8 (g) and 17 of the Convention, Recalling also decision II/5 of 17 November 1995 of the Conference of the Parties to the Convention to develop a Protocol on biosafety, specifically focusing on transboundary movement of any living modified organism resulting from modern biotechnology that may have adverse effect on the conservation and sustainable use of biological diversity, setting out for consideration, in particular, appropriate procedures for advance informed agreement, Reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, Aware of the rapid expansion of modern biotechnology and the growing public concern over its potential adverse effects on biological diversity, taking also into account risks to human health, Recognizing that modern biotechnology has great

419 potential for human well-being if developed and used with adequate safety measures for the environment and human health, Recognizing also the crucial importance to humankind of centres of origin and centres of genetic diversity, Taking into account the limited capabilities of many countries, particularly developing countries, to cope with the nature and scale of known and potential risks associated with living modified organisms, Recognizing that trade and environment agreements should be mutually supportive with a view to achieving sustainable development, Emphasizing that this Protocol shall not be interpreted as implying a change in the rights and obligations of a Party under any existing international agreements, Understanding that the above recital is not intended to subordinate this Protocol to other international agreements, Have agreed as follows:

Article 1 OBJECTIVE In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements

Article 4 SCOPE This Protocol shall apply to the transboundary movement, transit, handling and use of all living modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health

Article 26 SOCIO-ECONOMIC CONSIDERATIONS (a) The Parties, in reaching a decision on import under this Protocol or under its domestic measures implementing the Protocol, may take into account, consistent with their international obligations, socio-economic considerations arising from the impact of living modified organisms on the conservation and sustainable use of biological diversity, especially with regard to the value of biological diversity to indigenous and local communities. (b) The Parties are encouraged to cooperate on research and information exchange on any socio-economic impacts of living modified organisms, especially on indigenous and local communities.

420 78 United Nations Permanent Forum on Indigenous Issues

Adopted by ECOSOC Resolution 2000/22, New York, USA, July 28, 2000

The idea of a permanent forum for indigenous issues within the UN was proposed at the Vienna World Conference on Human Rights in 1993. After a relatively short period of time, the idea came to a conclusion in 2000. The purpose of the Permanent Forum is to serve as an advisory body with a mandate to discuss not only human rights issues, but also economic and social development, the environment, health and culture. According to the ECOSOC resolution, the Permanent Forum shall: • Provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the UN through the Council; • Raise awareness and promote the integration and coordination of activities relating to indigenous issues within the UN system; and • Prepare and disseminate information on indigenous issues. • The Permanent Forum will meet once a year and the first session was held in New York in May 2002 (UNHCHR, 2002). The Economic and Social Council, Recalling the provision contained in the final document of the World Conference on Human Rights, held in Vienna in June 1993, according to which the establishment of a permanent forum for indigenous people within the United Nations system should be considered, Recalling also that consideration of the establishment of a permanent forum is recognized as one of the important objectives of the programme of activities for the International Decade of the World’s Indigenous People Noting the two workshops on the subject held under the auspices of the Commission on Human Rights in Copenhagen in 1995 and in Santiago in 1997, Recalling the report of the Secretary-General entitled “Review of the existing mechanisms, procedures, and programmes within the United Nations concerning indigenous people”,

421 and noting in particular the striking absence of a mechanism to ensure coordination and regular exchange of information among interested parties — Governments, the United Nations and indigenous people — on an ongoing basis, Taking into account the deliberations of the Working Group on a permanent forum for indigenous people, established pursuant to Commission on Human Rights resolutions 1998/20 of 9 April 1998 69 and 1999/52 of 27 April 1999 70 to consider the establishment of a permanent forum and to submit concrete proposals to that effect, as well as the consideration given to the subject at the fifty-sixth session of the Commission, Wishing to finalize this project during the International Decade of the World’s Indigenous People as one means of furthering the objectives of the Decade in partnership between Governments and indigenous people, Stressing that the establishment of the permanent forum should lead to careful consideration of the future of the Working Group on Indigenous Populations of the Sub- commission on the Promotion and Protection of Human Rights, Bearing in mind the common resolve to promote peace and prosperity in accordance with the Charter of the United Nations, and recalling the functions and powers of the Council in that respect as contained in the Charter, (a) Decides to establish as a subsidiary organ of the Council a permanent forum on indigenous issues, consisting of sixteen members, eight members to be nominated by Governments and elected by the Council, and eight members to be appointed by the President of the Council following formal consultation with the Bureau and the regional groups through their coordinators, on the basis of broad consultations with indigenous organizations, taking into account the diversity and geographical distribution of the indigenous people of the world as well as the principles of transparency, representativity and equal opportunity for all indigenous people, including internal processes, when appropriate, and local indigenous consultation processes, with all members serving in their personal capacity as independent experts on indigenous issues for a period of three years with the possibility of re-election or reappointment for one further period; States, United Nations bodies and organs, intergovernmental organizations and non- governmental organizations in consultative status with the Council may participate as observers; organizations of indigenous people may equally participate as observers in accordance with the procedures which have been applied in the Working Group on Indigenous Populations of the Sub- commission on the Promotion and Protection of Human Rights; (b) Also decides that the Permanent Forum on Indigenous Issues shall serve as an advisory body to the Council with a mandate to discuss indigenous issues within

422 the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights; in so doing the Permanent Forum shall: (a) Provide expert advice and recommendations on indigenous issues to the Council, as well as to programmes, funds and agencies of the United Nations, through the Council; (b) Raise awareness and promote the integration and coordination of activities relating to indigenous issues within the United Nations system; (c) Prepare and disseminate information on indigenous issues; (a) Further decides that the Permanent Forum shall apply the rules of procedure established for subsidiary organs of the Council as applicable, unless otherwise decided by the Council; the principle of consensus shall govern the work of the Permanent Forum; (b) Decides that the Permanent Forum shall hold an annual session of ten working days at the United Nations Office at Geneva or at United Nations Headquarters or at such other place as the Permanent Forum may decide in accordance with existing financial rules and regulations of the United Nations; (c) Also decides that the Permanent Forum shall submit an annual report to the Council on its activities, including any recommendations for approval; the report shall be distributed to the relevant United Nations organs, funds, programmes and agencies as a means, inter alia, of furthering the dialogue on indigenous issues within the United Nations system; (d) Further decides that the financing of the Permanent Forum shall be provided from within existing resources through the regular budget of the United Nations and its specialized agencies and through such voluntary contributions as may be donated; (e) Decides that, five years after its establishment, an evaluation of the functioning of the Permanent Forum, including the method for selection of its members, shall be carried out by the Council in the light of the experience gained; (f) Also decides, once the Permanent Forum has been established and has held its first annual session, to review, without prejudging any outcome, all existing mechanisms, procedures and programmes within the United Nations concerning indigenous issues, including the Working Group on Indigenous Populations, with a view to rationalizing activities, avoiding duplication and overlap and promoting effectiveness. (45th plenary meeting 28 July 2000)

423 79 Resolution on the Rights of Indigenous Peoples’ Communities in Africa

Adopted by The African Commission on Human and Peoples’ Rights meeting at its 28th Ordinary Session in Cotonou, Benin from 23rd October to 6th November, 2000

Recalling that at its 26th Ordinary Session held in Kigali, Rwanda, it constituted a Committee made up of 3 Commissioners to further consider the issue of Indigenous People in Africa and advise accordingly; Having reconsidered the issue and its implications; Resolves to: 1. Establish a working group of experts on the rights of indigenous or ethnic communities in Africa; 2. Set up a working group constituted of 2 members of the African Commission, one of whom should be designated as convenor and 2 African experts in the field of human rights or indigenous issues; 3. Assign the following mandate to the working group: a) Examine the concept of indigenous people and communities in Africa; b) Study the implications of the African Charter on Human Rights and well-being of indigenous communities especially with regard to: o the right to equality (Articles 2 and 3); o the right to dignity (Article 5); o protection against domination (Article 19); o on self-determination (Article 20); and o the promotion of cultural development and identity (Article 22). c) Consider appropriate recommendations for the monitoring and protection of the rights of indigenous communities; 4. Have a funding proposal prepared with a view to raising donor funds to meet the costs of the work of the working group; 5. Submit a report at the 30th Ordinary Session of the Commission.

424 80 Excerpts from: World Conference against Racism, Racial Discrimination, Xenophobia

and Related Intolerance Durban, South Africa, September 8, 2001

The Declaration Expressing deep appreciation to the Government of South Africa for hosting this World Conference, Drawing inspiration from the heroic struggle of the people of South Africa against the institutionalized system of apartheid, as well as for equality and justice under democracy, development, the rule of law and respect for human rights, recalling in this context the important contribution to that struggle of the international community and, in particular, the pivotal role of the people and Governments of Africa, and noting the important role that different actors of civil society, including non-governmental organizations, played in that struggle and in ongoing efforts to combat racism, racial discrimination, xenophobia and related intolerance, Recalling that the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in June 1993, calls for the speedy and comprehensive elimination of all forms of racism, racial discrimination, xenophobia and related intolerance, /…/ Recognizing that the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, in conjunction with the International Decade of the World’s Indigenous People, presents a unique opportunity to consider the invaluable contributions of indigenous peoples to political, economic, social, cultural and spiritual development throughout the world to our societies, as well as the challenges faced by them, including racism and racial discrimination,

General issues 1. We declare that for the purpose of the present Declaration and Programme of Action, the victims of racism, racial discrimination, xenophobia and related

425 intolerance are individuals or groups of individuals who are or have been negatively affected by, subjected to, or targets of these scourges; 2. We recognize that racism, racial discrimination, xenophobia and related intolerance occur on the grounds of race, colour, descent or national or ethnic origin and that victims can suffer multiple or aggravated forms of discrimination based on other related grounds such as sex, language, religion, political or other opinion, social origin, property, birth or other status; 3. We recognize and affirm that, at the outset of the third millennium, a global fight against racism, racial discrimination, xenophobia and related intolerance and all their abhorrent and evolving forms and manifestations is a matter of priority for the international community, and that this Conference offers a unique and historic opportunity for assessing and identifying all dimensions of those devastating evils of humanity with a view to their total elimination through, inter alia, the initiation of innovative and holistic approaches and the strengthening and enhancement of practical and effective measures at the national, regional and international levels;

Sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance 22. We express our concern that in some States political and legal structures or institutions, some of which were inherited and persist today, do not correspond to the multi-ethnic, pluricultural and plurilingual characteristics of the population and, in many cases, constitute an important factor of discrimination in the exclusion of indigenous peoples; 23. We fully recognize the rights of indigenous peoples consistent with the principles of sovereignty and territorial integrity of States, and therefore stress the need to adopt the appropriate constitutional, administrative, legislative and judicial measures, including those derived from applicable international instruments; 24. We declare that the use of the term ”indigenous peoples” in the Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance is in the context of, and without prejudice to the outcome of, ongoing international negotiations on texts that specifically deal with this issue, and cannot be construed as having any implications as to rights under international law; 25. We express our profound repudiation of the racism, racial discrimination, xenophobia and related intolerance that persist in some States in the functioning

426 of the penal systems and in the application of the law, as well as in the actions and attitudes of institutions and individuals responsible for law enforcement, especially where this has contributed to certain groups being over-represented among persons under detention or imprisoned;

Victims of racism, racial discrimination, xenophobia and related intolerance

39. We recognize that the indigenous peoples have been victims of discrimination for centuries and affirm that they are free and equal in dignity and rights and should not suffer any discrimination, particularly on the basis of their indigenous origin and identity, and we stress the continuing need for action to overcome the persistent racism, racial discrimination, xenophobia and related intolerance that affect them; 40. We recognize the value and diversity of the cultures and the heritage of indigenous peoples, whose singular contribution to the development and cultural pluralism of society and full participation in all aspects of society, in particular on issues that are of concern to them, are fundamental for political and social stability, and for the development of the States in which they live; 41. We reiterate our conviction that the full realization by indigenous peoples of their human rights and fundamental freedoms is indispensable for eliminating racism, racial discrimination, xenophobia and related intolerance. We firmly reiterate our determination to promote their full and equal enjoyment of civil, political, economic, social and cultural rights, as well as the benefits of sustainable development, while fully respecting their distinctive characteristics and their own initiatives; 42. We emphasize that, in order for indigenous peoples freely to express their own identity and exercise their rights, they should be free from all forms of discrimination, which necessarily entails respect for their human rights and fundamental freedoms. Efforts are now being made to secure universal recognition for those rights in the negotiations on the draft declaration on the rights of indigenous peoples, including the following: to call themselves by their own names; to participate freely and on an equal footing in their country’s political, economic, social and cultural development; to maintain their own forms of organization, lifestyles, cultures and traditions; to maintain and use their own languages; to maintain their own economic structures in the areas where they

427 live; to take part in the development of their educational systems and programmes; to manage their lands and natural resources, including hunting and fishing rights; and to have access to justice on a basis of equality; 43. We also recognize the special relationship that indigenous peoples have with the land as the basis for their spiritual, physical and cultural existence and encourage States, wherever possible, to ensure that indigenous peoples are able to retain ownership of their lands and of those natural resources to which they are entitled under domestic law; 44. We welcome the decision to create the Permanent Forum on Indigenous Issues within the United Nations system, giving concrete expression to major objectives of the International Decade of the World’s Indigenous People and the Vienna Declaration and Programme of Action; 45. We welcome the appointment by the United Nations of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and express our commitment to cooperate with the Special Rapporteur; /…/ 73. We recognize that a child belonging to an ethnic, religious or linguistic minority or who is indigenous shall not be denied the right, individually or in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language; /…/

Provision of effective remedies, recourse, redress, and compensatory and other measures at the national, regional and international levels 106. We emphasize that remembering the crimes or wrongs of the past, wherever and whenever they occurred, unequivocally condemning its racist tragedies and telling the truth about history are essential elements for international reconciliation and the creation of societies based on justice, equality and solidarity;

428 Programme of Action Recognizing the urgent need to translate the objectives of the Declaration into a practical and workable Programme of Action, the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance:

I Sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance 1. Urges States in their national efforts, and in cooperation with other States, regional and international organizations and financial institutions, to promote the use of public and private investment in consultation with the affected communities in order to eradicate poverty, particularly in those areas in which victims of racism, racial discrimination, xenophobia and related intolerance predominantly live; 2. Urges States to take all necessary and appropriate measures to end enslavement and contemporary forms of slavery-like practices, to initiate constructive dialogue among States and implement measures with a view to correcting the problems and the damage resulting therefrom;

II Victims of racism, racial discrimination, xenophobia and related intolerance /…/ Indigenous peoples 15 Urges States: (a) To adopt or continue to apply, in concert with them, constitutional, administrative, legislative, judicial and all necessary measures to promote, protect and ensure the enjoyment by indigenous peoples of their rights, as well as to guarantee them the exercise of their human rights and fundamental freedoms on the basis of equality, non-discrimination and full and free participation in all areas of society, in particular in matters affecting or concerning their interests; (b) To promote better knowledge of and respect for indigenous cultures and heritage; and welcomes measures already taken by States in these respects; 15. Urges States to work with indigenous peoples to stimulate their access to economic activities and increase their level of employment, where appropriate, through the establishment, acquisition or expansion by indigenous peoples of enterprises, and the implementation of measures such as training, the provision of technical assistance and credit facilities;

429 16. Urges States to work with indigenous peoples to establish and implement programmes that provide access to training and services that could benefit the development of their communities; 17. Requests States to adopt public policies and give impetus to programmes on behalf of and in concert with indigenous women and girls, with a view to promoting their civil, political, economic, social and cultural rights; to putting an end to their situation of disadvantage for reasons of gender and ethnicity; to dealing with urgent problems affecting them in regard to education, their physical and mental health, economic life and in the matter of violence against them, including domestic violence; and to eliminating the situation of aggravated discrimination suffered by indigenous women and girls on multiple grounds of racism and gender discrimination; 18. Recommends that States examine, in conformity with relevant international human rights instruments, norms and standards, their Constitutions, laws, legal systems and policies in order to identify and eradicate racism, racial discrimination, xenophobia and related intolerance towards indigenous peoples and individuals, whether implicit, explicit or inherent; 19. Calls upon concerned States to honour and respect their treaties and agreements with indigenous peoples and to accord them due recognition and observance; 20. Calls upon States to give full and appropriate consideration to the recommendations produced by indigenous peoples in their own forums on the World Conference; 21. Requests States: (a) To develop and, where they already exist, support institutional mechanisms to promote the accomplishment of the objectives and measures relating to indigenous peoples agreed in this Programme of Action; (b) To promote, in concert with indigenous organizations, local authorities and nongovernmental organizations, actions aimed at overcoming racism, racial discrimination, xenophobia and related intolerance against indigenous peoples and to make regular assessments of the progress achieved in this regard; (c) To promote understanding among society at large of the importance of special measures to overcome disadvantages faced by indigenous peoples; (d) To consult indigenous representatives in the process of decision-making concerning policies and measures that directly affect them;

430 22. Calls upon States to recognize the particular challenges faced by indigenous peoples and individuals living in urban environments and urges States to implement effective strategies to combat the racism, racial discrimination, xenophobia and related intolerance they encounter, paying particular attention to opportunities for their continued practice of their traditional, cultural, linguistic and spiritual ways of life;

III Measures of prevention, education and protection aimed at the eradication of racism, racial discrimination, xenophobia and related intolerance at the national, regional and international levels 61. Urges States to work to ensure that their political and legal systems reflect the multicultural diversity within their societies and, where necessary, to improve democratic institutions so that they are more fully participatory and avoid marginalization, exclusion and discrimination against specific sectors of society;

A National level

Legislative, judicial, regulatory, administrative and other measures to prevent and protect against racism, racial discrimination, xenophobia and related intolerance 66. Urges States to establish and implement without delay national policies and action plans to combat racism, racial discrimination, xenophobia and related intolerance, including their gender-based manifestations;

Education and awareness-raising measures 117. Urges States, where appropriate working with other relevant bodies, to commit financial resources to anti-racism education and to media campaigns promoting the values of acceptance, tolerance, diversity and respect for the cultures of all indigenous peoples living within their national borders. In particular, States should promote an accurate understanding of the histories and cultures of indigenous peoples;

B International level 148. Urges all actors on the international scene to build an international order based on inclusion, justice, equality and equity, human dignity, mutual understanding and promotion of and respect for cultural diversity and universal human rights, and to reject

431 all doctrines of exclusion based on racism, racial discrimination, xenophobia and related intolerance; /…/

IV. Strategies to achieve full and effective equality, including international cooperation and enhancement of the United Nations and other international mechanisms in combating racism, racial discrimination, xenophobia and related intolerance and follow-up /…/ Indigenous peoples 203. Recommends that the United Nations Secretary-General conduct an evaluation of the results of the International Decade of the World’s Indigenous People (19952004) and make recommendations concerning how to mark the end of the Decade, including an appropriate follow-up; 204. Requests States to ensure adequate funding for the establishment of an operational framework and a firm basis for the future development of the Permanent Forum on Indigenous Issues within the United Nations system; 205. Urges States to cooperate with the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and requests the Secretary-General and the United Nations High Commissioner for Human Rights to ensure that the Special Rapporteur is provided with all the necessary human, technical and financial resources to fulfill his responsibilities; 206. Calls upon States to conclude negotiations on and approve as soon as possible the text of the draft declaration on the rights of indigenous peoples, under discussion by the working group of the Commission on Human Rights to elaborate a draft declaration, in accordance with Commission resolution 1995/32 of 3 March 1995; 207. Urges States, in the light of the relationship between racism, racial discrimination, xenophobia and related intolerance and poverty, marginality and social exclusion of peoples and individuals at both the national and international levels, to enhance their policies and measures to reduce income and wealth inequalities and to take appropriate steps, individually and through international cooperation, to promote and protect economic, social and cultural rights on a non-discriminatory basis;

432 208. Urges States and international financial and development institutions to mitigate any negative effects of globalization by examining, inter alia, how their policies and practices affect national populations in general and indigenous peoples in particular; by ensuring that their policies and practices contribute to the eradication of racism through the participation of national populations and, in particular, indigenous peoples in development projects; by further democratizing international financial institutions; and by consulting with indigenous peoples on any matter that may affect their physical, spiritual or cultural integrity; 209. Invites financial and development institutions and the operational programmes and specialized agencies of the United Nations, in accordance with their regular budgets and the procedures of their governing bodies: (a) To assign particular priority to and allocate sufficient funding, within their areas of competence, to the improvement of the status of indigenous peoples, with special attention to the needs of these populations in developing countries, including the preparation of specific programmes with a view to achieving the objectives of the International Decade of the World’s Indigenous People; (b) To carry out special projects, through appropriate channels and in collaboration with indigenous peoples, to support their initiatives at the community level and to facilitate the exchange of information and technical know-how between indigenous peoples and experts in these areas;

433 81 Universal Declaration on Cultural Diversity

Adopted by UNESCO, Paris, November 2, 2001

The General Conference, Committed to the full implementation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized legal instruments, such as the two International Covenants of 1966 relating respectively to civil and political rights and to economic, social and cultural rights, Recalling that the Preamble to the Constitution of UNESCO affirms “that the wide diffusion of culture, and the education of humanity for justice and liberty and peace are indispensable to the dignity of man and constitute a sacred duty which all the nations must fulfil in a spirit of mutual assistance and concern”, Further recalling Article I of the Constitution, which assigns to UNESCO among other purposes that of recommending “such international agreements as may be necessary to promote the free flow of ideas by word and image”, Referring to the provisions relating to cultural diversity and the exercise of cultural rights in the international instruments enacted by UNESCO,(1) Reaffirming that culture should be regarded as the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, and that it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs, (2) Noting that culture is at the heart of contemporary debates about identity, social cohesion, and the development of a knowledge-based economy, Affirming that respect for the diversity of cultures, tolerance, dialogue and cooperation, in a climate of mutual trust and understanding are among the best guarantees of international peace and security, Aspiring to greater solidarity on the basis of recognition of cultural diversity, of awareness of the unity of humankind, and of the development of intercultural exchanges,

434 Considering that the process of globalization, facilitated by the rapid development of new information and communication technologies, though representing a challenge for cultural diversity, creates the conditions for renewed dialogue among cultures and civilizations, Aware of the specific mandate which has been entrusted to UNESCO, within the United Nations system, to ensure the preservation and promotion of the fruitful diversity of cultures, Proclaims the following principles and adopts the present Declaration:

IDENTITY, DIVERSITY AND PLURALISM Article 1 – Cultural diversity: the common heritage of humanity Culture takes diverse forms across time and space. This diversity is embodied in the uniqueness and plurality of the identities of the groups and societies making up humankind. As a source of exchange, innovation and creativity, cultural diversity is as necessary for humankind as biodiversity is for nature. In this sense, it is the common heritage of humanity and should be recognized and affirmed for the benefit of present and future generations. Article 2 – From cultural diversity to cultural pluralism In our increasingly diverse societies, it is essential to ensure harmonious interaction among people and groups with plural, varied and dynamic cultural identities as well as their willingness to live together. Policies for the inclusion and participation of all citizens are guarantees of social cohesion, the vitality of civil society and peace. Thus defined, cultural pluralism gives policy expression to the reality of cultural diversity. Indissociable from a democratic framework, cultural pluralism is conducive to cultural exchange and to the flourishing of creative capacities that sustain public life. Article 3 – Cultural diversity as a factor in development Cultural diversity widens the range of options open to everyone; it is one of the roots of development, understood not simply in terms of economic growth, but also as a means to achieve a more satisfactory intellectual, emotional, moral and spiritual existence.

435 CULTURAL DIVERSITY AND HUMAN RIGHTS Article 4 – Human rights as guarantees of cultural diversity The defence of cultural diversity is an ethical imperative, inseparable from respect for human dignity. It implies a commitment to human rights and fundamental freedoms, in particular the rights of persons belonging to minorities and those of indigenous peoples. No one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope. Article 5 – Cultural rights as an enabling environment for cultural diversity Cultural rights are an integral part of human rights, which are universal, indivisible and interdependent. The flourishing of creative diversity requires the full implementation of cultural rights as defined in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms. Article 6 – Towards access for all to cultural diversity While ensuring the free flow of ideas by word and image care should be exercised so that all cultures can express themselves and make themselves known. Freedom of expression, media pluralism, multilingualism, equal access to art and to scientific and technological knowledge, including in digital form, and the possibility for all cultures to have access to the means of expression and dissemination are the guarantees of cultural diversity. CULTURAL DIVERSITY AND CREATIVITY Article 7 – Cultural heritage as the wellspring of creativity Creation draws on the roots of cultural tradition, but flourishes in contact with other cultures. For this reason, heritage in all its forms must be preserved, enhanced and handed on to future generations as a record of human experience and aspirations, so as to foster creativity in all its diversity and to inspire genuine dialogue among cultures. Article 8 – Cultural goods and services: commodities of a unique kind In the face of present-day economic and technological change, opening up vast prospects for creation and innovation, particular attention must be paid to the diversity of the supply of creative work, to due recognition of the rights of authors and artists and to the

436 specificity of cultural goods and services which, as vectors of identity, values and meaning, must not be treated as mere commodities or consumer goods. Article 9 – Cultural policies as catalysts of creativity While ensuring the free circulation of ideas and works, cultural policies must create conditions conducive to the production and dissemination of diversified cultural goods and services through cultural industries that have the means to assert themselves at the local and global level. It is for each State, with due regard to its international obligations, to define its cultural policy and to implement it through the means it considers fit, whether by operational support or appropriate regulations. CULTURAL DIVERSITY AND INTERNATIONAL SOLIDARITY Article 10 – Strengthening capacities for creation and dissemination worldwide In the face of current imbalances in flows and exchanges of cultural goods at the global level, it is necessary to reinforce international cooperation and solidarity aimed at enabling all countries, especially developing countries and countries in transition, to establish cultural industries that are viable and competitive at national and international level. Article 11 – Building partnerships between the public sector, the private sector and civil society Market forces alone cannot guarantee the preservation and promotion of cultural diversity, which is the key to sustainable human development. From this perspective, the pre-eminence of public policy, in partnership with the private sector and civil society, must be reaffirmed. Article 12 – The role of UNESCO UNESCO, by virtue of its mandate and functions, has the responsibility to: (a) promote the incorporation of the principles set out in the present Declaration into the development strategies drawn up within the various intergovernmental bodies; (b) serve as a reference point and a forum where States, international governmental and nongovernmental organizations, civil society and the private sector may join together in elaborating concepts, objectives and policies in favour of cultural diversity; (c) pursue its activities in standard-setting, awareness raising and capacity-building in the areas related to the present Declaration within its fields of competence; (d) facilitate the implementation of the Action Plan, the main lines of which are appended to the present Declaration. 1. Including, in particular, the Florence Agreement of 1950 and its Nairobi Protocol of 1976, the Universal Copyright Convention of 1952, the Declaration of the Principles of International Cultural Cooperation of 1966, the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and

437 Transfer of Ownership of Cultural Property of 1970, the Convention for the Protection of the World Cultural and Natural Heritage of 1972, the Declaration on Race and Racial Prejudice of 1978, the Recommendation concerning the Status of the Artist of 1980, and the Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989. 2. This definition is in line with the conclusions of the World Conference on Cultural Policies (MONDIACULT, Mexico City, 1982), of the World Commission on Culture and Development Our Creative Diversity, 1995), and of the Intergovernmental Conference on Cultural Policies for Development (Stockholm, 1998) Annex II Main lines of an action plan for the implementation of the UNESCO Universal Declaration on Cultural Diversity The Member States commit themselves to taking appropriate steps to disseminate widely the “UNESCO Universal Declaration on Cultural Diversity” and to encourage its effective application, in particular by cooperating with a view to achieving the following objectives: 1. Deepening the international debate on questions relating to cultural diversity, particularly in respect of its links with development and its impact on policy-making, at both national and international level; taking forward notably consideration of the advisability of an international legal instrument on cultural diversity. 2. Advancing in the definition of principles, standards and practices, on both the national and the international levels, as well as of awareness-raising modalities and patterns of cooperation, that are most conducive to the safeguarding and promotion of cultural diversity. 3. Fostering the exchange of knowledge and best practices in regard to cultural pluralism with a view to facilitating, in diversified societies, the inclusion and participation of persons and groups from varied cultural backgrounds. 4. Making further headway in understanding and clarifying the content of cultural rights as an integral part of human rights. 5. Safeguarding the linguistic heritage of humanity and giving support to expression, creation and dissemination in the greatest possible number of languages. 6. Encouraging linguistic diversity – while respecting the mother tongue – at all levels of education, wherever possible, and fostering the learning of several languages from the earliest age.

438 7. Promoting through education an awareness of the positive value of cultural diversity and improving to this end both curriculum design and teacher education. 8. Incorporating, where appropriate, traditional pedagogies into the education process with a view to preserving and making full use of culturally appropriate methods of communication and transmission of knowledge. 9. Encouraging “digital literacy” and ensuring greater mastery of the new information and communication technologies, which should be seen both as educational disciplines and as pedagogical tools capable of enhancing the effectiveness of educational services. 10. Promoting linguistic diversity in cyberspace and encouraging universal access through the global network to all information in the public domain. 11. Countering the digital divide, in close cooperation in relevant United Nations system organizations, by fostering access by the developing countries to the new technologies, by helping them to master information technologies and by facilitating the digital dissemination of endogenous cultural products and access by those countries to the educational, cultural and scientific digital resources available worldwide. 12. Encouraging the production, safeguarding and dissemination of diversified contents in the media and global information networks and, to that end, promoting the role of public radio and television services in the development of audiovisual productions of good quality, in particular by fostering the establishment of cooperative mechanisms to facilitate their distribution. 13. Formulating policies and strategies for the preservation and enhancement of the cultural and natural heritage, notably the oral and intangible cultural heritage, and combating illicit traffic in cultural goods and services. 14. Respecting and protecting traditional knowledge, in particular that of indigenous peoples; recognizing the contribution of traditional knowledge, particularly with regard to environmental protection and the management of natural resources, and fostering synergies between modern science and local knowledge. 15. Fostering the mobility of creators, artists, researchers, scientists and intellectuals and the development of international research programmes and partnerships, while striving to preserve and enhance the creative capacity of developing countries and countries in transition. 16. Ensuring protection of copyright and related rights in the interest of the development of contemporary creativity and fair remuneration for creative work, whileat the same

439 time upholding a public right of access to culture, in accordance with Article 27 of the Universal Declaration of Human Rights. 17. Assisting in the emergence or consolidation of cultural industries in the developing countries and countries in transition and, to this end, cooperating in the development of the necessary infrastructures and skills, fostering the emergence of viable local markets, and facilitating access for the cultural products of those countries to the global market and international distribution networks. 18. Developing cultural policies, including operational support arrangements and/or appropriate regulatory frameworks, designed to promote the principles enshrined in this Declaration, in accordance with the international obligations incumbent upon each State. 19. Involving the various sections of civil society closely in the framing of public policies aimed at safeguarding and promoting cultural diversity. 20. Recognizing and encouraging the contribution that the private sector can make to enhancing cultural diversity and facilitating, to that end, the establishment of forums for dialogue between the public sector and the private sector. The Member States recommend that the Director General take the objectives set forth in this Action Plan into account in the implementation of UNESCO’s programmes and communicate it to institutions of the United Nations system and to other intergovernmental and non-governmental organizations concerned with a view to enhancing the synergy of actions in favour of cultural diversity.

440 82 Declaration of Atitlán

Adopted by Indigenous Peoples’ Consultation on the Right to Food: A Global Consultation, Atitlán, Sololá, Guatemala, April 17-19, 2002

We, representatives and traditional authorities of Indigenous Peoples, Nations, and organizations from 28 countries, gathered from all regions of the world, including farmers, hunters, gatherers, fishers, herders, and pastoralists, met in Panajachel, Sololá, at Lake Atitlán, Guatemala, on April 17–19, 2002, with the following objectives: 1. To learn about the hardships faced by Indigenous Peoples in food-related matters. 2. To define common elements among Indigenous Peoples: •To propose them to the States so that the States will implement the Right to Food in accordance with the aspirations of Indigenous Peoples; and,•To strengthen ties of cooperation among Indigenous Peoples. 3. To formulate a strategy based on the vision of Indigenous Peoples, with the objective of making proposals to the States and to the international community in order to overcome hardships in matters of Food Security and Food Sovereignty. We extend our deep appreciation to the Indigenous Peoples of Guatemala, particularly the Maya Kaqchikel People for their hospitality and generosity in hosting the various delegations attending this consultation. We are aware that in Guatemala, a situation exists of misery, extreme poverty, and death by starvation, day by day, of men, women, and children. This is reflected in the report from the First Indigenous Peoples’ National Conference on the Right to Food, held on April 5, 2002, in Guatemala City, which includesthe following facts: that in a period of 2 weeks 41 persons died of starvation; that in 44% of Guatemala’s territory, people are living in extreme poverty and at high risk of death from starvation; the following Departments of Guatemalaare listed in order of their degree of extreme poverty: San Marcos 86.66%, Totonicapán 85.62%, Quiché 86.66%, Huehuetenango 77.85%, Alta Verapaz 76.40%, Sololá 76.36%, Jalapa 72.59%, Jutiapa 63.88%; Santa Rosa 62.07%, and Quetzaltenango 60.67%. We find the above-described situation to be troubling and, indeed, deplorable asit reflects the reality of many Indigenous Peoples worldwide, and a risk exists that many others could face the same problem.

441 We recognize that as Indigenous Peoples, we face a higher risk of suffering the consequences of Food Insecurity. We underscore, for example, that the World Bank in its study on “Indigenous Peoples and Poverty,” identifies our Peoples as the poorest of the poor. The diverseIndigenous Peoples participating in this International Consultation have exchanged points of view, experiences and realities, and are alarmed by the growing food insecurity, starvation and malnutrition, which is a collective reality faced by our Peoples.

DECLARATION IN AGREEMENT that the content of the Right to Food of Indigenous Peoples is a collective right based on our special spiritual relationship with Mother Earth, our lands and territories, environment, and natural resources that provide our traditional nutrition; underscoring that the means of subsistence of Indigenous Peoples nourishes our cultures, languages, social life, worldview, and especially our relationship with Mother Earth; emphasizingthat the denial of the Right to Food for Indigenous Peoples not only denies us our physical survival, but also denies us our social organization, our cultures, traditions, languages, spirituality, sovereignty, and total identity; it is a denial of our collective indigenous existence, TAKING INTO ACCOUNT that the right to development is a collective right of Peoples as well as of individuals, and that the Right to Food forms a part of the development process, creating conditions for the enjoyment of all human rights, fundamental freedoms and well -being, REMINDED that the Plan of Action and the Declaration of the World Food Summit (1996) stated that Food Security means "the access of all people to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life,” REMINDED that Food Sovereignty is the right of Peoples to define their own policies and strategies for the sustainable production, distribution, and consumption of food, with respect for their own cultures and their own systems of managing natural resources and rural areas, and is considered to be a precondition for Food Security, CONSIDERING that Article 5 of the Declaration on the Right to Development (1986) states that “the refusal to recognize the fundamental right of Peoples to self- determination,” as a fundamental injustice against which the States should take resolute steps,

442 KEEPING IN MIND that Article 1 in Common of the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social, and Cultural Rights recognizes that all peoples, by virtue of the right to Self-Determination, may establish and implement their own economic, social, and cultural development, and their own development strategies, based on their own vision, and that “in no case may a people be deprived of its own means of subsistence,” RECOGNIZING that for Indigenous Peoples, the rights to land, water, and territory, as well as the right to self-determination, are essential for the full realization of our Food Security and Food Sovereignty, NOTING that the States parties to the First World Food Summit, in its Declaration and Plan of Action, Commitment I, Objective 1.1 (d) made a commitment to recognize and support Indigenous Peoples and their communities in their pursuit of economic and social development, with full respect for their identity, traditions, forms of social organization and cultural values; also notingthat the States parties made a commitment to reduce by one half the total number of human beings suffering from hunger and malnutrition by the year 2015, we regret that for Indigenous Peoples hunger and malnutrition have not been sufficiently reduced, and that suffering from starvation and malnutrition is increasing,Having consulted and analyzed the situation faced by Indigenous Peoples from various parts of the world with respect to Food Security, Food Sovereignty and other aspects related to the life and the development of Indigenous Peoples, we identified the following obstacles to our Food Security and Food Sovereignty: OBSTACLES TO OUR FOOD SECURITY AND FOOD SOVEREIGNTY: 1.The implementation and domination of globalization and free trade, which act without limits nor morality in the theft of our lands, territories, and other resources necessary for our Food Security and Food Sovereignty; 2.The imposition of industrial models by the governments, particularly in the form of industrialized mono-agriculture, that causes an erosion of genetic diversity and the resulting loss of our seeds, species and breeds of animals. This only impoverishes our lands, generating a growing emigration of members of our communities to urban areas in search of employment that does not exist. In addition, the adoption of alien market systems imposes foods on us that do not nourish, but instead cause diseases and problems of all sorts for our health and problems in the physical development of our children; 3. The extension of intellectual property rights in favor of multinational corporations that has increased bio-piracy and the illicit appropriation of our biological diversity and traditional knowledge; and the introduction of genetically altered food, which is causing

443 the loss of our traditional foods, of our health, of our relationship with Mother Earth, of our traditional plants and medicines, and of our very cultures; 4.The growing imposition of the use of pesticides and chemical fertilizers that poison Mother Earth, the communities that work The Earth, and the food resources on which Indigenous Peoples depend worldwide, affecting food production and hence nutrition and health, and increasing morbidity and mortality rates, in particular for our women and children; 5. The imposition of unsustainable projects by governments and private companies in our territories without consultation or prior informed consent, and without taking into account the rights and values of the Indigenous Peoples affected; 6. The policies and demands of international financial institutions such as the International Monetary Fund (IMF), the World Bank, the Inter-American Development Bank (IDB), and their structural adjustment programs; 7. Militarization and repression in Indigenous territories, in particular Plan Colombia and the fumigation of indigenous crops that is now expanding as policy into other countries of the region; 8.National policies that impose inadequate and exclusionary models and practices, which in turn result in the loss of our lands, territories and collective indigenous identity, generating increased food insecurity; We therefore RESOLVE:On the international level: 1. TO CALL for the immediate adoption of the original text of the Draft Declaration on the Rights of Indigenous Peoples, currently being discussed at the United Nations. 2. TO CALL on all States to ratify the Convention on the Elimination of Persistent Organic Pollutants and the Kyoto Protocol on Climate Change. 3. TO CALL upon States to ratify and implement ILO Convention 169, despite its limitations, as a step towards the full recognition of the rights of Indigenous Peoples. 4. TO RECOMMEND to the World Food Summit: five years later, to the World Summit on Sustainable Development, to the Pan-American Seed Seminar, and to other upcoming conferences on genetically modified organisms, that full recognition must be given to the rights of Indigenous Peoples to Food Security and Food Sovereignty, and that the obstacles limiting access to the necessary resources for our existence as Peoples must be eliminated. 5.TO RECOMMEND that the World Food Summit: 5 Years Later, the World Summit on Sustainable Development, and the States parties insist that international trade and

444 financing entities recognize, respect, and observe human, economic, social, and cultural rights, particularly the rights of Indigenous Peoples. 6.TO RECOMMEND that the World Summit on Sustainable Development and the States parties prioritize as fundamental the Rights to Food, Health, and Education, from the perspective of the values and worldviews of the Indigenous Peoples, in the development process. 7. TO RECOMMEND that the United Nations Commission on Sustainable Development and the Food and Agriculture Organization (FAO): 7a. Support the campaigns carried out by Indigenous Peoples to inform our communities regarding our Right to Food, our Right to Development, and our Social, Cultural, Economic, and Political Rights; 7b.Support our own systems and networks designed to improve the dissemination of the results of our research and existing information on the impacts of toxics, chemicals, genetic engineering, etc.;c.Regularly inform Indigenous Peoples’ organizations and traditional authorities involved in the issue of food in all countries, utilizing the media that are most accessible to all the communities in appropriate languages. 8. TO RECOMMEND that the FAO establish an open-ended working group so that Indigenous Peoples may consult in the development and implementation of policies that affect Food Security and Food Sovereignty of Indigenous Peoples. 9. TO DEMAND the elimination of development policies imposed by States that run counter to the life and to the philosophy, worldviews, principles, and inherent rights of the collectivities of Indigenous Peoples in the different regions of the world. 10. TO DEMAND that water not be privatized, as it is a sacred element for Indigenous Peoples, essential to our agriculture and to the maintenance of our Food Security and Food Sovereignty. 11. TO DEMAND an end to the policies of theft and usurpation of our lands, territories and natural resources, which are necessary for the enjoyment of our right to adequate nutrition. We also demand an end to the accelerated destruction of the environment. 12. TO DEMAND an end to the appropriation of Indigenous Peoples’ knowledge, practices, and innovations as well as the appropriation of our genetic resources. We demand furthermore, a prohibition against the patenting of all forms of life and a prohibition against perverse technologies such as “Terminator” technology. 13. TO DEMAND that governments and multinational corporations inform Indigenous Peoples, in a full, truthful and comprehensible manner, and in the appropriate languages,

445 regarding the production, use, transport, and exportation of pollutants that affect the food systems, environment and health of Indigenous Peoples. 14. TO DEMAND that the governments prohibit the production and application of pesticides, chemical fertilizers, and other substances considered dangerous for human health, particularly those that are already banned in other countries. 15. TO DEMAND the full participation of Indigenous Peoples in the development of mechanisms for equitable land distribution, land tenure, and control over the natural resources necessary for our Food Security and Food Sovereignty, without putting at risk the ownership of land and other resources held by Indigenous Peoples. 16. TO DEMAND that the laws, institutions and public policies of the States recognize and support Indigenous Peoples' systems in agricultural production, fishing, hunting, gathering, herding, pastoral practices (herders), as well as our own economic and political practices. 17. TO DEMAND that the protection of traditional knowledge be carried out in accordance with the worldviews, values, needs and traditional legal systems of Indigenous Peoples. 18. TO DEMAND respect for the spirituality and traditional religions of Indigenous Peoples as an essential part of the development and exercise of our rights, particularly the ceremonial practices related to our knowledge regarding crops, production, Food Security and Food Sovereignty. WE COMMIT on a local/community level: 1. To revitalize the Worldviews of Indigenous Peoples. 2. To initiate a process of de-colonization within our communities, which includes culturally relevant education. 3. To strengthen our traditional food production systems, and family and community economies. 4. To provide families and communities with information regarding the benefits of consuming traditional foods. 5. To provide information regarding the health risks associated with consuming alien or non-traditional foods, including foods produced with chemicals and genetically modified food products. On a National and Regional Level: 1. To create networks for communication, information, capacity building, and coordination among Indigenous Peoples regarding Food Security and Food Sovereignty.

446 2. To strengthen cooperation and solidarity on national and regional levels to fortify political, cultural, social, and economic ties and unity among Indigenous Peoples and Nations. 3. To create networks of solidarity among producers and consumers of traditional products. 4. To pursue constructive ties with Civil Society. 5. To create our own development programs in order to achieve Self Determination for our peoples and avoid the dependencies imposed by international financial institutions such as the IDB, the US Agency for International Development (USAID), and the World Bank, among others. 6. To promote autonomous Indigenous processes directed toward the development of systems for the protection of the practice of our knowledge and innovations that reflect our values, priorities, needs, and worldviews. 7. To make the issues of Food Security and Food Sovereignty known at national and international levels through nationally and regionally organized and representative processes, so as to address these issues based on Indigenous Peoples own forms of thinking, feeling, and acting. 8. To disseminate the results of this consultation and the Declaration of Atitlán at the World Summits, and to other international, national and regional agencies and mechanisms, as well as to our own communities, organizations, Indigenous Peoples and to Civil Society. 9. To develop an Indigenous Peoples’ Comprehensive Plan of Action regarding Food Security and Food Sovereignty. Conclusion: The participants in this Consultation REQUEST that the International Indian Treaty Council, IITC, establish and coordinate a mechanism for the dissemination of information and other aspects of follow-up for the recommendations and decisions of this Consultation. WE REQUEST THAT the Permanent Forum on Indigenous Issues accept this Declaration and propose to the World Summits and agencies of the United Nations System that they incorporate it into their respective plans of action and policies. Iximulew, job' Imox, Oxi' Kej1Panajachel, Sololá, Guatemala, April 19, 2002.

447 83 Convention for the Safeguarding of the Intangible Cultural Heritage

Adopted by UNESCO, Paris, October 17, 2003

The General Conference of the United Nations Educational, Scientific and Cultural Organization hereinafter referred to as UNESCO, meeting in Paris, from 29 September to 17 October 2003, at its 32nd session, Referring to existing international human rights instruments, in particular to the Universal Declaration on Human Rights of 1948, the International Covenant on Economic, Social and Cultural Rights of 1966, and the International Covenant on Civil and Political Rights of 1966, Considering the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development, as underscored in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989, in the UNESCO Universal Declaration on Cultural Diversity of 2001, and in the Istanbul Declaration of 2002 adopted by the Third Round Table of Ministers of Culture, Considering the deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage, Recognizing that the processes of globalization and social transformation, alongside the conditions they create for renewed dialogue among communities, also give rise, as does the phenomenon of intolerance, to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage, in particular owing to a lack of resources for safeguarding such heritage, Being aware of the universal will and the common concern to safeguard the intangible cultural heritage of humanity, Recognizing that communities, in particular indigenous communities, groups and, in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural diversity and human creativity,

448 Noting the far-reaching impact of the activities of UNESCO in establishing normative instruments for the protection of the cultural heritage, in particular the Convention for the Protection of the World Cultural and Natural Heritage of 1972, Noting further that no binding multilateral instrument as yet exists for the safeguarding of the intangible cultural heritage, Considering that existing international agreements, recommendations and resolutions concerning the cultural and natural heritage need to be effectively enriched and supplemented by means of new provisions relating to the intangible cultural heritage, Considering the need to build greater awareness, especially among the younger generations, of the importance of the intangible cultural heritage and of its safeguarding, Considering that the international community should contribute, together with the States Parties to this Convention, to the safeguarding of such heritage in a spirit of cooperation and mutual assistance, Recalling UNESCO’s programmes relating to the intangible cultural heritage, in particular the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity, Considering the invaluable role of the intangible cultural heritage as a factor in bringing human beings closer together and ensuring exchange and understanding among them, Adopts this Convention on this seventeenth day of October 2003. I. General provisions Article 1 – Purposes of the Convention The purposes of this Convention are: (a) to safeguard the intangible cultural heritage; (b) to ensure respect for the intangible cultural heritage of the communities, groups and individuals concerned; (c) to raise awareness at the local, national and international levels of the importance of the intangible cultural heritage, and of ensuring mutual appreciation thereof; (d) to provide for international cooperation and assistance. Article 2 – Definitions For the purposes of this Convention, 1. The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces

449 associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development. 2. The “intangible cultural heritage”, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship. 3. “Safeguarding” means measures aimed at ensuring the viability of the intangible cultural heritage, including the identification, documentation, research, preservation, protection, promotion, enhancement, transmission, particularly through formal and non- formal education, as well as the revitalization of the various aspects of such heritage. 4. “States Parties” means States which are bound by this Convention and among which this Convention is in force. 5. This Convention applies mutatis mutandis to the territories referred to in Article 33 which become Parties to this Convention in accordance with the conditions set out in that Article. To that extent the expression “States Parties” also refers to such territories. Article 3 – Relationship to other international instruments Nothing in this Convention may be interpreted as: (a) altering the status or diminishing the level of protection under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage of World Heritage properties with which an item of the intangible cultural heritage is directly associated; or (b) affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights or to the use of biological and ecological resources to which they are parties.

450 II. Organs of the Convention Article 4 – General Assembly of the States Parties 1. A General Assembly of the States Parties is hereby established, hereinafter referred to as “the General Assembly”. The General Assembly is the sovereign body of this Convention. 2. The General Assembly shall meet in ordinary session every two years. It may meet in extraordinary session if it so decides or at the request either of the Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage or of at least one- third of the States Parties. 3. The General Assembly shall adopt its own Rules of Procedure. Article 5 – Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage 1. An Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, hereinafter referred to as “the Committee”, is hereby established within UNESCO. It shall be composed of representatives of 18 States Parties, elected by the States Parties meeting in General Assembly, once this Convention enters into force in accordance with Article 34. 2. The number of States Members of the Committee shall be increased to 24 once the number of the States Parties to the Convention reaches 50. Article 6 – Election and terms of office of States Members of the Committee 1. The election of States Members of the Committee shall obey the principles of equitable geographical representation and rotation. 2. States Members of the Committee shall be elected for a term of four years by States Parties to the Convention meeting in General Assembly. 3. However, the term of office of half of the States Members of the Committee elected at the first election is limited to two years. These States shall be chosen by lot at the first election. 4. Every two years, the General Assembly shall renew half of the States Members of the Committee. 5. It shall also elect as many States Members of the Committee as required to fill vacancies. 6. A State Member of the Committee may not be elected for two consecutive terms. 7. States Members of the Committee shall choose as their representatives persons who are qualified in the various fields of the intangible cultural heritage.

451 Article 7 – Functions of the Committee Without prejudice to other prerogatives granted to it by this Convention, the functions of the Committee shall be to: (a) promote the objectives of the Convention, and to encourage and monitor the implementation thereof; (b) provide guidance on best practices and make recommendations on measures for the safeguarding of the intangible cultural heritage; (c) prepare and submit to the General Assembly for approval a draft plan for the use of the resources of the Fund, in accordance with Article 25; (d) seek means of increasing its resources, and to take the necessary measures to this end, in accordance with Article 25; (e) prepare and submit to the General Assembly for approval operational directives for the implementation of this Convention; (f) examine, in accordance with Article 29, the reports submitted by States Parties, and to summarize them for the General Assembly; (g) examine requests submitted by States Parties, and to decide thereon, in accordance with objective selection criteria to be established by the Committee and approved by the General Assembly for: (i) inscription on the lists and proposals mentioned under Articles 16, 17 and 18; (ii) the granting of international assistance in accordance with Article 22. Article 8 – Working methods of the Committee 1. The Committee shall be answerable to the General Assembly. It shall report to it on all its activities and decisions. 2. The Committee shall adopt its own Rules of Procedure by a two-thirds majority of its Members. 3. The Committee may establish, on a temporary basis, whatever ad hoc consultative bodies it deems necessary to carry out its task. 4. The Committee may invite to its meetings any public or private bodies, as well as private persons, with recognized competence in the various fields of the intangible cultural heritage, in order to consult them on specific matters. Article 9 – Accreditation of advisory organizations

452 1. The Committee shall propose to the General Assembly the accreditation of non- governmental organizations with recognized competence in the field of the intangible cultural heritage to act in an advisory capacity to the Committee. 2. The Committee shall also propose to the General Assembly the criteria for and modalities of such accreditation. Article 10 – The Secretariat 1. The Committee shall be assisted by the UNESCO Secretariat. 2. The Secretariat shall prepare the documentation of the General Assembly and of the Committee, as well as the draft agenda of their meetings, and shall ensure the implementation of their decisions. III. Safeguarding of the intangible cultural heritage at the national level Article 11 – Role of States Parties Each State Party shall: (a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory; (b) among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant non-governmental organizations. Article 12 – Inventories 1. To ensure identification with a view to safeguarding, each State Party shall draw up, in a manner geared to its own situation, one or more inventories of the intangible cultural heritage present in its territory. These inventories shall be regularly updated. 2. When each State Party periodically submits its report to the Committee, in accordance with Article 29, it shall provide relevant information on such inventories. Article 13 – Other measures for safeguarding To ensure the safeguarding, development and promotion of the intangible cultural heritage present in its territory, each State Party shall endeavour to: (a) adopt a general policy aimed at promoting the function of the intangible cultural heritage in society, and at integrating the safeguarding of such heritage into planning programmes; (b) designate or establish one or more competent bodies for the safeguarding of the intangible cultural heritage present in its territory;

453 (c) foster scientific, technical and artistic studies, as well as research methodologies, with a view to effective safeguarding of the intangible cultural heritage, in particular the intangible cultural heritage in danger; (d) adopt appropriate legal, technical, administrative and financial measures aimed at: (i) fostering the creation or strengthening of institutions for training in the management of the intangible cultural heritage and the transmission of such heritage through forums and spaces intended for the performance or expression thereof; (ii) ensuring access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage; (iii) establishing documentation institutions for the intangible cultural heritage and facilitating access to them. Article 14 – Education, awareness-raising and capacity-building Each State Party shall endeavour, by all appropriate means, to: (a) ensure recognition of, respect for, and enhancement of the intangible cultural heritage in society, in particular through: (i) educational, awareness-raising and information programmes, aimed at the general public, in particular young people; (ii) specific educational and training programmes within the communities and groups concerned; (iii) capacity-building activities for the safeguarding of the intangible cultural heritage, in particular management and scientific research; and (iv)non-formal means of transmitting knowledge; (b) keep the public informed of the dangers threatening such heritage, and of the activities carried out in pursuance of this Convention; (c) promote education for the protection of natural spaces and places of memory whose existence is necessary for expressing the intangible cultural heritage. Article 15 – Participation of communities, groups and individuals Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management. IV. Safeguarding of the intangible cultural heritage at the international level

454 Article 16 – Representative List of the Intangible Cultural Heritage of Humanity 1. In order to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity, the Committee, upon the proposal of the States Parties concerned, shall establish, keep up to date and publish a Representative List of the Intangible Cultural Heritage of Humanity. 2. The Committee shall draw up and submit to the General Assembly for approval the criteria for the establishment, updating and publication of this Representative List. Article 17 – List of Intangible Cultural Heritage in Need of Urgent Safeguarding 1. With a view to taking appropriate safeguarding measures, the Committee shall establish, keep up to date and publish a List of Intangible Cultural Heritage in Need of Urgent Safeguarding, and shall inscribe such heritage on the List at the request of the State Party concerned. 2. The Committee shall draw up and submit to the General Assembly for approval the criteria for the establishment, updating and publication of this List. 3. In cases of extreme urgency – the objective criteria of which shall be approved by the General Assembly upon the proposal of the Committee – the Committee may inscribe an item of the heritage concerned on the List mentioned in paragraph 1, in consultation with the State Party concerned. Article 18 – Programmes, projects and activities for the safeguarding of the intangible cultural heritage 1. On the basis of proposals submitted by States Parties, and in accordance with criteria to be defined by the Committee and approved by the General Assembly, the Committee shall periodically select and promote national, subregional and regional programmes, projects and activities for the safeguarding of the heritage which it considers best reflect the principles and objectives of this Convention, taking into account the special needs of developing countries. 2. To this end, it shall receive, examine and approve requests for international assistance from States Parties for the preparation of such proposals. 3. The Committee shall accompany the implementation of such projects, programmes and activities by disseminating best practices using means to be determined by it. V. International cooperation and assistance Article 19 – Cooperation 1. For the purposes of this Convention, international cooperation includes, inter alia, the exchange of information and experience, joint initiatives, and the establishment of a

455 mechanism of assistance to States Parties in their efforts to safeguard the intangible cultural heritage. 2. Without prejudice to the provisions of their national legislation and customary law and practices, the States Parties recognize that the safeguarding of intangible cultural heritage is of general interest to humanity, and to that end undertake to cooperate at the bilateral, subregional, regional and international levels. Article 20 – Purposes of international assistance International assistance may be granted for the following purposes: (a) the safeguarding of the heritage inscribed on the List of Intangible Cultural Heritage in Need of Urgent Safeguarding; (b) the preparation of inventories in the sense of Articles 11 and 12; (c) support for programmes, projects and activities carried out at the national, subregional and regional levels aimed at the safeguarding of the intangible cultural heritage; (d) any other purpose the Committee may deem necessary. Article 21 – Forms of international assistance The assistance granted by the Committee to a State Party shall be governed by the operational directives foreseen in Article 7 and by the agreement referred to in Article 24, and may take the following forms: (a) studies concerning various aspects of safeguarding; (b) the provision of experts and practitioners; (c) the training of all necessary staff; (d) the elaboration of standard-setting and other measures; (e) the creation and operation of infrastructures; (f) the supply of equipment and know-how; (g) other forms of financial and technical assistance, including, where appropriate, the granting of low-interest loans and donations. Article 22 – Conditions governing international assistance 1. The Committee shall establish the procedure for examining requests for international assistance, and shall specify what information shall be included in the requests, such as the measures envisaged and the interventions required, together with an assessment of their cost.

456 2. In emergencies, requests for assistance shall be examined by the Committee as a matter of priority. 3. In order to reach a decision, the Committee shall undertake such studies and consultations as it deems necessary. Article 23 – Requests for international assistance 1. Each State Party may submit to the Committee a request for international assistance for the safeguarding of the intangible cultural heritage present in its territory. 2. Such a request may also be jointly submitted by two or more States Parties. 3. The request shall include the information stipulated in Article 22, paragraph 1, together with the necessary documentation. Article 24 – Role of beneficiary States Parties 1. In conformity with the provisions of this Convention, the international assistance granted shall be regulated by means of an agreement between the beneficiary State Party and the Committee. 2. As a general rule, the beneficiary State Party shall, within the limits of its resources, share the cost of the safeguarding measures for which international assistance is provided. 3. The beneficiary State Party shall submit to the Committee a report on the use made of the assistance provided for the safeguarding of the intangible cultural heritage. VI. Intangible Cultural Heritage Fund Article 25 – Nature and resources of the Fund 1. A “Fund for the Safeguarding of the Intangible Cultural Heritage”, hereinafter referred to as “the Fund”, is hereby established. 2. The Fund shall consist of funds-in-trust established in accordance with the Financial Regulations of UNESCO. 3. The resources of the Fund shall consist of: (a) contributions made by States Parties; (b) funds appropriated for this purpose by the General Conference of UNESCO; (c) contributions, gifts or bequests which may be made by: (i) other States; (ii) organizations and programmes of the United Nations system, particularly the United Nations Development Programme, as well as other international organizations;

457 (iii) public or private bodies or individuals; (d) any interest due on the resources of the Fund; (e) funds raised through collections, and receipts from events organized for the benefit of the Fund; (f) any other resources authorized by the Fund’s regulations, to be drawn up by the Committee. 4. The use of resources by the Committee shall be decided on the basis of guidelines laid down by the General Assembly. 5. The Committee may accept contributions and other forms of assistance for general and specific purposes relating to specific projects, provided that those projects have been approved by the Committee. 6. No political, economic or other conditions which are incompatible with the objectives of this Convention may be attached to contributions made to the Fund. Article 26 – Contributions of States Parties to the Fund 1. Without prejudice to any supplementary voluntary contribution, the States Parties to this Convention undertake to pay into the Fund, at least every two years, a contribution, the amount of which, in the form of a uniform percentage applicable to all States, shall be determined by the General Assembly. This decision of the General Assembly shall be taken by a majority of the States Parties present and voting which have not made the declaration referred to in paragraph 2 of this Article. In no case shall the contribution of the State Party exceed 1% of its contribution to the regular budget of UNESCO. 2. However, each State referred to in Article 32 or in Article 33 of this Convention may declare, at the time of the deposit of its instruments of ratification, acceptance, approval or accession, that it shall not be bound by the provisions of paragraph 1 of this Article. 3. A State Party to this Convention which has made the declaration referred to in paragraph 2 of this Article shall endeavour to withdraw the said declaration by notifying the Director-General of UNESCO. However, the withdrawal of the declaration shall not take effect in regard to the contribution due by the State until the date on which the subsequent session of the General Assembly opens. 4. In order to enable the Committee to plan its operations effectively, the contributions of States Parties to this Convention which have made the declaration referred to in paragraph 2 of this Article shall be paid on a regular basis, at least every two years, and should be as close as possible to the contributions they would have owed if they had been bound by the provisions of paragraph 1 of this Article.

458 5. Any State Party to this Convention which is in arrears with the payment of its compulsory or voluntary contribution for the current year and the calendar year immediately preceding it shall not be eligible as a Member of the Committee; this provision shall not apply to the first election. The term of office of any such State which is already a Member of the Committee shall come to an end at the time of the elections provided for in Article 6 of this Convention. Article 27 – Voluntary supplementary contributions to the Fund States Parties wishing to provide voluntary contributions in addition to those foreseen under Article 26 shall inform the Committee, as soon as possible, so as to enable it to plan its operations accordingly. Article 28 – International fund-raising campaigns The States Parties shall, insofar as is possible, lend their support to international fund- raising campaigns organized for the benefit of the Fund under the auspices of UNESCO. VII. Reports Article 29 – Reports by the States Parties The States Parties shall submit to the Committee, observing the forms and periodicity to be defined by the Committee, reports on the legislative, regulatory and other measures taken for the implementation of this Convention. Article 30 – Reports by the Committee 1. On the basis of its activities and the reports by States Parties referred to in Article 29, the Committee shall submit a report to the General Assembly at each of its sessions. 2. The report shall be brought to the attention of the General Conference of UNESCO. VIII. Transitional clause Article 31 – Relationship to the Proclamation of Masterpieces of the Oral and Intangible Heritage of Humanity 1. The Committee shall incorporate in the Representative List of the Intangible Cultural Heritage of Humanity the items proclaimed “Masterpieces of the Oral and Intangible Heritage of Humanity” before the entry into force of this Convention. 2. The incorporation of these items in the Representative List of the Intangible Cultural Heritage of Humanity shall in no way prejudge the criteria for future inscriptions decided upon in accordance with Article 16, paragraph 2. 3. No further Proclamation will be made after the entry into force of this Convention.

459 IX. Final clauses Article 32 – Ratification, acceptance or approval 1.This Convention shall be subject to ratification, acceptance or approval by States Members of UNESCO in accordance with their respective constitutional procedures. 2. The instruments of ratification, acceptance or approval shall be deposited with the Director-General of UNESCO. Article 33 – Accession 1. This Convention shall be open to accession by all States not Members of UNESCO that are invited by the General Conference of UNESCO to accede to it. 2. This Convention shall also be open to accession by territories which enjoy full internal self-government recognized as such by the United Nations, but have not attained full independence in accordance with General Assembly resolution 1514 (XV), and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of such matters. 3. The instrument of accession shall be deposited with the Director-General of UNESCO. Article 34 – Entry into force This Convention shall enter into force three months after the date of the deposit of the thirtieth instrument of ratification, acceptance, approval or accession, but only with respect to those States that have deposited their respective instruments of ratification, acceptance, approval, or accession on or before that date. It shall enter into force with respect to any other State Party three months after the deposit of its instrument of ratification, acceptance, approval or accession. Article 35 – Federal or non-unitary constitutional systems The following provisions shall apply to States Parties which have a federal or non-unitary constitutional system: (a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of the federal or central government shall be the same as for those States Parties which are not federal States; (b) with regard to the provisions of this Convention, the implementation of which comes under the jurisdiction of individual constituent States, countries, provinces or cantons which are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform the competent authorities of such States,

460 countries, provinces or cantons of the said provisions, with its recommendation for their adoption. Article 36 – Denunciation 1. Each State Party may denounce this Convention. 2. The denunciation shall be notified by an instrument in writing, deposited with the Director-General of UNESCO. 3. The denunciation shall take effect twelve months after the receipt of the instrument of denunciation. It shall in no way affect the financial obligations of the denouncing State Party until the date on which the withdrawal takes effect. Article 37 – Depositary functions The Director-General of UNESCO, as the Depositary of this Convention, shall inform the States Members of the Organization, the States not Members of the Organization referred to in Article 33, as well as the United Nations, of the deposit of all the instruments of ratification, acceptance, approval or accession provided for in Articles 32 and 33, and of the denunciations provided for in Article 36. Article 38 – Amendments 1. A State Party may, by written communication addressed to the Director-General, propose amendments to this Convention. The Director-General shall circulate such communication to all States Parties. If, within six months from the date of the circulation of the communication, not less than one half of the States Parties reply favourably to the request, the Director-General shall present such proposal to the next session of the General Assembly for discussion and possible adoption. 2. Amendments shall be adopted by a two-thirds majority of States Parties present and voting. 3. Once adopted, amendments to this Convention shall be submitted for ratification, acceptance, approval or accession to the States Parties. 4. Amendments shall enter into force, but solely with respect to the States Parties that have ratified, accepted, approved or acceded to them, three months after the deposit of the instruments referred to in paragraph 3 of this Article by two-thirds of the States Parties. Thereafter, for each State Party that ratifies, accepts, approves or accedes to an amendment, the said amendment shall enter into force three months after the date of deposit by that State Party of its instrument of ratification, acceptance, approval or accession.

461 5. The procedure set out in paragraphs 3 and 4 shall not apply to amendments to Article 5 concerning the number of States Members of the Committee. These amendments shall enter into force at the time they are adopted. 6. A State which becomes a Party to this Convention after the entry into force of amendments in conformity with paragraph 4 of this Article shall, failing an expression of different intention, be considered: (a) as a Party to this Convention as so amended; and (b) as a Party to the unamended Convention in relation to any State Party not bound by the amendments. Article 39 – Authoritative texts This Convention has been drawn up in Arabic, Chinese, English, French, Russian and Spanish, the six texts being equally authoritative. Article 40 – Registration In conformity with Article 102 of the Charter of the United Nations, this Convention shall be registered with the Secretariat of the United Nations at the request of the Director-General of UNESCO.

462 84 Convention on the Protection and Promotion of the Diversity of Cultural Expressions

Adopted by UNESCO, Paris, October 20, 2005

The General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting in Paris from 3 to 21 October 2005 at its 33rd session, Affirming that cultural diversity is a defining characteristic of humanity, Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all, Being aware that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations, Recalling that cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels, Celebrating the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and other universally recognized instruments, Emphasizing the need to incorporate culture as a strategic element in national and international development policies, as well as in international development cooperation, taking into account also the United Nations Millennium Declaration (2000) with its special emphasis on poverty eradication, Taking into account that culture takes diverse forms across time and space and that this diversity is embodied in the uniqueness and plurality of the identities and cultural expressions of the peoples and societies making up humanity, Recognizing the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion,

463 Recognizing the need to take measures to protect the diversity of cultural expressions, including their contents, especially in situations where cultural expressions may be threatened by the possibility of extinction or serious impairment, Emphasizing the importance of culture for social cohesion in general, and in particular its potential for the enhancement of the status and role of women in society, Being aware that cultural diversity is strengthened by the free flow of ideas, and that it is nurtured by constant exchanges and interaction between cultures, Reaffirming that freedom of thought, expression and information, as well as diversity of the media, enable cultural expressions to flourish within societies, Recognizing that the diversity of cultural expressions, including traditional cultural expressions, is an important factor that allows individuals and peoples to express and to share with others their ideas and values, Recalling that linguistic diversity is a fundamental element of cultural diversity, and reaffirming the fundamental role that education plays in the protection and promotion of cultural expressions, Taking into account the importance of the vitality of cultures, including for persons belonging to minorities and indigenous peoples, as manifested in their freedom to create, disseminate and distribute their traditional cultural expressions and to have access thereto, so as to benefit them for their own development, Emphasizing the vital role of cultural interaction and creativity, which nurture and renew cultural expressions and enhance the role played by those involved in the development of culture for the progress of society at large, Recognizing the importance of intellectual property rights in sustaining those involved in cultural creativity, Being convinced that cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value, Noting that while the processes of globalization, which have been facilitated by the rapid development of information and communication technologies, afford unprecedented conditions for enhanced interaction between cultures, they also represent a challenge for cultural diversity, namely in view of risks of imbalances between rich and poor countries, Being aware of UNESCO’s specific mandate to ensure respect for the diversity of cultures and to recommend such international agreements as may be necessary to promote the free flow of ideas by word and image,

464 Referring to the provisions of the international instruments adopted by UNESCO relating to cultural diversity and the exercise of cultural rights, and in particular the Universal Declaration on Cultural Diversity of 2001, Adopts this Convention on 20 October 2005. I. Objectives and guiding principles Article 1 – Objectives The objectives of this Convention are: (a) to protect and promote the diversity of cultural expressions; (b) to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner; (c) to encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace; (d) to foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples; (e) to promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels; (f) to reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link; (g) to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning; (h) to reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory; (i) to strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions. Article 2 – Guiding principles 1. Principle of respect for human rights and fundamental freedoms Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke

465 the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof. 2. Principle of sovereignty States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory. 3. Principle of equal dignity of and respect for all cultures The protection and promotion of the diversity of cultural expressions presuppose the recognition of equal dignity of and respect for all cultures, including the cultures of persons belonging to minorities and indigenous peoples. 4. Principle of international solidarity and cooperation International cooperation and solidarity should be aimed at enabling countries, especially developing countries, to create and strengthen their means of cultural expression, including their cultural industries, whether nascent or established, at the local, national and international levels. 5. Principle of the complementarity of economic and cultural aspects of development Since culture is one of the mainsprings of development, the cultural aspects of development are as important as its economic aspects, which individuals and peoples have the fundamental right to participate in and enjoy. 6. Principle of sustainable development Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations. 7. Principle of equitable access Equitable access to a rich and diversified range of cultural expressions from all over the world and access of cultures to the means of expressions and dissemination constitute important elements for enhancing cultural diversity and encouraging mutual understanding. 8. Principle of openness and balance When States adopt measures to support the diversity of cultural expressions, they should seek to promote, in an appropriate manner, openness to other cultures of the world and

466 to ensure that these measures are geared to the objectives pursued under the present Convention. II. Scope of application Article 3 – Scope of application This Convention shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions. III. Definitions Article 4 – Definitions For the purposes of this Convention, it is understood that: 1. Cultural diversity “Cultural diversity” refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used. 2. Cultural content “Cultural content” refers to the symbolic meaning, artistic dimension and cultural values that originate from or express cultural identities. 3. Cultural expressions “Cultural expressions” are those expressions that result from the creativity of individuals, groups and societies, and that have cultural content. 4. Cultural activities, goods and services “Cultural activities, goods and services” refers to those activities, goods and services, which at the time they are considered as a specific attribute, use or purpose, embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services. 5. Cultural industries “Cultural industries” refers to industries producing and distributing cultural goods or services as defined in paragraph 4 above.

467 6. Cultural policies and measures “Cultural policies and measures” refers to those policies and measures relating to culture, whether at the local, national, regional or international level that are either focused on culture as such or are designed to have a direct effect on cultural expressions of individuals, groups or societies, including on the creation, production, dissemination, distribution of and access to cultural activities, goods and services. 7. Protection “Protection” means the adoption of measures aimed at the preservation, safeguarding and enhancement of the diversity of cultural expressions. “Protect” means to adopt such measures. 8. Interculturality “Interculturality” refers to the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect. IV. Rights and obligations of Parties Article 5 – General rule regarding rights and obligations 1. The Parties, in conformity with the Charter of the United Nations, the principles of international law and universally recognized human rights instruments, reaffirm their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention. 2. When a Party implements policies and takes measures to protect and promote the diversity of cultural expressions within its territory, its policies and measures shall be consistent with the provisions of this Convention. Article 6 – Rights of parties at the national level 1. Within the framework of its cultural policies and measures as defined in Article 4.6 and taking into account its own particular circumstances and needs, each Party may adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory. 2. Such measures may include the following: (a) regulatory measures aimed at protecting and promoting diversity of cultural expressions;

468 (b) measures that, in an appropriate manner, provide opportunities for domestic cultural activities, goods and services among all those available within the national territory for the creation, production, dissemination, distribution and enjoyment of such domestic cultural activities, goods and services, including provisions relating to the language used for such activities, goods and services; (c) measures aimed at providing domestic independent cultural industries and activities in the informal sector effective access to the means of production, dissemination and distribution of cultural activities, goods and services; (d) measures aimed at providing public financial assistance; (e) measures aimed at encouraging non-profit organizations, as well as public and private institutions and artists and other cultural professionals, to develop and promote the free exchange and circulation of ideas, cultural expressions and cultural activities, goods and services, and to stimulate both the creative and entrepreneurial spirit in their activities; (f) measures aimed at establishing and supporting public institutions, as appropriate; (g) measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions; (h) measures aimed at enhancing diversity of the media, including through public service broadcasting. Article 7 – Measures to promote cultural expressions 1. Parties shall endeavour to create in their territory an environment which encourages individuals and social groups: (a) to create, produce, disseminate, distribute and have access to their own cultural expressions, paying due attention to the special circumstances and needs of women as well as various social groups, including persons belonging to minorities and indigenous peoples; (b) to have access to diverse cultural expressions from within their territory as well as from other countries of the world. 2. Parties shall also endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions. Article 8 – Measures to protect cultural expressions 1. Without prejudice to the provisions of Articles 5 and 6, a Party may determine the existence of special situations where cultural expressions on its territory are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.

469 2. Parties may take all appropriate measures to protect and preserve cultural expressions in situations referred to in paragraph 1 in a manner consistent with the provisions of this Convention. 3. Parties shall report to the Intergovernmental Committee referred to in Article 23 all measures taken to meet the exigencies of the situation, and the Committee may make appropriate recommendations. Article 9 – Information sharing and transparency Parties shall: (a) provide appropriate information in their reports to UNESCO every four years on measures taken to protect and promote the diversity of cultural expressions within their territory and at the international level; (b) designate a point of contact responsible for information sharing in relation to this Convention; (c) share and exchange information relating to the protection and promotion of the diversity of cultural expressions. Article 10 – Education and public awareness Parties shall: (a) encourage and promote understanding of the importance of the protection and promotion of the diversity of cultural expressions, inter alia, through educational and greater public awareness programmes; (b) cooperate with other Parties and international and regional organizations in achieving the purpose of this article; (c) endeavour to encourage creativity and strengthen production capacities by setting up educational, training and exchange programmes in the field of cultural industries. These measures should be implemented in a manner which does not have a negative impact on traditional forms of production. Article 11 – Participation of civil society Parties acknowledge the fundamental role of civil society in protecting and promoting the diversity of cultural expressions. Parties shall encourage the active participation of civil society in their efforts to achieve the objectives of this Convention. Article 12 – Promotion of international cooperation Parties shall endeavour to strengthen their bilateral, regional and international cooperation for the creation of conditions conducive to the promotion of the diversity of

470 cultural expressions, taking particular account of the situations referred to in Articles 8 and 17, notably in order to: (a) facilitate dialogue among Parties on cultural policy; (b) enhance public sector strategic and management capacities in cultural public sector institutions, through professional and international cultural exchanges and sharing of best practices; (c) reinforce partnerships with and among civil society, non-governmental organizations and the private sector in fostering and promoting the diversity of cultural expressions; (d) promote the use of new technologies, encourage partnerships to enhance information sharing and cultural understanding, and foster the diversity of cultural expressions; (e) encourage the conclusion of co-production and co-distribution agreements. Article 13 – Integration of culture in sustainable development Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions. Article 14 – Cooperation for development Parties shall endeavour to support cooperation for sustainable development and poverty reduction, especially in relation to the specific needs of developing countries, in order to foster the emergence of a dynamic cultural sector by, inter alia, the following means: (a) the strengthening of the cultural industries in developing countries through: (i) creating and strengthening cultural production and distribution capacities in developing countries; (ii) facilitating wider access to the global market and international distribution networks for their cultural activities, goods and services; (iii) enabling the emergence of viable local and regional markets; (iv) adopting, where possible, appropriate measures in developed countries with a view to facilitating access to their territory for the cultural activities, goods and services of developing countries; (v) providing support for creative work and facilitating the mobility, to the extent possible, of artists from the developing world;

471 (vi) encouraging appropriate collaboration between developed and developing countries in the areas, inter alia, of music and film; (b) capacity-building through the exchange of information, experience and expertise, as well as the training of human resources in developing countries, in the public and private sector relating to, inter alia, strategic and management capacities, policy development and implementation, promotion and distribution of cultural expressions, small-, mediumand micro-enterprise development, the use of technology, and skills development and transfer; (c) technology transfer through the introduction of appropriate incentive measures for the transfer of technology and know-how, especially in the areas of cultural industries and enterprises; (d) financial support through: (i) the establishment of an International Fund for Cultural Diversity as provided in Article 18; (ii) the provision of official development assistance, as appropriate, including technical assistance, to stimulate and support creativity; (iii) other forms of financial assistance such as low interest loans, grants and other funding mechanisms. Article 15 – Collaborative arrangements Parties shall encourage the development of partnerships, between and within the public and private sectors and non-profit organizations, in order to cooperate with developing countries in the enhancement of their capacities in the protection and promotion of the diversity of cultural expressions. These innovative partnerships shall, according to the practical needs of developing countries, emphasize the further development of infrastructure, human resources and policies, as well as the exchange of cultural activities, goods and services. Article 16 – Preferential treatment for developing countries Developed countries shall facilitate cultural exchanges with developing countries by granting, through the appropriate institutional and legal frameworks, preferential treatment to artists and other cultural professionals and practitioners, as well as cultural goods and services from developing countries. Article 17 – International cooperation in situations of serious threat to cultural expressions Parties shall cooperate in providing assistance to each other, and, in particular to developing countries, in situations referred to under Article 8.

472 Article 18 – International Fund for Cultural Diversity 1. An International Fund for Cultural Diversity, hereinafter referred to as “the Fund”, is hereby established. 2. The Fund shall consist of funds-in-trust established in accordance with the Financial Regulations of UNESCO. 3. The resources of the Fund shall consist of: (a) voluntary contributions made by Parties; (b) funds appropriated for this purpose by the General Conference of UNESCO; (c) contributions, gifts or bequests by other States; organizations and programmes of the United Nations system, other regional or international organizations; and public or private bodies or individuals; (d) any interest due on resources of the Fund; (e) funds raised through collections and receipts from events organized for the benefit of the Fund; (f) any other resources authorized by the Fund’s regulations. 4. The use of resources of the Fund shall be decided by the Intergovernmental Committee on the basis of guidelines determined by the Conference of Parties referred to in Article 22. 5. The Intergovernmental Committee may accept contributions and other forms of assistance for general and specific purposes relating to specific projects, provided that those projects have been approved by it. 6. No political, economic or other conditions that are incompatible with the objectives of this Convention may be attached to contributions made to the Fund. 7. Parties shall endeavour to provide voluntary contributions on a regular basis towards the implementation of this Convention. Article 19 – Exchange, analysis and dissemination of information 1. Parties agree to exchange information and share expertise concerning data collection and statistics on the diversity of cultural expressions as well as on best practices for its protection and promotion. 2. UNESCO shall facilitate, through the use of existing mechanisms within the Secretariat, the collection, analysis and dissemination of all relevant information, statistics and best practices.

473 3. UNESCO shall also establish and update a data bank on different sectors and governmental, private and non-profit organizations involved in the area of cultural expressions. 4. To facilitate the collection of data, UNESCO shall pay particular attention to capacity- building and the strengthening of expertise for Parties that submit a request for such assistance. 5. The collection of information identified in this Article shall complement the information collected under the provisions of Article 9. V. Relationship to other instruments Article 20 – Relationship to other treaties: mutual supportiveness, complementarity and non-subordination 1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, (a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention. 2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties. Article 21 – International consultation and coordination Parties undertake to promote the objectives and principles of this Convention in other international forums. For this purpose, Parties shall consult each other, as appropriate, bearing in mind these objectives and principles. VI. Organs of the Convention Article 22 – Conference of Parties 1. A Conference of Parties shall be established. The Conference of Parties shall be the plenary and supreme body of this Convention. 2. The Conference of Parties shall meet in ordinary session every two years, as far as possible, in conjunction with the General Conference of UNESCO. It may meet in extraordinary session if it so decides or if the Intergovernmental Committee receives a request to that effect from at least one-third of the Parties.

474 3. The Conference of Parties shall adopt its own rules of procedure. 4. The functions of the Conference of Parties shall be, inter alia: (a) to elect the Members of the Intergovernmental Committee; (b) to receive and examine reports of the Parties to this Convention transmitted by the Intergovernmental Committee; (c) to approve the operational guidelines prepared upon its request by the Intergovernmental Committee; (d) to take whatever other measures it may consider necessary to further the objectives of this Convention. Article 23 – Intergovernmental Committee 1. An Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, hereinafter referred to as “the Intergovernmental Committee”, shall be established within UNESCO. It shall be composed of representatives of 18 States Parties to the Convention, elected for a term of four years by the Conference of Parties upon entry into force of this Convention pursuant to Article 29. 2. The Intergovernmental Committee shall meet annually. 3. The Intergovernmental Committee shall function under the authority and guidance of and be accountable to the Conference of Parties. 4. The Members of the Intergovernmental Committee shall be increased to 24 once the number of Parties to the Convention reaches 50. 5. The election of Members of the Intergovernmental Committee shall be based on the principles of equitable geographical representation as well as rotation. 6. Without prejudice to the other responsibilities conferred upon it by this Convention, the functions of the Intergovernmental Committee shall be: (a) to promote the objectives of this Convention and to encourage and monitor the implementation thereof; (b) to prepare and submit for approval by the Conference of Parties, upon its request, the operational guidelines for the implementation and application of the provisions of the Convention; (c) to transmit to the Conference of Parties reports from Parties to the Convention, together with its comments and a summary of their contents;

475 (d) to make appropriate recommendations to be taken in situations brought to its attention by Parties to the Convention in accordance with relevant provisions of the Convention, in particular Article 8; (e) to establish procedures and other mechanisms for consultation aimed at promoting the objectives and principles of this Convention in other international forums; (f) to perform any other tasks as may be requested by the Conference of Parties. 7. The Intergovernmental Committee, in accordance with its Rules of Procedure, may invite at any time public or private organizations or individuals to participate in its meetings for consultation on specific issues. 8. The Intergovernmental Committee shall prepare and submit to the Conference of Parties, for approval, its own Rules of Procedure. Article 24 – UNESCO Secretariat 1. The organs of the Convention shall be assisted by the UNESCO Secretariat. 2. The Secretariat shall prepare the documentation of the Conference of Parties and the Intergovernmental Committee as well as the agenda of their meetings and shall assist in and report on the implementation of their decisions. VII. Final clauses Article 25 – Settlement of disputes 1. In the event of a dispute between Parties to this Convention concerning the interpretation or the application of the Convention, the Parties shall seek a solution by negotiation. 2. If the Parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party. 3. If good offices or mediation are not undertaken or if there is no settlement by negotiation, good offices or mediation, a Party may have recourse to conciliation in accordance with the procedure laid down in the Annex of this Convention. The Parties shall consider in good faith the proposal made by the Conciliation Commission for the resolution of the dispute. 4. Each Party may, at the time of ratification, acceptance, approval or accession, declare that it does not recognize the conciliation procedure provided for above. Any Party having made such a declaration may, at any time, withdraw this declaration by notification to the Director-General of UNESCO.

476 Article 26 – Ratification, acceptance, approval or accession by Member States 1. This Convention shall be subject to ratification, acceptance, approval or accession by Member States of UNESCO in accordance with their respective constitutional procedures. 2. The instruments of ratification, acceptance, approval or accession shall be deposited with the Director-General of UNESCO. Article 27 – Accession 1. This Convention shall be open to accession by all States not Members of UNESCO but members of the United Nations, or of any of its specialized agencies, that are invited by the General Conference of UNESCO to accede to it. 2. This Convention shall also be open to accession by territories which enjoy full internal self-government recognized as such by the United Nations, but which have not attained full independence in accordance with General Assembly resolution 1514 (XV), and which have competence over the matters governed by this Convention, including the competence to enter into treaties in respect of such matters. 3. The following provisions apply to regional economic integration organizations: (a) This Convention shall also be open to accession by any regional economic integration organization, which shall, except as provided below, be fully bound by the provisions of the Convention in the same manner as States Parties; (b) In the event that one or more Member States of such an organization is also Party to this Convention, the organization and such Member State or States shall decide on their responsibility for the performance of their obligations under this Convention. Such distribution of responsibility shall take effect following completion of the notification procedure described in subparagraph (c). The organization and the Member States shall not be entitled to exercise rights under this Convention concurrently. In addition, regional economic integration organizations, in matters within their competence, shall exercise their rights to vote with a number of votes equal to the number of their Member States that are Parties to this Convention. Such an organization shall not exercise its right to vote if any of its Member States exercises its right, and vice-versa; (c) A regional economic integration organization and its Member State or States which have agreed on a distribution of responsibilities as provided in subparagraph (b) shall inform the Parties of any such proposed distribution of responsibilities in the following manner: (i) in their instrument of accession, such organization shall declare with specificity, the distribution of their responsibilities with respect to matters governed by the Convention;

477 (ii) in the event of any later modification of their respective responsibilities, the regional economic integration organization shall inform the depositary of any such proposed modification of their respective responsibilities; the depositary shall in turn inform the Parties of such modification; (d) Member States of a regional economic integration organization which become Parties to this Convention shall be presumed to retain competence over all matters in respect of which transfers of competence to the organization have not been specifically declared or informed to the depositary; (e) “Regional economic integration organization” means an organization constituted by sovereign States, members of the United Nations or of any of its specialized agencies, to which those States have transferred competence in respect of matters governed by this Convention and which has been duly authorized, in accordance with its internal procedures, to become a Party to it. 4. The instrument of accession shall be deposited with the Director-General of UNESCO. Article 28 – Point of contact Upon becoming Parties to this Convention, each Party shall designate a point of contact as referred to in Article 9. Article 29 – Entry into force 1. This Convention shall enter into force three months after the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession, but only with respect to those States or regional economic integration organizations that have deposited their respective instruments of ratification, acceptance, approval, or accession on or before that date. It shall enter into force with respect to any other Party three months after the deposit of its instrument of ratification, acceptance, approval or accession. 2. For the purposes of this Article, any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by Member States of the organization. Article 30 – Federal or non-unitary constitutional systems Recognizing that international agreements are equally binding on Parties regardless of their constitutional systems, the following provisions shall apply to Parties which have a federal or non-unitary constitutional system: (a) with regard to the provisions of this Convention, the implementation of which comes under the legal jurisdiction of the federal or central legislative power, the obligations of

478 the federal or central government shall be the same as for those Parties which are not federal States; (b) with regard to the provisions of the Convention, the implementation of which comes under the jurisdiction of individual constituent units such as States, counties, provinces, or cantons which are not obliged by the constitutional system of the federation to take legislative measures, the federal government shall inform, as necessary, the competent authorities of constituent units such as States, counties, provinces or cantons of the said provisions, with its recommendation for their adoption. Article 31 – Denunciation 1. Any Party to this Convention may denounce this Convention. 2. The denunciation shall be notified by an instrument in writing deposited with the Director-General of UNESCO. 3. The denunciation shall take effect 12 months after the receipt of the instrument of denunciation. It shall in no way affect the financial obligations of the Party denouncing the Convention until the date on which the withdrawal takes effect. Article 32 – Depositary functions The Director-General of UNESCO, as the depositary of this Convention, shall inform the Member States of the Organization, the States not members of the Organization and regional economic integration organizations referred to in Article 27, as well as the United Nations, of the deposit of all the instruments of ratification, acceptance, approval or accession provided for in Articles 26 and 27, and of the denunciations provided for in Article 31. Article 33 – Amendments 1. A Party to this Convention may, by written communication addressed to the Director- General, propose amendments to this Convention. The Director-General shall circulate such communication to all Parties. If, within six months from the date of dispatch of the communication, no less than one half of the Parties reply favourably to the request, the Director-General shall present such proposal to the next session of the Conference of Parties for discussion and possible adoption. 2. Amendments shall be adopted by a two-thirds majority of Parties present and voting. 3. Once adopted, amendments to this Convention shall be submitted to the Parties for ratification, acceptance, approval or accession. 4. For Parties which have ratified, accepted, approved or acceded to them, amendments to this Convention shall enter into force three months after the deposit of the instruments

479 referred to in paragraph 3 of this Article by two-thirds of the Parties. Thereafter, for each Party that ratifies, accepts, approves or accedes to an amendment, the said amendment shall enter into force three months after the date of deposit by that Party of its instrument of ratification, acceptance, approval or accession. 5. The procedure set out in paragraphs 3 and 4 shall not apply to amendments to Article 23 concerning the number of Members of the Intergovernmental Committee. These amendments shall enter into force at the time they are adopted. 6. A State or a regional economic integration organization referred to in Article 27 which becomes a Party to this Convention after the entry into force of amendments in conformity with paragraph 4 of this Article shall, failing an expression of different intention, be considered to be: (a) Party to this Convention as so amended; and (b) a Party to the unamended Convention in relation to any Party not bound by the amendments. Article 34 – Authoritative texts This Convention has been drawn up in Arabic, Chinese, English, French, Russian and Spanish, all six texts being equally authoritative. Article 35 – Registration In conformity with Article 102 of the Charter of the United Nations, this Convention shall be registered with the Secretariat of the United Nations at the request of the Director-General of UNESCO.

480 Context: United Nations and Indigenous Peoples

The main work of the United Nations Working Group on Indigenous Populations, established in 1982, was the elaboration and drafting of a declaration on the rights of indigenous peoples. The Working Group on Indigenous Populations concluded its work on the Draft Declaration at its 11th session in August 1993. The chairperson Erica-Irene Daes submitted the draft to the Sub-Commission on Prevention of Discrimination and Protection of Minorities a few days later. However, the Sub- Commission decided not to discuss the draft that year but transferred it to its next meeting in August 1994, where it was considered and adopted. Thereafter it was submitted to the United Nations Commission on Human Rights at its session in March 1995. The Commission on Human Rights decided to establish an “open-ended inter-sessional working group” on the elaboration of the Draft Declaration. This working group first met in November 1995. The working group of the Commission consisted of state representatives, which lead to other discussions and to other perspectives on the content of the declaration. The major risk of this is that the whole process may be further delayed by the detailed analysis of the governments. Moreover, there may be some obstructions on certain issues such as the definition of who indigenous peoples are self-determination and the proposals of political negotiations between the states and indigenous peoples concerning key issues. The United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly on 13 September 2007 with 144 votes in favour, 11 abstentions and four States against (Australia, Canada, New Zealand and the United States of America). Since then, a number of States have changed their position, including the four, which voted against but have now endorsed the Declaration. The Declaration is the most comprehensive instrument detailing the rights of indigenous peoples in international law and policy, containing minimum standards for the recognition, protection and promotion of these rights. While not uniformly or consistently implemented, the Declaration regularly guides States and indigenous peoples in developing law and policy that have an impact on indigenous peoples, including in devising means to best address the claims made by indigenous peoples. Some of the most important substantive rights contained in the Declaration and under international law and policy, more broadly are outlined below. The United Nations General Assembly has, through the adoption of the Declaration, affirmed that indigenous peoples have the right to self-determination and, hence, the right

481 to freely determine their political status and freely pursue their economic, social and cultural development. Article 3 of the Declaration mirrors common article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Indigenous peoples see self-determination as a central right recognized at the international level. The implementation of the right to self- determination also complements the implementation of other rights. All rights in the Declaration are indivisible and interrelated, and the right to self-determination is no exception. It colours all other rights, which should be read in the light of indigenous peoples’ self-determination, such as the right to culture, which can include indigenous peoples’ autonomy over cultural matters. In relation to indigenous peoples’ right to autonomy or self-government, article 4 states: “indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.” Related to their right to autonomy, indigenous peoples have the right, under article 34 of the Declaration, to “promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs ….” The right to self-determination is closely related to indigenous peoples’ political rights. These include their right to participate in decision-making in matters that would affect their rights and States’ duties to consult and cooperate with them to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. In both cases, and consistent with their right to self-determination, indigenous peoples have the right to participate through their own representative institutions (see art. 18). The United Nations Expert Mechanism on the Rights of Indigenous Peoples undertook a detailed study of indigenous peoples and the right to participate in decision-making from 2009 to 2011 and the Special Rapporteur on the rights of indigenous peoples has focused on indigenous peoples’ participation rights in reports on both thematic issues and country issues. The work of the Expert Mechanism and the Special Rapporteur reinforces the growing jurisprudence on the topic by, for example, the Human Rights Committee and the Inter-American Court and Commission on Human Rights. Consistent themes in this evolving understanding of indigenous peoples’ participation rights are that their consent must be sought for activities that have a significant impact on them and their lands, territories and resources.2 The Declaration recognizes indigenous peoples’ rights to their lands, territories and resources, including to those traditionally held by them but now controlled by others as a matter of fact and of law. For many indigenous peoples, their relationship to their lands, territories and resources is a defining feature. The Inter-American Court of Human Rights

482 has stressed: The close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element, which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. Supported by developing and authoritative interpretations of existing human rights law by United Nations human rights treaty bodies and regional human rights mechanisms, article 26 (1) of the Declaration acknowledges, in general terms, indigenous peoples’ right to the lands, territories and resources they have traditionally owned, occupied or otherwise used and article 26 (2) refers to the lands, territories and resources that they possess under indigenous customary conceptions of “ownership”. Article 26 (3) requires States to give legal recognition and protection to these lands, territories and resources. Article 27 requires States to establish and implement processes recognizing and adjudicating indigenous peoples’ rights in relation to their lands, territories and resources.

483 85 United Nations Declaration on the Rights of Indigenous Peoples

Adopted by the UN General Assembly, New York, September 13, 2007

While the United Nations Declaration on the Rights of Indigenous Peoples, as a declaration, is not a formally binding treaty, it contains rights and freedoms, such as self- determination and non-discrimination, set out in binding international human rights treaty law, of which some may be considered customary international law. It reflects a global consensus on indigenous peoples’ rights. Moreover, according to the Office of Legal Affairs of the United Nations Secretariat, “a ‘declaration’ is a solemn instrument, sometimes called soft law, resorted to only in very rare cases relating to matters of major and lasting importance Resolution 61/295 adopted by the General Assembly, New York, September 13, 2007 United Nations Declaration on the Rights of Indigenous Peoples

The General Assembly, Taking note of the recommendation of the Human Rights Council contained in its resolution 1/2 of 29 June 2006, by which the Council adopted the text of the United Nations Declaration on the Rights of Indigenous Peoples, Recalling its resolution 61/178 of 20 December 2006, by which it decided to defer consideration of and action on the Declaration to allow time for further consultations thereon, and also decided to conclude its consideration before the end of the sixty-first session of the General Assembly, Adopts the United Nations Declaration on the Rights of Indigenous Peoples as contained in the annex to the present resolution. 107th plenary meeting 13 September 2007

484 Annex

United Nations Declaration on the Rights of Indigenous Peoples The General Assembly, Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter, Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such, Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind, Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust, Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind, Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests, Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources, Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States, Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur, Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

485 Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment, Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world, Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children, consistent with the rights of the child, Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in some situations, matters of international concern, interest, responsibility and character, Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States, Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights7 and the International Covenant on Civil and Political Rights,2 as well as the Vienna Declaration and Programme of Action,8 affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law, Convinced that the recognition of the rights of indigenous peoples in this Declaration will enhance harmonious and cooperative relations between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith, Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned,

7 See resolution 2200 A (XXI), annex. 8 A/CONF.157/24 (Part I), chap. III.

486 Emphasizing that the United Nations has an important and continuing role to play in promoting and protecting the rights of indigenous peoples, Believing that this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations system in this field, Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples, Recognizing that the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration, Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual respect:

Article 1 Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights9 and international human rights law.

Article 2 Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

Article 3 Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

9 Resolution 217 A (III).

487 Article 4 Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5 Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 6 Every indigenous individual has the right to a nationality.

Article 7 1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person. 2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

Article 8 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. 2. States shall provide effective mechanisms for prevention of, and redress for: a Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; b Any action which has the aim or effect of dispossessing them of their lands, territories or resources; c Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; d Any form of forced assimilation or integration;

488 e Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 9 Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

Article 10 Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

Article 11 1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12 1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

489 Article 13 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons. 2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

Article 14 1. Indigenous peoples have the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 2. Indigenous individuals, particularly children, have the right to all levels and forms of education of the State without discrimination. 3. States shall, in conjunction with indigenous peoples, take effective measures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.

Article 15 1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information. 2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

Article 16 1. Indigenous peoples have the right to establish their own media in their own languages and to have access to all forms of non-indigenous media without discrimination.

490 2. States shall take effective measures to ensure that State-owned media duly reflect indigenous cultural diversity. States, without prejudice to ensuring full freedom of expression, should encourage privately owned media to adequately reflect indigenous cultural diversity.

Article 17 1. Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labour law. 2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, taking into account their special vulnerability and the importance of education for their empowerment. 3. Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour and, inter alia, employment or salary.

Article 18 Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision- making institutions.

Article 19 States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Article 20 1. Indigenous peoples have the right to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.

491 2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.

Article 21 1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities.

Article 22 1. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration. 2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

Article 23 Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

Article 24 1. Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services.

492 2. Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right.

Article 25 Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 26 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

Article 27 States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28 1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

493 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 29 1. Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. 2. States shall take effective measures to ensure that no storage or disposal of hazardous materials shall take place in the lands or territories of indigenous peoples without their free, prior and informed consent. 3. States shall also take effective measures to ensure, as needed, that programmes for monitoring, maintaining and restoring the health of indigenous peoples, as developed and implemented by the peoples affected by such materials, are duly implemented.

Article 30 1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. 2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.

Article 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control,

494 protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 32 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 33 1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

Article 34 Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

Article 35 Indigenous peoples have the right to determine the responsibilities of individuals to their communities.

495 Article 36 1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their o 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

Article 37 1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements. 2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

Article 38 States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends of this Declaration.

Article 39 Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.

Article 40 Indigenous peoples have the right to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.

496 Article 41 The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.

Article 42 The United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration.

Article 43 The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

Article 44 All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.

Article 45 Nothing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future.

Article 46 1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. 2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are

497 determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society. 3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-

498 86 The Expert Mechanism on the Rights of Indigenous Peoples Adopted by the UN Human Rights Council, Resolution 6/36, 2007.

The Expert Mechanism on the Rights of Indigenous Peoples was established in 2007 by the Human Rights Council, of which it is a subsidiary body. It comprises five experts on the rights of indigenous peoples, usually one from each of the world’s five geopolitical regions, with indigenous origin a relevant factor in their appointment, in accordance with resolution 6/36. The mandate of the Expert Mechanism is to provide the Human Rights Council with thematic expertise, mainly in the form of studies and research, on the rights of indigenous peoples as directed by the Council. The Expert Mechanism may also make proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council. The Expert Mechanism’s first study examined lessons learned and challenges to achieve the implementation of the right of indigenous peoples to education (A/HRC/12/33) and was finalized in 2009. Its second study, undertaken over two years, examined indigenous peoples and the right to participation in decision-making (A/HRC/18/42). The Expert Mechanism studied the role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples (A/HRC/21/53) in 2011–2012 and indigenous peoples’ access to justice in 2012–2013. Each study is presented to the Human Rights Council and, from 2011 onwards, is the subject of an interactive dialogue between the Council and the Expert Mechanism during one of the Council’s sessions. Each study includes advice which outlines the Expert Mechanism’s key findings related to the human right under study in the indigenous context. The Expert Mechanism is a key body within the United Nations human rights structure in Geneva and provides a space for indigenous peoples to raise thematic human rights issues, related to the specific study undertaken by the Expert Mechanism each year. Like the former Working Group on Indigenous Populations, the rules governing participation in its annual sessions are relatively open, so that indigenous peoples’ organizations and individuals can usually attend if they have successfully applied for accreditation. Hundreds of representatives of indigenous peoples’ organizations, indigenous individuals and non-governmental organizations attend the annual sessions. The Special Rapporteur on the rights of indigenous peoples is a so-called special procedure of the Human Rights Council. The mandate of the Special Rapporteur was established in 2001 by the Commission on Human Rights and continued by the Human Rights Council in 2007.14 The Special Rapporteur reports to the Human Rights Council each year. The Special Rapporteur on the rights of indigenous peoples, inter alia:• Examines

499 ways and means of overcoming existing obstacles to the full and effective protection of the rights of indigenous peoples, in conformity with his/her mandate, and identifies, exchanges and promotes best practices; • Gathers, requests, receives and exchanges information and communications from all relevant sources, including Governments, indigenous peoples and their communities and organizations, on alleged violations of the rights of indigenous peoples; • Formulates recommendations and proposals on appropriate measures and activities to prevent and remedy violations of the rights of indigenous peoples; and • Works in close cooperation and coordination with other special procedures and subsidiary organs of the Council, in particular with the Expert Mechanism on the Rights of Indigenous Peoples, relevant United Nations bodies, the treaty bodies and regional human rights organizations. In fulfilling this mandate, the Special Rapporteur assesses the situation of indigenous peoples in specific countries; carries out thematic studies; communicates with Governments, indigenous peoples and others concerning allegations of violations of indigenous peoples’ rights; and promotes good practices for the protection of these rights. The Special Rapporteur also reports annually to the Human Rights Council on particular human rights issues involving indigenous peoples and coordinates work with the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples.

Resolution 6/36. Expert mechanism on the rights of indigenous peoples The Human Rights Council, Bearing in mind paragraph 6 of General Assembly resolution 60/251 of 15 March 2006, and paragraph 84 of the annex to Human Rights Council resolution 5/1 of 18 June 2007, Recalling that, at its sixty-first session, the General Assembly adopted in its resolution 61/295 of 13 September 2007 the United Nations Declaration on the Rights of Indigenous Peoples, Bearing in mind Human Rights Council resolution 6/16 of 28 September 2007, Recalling that the Human Rights Council should be cognizant of the work being undertaken on indigenous issues by other bodies in the United Nations system, 3. Decides, in order to assist the Human Rights Council in the implementation of its mandate, to establish a subsidiary expert mechanism to provide the Council with thematic expertise on the rights of indigenous peoples in the manner and form requested by the Council: (a) The thematic expertise will focus mainly on studies and research-based advice; (b) The mechanism may suggest proposals to the Council for its consideration and approval, within the scope of its work as set out by the Council; 2. Also decides that this mechanism shall report annually to the Council on its work;

500 3. Further decides that the expert mechanism shall consist of five independent experts, the selection of which shall be carried out in accordance with the procedure established in paragraphs 39 to 53 of the annex to Council resolution 5/1 of 18 June 2007; 4. Strongly recommends that, in the selection and appointment process, the Council give due regard to experts of indigenous origin; 5. Decides, in order for the expert mechanism to enhance cooperation and avoid duplicating the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people and the Permanent Forum, that it shall invite the Special Rapporteur and a member of the Permanent Forum to attend and contribute to its annual meeting; 6. Also decides that the members of the expert mechanism shall serve for a three-year period and may be re-elected for one additional period; 7. Further decides that, within its mandate, the expert mechanism on the rights of indigenous peoples should determine its own methods of work, although the expert mechanism shall not adopt resolutions or decisions; 8. Decides that the expert mechanism shall meet once annually three days in its first year and thereafter for up to five days, and that the sessions may be a combination of open and private meetings; 9. Also decides that the annual meeting of the expert mechanism shall be open to the participation, as observers, of States, United Nations mechanisms, bodies and specialized agencies, funds and programmes, intergovernmental organizations, regional organizations and mechanisms in the field of human rights, national human rights institutions and other relevant national bodies, academics and experts on indigenous issues, non- governmental organizations in consultative status with the Economic and Social Council; the meeting shall also be open to indigenous peoples’ organizations and non- governmental organizations, whose aims and purposes are in conformity with the spirit, purposes and principles of the Charter of the United Nations, based on arrangements, including Economic and Social Council resolution 1996/31 of 25 July 1996, and practices observed by the Commission on Human Rights, through an open and transparent accreditation procedure in accordance with the rules of procedure of the Human Rights Council, which will provide for the timely information on participation and consultation with States concerned; 10. Requests the Secretary-General and the United Nations High Commissioner for Human Rights to provide all the necessary human, technical and financial assistance to

501 the expert mechanism for the effective fulfilment of its mandate. [Adopted without a vote] 34th meeting 14 December 2007.

502 87 Guidelines on Indigenous People´s Issues

Approved by the United Nations Development Group, February 1, 2008

Executive Summary/Outline

Objectives The purpose of the Guidelines is to assist the UN system to mainstream and integrate indigenous peoples’ issues in processes for operational activities and programmes at the country level. The Guidelines set out the broad normative, policy and operational framework for implementing a human rights based and culturally sensitive approach to development for and with indigenous peoples. The Guidelines provide lines of action for planning, implementation and evaluation of programmes involving indigenous peoples. The Guidelines provide a framework for duly integrating the principles of cultural diversity into UN country programmes Structure. The Guidelines are divided into three main sections: Section I provides an overview of the situation of indigenous peoples and the existing international norms and standards adopted to ensure the realization of their rights and resolve some of the crucial issues that they face. Section II presents a practical table and checklist of key issues and related rights. Section III discusses specific programmatic implications for UNCTs for addressing and mainstreaming indigenous peoples’ issues. Summary Section 1 Overview of current realities confronting of indigenous peoples and the international norms and standards established to address indigenous peoples’ issues. Summary of international developments over the last 2 decades: Approval of ILO Convention No. 169; First and Second International Decades of the World’s Indigenous People; Establishment of the UNPFII; Appointment of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people; Establishment of the Inter-Agency Support Group on Indigenous Issues; Adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly in September 2007. Who are indigenous peoples? – Overview of major attempts to outline the characteristics of indigenous peoples

503 Martínez Cobo Study. Working Group on Indigenous Populations’ Working paper on the concept of “indigenous people”. Overview of Existing international norms and standards: ILO Convention No. 169 United Nations Declaration on the Rights of Indigenous Peoples Other international standard-setting instruments that provide provisions for the protection of indigenous peoples (i.e. Convention on the Rights of the Child, Convention on Biological Diversity, UNESCO instruments, etc.). Basic human rights and principles. Non-discrimination; Equality; Gender Equality; Self- determination; Collective rights; The right to development Section II Practical Table and checklist of key issues and related human rights. This section is composed of a table that seeks to synthesize some of the key issues relating to indigenous peoples and the guiding human rights principles that address them. For each key issue, the table includes one or two paragraphs that provide basic information, as well as a list of the main guiding principles and the international instruments on which they are based. The issues addressed include: Self-determination; Lands, territories and natural resources; Traditional knowledge; Health Education; Indigenous women; Indigenous children and youth; Capacity development and employment. Section III Specific programmatic implications for addressing and mainstreaming indigenous peoples’ issues. This section provides guidelines for adopting a human rights- based and culturally sensitive approach to programming when addressing the specific situation of indigenous peoples. The elements of the UN Common Understanding on the Human Rights Based Approach to Development Cooperation are presented and linked with indigenous peoples’ issues. The section then provides an overview of the culturally sensitive approach to programming, including the following elements: The use of positive practices of indigenous cultures to promote and advance gender equality and human rights; Mobilization of indigenous networks to assist in identifying and promoting the cultural and social values that help preserve their identities and that are also in conformity with international human rights standards; Encouraging the development of human capabilities and the participation of indigenous peoples in community and social contexts, policy design and implementation at local, national, regional and global levels, creating strategies that can help them escape poverty. The Guidelines then address some of the specific programmatic implications for UNCTs to mainstream and integrate indigenous peoples’ during the following stages of the programming process: Plan of engagement Country analysis Strategic planning

504 Monitoring and evaluation Organizing and managing results. Some of the main issues that are addressed in this section are: Participation Free, prior and informed consent Analysis of disparities Data disaggregation and indicators of wellbeing Creating an enabling environment.

505 88 Excerpts from: Charter of Fundamental Rights of the European Union,

Adopted by the EU. In force, December 1, 2009

On December 1, 2009, the Charter of Fundamental Rights of the European Union (EU Charter) became legally binding when the Treaty of Lisbon entered into force. The EU Charter contains civil and political, as well as economic and social rights. The six chapters of the Charter cover dignity, freedoms, equality, solidarity, citizens’ rights, and justice. The EU Charter generally binds the institutions, bodies, offices, and agencies of the EU and applies to the Member States only when they are implementing EU law. (EU Charter, art. 51.) The EU Charter therefore complements the national legislation and does not replace it. Preamble /…/ The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of their public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, services, goods and capital, and the freedom of establishment. /…/ Article 21 Non-discrimination 3. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 4. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited. Article 22 Cultural, religious and linguistic diversity The Union shall respect cultural, religious and linguistic diversity.

506 89 FAO Policy on Indigenous and Tribal Peoples

Adopted by the Food and Agriculture Organization, Rome, 2010

Introduction The Member Nations of the Food and Agriculture Organization (FAO) defined the organization’s ultimate objectives as being to “improve agricultural productivity, raise levels of nutrition, better the lives of rural populations, and contribute to the growth of the world economy.” As a specialized agency of the United Nations FAO has a primary role to play in promoting greater food security and reduce poverty. FAO has long realized that achieving these objectives requires the involvement of society at large; indeed, the consensus that development efforts must include various actors and stakeholders is now widespread. Indigenous peoples1 must be considered an undeniable stakeholder in a development agenda shaped by such a mandate. Recent estimates indicate that although indigenous peoples make up approximately 5 percent of the world’s total population, they comprise about 15 percent of the global poor. The adversities faced by indigenous peoples have grown in the last few decades, but so too have the recognition of and appreciation for their potential contributions to sustainable development and natural resources management. Protecting the livelihood systems and specialized knowledge that are held within these communities will reverse the steady erosion of indigenous cultures but may also bring novel solutions to the fight against food insecurity and malnutrition, poverty and environmental degradation. In response to continuously growing pressures and rapid changes taking place in the world, the international community has urged for more concerted efforts to respond to the needs and demands of indigenous peoples. The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the General Assembly in September 2007, has given a major impetus to these efforts by prompting national authorities to pursue greater action on this front. The Declaration is today the highest international standard in this area. This and International Labour Organization Convention 169 (Indigenous and Tribal Peoples Convention, 1989) are the most powerful and comprehensive international instruments recognizing the situation of indigenous peoples and defending their most important rights. FAO’s responsibility to observe and implement UNDRIP is clearly stated in Article 41:

507 The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, ensuring participation of indigenous peoples on issues affecting them shall be established.

Consistent with FAO’s mandate to pursue a world free from hunger and malnutrition, and grounded in the utmost respect for universal human rights, this policy is in place to ensure that FAO will make all due efforts to respect, include and promote indigenous peoples’ issues in its overall work. The policy is motivated by the fundamental fact that indigenous communities make up a substantial portion of the world’s food insecure, that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and by recognition of the benefits that arise from closer collaboration. At the same time, it responds to the explicit request made by the UN Permanent Forum on Indigenous Issues (UNPFII), by fellow UN agencies and by indigenous peoples themselves to develop a framework for ensuring that the needs and concerns of indigenous peo-ples are effectively considered. The purpose of this policy document is to provide FAO with a framework to guide its work on indigenous peoples’ issues. Current activities follow no systematic course of action relating to such issues and will benefit greatly from the delineation of a com-mon direction and approach. At the same time, it is also of relevance to indigenous peoples themselves, helping to communicate and clarify what they can reasonably expect from the Organization. The document highlights some of the key areas covered by FAO’s mandate and addresses the motivations as well as the advantages of a partnership between FAO and indigenous peoples. It is the result of a series of consultations with leaders of indigenous peoples, the UNPFII, the Inter-Agency Support Group on Indigenous Issues (IASG) and members of FAO’s professional body. As such, it addresses a diverse set of outlooks and feasible opportunities for future work.

Indigenous Peoples and Development In accordance with international consensus,3 FAO will abide by the following criteria when considering indigenous peoples. Priority in time, with respect to occupation and use of a specific territory. The voluntary perpetuation of cultural distinctiveness, which may include aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions. Self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and an experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.

508 Core principles Indigenous peoples around the world are culturally distinct, yet they share a number of common values and a shared sense of purpose in their demand for internationally recognized rights and autonomy. These commonalities are expressed in the following core principles and rights, which have been articulated by indigenous representatives and are at the heart of the UN Declaration as well as other international legal and standard-setting instruments. As such, they provide an international framework by which UN agencies are guided. In this respect, they must be addressed when working with indigenous peoples and must consequently also form the basis of FAO’s work in this area.

Self-determination For indigenous peoples the right to development is understood as their right to decide the kind of development that takes place among their people and on their lands and territories, in accordance with their own priorities and conceptions of well-being. The right to self-determination refers precisely to the right of all peoples to freely pursue their economic, social and cultural development.

Development with identity Development with identity upholds the notion that peoples’ sociocultural expressions, values and traditions should not be threatened by the development process. Identity is of fundamental importance to indigenous peoples, who see their livelihood security, well- being and dignity as being inextricably linked with the continuation of their traditions and the preservation of their ancestral lands and territories. Indigenous peoples have differing conceptions of what constitutes ‘poverty’ and ‘well-being.’ According to many of them, well-being is a multidimensional condition defined by a range of human experiences, including social, mental, spiritual and cultural welfare. Relatedly, poverty cannot be defined only in terms of material standards; one is poor not only when resources are low, but also when one is unable to live a desired lifestyle. For this reason, indigenous peoples advocate a holistic view of development and livelihood security that transcends models based solely on conventional economic criteria.

Free, prior and informed consent The principle and right of ‘free, prior and informed consent’ demands that states and organizations of all kinds and at all levels obtain indigenous peoples’ authori-zation before

509 adopting and implementing projects, programmes or legislative and administrative measures that may affect them. It emphasizes that indigenous peo-ples must be included in consultative processes, that the time requirements for these processes be respected and that information on the likely impact of activi-ties be disclosed in advance. Legitimate consultation measures ensure that activi-ties or actions planned respond to indigenous peoples’ concerns and interests, thereby allowing a self-determined development process.

Participation and inclusion Indigenous peoples claim the right to full and effective participation at every stage of any action that may affect them directly or indirectly. In essence, this implies that there must be no act of coercion, intimidation or manipulation on the part of states, governments, private investors, financial institutions, non-governmental organizations (NGOs) or development practitioners. Rather, indigenous peoples should be included as competent and legitimate stakeholders in projects or initiatives that enter their sphere of existence.

Rights over land and other natural resources Rights over land and other natural resources (water, forests, rangeland etc.) are of particular importance to indigenous peoples as they feel a spiritual attachment to their ancestral origins and commonly depend on natural resources for survival. This special relationship is crucial to the continuation of indigenous livelihood systems and cultural forms. In respect of this principle, indigenous peoples are entitled to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those that they have otherwise acquired.

Cultural rights Cultural rights are fundamental for indigenous peoples as their cultures are distinct and threatened by continuous change and pressures for assimilation. In this respect, indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their cultures, but are entitled to live in accordance with the traditions and the customs that underlie their integrity and way of life and are in compliance with universal principles of human rights. Development efforts must ensure that contextual idiosyncrasies and diverse sociocultural expressions are taken into account.

510 Collective rights Collective rights are indispensable for the survival, well-being and integral development of indigenous peoples as distinct human groups. These include recognition of their specific histories, languages, identities and cultures but also recognition of their collective rights to the lands, territories and natural resources they have traditionally occupied and used. It also pertains to indigenous peoples’ communally held traditional knowledge.

Gender equality Gender equality exists when people enjoy equal rights, opportunities and re-wards regardless of whether they are born female or male. Recognizing the differing roles, needs and priorities of men and women is crucial to protecting and promoting their livelihoods and strengthening their resilience to various types of stress. Despite their substantial contributions to agriculture and household food security, indigenous women in many countries face several levels of discrimination on account of their gender as well as their ethnicity. Promoting the economic and social empowerment of indigenous women is thus fundamental to poverty reduction and development. For the full FAO Policy, see: fao.org/3/i1857e/i1857e00.pdf.

511 90 Performance Standard No. 7: Indigenous Peoples

Adopted by the International Finance Corporation of the World Bank Group, January 1, 2012

The Performance Standards of IFC

IFC’s Sustainability Framework articulates the Corporation’s strategic commitment to sustainable development. The Sustainability Framework comprises IFC’s Policy and Performance Standards on Environmental and Social Sustainability, and IFC’s Access to Information Policy. The Policy on Environmental and Social Sustainability describes IFC’s commitments, roles, and responsibilities related to environmental and social sustainability. The Performance Standards are directed towards clients, providing guidance on how to identify risks and impacts, and are designed to help avoid, mitigate, and manage risks and impacts as a way of doing business in a sustainable way, including stakeholder engagement and disclosure obligations of the client in relation to project-level activities. In the case of its direct investments (including project and corporate finance provided through financial intermediaries), IFC requires its clients to apply the Performance Standards to manage environmental and social risks and impacts so that development opportunities are enhanced. IFC uses the Sustainability Framework along with other strategies, policies, and initiatives to direct the business activities of the Corporation in order to achieve its overall development objectives. The Performance Standards may also be applied by other financial institutions Performance Standard 7: Indigenous Peoples

Introduction Performance Standard 7 recognizes that Indigenous Peoples, as social groups with identities that are distinct from mainstream groups in national societies, are often among the most marginalized and vulnerable segments of the population. In many cases, their economic, social, and legal status limits their capacity to defend their rights to, and interests in, lands and natural and cultural resources, and may restrict their ability to participate in and benefit from development. Indigenous Peoples are particularly

512 vulnerable if their lands and resources are transformed, encroached upon, or significantly degraded. Their languages, cultures, religions, spiritual beliefs, and institutions may also come under threat. As a consequence, Indigenous Peoples may be more vulnerable to the adverse impacts associated with project development than non-indigenous communities. This vulnerability may include loss of identity, culture, and natural resource-based livelihoods, as well as exposure to impoverishment and diseases. Private sector projects can create opportunities for Indigenous Peoples to participate in, and benefit from project-related activities that may help them fulfil their aspiration for economic and social development. Furthermore, Indigenous Peoples may play a role in sustainable development by promoting and managing activities and enterprises as partners in development. Government often plays a central role in the management of Indigenous Peoples’ issues, and clients should collaborate with the responsible authorities in managing the risks and impacts of their activities. Objectives • To ensure that the development process fosters full respect for the human rights, dignity, aspirations, culture, and natural resource-based livelihoods of Indigenous Peoples. • To anticipate and avoid adverse impacts of projects on communities of Indigenous Peoples, or when avoidance is not possible, to minimize and/or compensate for such impacts. • To promote sustainable development benefits and opportunities for Indigenous Peoples in a culturally appropriate manner. • To establish and maintain an ongoing relationship based on Informed Consultation and Participation (ICP) with the Indigenous Peoples affected by a project throughout the project’s life-cycle. • To ensure the Free, Prior, and Informed Consent (FPIC) of the Affected Communities of Indigenous Peoples when the circumstances described in this Performance Standard are present. • To respect and preserve the culture, knowledge, and practices of Indigenous Peoples.

Scope of Application. The applicability of this Performance Standard is established during the environmental and social risks and impacts identification process. The

513 implementation of the actions necessary to meet the requirements of this Performance Standard is managed through the client’s Environmental and Social Management System, the elements of which are outlined in Performance Standard 1. In addition to meeting the requirements under this Performance Standard, clients must comply with applicable national law, including those laws implementing host country obligations under international law. There is no universally accepted definition of “Indigenous Peoples.” Indigenous Peoples may be referred to in different countries by such terms as “Indigenous ethnic minorities,” “aboriginals,” “hill tribes,” “minority nationalities,” “scheduled tribes,” “first nations,” or “tribal groups.” In this Performance Standard, the term “Indigenous Peoples” is used in a generic sense to refer to a distinct social and cultural group possessing the following characteristics in varying degrees: • Self-identification as members of a distinct indigenous cultural group and recognition of this identity by others; • Collective attachment to geographically distinct habitats or ancestral territories in the project area and to the natural resources in these habitats and territories; • Customary cultural, economic, social, or political institutions that are separate from those of the mainstream society or culture; or • A distinct language or dialect, often different from the official language or languages of the country or region in which they reside.6. This Performance Standard applies to communities or groups of Indigenous Peoples who maintain a collective attachment, i.e., whose identity as a group or community is linked, to distinct habitats or ancestral territories and the natural resources therein. It may also apply to communities or groups that have lost collective attachment to distinct habitats or ancestral territories in the project area, occurring within the concerned group members’ lifetime, because of forced severance, conflict, government resettlement programs, dispossession of their lands, natural disasters, or incorporation of such territories into an urban area.7. The client may be required to seek inputs from competent professionals to ascertain whether a particular group is considered as Indigenous Peoples for the purpose of this Performance Standard.

Requirements The client will identify, through an environmental and social risks and impacts assessment process, all communities of Indigenous Peoples within the project area of influence who

514 may be affected by the project, as well as the nature and degree of the expected direct and indirect economic, social, cultural (including cultural heritage), and environmental impacts on them.9. Adverse impacts on Affected Communities of Indigenous Peoples should be avoided where possible. Where alternatives have been explored and adverse impacts are unavoidable, the client will minimize, restore, and/or compensate for these impacts in a culturally appropriate manner commensurate with the nature and scale of such impacts and the vulnerability of the Affected Communities of Indigenous Peoples. The client’s proposed actions will be developed with the ICP of the Affected Communities of Indigenous Peoples and contained in a time-bound plan, such as an Indigenous Peoples Plan, or a broader community development plan with separate components for Indigenous Peoples.32 Additional requirements on protection of cultural heritage are set out in Performance Standard 8.3 The determination of the appropriate plan may require the input of competent professionals. A community development plan may be appropriate in circumstances where Indigenous Peoples are a part of larger Affected Communities.

Participation and Consent. The client will undertake an engagement process with the Affected Communities of Indigenous Peoples as required in Performance Standard 1. This engagement process includes stakeholder analysis and engagement planning, disclosure of information, consultation, and participation, in a culturally appropriate manner. In addition, this process will: Involve Indigenous Peoples’ representative bodies and organizations (e.g., councils of elders or village councils), as well as members of the Affected Communities of Indigenous Peoples; and Provide sufficient time for Indigenous Peoples’ decision-making processes. Affected Communities of Indigenous Peoples may be particularly vulnerable to the loss of, alienation from or exploitation of their land and access to natural and cultural resources. In recognition of this vulnerability, in addition to the General Requirements of this Performance Standard, the client will obtain the FPIC of the Affected Communities of Indigenous Peoples in the circumstances described in paragraphs 13–17 of this Performance Standard. FPIC applies to project design, implementation, and expected outcomes related to impacts affecting the communities of Indigenous Peoples. When any of these circumstances apply, the client will engage external experts to assist in the identification of the project risks and impacts. 12. There is no universally accepted definition of FPIC. For the purposes of Performance Standards 1, 7 and 8, “FPIC” has the meaning described in this paragraph. FPIC builds on and expands the process of ICP

515 described in Performance Standard 1 and will be established through good faith negotiation between the client and the Affected Communities of Indigenous Peoples. The client will document: (i) the mutually accepted process between the client and Affected Communities of Indigenous Peoples, and (ii) evidence of agreement between the parties as the outcome of the negotiations. FPIC does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree. Circumstances Requiring Free, Prior, and Informed Consent Impacts on Lands and Natural Resources Subject to Traditional Ownership or Under Customary Use13. Indigenous Peoples are often closely tied to their lands and related natural resources.6Frequently, these lands are traditionally owned or under customary use.7 While Indigenous Peoples may not possess legal title to these lands as defined by national law, their use of these lands, including seasonal or cyclical use, for their livelihoods, or cultural, ceremonial, and spiritual purposes that define their identity and community, can often be substantiated and documented.4 Internal decision making processes are generally but not always collective in nature. There may be internal dissent, and decisions may be challenged by some in the community. The consultation process should be sensitive to such dynamics and allow sufficient time for internal decision making processes to reach conclusions that are considered legitimate by the majority of the concerned participants. Natural resources and natural areas with cultural value referred to in this Performance Standard are equivalent to ecosystem provisioning and cultural services as described in Performance Standard 6. Examples include marine and aquatic resources timber, and non-timber forest products, medicinal plants, hunting and gathering grounds, and grazing and cropping areas. Natural resource assets, as referred to in this Performance Standard, are equivalent to provisioning ecosystem services as described in Performance Standard 6. The acquisition and/or leasing of lands with legal title is addressed in Performance Standard 5: Land Acquisition and Involuntary Resettlement. If the client proposes to locate a project on, or commercially develop natural resources on lands traditionally owned by, or under the customary use of, Indigenous Peoples, and adverse impacts8can be expected, the client will take the following steps: ♣Document efforts to avoid and otherwise minimize the area of land proposed for the project; ♣Document efforts to avoid and otherwise minimize impacts on natural resources and natural areas of importance9 to Indigenous People; ♣Identify and review all property interests and traditional resource uses prior topurchasing or leasing land; ♣Assess and document the Affected Communities of Indigenous Peoples’ resourceuse without prejudicing any Indigenous Peoples’ land claim.10 The assessment of land and

516 natural resource use should be gender inclusive and specifically consider women’s role in the management and use of these resources; ♣Ensure that Affected Communities of Indigenous Peoples are informed of their land rights under national law, including any national law recognizing customary use rights; and ♣Offer Affected Communities of Indigenous Peoples compensation and due process in the case of commercial development of their land and natural resources, together with culturally appropriate sustainable development opportunities, including: Providing land- based compensation or compensation-in-kind in lieu of cash compensation where feasible.11Ensuring continued access to natural resources, identifying the equivalent replacement resources, or, as a last option, providing compensation and identifying alternative livelihoods if project development results in the loss of access to and the loss of natural resources independent of project land acquisition. Ensuring fair and equitable sharing of benefits associated with project usage of the resources where the client intends to utilize natural resources that are central to the identity and livelihood of Affected Communities of Indigenous People and their usage thereof exacerbates livelihood risk. Providing Affected Communities of Indigenous Peoples with access, usage, and transit on land it is developing subject to overriding health, safety, and security considerations. Relocation of Indigenous Peoples from Lands and Natural Resources Subject to traditional ownership or Under Customary Use. The client will consider feasible alternative project designs to avoid the relocation of Indigenous Peoples from communally held lands and natural resources subject to traditional ownership or such adverse impacts may include impacts from loss of access to assets or resources or restrictions on land use resulting from project activities. “Natural resources and natural areas of importance” as referred to in this Performance Standard are equivalent to priority ecosystem services as defined in Performance Standard 6. They refer to those services over which the client has direct management control or significant influence, and those services most likely to be sources of risk in terms of impacts on Affected Communities of Indigenous Peoples. While this Performance Standard requires substantiation and documentation of the use of such land, clients should also be aware that the land may already be under alternative use, as designated by the host government. If circumstances prevent the client from offering suitable replacement land, the client must provide verification that such is the case. Under such circumstances, the client will provide non land-based income-earning opportunities over and above cash compensation to the Affected Communities of Indigenous Peoples. If such relocation is unavoidable the client will not proceed with the project unless FPIC has been obtained as described above. Any relocation of Indigenous Peoples will be consistent with the requirements of Performance Standard 5. Where feasible, the relocated Indigenous Peoples should be able to return to their traditional or customary

517 lands, should the cause of their relocation cease to exist. Critical Cultural Heritage. Where a project may significantly impact on critical cultural heritage that is essential to the identity and/or cultural, ceremonial, or spiritual aspects of Indigenous Peoples lives, priority will be given to the avoidance of such impacts. Where significant project impacts on critical cultural heritage are unavoidable, the client will obtain the FPIC of the Affected Communities of Indigenous Peoples. Where a project proposes to use the cultural heritage including knowledge, innovations, or practices of Indigenous Peoples for commercial purposes, the client will inform the Affected Communities of Indigenous Peoples of (i) their rights under national law; (ii) the scope and nature of the proposed commercial development; (iii) the potential consequences of such development; and (iv) obtain their FPIC. The client will also ensure fair and equitable sharing of benefits from commercialization of such knowledge, innovation, or practice, consistent with the customs and traditions of the Indigenous Peoples. Mitigation and Development Benefits. The client and the Affected Communities of Indigenous Peoples will identify mitigation measures in alignment with the mitigation hierarchy described in Performance Standard 1 as well as opportunities for culturally appropriate and sustainable development benefits. The client will ensure the timely and equitable delivery of agreed measures to the Affected Communities of Indigenous Peoples. The determination, delivery, and distribution of compensation and other benefit sharing measures to the Affected Communities of Indigenous Peoples will take account of the laws, institutions, and customs of these communities as well as their level of interaction with mainstream society. Eligibility for compensation can either be individually or collectively-based, or be a combination of both. Where compensation occurs on a collective basis, mechanisms that promote the effective delivery and distribution of compensation to all eligible members of the group will be defined and implemented. Various factors including, but not limited to, the nature of the project, the project context and the vulnerability of the Affected Communities of Indigenous Peoples will determine how these communities should benefit from the project. Identified opportunities should aim to address the goals, typically, Indigenous Peoples claim rights and access to, and use of land and resources through traditional or customary systems, many of which entail communal property rights. These traditional claims to land and resources may not be recognized under national laws. Where members of the Affected Communities of Indigenous Peoples individually hold legal title, or where the relevant national law recognizes customary rights for individuals, the requirements of Performance Standard 5 will apply, rather than the requirements under paragraph 17 of this Performance Standard. Includes natural areas with cultural and/or spiritual value such as sacred groves, sacred bodies of water and waterways, sacred trees, and sacred rocks. Natural areas with cultural value are equivalent to priority ecosystem cultural services as defined in Performance Standard 6. Where control of resources, assets and decision making are predominantly collective in nature, efforts will be made to ensure that, where

518 possible, benefits and compensation are collective, and take account of intergenerational differences and needs. Preferences of the Indigenous Peoples including improving their standard of living and livelihoods in a culturally appropriate manner, and to foster the long-term sustainability of the natural resources on which they depend. Private Sector Responsibilities Where Government is Responsible for Managing Indigenous Peoples Issues. Where the government has a defined role in the management of Indigenous Peoples issues in relation to the project, the client will collaborate with the responsible government agency, to the extent feasible and permitted by the agency, to achieve outcomes that are consistent with the objectives of this Performance Standard. In addition, where government capacity is limited, the client will play an active role during planning, implementation, and monitoring of activities to the extent permitted by the agency. The client will prepare a plan that, together with the documents prepared by the responsible government agency, will address the relevant requirements of this Performance Standard. The client may need to include (i) the plan, implementation, and documentation of the process of ICP and engagement and FPIC where relevant; (ii) a description of the government-provided entitlements of affected Indigenous Peoples; (iii) the measures proposed to bridge any gaps between such entitlements, and the requirements of this Performance Standard; and (iv) the financial and implementation responsibilities of the government agency and/or the client.

519 91 Outcome Document of the World Conference on Indigenous Peoples

Adopted by the UN General Assembly, New York, September 22, 2014

The General Assembly Adopts the following outcome document:

Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples 1. We, the Heads of State and Government, ministers and representatives of Member States, reaffirming our solemn commitment to the purposes and principles of the Charter of the United Nations, in a spirit of cooperation with the indigenous peoples of the world, are assembled at United Nations Headquarters in New York on 22 and 23 September 2014, on the occasion of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, to reiterate the important and continuing role of the United Nations in promoting and protecting the rights of indigenous peoples. 2. We welcome the indigenous peoples’ preparatory processes for the World Conference, including the Global Indigenous Preparatory Conference held in Alta, Norway, in June 2013. We take note of the outcome document of the Alta Conference10 and other contributions made by indigenous peoples. We also welcome the inclusive preparatory process for the high-level plenary meeting, including the comprehensive engagement of the representatives of indigenous peoples. 3. We reaffirm our support for the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly on 13 September 2007,11 and our commitments made in this respect to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing

10 A/67/994, annex. 11 Resolution 61/295, annex.

520 legislative or administrative measures that may affect them, in accordance with the applicable principles of the Declaration. 4. We reaffirm our solemn commitment to respect, promote and advance and in no way diminish the rights of indigenous peoples and to uphold the principles of the Declaration. 5. In addition to the Declaration, we recall the other major achievements of the past two decades in building an international framework for the advancement of the rights and aspirations of the world’s indigenous peoples, including the establishment of the Permanent Forum on Indigenous Issues, the creation of the Expert Mechanism on the Rights of Indigenous Peoples and the establishment of the mandate of the Special Rapporteur on the rights of indigenous peoples. We commit ourselves to giving due consideration to recommendations and advice issued by those bodies in cooperation with indigenous peoples. 6. We encourage those States that have not yet ratified or acceded to the International Labour Organization Indigenous and Tribal Peoples Convention, 1989 (No. 169),12 to consider doing so. We recall the obligation of ratifying States under the Convention to develop coordinated and systematic action to protect the rights of indigenous peoples. 7. We commit ourselves to taking, in consultation and cooperation with indigenous peoples, appropriate measures at the national level, including legislative, policy and administrative measures, to achieve the ends of the Declaration and to promote awareness of it among all sectors of society, including members of legislatures, the judiciary and the civil service. 8. We commit ourselves to cooperating with indigenous peoples, through their own representative institutions, to develop and implement national action plans, strategies or other measures, where relevant, to achieve the ends of the Declaration. 9. We commit ourselves to promoting and protecting the rights of indigenous persons with disabilities and to continuing to improve their social and economic conditions, including by developing targeted measures for the aforementioned action plans, strategies or measures, in collaboration with indigenous persons with disabilities. We also commit ourselves to ensuring that national legislative, policy and institutional structures relating to indigenous peoples are inclusive of indigenous persons with disabilities and contribute to the advancement of their rights. 10. We commit ourselves to working with indigenous peoples to disaggregate data, as appropriate, or conduct surveys and to utilizing holistic indicators of indigenous peoples’

12 United Nations, Treaty Series, vol. 1650, No. 28383.

521 well-being to address the situation and needs of indigenous peoples and individuals, in particular older persons, women, youth, children and persons with disabilities. 11. We commit ourselves to ensuring equal access to high-quality education that recognizes the diversity of the cultures of indigenous peoples and to health, housing, water, sanitation and other economic and social programmes to improve well-being, including through initiatives, policies and the provision of resources. We intend to empower indigenous peoples to deliver such programmes as far as possible. 12. We recognize the importance of indigenous peoples’ health practices and their traditional medicine and knowledge. 13. We commit ourselves to ensuring that indigenous individuals have equal access to the highest attainable standard of physical and mental health. We also commit ourselves to intensifying efforts to reduce rates of HIV and AIDS, malaria, tuberculosis and non- communicable diseases by focusing on prevention, including through appropriate programmes, policies and resources for indigenous individuals, and to ensure their access to sexual and reproductive health and reproductive rights in accordance with the Programme of Action of the International Conference on Population and Development,13 the Beijing Platform for Action14 and the outcome documents of their review conferences. 14. We commit ourselves to promoting the right of every indigenous child, in community with members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion or to use his or her own language. 15. We support the empowerment and capacity-building of indigenous youth, including their full and effective participation in decision-making processes in matters that affect them. We commit ourselves to developing, in consultation with indigenous peoples, policies, programmes and resources, where relevant, that target the well-being of indigenous youth, in particular in the areas of health, education, employment and the transmission of traditional knowledge, languages and practices, and to taking measures to promote awareness and understanding of their rights. 16. We acknowledge that indigenous peoples’ justice institutions can play a positive role in providing access to justice and dispute resolution and contribute to harmonious relationships within indigenous peoples’ communities and within society. We commit

13 Report of the International Conference on Population and Development, Cairo, 5–13 September 1994 (United Nations publication, Sales No. E.95.XIII.18), chap. I, resolution 1, annex. 14 Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995 (United Nations publication, Sales No. E.96.IV.13), chap. I, resolution 1, annex II.

522 ourselves to coordinating and conducting dialogue with those institutions, where they exist. 17. We commit ourselves to supporting the empowerment of indigenous women and to formulating and implementing, in collaboration with indigenous peoples, in particular indigenous women and their organizations, policies and programmes designed to promote capacity-building and strengthen their leadership. We support measures that will ensure the full and effective participation of indigenous women in decision-making processes at all levels and in all areas and eliminate barriers to their participation in political, economic, social and cultural life. 18. We commit ourselves to intensifying our efforts, in cooperation with indigenous peoples, to prevent and eliminate all forms of violence and discrimination against indigenous peoples and individuals, in particular women, children, youth, older persons and persons with disabilities, by strengthening legal, policy and institutional frameworks. 19. We invite the Human Rights Council to consider examining the causes and consequences of violence against indigenous women and girls, in consultation with the Special Rapporteur on violence against women, its causes and consequences, the Special Rapporteur on the rights of indigenous peoples and other special procedures mandate holders within their respective mandates. We also invite the Commission on the Status of Women to consider the issue of the empowerment of indigenous women at a future session. 20. We recognize commitments made by States, with regard to the United Nations Declaration on the Rights of Indigenous Peoples, to consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources. 21. We also recognize commitments made by States, with regard to the Declaration, to establish at the national level, in conjunction with the indigenous peoples concerned, fair, independent, impartial, open and transparent processes to acknowledge, advance and adjudicate the rights of indigenous peoples pertaining to lands, territories and resources. 22. We recognize that the traditional knowledge, innovations and practices of indigenous peoples and local communities make an important contribution to the conservation and sustainable use of biodiversity. We acknowledge the importance of the participation of indigenous peoples, wherever possible, in the benefits of their knowledge, innovations and practices.

523 23. We intend to work with indigenous peoples to address the impact or potential impact on them of major development projects, including those involving the activities of extractive industries, including with the aim of managing risks appropriately. 24. We recall the responsibility of transnational corporations and other business enterprises to respect all applicable laws and international principles, including the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework15 and to operate transparently and in a socially and environmentally responsible manner. In this regard, we commit ourselves to taking further steps, as appropriate, to prevent abuses of the rights of indigenous peoples. 25. We commit ourselves to developing, in conjunction with the indigenous peoples concerned, and where appropriate, policies, programmes and resources to support indigenous peoples’ occupations, traditional subsistence activities, economies, livelihoods, food security and nutrition. 26. We recognize the importance of the role that indigenous peoples can play in economic, social and environmental development through traditional sustainable agricultural practices, including traditional seed supply systems, and access to credit and other financial services, markets, secure land tenure, health care, social services, education, training, knowledge and appropriate and affordable technologies, including for irrigation and water harvesting and storage. 27. We affirm and recognize the importance of indigenous peoples’ religious and cultural sites and of providing access to and repatriation of their ceremonial objects and human remains in accordance with the ends of the Declaration. We commit ourselves to developing, in conjunction with the indigenous peoples concerned, fair, transparent and effective mechanisms for access to and repatriation of ceremonial objects and human remains at the national and international levels. 28.We invite the Human Rights Council, taking into account the views of indigenous peoples, to review the mandates of its existing mechanisms, in particular the Expert Mechanism on the Rights of Indigenous Peoples, during the sixty-ninth session of the General Assembly, with a view to modifying and improving the Expert Mechanism so that it can more effectively promote respect for the Declaration, including by better assisting Member States to monitor, evaluate and improve the achievement of the ends of the Declaration. 29. We invite the human rights treaty bodies to consider the Declaration in accordance with their respective mandates. We encourage Member States to include, as appropriate,

15 A/HRC/17/31, annex.

524 information on the situation of the rights of indigenous peoples, including measures taken to pursue the objectives of the Declaration, in reports to those bodies and during the universal periodic review process. 30. We welcome the increasingly important role of national and regional human rights institutions in contributing to the achievement of the ends of the Declaration. We encourage the private sector, civil society and academic institutions to take an active role in promoting and protecting the rights of indigenous peoples. 31. We request the Secretary-General, in consultation and cooperation with indigenous peoples, the Inter-Agency Support Group on Indigenous Peoples’ Issues and Member States, to begin the development, within existing resources, of a system-wide action plan to ensure a coherent approach to achieving the ends of the Declaration and to report to the General Assembly at its seventieth session, through the Economic and Social Council, on progress made. We invite the Secretary-General to accord, by the end of the seventieth session of the Assembly, an existing senior official of the United Nations system, with access to the highest levels of decision-making within the system, responsibility for coordinating the action plan, raising awareness of the rights of indigenous peoples at the highest possible level and increasing the coherence of the activities of the system in this regard. 32. We invite United Nations agencies, funds and programmes, in addition to resident coordinators, where appropriate, to support the implementation, upon request, of national action plans, strategies or other measures to achieve the ends of the Declaration, in accordance with national priorities and United Nations Development Assistance Frameworks, where they exist, through better coordination and cooperation. 33. We commit ourselves to considering, at the seventieth session of the General Assembly, ways to enable the participation of indigenous peoples’ representatives and institutions in meetings of relevant United Nations bodies on issues affecting them, including any specific proposals made by the Secretary-General in response to the request made in paragraph 40 below. 34. We encourage Governments to recognize the significant contribution of indigenous peoples to the promotion of sustainable development, in order to achieve a just balance among the economic, social and environmental needs of present and future generations, and the need to promote harmony with nature to protect our planet and its ecosystems, known as Mother Earth in a number of countries and regions. 35. We commit ourselves to respecting the contributions of indigenous peoples to ecosystem management and sustainable development, including knowledge acquired

525 through experience in hunting, gathering, fishing, pastoralism and agriculture, as well as their sciences, technologies and cultures. 36. We confirm that indigenous peoples’ knowledge and strategies to sustain their environment should be respected and taken into account when we develop national and international approaches to climate change mitigation and adaptation. 37. We note that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In this regard, we commit ourselves to giving due consideration to all the rights of indigenous peoples in the elaboration of the post-2015 development agenda. 38. We invite Member States and actively encourage the private sector and other institutions to contribute to the United Nations Voluntary Fund for Indigenous Peoples, the Trust Fund on Indigenous Issues, the Indigenous Peoples Assistance Facility and the United Nations Indigenous Peoples’ Partnership as a means of respecting and promoting the rights of indigenous peoples worldwide. 39. We request the Secretary-General to include relevant information on indigenous peoples in his final report on the achievement of the Millennium Development Goals. 40. We request the Secretary-General, in consultation with the Inter-Agency Support Group on Indigenous Peoples’ Issues and Member States, taking into account the views expressed by indigenous peoples, to report to the General Assembly at its seventieth session on the implementation of the present outcome document, and to submit at the same session, through the Economic and Social Council, recommendations regarding how to use, modify and improve existing United Nations mechanisms to achieve the ends of the United Nations Declaration on the Rights of Indigenous Peoples, ways to enhance a coherent, system-wide approach to achieving the ends of the Declaration and specific proposals to enable the participation of indigenous peoples’ representatives and institutions, building on the report of the Secretary-General on ways and means of promoting participation at the United Nations of indigenous peoples’ representatives on the issues affecting them.16 4th plenary meeting 22 September 2014

16 A/HRC/21/24.

526 92 American Declaration on the Rights of Indigenous Peoples

Adopted by the Organization of American States, June 15, 2016

Rights of Indigenous Peoples in the Americas

In 1993, the indigenous summit in Chimultenango, sponsored by Rigoberta Menchu Tum, concluded that every effort should be made to ensure that the instrument of OAS be made to conform as closely as possible with the Draft Declaration of the UN. Without going into detail there are similarities in the drafts, but there are also some important differences. However, the indigenous peoples of the Americas might find advantage in playing the OAS option with the same intensity as they give the UN process. A danger is that the regional OAS Declaration might be interpreted as the outer limit of their rights. If indigenous groups participate in the process of approval, they can be associated with the result. But such elements of danger always exist in this type of political processes. The OAS Declaration contains elements from the UN draft, ILO Convention 169, Agenda 21 of the Rio Summit and some recommendations from other international conferences. And this leads to the interpretation that this document is more of a minimum level of rights, a foundation upon which additional features can be built. Noteworthy is the use of the end “s” in peoples. The OAS Declaration is using the same method as the ILO and is establishing a “clause of intent”, emphasizing the distinction between indigenous peoples and the general international law meaning of the term “peoples”. The Inter-American Commission on Human Rights has decided on a number of petitions alleging violations of the human rights of indigenous individuals and peoples under the American Declaration on Human Rights and the American Convention on Human Rights. (The Convention applies only to States that have ratified it; the Declaration is applicable to all OAS member States.) In these decisions the Inter-American Commission has upheld, for example, indigenous peoples’ rights to their lands, territories and resources. The Inter-American Court of Human Rights is the judicial organ of the OAS human rights system. It can hear petitions about alleged State violations of the American Convention on Human Rights if the State has accepted the Court’s jurisdiction by

527 ratifying the American Convention. The Court has decided a number of significant cases elaborating on the rights of indigenous peoples, including that indigenous peoples’ rights to property extend to States’ duties to protect their traditional land tenure.

THE GENERAL ASSEMBLY, RECALLING the contents of resolution AG/RES. 2867 (XLIV-O/14), “Draft American Declaration on the Rights of Indigenous Peoples,” as well as all the previous resolutions on this issue; RECALLING also the “Declaration on the Rights of the Indigenous Peoples in the Americas,” document AG/DEC. 79 (XLIV-O/14), which reaffirms that progress in promoting and effectively protecting the rights of the indigenous peoples of the Americas is a priority for the Organization of American States; RECOGNIZING the valuable support provided by the member states, observer states, the organs, agencies, and entities of the Organization of American States for the process within the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples; RECOGNIZING as well the important participation of indigenous peoples of the Americas in the process of preparing this Declaration; and TAKING INTO ACCOUNT the significant contribution that the indigenous peoples of the Americas have made to humanity, RESOLVES: To adopt the following Draft American Declaration on the Rights of Indigenous Peoples

AMERICAN DECLARATION ON THE RIGHTS OF

INDIGENOUS PEOPLES PREAMBLE The member states of the Organization of American States (hereinafter the states)

RECOGNIZING: That the rights of indigenous peoples are both essential and of historic significance to the present and future of the Americas; The important presence in the Americas of indigenous peoples and their immense contribution to development, plurality, and cultural diversity and reiterating our commitment to their economic and social well-being, as well as the obligation to respect their

528 rights and cultural identity; and that the existence of indigenous cultures and peoples of the Americas is important to humanity; and REAFFIRMING that indigenous peoples are original, diverse societies with their own identities that form an integral part of the Americas; CONCERNED that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests; RECOGNIZING the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources; RECOGNIZING FURTHER that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment; BEARING IN MIND the progress achieved at the international level in recognizing the rights of indigenous peoples, especially the 169 ILO Convention and the United Nations Declaration on the Rights of Indigenous Peoples; BEARING IN MIND ALSO the progress made in nations of the Americas, at the constitutional, legislative, and jurisprudential levels to safeguard, promote, and protect the rights of indigenous peoples, as well as the political will of states to continue their progress toward recognition of the rights of indigenous peoples in the Americas; RECALLING the commitments undertaken by the Member States to guarantee, promote, and protect the rights and institutions of indigenous peoples, including those undertaken at the Third and Fourth Summits of the Americas; RECALLING AS WELL the universality, inseparability, and interdependence of human rights recognized under international law; CONVINCED that recognition of the rights of indigenous peoples in this Declaration will foster among states and indigenous peoples harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non- discrimination, and good faith; CONSIDERING the importance of eliminating all forms of discrimination that may affect indigenous peoples, and taking into account the responsibility of states to combat them;

529 ENCOURAGING States to respect and comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned;

DECLARE: SECTION ONE: Indigenous Peoples. Scope of Application

Article I. 1. The American Declaration on the Rights of Indigenous Peoples applies to the indigenous peoples of the Americas. 2. Self-identification as indigenous peoples will be a fundamental criteria for determining to whom this Declaration applies. The states shall respect the right to such self-identification as indigenous, individually or collectively, in keeping with the practices and institutions of each indigenous people.

Article II. The states recognize and respect the multicultural and multilingual character of the indigenous peoples, who are an integral part of their societies.

Article III. Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article IV. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the Organization of American States and the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. SECTION TWO: Human Rights and Collective Rights Article V. Full effect and observance of human rights

530 Indigenous peoples and persons have the right to the full enjoyment of all human rights and fundamental freedoms, as recognized in the Charter of the United Nations, the Charter of the Organization of American States and international human rights law. Article VI. Collective rights Indigenous peoples have collective rights that are indispensable for their existence, wellbeing, and integral development as peoples. In this regard, the states recognize and respect, the right of the indigenous peoples to their collective action; to their juridical, social, political, and economic systems or institutions; to their own cultures; to profess and practice their spiritual beliefs; to use their own tongues and languages; and to their lands, territories and resources. States shall promote with the full and effective participation of the indigenous peoples the harmonious coexistence of rights and systems of the different population, groups, and cultures. Article VII. Gender equality 1. Indigenous women have the right to the recognition, protection, and enjoyment of all human rights and fundamental freedoms provided for in international law, free of all forms of discrimination. 2. States recognize that violence against indigenous peoples and persons, particularly women, hinders or nullifies the enjoyment of all human rights and fundamental freedoms. 3. States shall adopt the necessary measures, in conjunction with indigenous peoples, to prevent and eradicate all forms of violence and discrimination, particularly against indigenous women and children. Article VIII. Right to belong to the indigenous peoples Indigenous persons and communities have the right to belong to one or more indigenous peoples, in accordance with the identity, traditions, customs, and systems of belonging of each people. No discrimination of any kind may arise from the exercise of such a right. Article IX. Juridical personality The states shall recognize fully the juridical personality of the indigenous peoples, respecting indigenous forms of organization and promoting the full exercise of the rights recognized in this Declaration. Article X. Rejection of assimilation 1. Indigenous peoples have the right to maintain, express, and freely develop their cultural identity in all respects, free from any external attempt at assimilation.

531 2. The States shall not carry out, adopt, support, or favor any policy to assimilate the indigenous peoples or to destroy their cultures. Article XI. Protection against genocide Indigenous peoples have the right to not be subjected to any form of genocide or attempts to exterminate them. Article XII. Guarantees against racism, racial discrimination, xenophobia, and other related forms of intolerance Indigenous peoples have the right not to be subject to racism, racial discrimination, xenophobia, and other related forms of intolerance. The states shall adopt the preventive and corrective measures necessary for the full and effective protection of this right. SECTION THREE: Cultural identity Article XIII. Right to cultural identity and integrity 1. Indigenous peoples have the right to their own cultural identity and integrity and to their cultural heritage, both tangible and intangible, including historic and ancestral heritage; and to the protection, preservation, maintenance, and development of that cultural heritage for their collective continuity and that of their members and so as to transmit that heritage to future generations. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs. 3. Indigenous people have the right to the recognition and respect for all their ways of life, world views, spirituality, uses and customs, norms and traditions, forms of social, economic and political organization, forms of transmission of knowledge, institutions, practices, beliefs, values, dress and languages, recognizing their inter-relationship as elaborated in this Declaration. Article XIV. Systems of Knowledge, Language and Communication 1. Indigenous peoples have the right to preserve, use, develop, revitalize, and transmit to future generations their own histories, languages, oral traditions, philosophies, systems of knowledge, writing, and literature; and to designate and maintain their own names for their communities, individuals, and places. 2. The states shall adopt adequate and effective measures to protect the exercise of this right with the full and effective participation of indigenous peoples.

532 3. Indigenous peoples have the right to promote and develop all their systems and media of communication, including their own radio and television programs, and to have equal access to all other means of communication and information. The states shall take measures to promote the broadcast of radio and television programs in indigenous languages, particularly in areas with an indigenous presence. The states shall support and facilitate the creation of indigenous radio and television stations, as well as other means of information and communication. 4. The states, in conjunction with indigenous peoples, shall make efforts to ensure that those peoples can understand and be understood in their languages in administrative, political, and judicial proceedings, where necessary through the provision of interpretation or by other effective means. Article XV. Education 1. Indigenous peoples and individuals, particularly indigenous children, have the right to all levels and forms of education, without discrimination. 2. States and indigenous peoples, in keeping with the principle of equality of opportunity, shall promote the reduction of disparities in education between indigenous and nonindigenous peoples. 3. Indigenous peoples have the right to establish and control their educational systems and institutions, providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning. 4. In conjunction with indigenous peoples, the states shall take effective measures to ensure that indigenous persons living outside their communities, particularly children, may have access to education in their own languages and cultures. 5. States shall promote harmonious intercultural relations, ensuring that the curricula of state educational systems reflect the pluricultural and multilingual nature of their societies and encourage respect for and knowledge of the different indigenous cultures. States shall, in conjunction with indigenous peoples, promote intercultural education that reflects the worldview, histories, languages, knowledge, values, cultures, practices, and ways of life of those peoples. 6. States, in conjunction with indigenous peoples, shall adopt necessary and effective measures to ensure the exercise and observance of these rights. Article XVI. Indigenous spirituality 1. Indigenous peoples have the right to freely exercise their own spirituality and beliefs and, by virtue of that right, to practice, develop, transmit, and teach their

533 traditions, customs, and ceremonies, and to carry them out in public and in private, individually and collectively. 2. No indigenous people or person shall be subject to pressures or impositions, or any other type of coercive measures that impair or limit their right to freely exercise their indigenous spirituality and 3. beliefs. Indigenous Peoples have the right to preserve, protect, and access their sacred sites, including their burial grounds; to use and control their sacred objects relics, and to recover their human remains. 4. States, in conjunction with indigenous peoples, shall adopt effective measures, to promote respect for indigenous spirituality and beliefs, and to protect the integrity of the symbols, practices, ceremonies, expressions, and spiritual protocols of indigenous peoples, in accordance with international law. Article XVII. Indigenous family 1. The family is a natural and fundamental group unit of society. Indigenous peoples have the right to preserve, maintain, and promote their own family systems. States shall recognize, respect, and protect the various indigenous forms of family, in particular the extended family, as well as the forms of matrimonial union, filiations, descent, and family name. In all cases, gender and generational equity shall be recognized and respected. 2. In matters relating to custody, adoption, severance of family ties, and related matters, the best interests of the child shall be a primary consideration. In determining the best interests of the child, courts and other relevant institutions shall take into account the right of every indigenous child, in community with member of his or her people, to enjoy his or her own culture, to profess and practice his or her own religion or to use his or her own language and in that regard shall look to the indigenous law of the peoples concerned and shall consider their points of view, rights and interest, including the positions of individuals, the family, and the community. Article XVIII. Health 1. Indigenous peoples have the collective and individual right to the enjoyment of the highest attainable standard of physical, mental, and spiritual health. 2. Indigenous peoples have the right to their own health systems and practices, as well as to the use and protection of the plants, animals, minerals of vital interests, and other natural resources for medicinal use in their ancestral lands and territories.

534 3. States shall take measures to prevent and prohibit indigenous peoples and individuals from being subject to research programs, biological or medical experimentation, as well as sterilization without their prior, free, and informed consent. Likewise, indigenous peoples and persons have the right, as appropriate, to access to their data, medical records, and documentation of research conducted by individuals and public and private institutions. 4. Indigenous peoples have the right to use, without any discrimination whatsoever, all the health and medical care institutions and services accessible to the general population. States, in consultation and coordination with indigenous peoples, shall promote intercultural systems or practices in the medical and health services provided in indigenous communities, including training of indigenous technical and professional health care personnel. 5. States shall guarantee the effective exercise of the rights contained in this article. Article XIX. Right to protection of a healthy environment 1. Indigenous peoples have the right to live in harmony with nature and to a healthy, safe, and sustainable environment, essential conditions for the full enjoyment of the right to life, to their spirituality, worldview and to collective well-being. 2. Indigenous peoples have the right to conserve, restore, and protect the environment and to manage their lands, territories and resources in a sustainable way. 3. Indigenous peoples are entitled to be protected against the introduction of, abandonment, dispersion, transit, indiscriminate use or deposit of any harmful substance that could negatively affect indigenous communities, lands, territories and resources. 23 Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programmes for indigenous peoples for such conservation and protection, without discrimination. SECTION FOUR: Organizational and Political Rights Article XX. Rights of association, assembly, and freedom of expression and thought 1. Indigenous peoples have the rights of association, assembly, organization and expression, and to exercise them without interference and in accordance with

535 their worldview, inter alia, values, usages, customs, ancestral traditions, beliefs, spirituality, and other cultural practices. 2. Indigenous peoples have the right to assemble on their sacred and ceremonial sites and areas. For this purpose they shall have free access and use to these sites and areas. 3. Indigenous peoples, in particular those who are divided by international borders, shall have the right to travel and to maintain and develop contacts, relations, and direct cooperation, including activities for spiritual, cultural, political, economic, and social purposes, with their members and other peoples. 4. These states shall adopt, in consultation and cooperation with the indigenous peoples, effective measures to ensure the exercise and application of these rights. Article XXI. Right to autonomy or self-government 1. Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions. 2. Indigenous peoples have the right to maintain and develop their own decision- making institutions. They also have the right to participate in the decision making in matters which would affect their rights. They may do so directly or through their representatives, and accordance with their own norms, procedures, and traditions. They also have the right to equal opportunities to access and to participate fully and effectively as peoples in all national institutions and fora, including deliberative bodies. Article XXII. Indigenous law and jurisdiction 1. Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards. 2. The indigenous law and legal systems shall be recognized and respected by the national, regional and international legal systems. 3. The matters referring to indigenous persons or to their rights or interests in the jurisdiction of each state shall be conducted so as to provide for the right of the indigenous people to full representation with dignity and equality before the law. Consequently, they are entitled, without discrimination, to equal protection and benefit of the law, including the use of linguistic and cultural interpreters.

536 4. The States shall take effective measures in conjunction with indigenous peoples to ensure the implementation of this article. Article XXIII. Contributions of the indigenous legal and organizational systems 1. Indigenous peoples have the right to full and effective participation in decision- making, through representatives chosen by themselves in accordance with their own institutions, in matters which affect their rights, and which are related to the development and execution of laws, public policies, programs, plans, and actions related to indigenous matters. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative 1/ or administrative measures that may affect them. Article XXIV. Treaties, agreements, and other constructive arrangements 1. Indigenous peoples have the right to the recognition, observance, and enforcement of the treaties, agreements and other constructive arrangements concluded with states and their successors, in accordance with their true spirit and intent in good faith and to have the same be respected and honored by the States. States shall give due consideration to the understanding of the indigenous peoples as regards to treaties, agreements and other constructive arrangements. 2. When disputes cannot be resolved between the parties in relation to such treaties, agreements and other constructive arrangements, these shall be submitted to competent bodies, including regional and international bodies, by the States or indigenous peoples concerned.

1. The State of Colombia breaks with consensus as regards Article XXIII, paragraph 2, of the OAS Declaration on Indigenous Peoples, which deals with consultations for obtaining indigenous … 3. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements.

SECTION FIVE: Social, Economic, and Property Rights Article XXV. Traditional forms of property and cultural survival. Right to land, territory, and resources

537 1. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual, cultural, and material relationship to their lands, territories, and resources and to assume their responsibilities to preserve them for themselves and for future generations. 2. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 3. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 4. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned. 5. Indigenous peoples have the right to legal recognition of the various and particular modalities and forms of property, possession and ownership of their lands, territories, and resources in accordance with the legal system of each State and the relevant international instruments. The states shall establish the special regimes appropriate for such recognition, and for their effective demarcation or titling. Article XXVI. Indigenous peoples in voluntary isolation or initial contact 1. Indigenous peoples in voluntary isolation or initial contact have the right to remain in that condition and to live freely and in accordance with their cultures. 2. The states shall adopt adequate policies and measures with the knowledge and participation of indigenous peoples and organizations to recognize, respect, and protect the lands, territories, environment, and cultures of these peoples as well as their life, and individual and collective integrity. Article XXVII. Labor Rights 1. Indigenous peoples and persons have the rights and guarantees recognized in national and international labor law. States shall take all special measures to prevent, punish and remedy the discrimination to which indigenous peoples and persons are subjected. 2. States, in conjunction with indigenous peoples, shall adopt immediate and effective measures to eliminate exploitative labor practices with regard to indigenous peoples, in particular, indigenous children, women and elders.

538 3. In case indigenous peoples are not effectively protected by the laws applicable to workers in general, states, in conjunction with indigenous peoples, shall take all measures that may be necessary in order to: a protect indigenous workers and employees in relation to contracting under fair and equal conditions in both formal and informal employment; b establish, apply, or improve labor inspection and the enforcement of rules with particular attention to, inter alia, regions, companies, and labor activities in which indigenous workers or employees participate; c establish, apply or enforce laws so that both female and male indigenous workers: i) enjoy equal opportunities and treatment in all terms, conditions, and benefits of employment, including training and capacity-building, under national and international law; ii) enjoy the right of association, the right to form trade unions, and join trade union activities, and the right to bargain collectively with employers through representatives of their own choosing or workers’ organizations, including traditional authorities; iii) are not subject to discrimination or harassment on the basis of, inter alia, race, sex, indigenous origin or identity; iv) are not subject to coercive hiring systems, including debt servitude or any other form of forced or compulsory labor regardless of whether the labor arrangement arises from law, custom, or an individual or collective arrangement, in which case the labor arrangement shall be deemed absolutely null and void; v) are not forced to work in conditions that endanger their health and personal safety; and are protected from work that does not comport with occupational health and safety standards; and vi) receive full and effective legal protection, without discrimination, when they provide their services as seasonal, occasional, or migrant workers, as well as when they are contracted by employers such that they receive the benefits of the national legislation and practices, which shall be in accordance with the international human rights laws and standards for this category of workers; 4. ensure that the indigenous workers and their employers are informed of the rights of indigenous workers under national law and international and indigenous

539 standards, and of the remedies and actions available to them to protect those rights. 5. States shall take measures to promote employment of indigenous individuals. Article XXVIII. Protection of Cultural Heritage and Intellectual Property 1. Indigenous peoples have the right to the full recognition and respect for their property, ownership, possession, control, development, and protection of their tangible and intangible cultural heritage and intellectual property, including its collective nature, transmitted through millennia, from generation to generation. 2. The collective intellectual property of indigenous peoples includes, inter alia, traditional knowledge and traditional cultural expressions including traditional knowledge associated with genetic resources, ancestral designs and procedures, cultural, artistic, spiritual, technological, and scientific, expressions, tangible and intangible cultural heritage, as well as the knowledge and developments of their own related to biodiversity and the utility and qualities of seeds and medicinal plants, flora and fauna. 3. States, with the full and effective participation of indigenous peoples, shall adopt measures necessary to ensure that national and international agreements and regimes provide recognition and adequate protection for the cultural heritage of indigenous peoples and intellectual property associated with that heritage. In adopting these measures, consultations shall be effective intended to obtain the free, prior, and informed consent of indigenous peoples. Article XXIX. Right to development 1. Indigenous peoples have the right to maintain and determine their own priorities with respect to their political, economic, social, and cultural development in conformity with their own world view. They also have the right to be guaranteed the enjoyment of their own means of subsistence and development, and to engage freely in all their economic activities 2. This right includes the development of policies, plans, programs, and strategies in the exercise of their right to development and to implement them in accordance with their political and social organization, norms and procedures, their own world views and institutions. 3. Indigenous peoples have the right to be actively involved in developing and determining development programmes affecting them and, as far as possible, to administer such programmes through their own institutions.

540 4. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. 5. Indigenous peoples have the right to effective measures to mitigate adverse ecological, economic, social, cultural, or spiritual impacts for the implementation of development projects that affect their rights. Indigenous peoples who have been deprived of their own means of subsistence and development have the right to restitution and, where this is not possible, to fair and equitable compensation. This includes the right to compensation for any damage caused to them by the implementation of state, international financial institutions or private business plans, programs, or projects.

Article XXX. Right to peace, security, and protection 1. Indigenous peoples have the right to peace and security. 2. Indigenous peoples have the right to recognition and respect for their institutions for the maintenance of their organization and control of its communities and peoples. 3. Indigenous peoples have the right to protection and security in situations or periods of internal or international armed conflict pursuant to international humanitarian law. 4. States, in compliance with international agreements to which they are party, in particular international humanitarian law and international human rights law, including the Fourth Geneva Convention of 1949 relative to the protection of civilian persons in time of war, and Protocol II of 1977 relating to the protection of victims of non-international armed conflicts, in the event of armed conflicts shall take adequate measures to protect the human rights, institutions, lands, territories, and resources of the indigenous peoples and their communities. Likewise, States: a Shall not recruit indigenous children and adolescents into the armed forces under any circumstances; b Shall take measures of effective reparation and provide adequate resources for the same, in jointly with the indigenous peoples affected, for the damages incurred caused by an armed conflict.

541 c Shall take special and effective measures in collaboration with indigenous peoples to guarantee that indigenous women, children live free from all forms of violence, especially sexual violence, and shall guarantee the right to access to justice, protection, and effective reparation for damages incurred to the victims. d Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned. SECTION SIX: General Provisions Article XXXI 1. The states shall ensure the full enjoyment of the civil, political, economic, social, and cultural rights of indigenous peoples, as well as their right to maintain their cultural identity, spiritual and religious traditions, worldview, values and the protection of their religious and cultural sites, and human rights contained in this Declaration. 2. The states shall promote, with the full and effective participation of the indigenous peoples, the adoption of the legislative and other measures that may be necessary to give effect to the rights included in this Declaration.

Article XXXII All the rights and freedoms recognized in the present Declaration are guaranteed equally to indigenous women and men.

Article XXXIII Indigenous peoples and persons have the right to effective and appropriate remedies, including prompt judicial remedies, for the reparation of all violations of their collective and individual rights. The states, with full and effective participation of indigenous peoples, shall provide the necessary mechanisms for the exercise of this right.

Article XXXIV In case of conflicts and disputes with indigenous peoples, states shall provide, with the full and effective participation of those peoples, just, equitable and effective mechanisms and procedures for their prompt resolution. For this purpose, due consideration and

542 recognition shall be given to the customs, traditions, norms or legal systems of the indigenous peoples concerned.

Article XXXV Nothing in this Declaration may be interpreted so as to limit, restrict, or deny human rights in any way, or so as to authorize any action that is not in keeping with international human rights law.

Article XXXVI In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance, and good faith.

Article XXXVII Indigenous peoples have the right to have access to financial and technical assistance from States and through international cooperation, for the enjoyment of the rights contained in this Declaration.

Article XXXVIII The Organization of American States, its organs, agencies, and entities, shall take all necessary measures to promote the full respect, protection, and application of the rights of indigenous peoples contained in this Declaration and shall endeavor to ensure their efficacy.

Article XXXIX The nature and scope of the measures that shall be taken to implement this Declaration shall be determined in accordance with the spirit and purpose of said Declaration.

543 Article XL Nothing in this declaration shall be construed as diminishing or extinguishing rights that indigenous peoples now have or may acquire in the future.

Article XLI The rights recognized in this Declaration and the United Nations Declaration on the Rights of Indigenous Peoples constitute the minimum standards for the survival, dignity, and well-being of the indigenous peoples of the Americas.

FOOTNOTES 1. …individuals, increasing indigenous participation in national political processes, addressing lack of infrastructure and poor living conditions in indigenous areas, combating violence against indigenous women and girls, promoting the repatriation of ancestral remains and ceremonial objects, and collaborating on issues of land rights and self-governance, among many other issues. The multitude of ongoing initiatives with respect to these topics provide avenues for addressing some of the consequences of past actions. The United States has, however, persistently objected to the text of this American Declaration, which is not itself legally binding and therefore does not create new law, and is not a statement of Organization of American States (OAS) Member States’ obligations under treaty or customary international law. 2. The United States reiterates its longstanding belief that implementation of the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”) should remain the focus of the OAS and its Member States. OAS Member States joined other UN Member States in renewing their political commitments with respect to the UN Declaration at the World Conference on Indigenous Peoples in September 2014. The important and challenging initiatives underway at the global level to realize the respective commitments in the UN Declaration and the outcome document of the World Conference are appropriately the focus of the attention and resources of States, indigenous peoples, civil society, and international organizations, including in the Americas. In this regard, the United States intends to continue its diligent and proactive efforts, which it has undertaken in close collaboration with indigenous peoples in the United States and many of its fellow OAS Member States, to promote achievement of the ends of the UN Declaration, and to promote fulfillment of the commitments in the World Conference outcome document. Of final note, the United States reiterates its solidarity with the concerns expressed by

544 indigenous peoples concerning their lack of full and effective participation in these negotiations. 3. …in full partnership with Indigenous peoples in Canada, to move forward with the implementation of the UN Declaration on the Rights of Indigenous Peoples in accordance with Canada's Constitution. As Canada has not participated substantively in recent years in negotiations on the American Declaration on the Rights of Indigenous Peoples, it is not able at this time to take a position on the proposed text of this Declaration. Canada is committed to continue working with our partners in the OAS on advancing Indigenous issues across the Americas. 4. …communities’ prior, free, and informed consent before adopting and enforcing legislative or administrative measures that could affect them, in order to secure their free, prior, and informed consent. This is because Colombian law defines such communities’ right of prior consultation in accordance with ILO Convention No. 169. Thus, the Colombian Constitutional Court has ruled that the consultation process must be pursued “with the aim of reaching an agreement or securing the consent of the indigenous communities regarding the proposed legislative measures.” It must be noted that this does not translate into the ethnic communities having the power of veto over measures affecting them directly whereby such measures cannot proceed without their consent; instead, it means that following a disagreement “formulas for consensus-building or agreement with the community” must be presented. Moreover, the Committee of Experts of the International Labour Organization (ILO) has established that prior consultation does not imply the right to veto state decisions, but is rather a suitable mechanism for indigenous and tribal peoples to enjoy the right of expression and of influencing the decision-making process. Accordingly, and in the understanding that this Declaration’s approach to prior consent is different and could amount to a possible veto, in the absence of an agreement, which could bring processes of general interest to a halt, the contents of this article are unacceptable to Colombia. 5. …communities’ prior, free, and informed consent before approving projects that could affect their lands or territories and other resources. This is because although the Colombian State has included in its legal order a wide range of rights intended to recognize, guarantee, and uphold the constitutional rights and principles of pluralism and ethnic and cultural diversity in the nation within the framework of the Constitution, the recognition of the collective rights of indigenous peoples is regulated by legal and administrative provisions, in line with the objectives of the State and with principles such as the social and ecological function of property and the state ownership of the subsoil and

545 nonrenewable natural resources. Accordingly, in those territories indigenous peoples exercise their own political, social, and judicial organization. By constitutional mandate, their authorities are recognized as public state authorities with special status and, as regards judicial matters, recognition is given to the special indigenous jurisdiction, which represents notable progress compared to other countries of the region. In the international context, Colombia has been a leader in enforcing the rules governing prior consultation set out in Convention No. 169 of the International Labour Organization (ILO), to which our State is a party. In the understanding that this Declaration’s approach to prior consent is different and could amount to a possible veto on the exploitation of natural resources found in indigenous territories, in the absence of an agreement, which could bring processes of general interest to a halt, the contents of this article are unacceptable to Colombia. In addition, it is important to note that the constitutions of many states, including Colombia, stipulate that the subsoil and nonrenewable natural resources are the property of the State to preserve and ensure their public usefulness to the benefit of the entire nation. For that reason, the provisions contained in this article are contrary to the domestic legal order of Colombia, based on the national interest. 6. …Constitution of Colombia, the security forces are obliged to be present in any part of the nation’s territory to provide and uphold protection and respect for all inhabitants’ lives, honor, and property, both individually and collectively. The protection of the rights and integrity of indigenous communities depends largely on the security of their territories. Thus, in Colombia the security forces have been given instructions to observe the obligation of protecting indigenous peoples. Accordingly, the provision of the OAS Declaration on Indigenous Peoples under examination would be in breach of the principle of need and effectiveness of the security forces, hindering the performance of their institutional mission, which renders it unacceptable to Colombia.

546 Annex 1 A Working Definition of Indigenous Peoples

It is widely accepted that self-identification is the foundation in any definition of indigenous peoples. However, there is no universally accepted definition even if the ground-breaking Cobo-study of 1983 proposed a widely acknowledged definition. That definition contains the subjective self-identification factor together with several objective factors. The Cobo-study proposed the understanding of indigenous peoples and nations as: Those which, having a historical continuity with pre-invasion and precolonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural pattern, social institutions and legal systems.

547 Annex 2 Chart of Chronology

1414-18 During deliberations between Spain, Portugal and the “Council of Constance” the discourse on legal colonization is grounded. The legal discourse of colonization articulated by Spain and Portugal at this meeting, was to a large extent influenced by the writings of the pope Innocent IV, in 1243-54. The most influential work on the legal status and rights of non-Christian societies is his commentary on a papal decretal, by a predecessor, Innocent III, entitled “Quod Super His”. Innocent IV asked: “Is it licit to invade a land that infidels possess, or which belongs to them?” He defended the crusades and the conditions justifying Christian warfare against infidel nations in general. 1415 The European expansion overseas began with the seizure by Portugal of the Muslim port Ceuta on the African side of the Straits of Gibraltar. 1452 Pope Nicholas V grants to King Alfonso of Portugal: “general and indefinite powers to search out and conquer all pagans, enslave them and appropriate their lands and goods.” 1455-56 Pope Nicholas V gives Portugal the exclusive right to trade and acquire territory in the region laying south of Cape Bojador (Western Africa), through and beyond Guinea “all the way to the Indians.” 1492 Columbus granted privileges and prerogatives, April 30, reaches America, October 12. 1493 The Bull “Inter Caetera” is issued by the Pope Alexander VI, May 3. — called “The Bull of Donation”. 1494 The Treaty of Tordesillas, June 7. Between Spain and Portugal which established a demarcation line from pole to pole, and everything east of the line pertained to Portugal and west of the line to Spain. 1498 Henry VII of England commissions John Cabot to conquer, occupy and possess the lands of the “Heathens and Infidels”. 1501 The Encomienda-system established in South America. The Encomienda-system was justified by reference to the terms of Spain’s papal grant, in 1493. Ferdinand issued a royal order: “Because of the excessive liberty the Indians have been permitted, they flee from Christians and do not work. Therefore they are to be compelled to work, so that the kingdom and the Spaniards may be enriched, and the Indians Christianized.” Only by force could the civilizing task of assimilation be carried out. 1513 The Requirement, based on the doctrine of papal sovereignty, adopted at Burgos,

548 Spain, as a charter of conquest. The document informed the Indians that they could either accept Christian missionaries and Spanish hegemony or be annihilated. 1532 The lectures “de indis et de iure belli relectiones” delivered by Francisco de Vitoria, in Salamanca, Spain. Vitoria rejected the arguments that Indians were precluded from being true owners of land and property by reason of unbelief, heresy, unsoundness of mind, or any other mortal sin. 1537 The Pope Paul III issues three bulls concerning the treatment of Indians, June 4. The first transferred jurisdiction over the spiritual upbringing of the Indians from the Spanish Holy Office to the Bishops. The second was a condemnation of Indian slavery. The Third was the Sublimis Deus. 1550 The Spanish king Charles V initiated in Valladolid the debate between Juan Gines de Sepulveda and the Dominican Friar Bartholome de las Casas, on the question of the lawfulness of waging war against the Indians before preaching the gospel to them. 1606 The English Royal Charter “the Virginia Company Charter”, April 10. 1751 The Lappcodecill: Annex to the Border Treaty between Denmark/Norway and Sweden concerning Sami reindeer herding across the border. 1763 The English Royal Proclamation, concerning North America, October 7. 1788 Australia settled on the basis of the doctrine of terra nullius – a land belonging to no one, February 7. 1823 Johnson v. McIntosh, 21 U.S. Supreme Court, (8 Wheat) 543. 1830 Indian Removal Act, U.S. policy of moving the Indians west of the Mississippi river. 1831 Cherokee Nation v. Georgia, 30 U.S. Supreme Court, (5 Pet.) 1. 1832 Worcester v. Georgia, 31 U.S. Supreme Court, (6 Pet.) 515. 1837 British Official Report of the Select Committee on Aborigines. The Aborigines Protection Society is founded in London. 1839 Herman Merivale delivered the lectures on Colonization and Colonies, before the University of Oxford. 22 lectures between 1839-41. 1840 The Treaty of Waitangi, New Zealand, February 6. 1871 United States unilaterally ending treaties with Indian Nations. Act of March 3. 1882 Maori kings travels to England; fail to obtain audience with the Queen. 1885 The General Act of the Berlin African Conference

549 1887 Indian assimilation policy adopted in the U.S.A. The General Allotment Act (the Dawes Act). 1888 Declaration of the Institute of International Law 1890 The General Act of the Brussels African Conference 1893 Overthrow of the Native Hawaiian Government, January 17. 1900 The Chittagong Hill Tracts Regulations enacted. (Bangladesh) 1906 Chiefs from British Colombia, Canada, meet King Edward in England to gain support for treaty rights 1914 Maori delegation from New Zealand meets King George V in London. 1918 Article 23 (b) of the League of Nations Covenant (the native inhabitants clause). The sacred trust of civilization continued. 1919 Convention of S:t Germain-En-Laye. 1921 Iroquois Chief Deskaheh travels on Iroqouis passport to London for a meeting with the king. 1923 Chief Deskaheh travels to Geneva for petition to the League of Nations. 1926 The Cayuga Indians case. 1928 The Island of Palmas case. 1930 The Kuna Comarca established in Panama, Dec. 12. (territorial autonomy within Panama) ILO Convention No. 29 concerning Forced or Compulsory Labour, 10 June. 1933 The Legal Status of Eastern Greenland-case, PCIJ, Series A/B, No. 53. 1934 Indian Reorganization policy adopted in U.S.A. 1936 ILO Convention 50, concerning the regulation of certain special systems of recruiting workers. 1939 ILO Convention 64, concerning the regulation of written contracts of employment of indigenous workers. ILO Convention 65, concerning penal sanctions for breaches of contracts of employment by indigenous workers. 1940 The Inter-American Indian Institute established by 19 delegations, representing Indians and American states, in Patzcuaro, Mexico.

550 1947 ILO Convention 86, concerning the maximum length of contracts of employment of indigenous workers. 1948 The United Nations adopts the resolution “Fate of Minorities”, as a compromise for not dealing with minorities and indigenous peoples in the Universal Declaration of Human Rights. 1949 The Indian Constitution establish “scheduled tribes”. UN General Assembly adopts resolution 275(III) “Study of the Social Problems of the Aboriginal Population and Other Under-Developed Social Groups of the American Continent; The resolution was defeated by objections from the U.S.A. The U.N. Sub- Commission on Discrimination and Minorities temporary suspended as a result. 1952 The Belgian Thesis. The Belgian Government gave a number of reasons for that indigenous peoples should be protected under the United Nations Charter. According to Belgium, should indigenous peoples be treated as colonized peoples, with a right to self- determination as other colonies. They argued it to be erroneous to consider indigenous peoples to be “minorities” since they lived in clearly defined areas. Consequently, the Belgians attacked the “salt-water doctrine” which has been the leading principle in the implementation of the right of peoples of self-determination after 1945. The salt-water doctrine requires two elements to be fulfilled in order to be defined as a “colony” 1. Geographically separated, and 2. ethnically different from the metropolitan colonial power. 1953 US Congress formally adopts an indian policy of “termination”. Its expressed aim being “as rapidly as possible, to make the Indians within the territorial limits of the United States subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States. Also, to end their status as wards of the U.S.A. 1954 Greenland colonial status ended and, thus unilaterally integrated with Denmark. 1955 ILO Convention No. 104, concerning the abolition of penal sanctions for breaches of contracts of employment by indigenous workers. 1957 ILO Convention No. 107 concerning the protection and Integration of Indigenous, Tribal and Other Semi-Tribal People; and ILO Recommendation 104 on Indigenous, Tribal and Other Semi-Tribal People. 1958 The Swedish government argues that ILO Convention No. 107 do not have an immediate relevance to Sweden, despite the Sami people on the Swedish territory, as the question arose whether to ratify ILO Convention 107.

Alaska 49th state and Hawai’i the 50th state of the US.

551 1964 The 5th Inter-American Indian Congress passes a final resolution calling for recognition of aboriginal rights. 1968 Tribal Self-Determination, USA, Indian Civil Rights Act. The NGO International Work Group for Indigenous Affairs established. 1971 Martinez-Cobo report on the discrimination of indigenous populations initiated. The United Nations deals with indigenous peoples issues seriously for the first time. The First Declaration of Barbados, outlining a program for the “Liberation of Indigenous People”, issued by anthropologist. The declaration called for governments, religious missions, and anthropologists to reverse the patterns of dispossessing indigenous peoples of their land, and therefore the ability to survive as distinct peoples. 1972 Cultural Survival established by American anthropologists. 1973 The Sami-parliament in Finland established. 1975 The Western Sahara case, ICJ The terra nullius-doctrine discussed and repudiated by the International Court of Justice, in The Hague. The World Council of Indigenous Peoples established on Vancouver Island, Canada. The Treaty of Waitangi Act, New Zealand, 10 Oct. 1977 NGO Conference on discrimination against indigenous peoples in Geneva. (Declaration of Principles for the defense of the Indigenous Nations and Peoples of the Western Hemisphere) 1978 World Conference to Combat Racism and Racial Discrimination, Geneva. 1979 The Home-Rule established in Greenland, Denmark. The Alta case in Norway, concerning dam-construction on Sami lands. A milestone for the Samis despite the loss of the case. 1980 The Fourth International Russell Tribunal on the Rights of the Indians of North and Latin America, Rotterdam, Holland 1981 NGO Conference on Indigenous Peoples and the Land, in Geneva. UN Seminar on recourse procedures and other forms of protection available to victims of racial discrimination and activities to be undertaken at the national and regional level, Managua, Nicaragua, 14 Dec, 1981. UNESCO Meeting on Ethnocide and Ethnic Development in Latin America, San José, Costa Rica. The Tax-Mountain case, in Sweden, concerning Sami land rights. Samis lost.

552 The Sandra Lovelace case, Human Rights Committee. Identity and discrimination of a Canadian Indian woman. Led to change in Canadian law. 1982 The United Nations Working Group on Indigenous Populations is established. 1st session. The World Bank issues Operational Manual Statement 2.34 which outlined procedures for protecting the rights of “tribal people” in World Bank financed development projects. 1983 Second World Conference to Combat Racism and Racial Discrimination. Geneva. The UN Martinez-Cobo report on the discrimination of Indigenous Peoples completed. 1984 The Mi’kmaq Tribal Society-case, UN Human Rights Committee. The Miskito case. The question of the right of self-determination of the Miskitos, Sumos and Ramas of Nicaragua addressed by the Inter-American Commission on Human Rights. 1985 The Yanomami-opinion, Inter-American Commission on Human Rights, Resolution No. 12/85, March 5. 1987 Miskito Autonomy-act in Nicaragua. Implemented 1990. 1988 Global Consultation on Racism and Racial Discrimination, Geneva, 3-6 October, 1988. The Global Consultation suggested, inter alia, that; “15. Governments should create favourable conditions and promote legal measures in order to further and protect the human rights of persons belonging to national, religious, linguistic and ethnic minorities, of indigenous peoples, of migrant workers and refugees. The Ivan Kitok-case, UN Human Rights Committee. July 27. 1989 Convention No. 169 adopted by the ILO. The Convention on the Rights of the Child, article 30. Seminar on the effects of racism and racial discrimination on the social and economic relations between indigenous peoples and States, 16-20 Jan. The Norwegian Sami-parliament established. 1990 United Nations declares the International Indigenous People Year 1993, UN Res. 45/164, 18 Dec. (Also, 46/128, 17 Dec, 1991) The Lubicon Lake Band-case, UN Human Rights Committee, March 26. 1991 Muellamués Resguardo-autonomy, Colombia.

553 1992 Indigenous peoples adopt the Kari Oca declaration – the Indigenous Earth Charter. Rio Declaration on Environment and Development and Agenda 21, 14 June, 1992. Non-legally binding authoritative statement of principles for a global consensus on the management, conservation and sustainable development of all types of forests. Rio de Janeiro, 14 June. Mabo case in High Court, Australia, 3 June, 1992. (concerning, inter alia, the terra nullius doctrine) European Parliament resolution on Indigenous Peoples. UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities, adopted by the General Assembly resolution 47/135 of 18 December. Cancun Declaration on Responsible Fisheries 1993 Vienna Declaration and Programme of Action, 25 June, 1993. International Decade of the World’s Indigenous People, UN Res. 48/163, 21 December. The Nunavut Agreement, Canada, 9 July. The Swedish Sami-parliament established, 26 Aug. US Public Law, 103-150, Nov. 23, 1993, regarding an apology by the Congress to the Native Hawaiian people for the overthrow of the Kingdom of Hawaii in 1893. The so- called “Apology Bill”. The Maatatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, Whakatane, New Zealand. Congress Voices of the Earth, Amsterdam, The Netherlands. The Convention on Biological Diversity adopted. 1994 Draft Declaration on the Rights of Indigenous Peoples, adopted by the UN Sub- Commission on Prevention of Discrimination and Protection of Minorities. The World Summit on Population and Development adopts a Programme of Action in Cairo, September 13. The International Decade of the World’s Indigenous People starting, until 10 December 2004.

554 European Parliament Resolution on Indigenous Peoples. Indigenous Initiative for Peace, Mexico City. Convention to Combat Desertification. 1995 UN Commission on Human Rights begins the deliberations on the Draft Declaration on the Rights of Indigenous Peoples. – establishing an intersessional open- ended working group. First session of this working group in November 1995. The Declaration and Programme of Action of the World Social Summit, Copenhagen, March 12. The Fourth World Conference on Women in Beijing in September. The Inter-American Commission on Human Rights adopts a draft declaration on the rights of indigenous peoples in the Americas. UN adopts a programme of activities for the International Decade. New Zeeland parliament apologizes to the Maori people. 1996 The Habitat Conference in Istanbul. Second session of the UNWGDD, October. 1997 16th Session of UNWGIP, July. Third session of the UNWGDD, October. The Norwegian King apologizes to the Sami people.

1998 17th session of UNWGIP, July. Swedish government apologizes to the Sami people, August 9

Fourth session of UNWGDD, December 1999 18th session of UNWGIP, July. 2000 UN decides to establish a Permanent Forum for Indigenous Issues, located at the UN in New York. 2001 UN appointed a Special rapporteur on the situation of Human Rights and Fundamental Freedoms of Indigenous Peoples. 2002 First session of the UN Permanent Forum on indigenous issues. 2004 International Treaty on Plant Genetic Resources for Food and Agriculture. 2005 Second International Decade of the Worlds Indigenous Peoples 2006 Establishment of the Inter-Agency Support Group on Indigenous Issues in the UN.

555 2007 United Nations Declaration on the Rights of Indigenous Peoples, adopted at the UN, September 13. Global Plan of Action for Animal Genetic Resources (strategic priority 6). February 13. Canadian Prime Minister apologized for the Indian Residential School system, June 11. 2009 U.S. Federal Congress apologized to the Native Americans, January 6. The Anchorage Declaration on, inter alia, climate change. UN Operational Guidance Engagement of Indigenous Peoples and other Forest Dependent Communities (UN-REDD). UN Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries. 2014 The so-called World Conference on Indigenous Peoples, held at the UN New York, September 22 2016 American Declaration on the Rights of Indigenous Peoples, adopted by the OAS, June 15 Taiwan government apologized to the Native peoples, August 1.

556 Annex 3 Selected Bibliography

Alcock, A. History of the International Labour Organisation London: MacMillan, 1971. Alfredsson, G. Greenland and the Law of Political Decolonization, German Yearbook of International Law vol. 25, 1982, pp. 290-308. — The Right of Self-Determination and Indigenous Peoples, in, C. Tomuschat (editor) Modern Law of Self-Determination Dordrecht: Kluwer, 1993, pp. 41-54. Anaya, S.J. Indigenous Rights Norms in Contemporary International Law. Arizona Journal of International and Comparative Law vol. 8, 1991, pp. 1-39. Andress, J.L. and Falkowski, J.E. Self-Determination: The Anomalous Status of America’s “Domestic Dependent Nations”, American Indian Law Review vol. 8, 1980, pp. 97-116. Allen, E. Brazil: Indians and the New Constitution, Third World Quarterly vol. 11, 1989, pp. 148- 165. Aristotle, The Politics London, Penguin, 1962. Assies, W.J. & Hoekema, A.J. (eds). Indigenous Peoples’ Experiences with Self-Government Copenhagen: IWGIA Doc. 76, 1994. Barsh, R.L. Revision of ILO Convention No. 107, American Journal of International Law vol. 81, 1987, pp. 756-762. B a r t l e t t , R . H . In d i a n R e s e r v e s an d A b o r i g i n a l L a nds in Canada: A Homeland Saskatoon: University of Saskatchewan Native Law Centre, 1990. Belgian Thesis, The Sacred Mission of Civilization. To which peoples should the benefits be extended? New York: Belgian Government Information Center, 1953. Bennett, G. Aboriginal Rights in International Law London: Royal Antropological Institute of Great Britain and Ireland, Occasional Paper No. 7, 1978. — The ILO Convention on Indigenous and Tribal Populations – The Resolution of a Problem of Vires. British Yearbook of International Law 1972-73, pp. 382-392. Berger, T.R. A Long and Terrible Shadow – White Values, Native Rights in the Americas Vancouver: Douglas & McIntyre, 1991. Berman, H.R. The Concept of Aboriginal Rights in the Early History of the United States, Buffalo Law Review vol. 27, 1978, pp. 637-667. Berkhofer, R.F. The White Man’s Indian – Images of the American Indian from Columbus to the Present New York: Vintage Books, 1978. Bodley, J.H. Tribal peoples and Development Issues – A Global Overview Mountain View, Calif.: Mayfield, 1988. — Victims of Progress Mountain View, Calif.: Mayfield, 1999. Borah, W. The Aboriginal Population of Central Mexico on the Eve of the Spanish Conquest Berkeley, 1963.

557 Brilmayer, L. Secession and Self-Determination: A Territorial Interpretation, The Yale Journal of International Law vol. 16, 1991, pp. 177-202. Brownlie, I. Treaties and Indigenous Peoples – The Robb Lectures 1991. Oxford: Clarendon Press, 1992. Buchanan, A. Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec Boulder: Westview Press, 1991. Buchheit, L.C. Secession: The Legitimacy of Self-Determination New Haven: Yale University Press, 1978. Burger, J. Report from the Frontier – The State of the World’s Indigenous Peoples London: Zed Books, 1987. — Aborigines Today: Land and Justice London: Anti-Slavery Society, Report No. 5, 1988. Canby, W. Jr.,(ed) American Indian Law – In a nutshell 2nd ed. St. Paul, Minn., West Publ. Co., 1988. Cavalli-Sforza, Luigi Luca & Cavalli-Sforza, Francesco. The Great Human Diaspora: The History of Diversity and Evolution Reading, Mass.: Helix Books, 1993. Chaliand, Gerard, (ed) Minority Peoples in the Age of Nation-States London: Pluto Press, 1989. Clark, B. Native Liberty, Crown Sovereignty – The Existing Aboriginal Right of Self-Government in Canada Montreal: McGill-Queen’s University Press, 1990. Clinebell, J.H. and Thomson, J. Sovereignty and Self-Determination: The Rights of Native Americans under International Law. Buffalo Law Review vol. 27, 1978, pp. 669-714. Cohen, F.S. Handbook of Federal Indian Law 2nd ed. Michie Co., 1982. Commager, H.S. (ed) Documents of American History, 8th ed, Appleton-Century-Crofts, New York, 1968. Crawford, J. (ed), The Rights of Peoples Oxford: Clarendon Press, 1988. Daes, E-I. United Nations Activities in the Field of Indigenous Rights, Transnational Perspectives vol. 13, 1987, pp. 11-18. — Native People’s Rights. Les Cahiers des Droit vol. 27, 1986, pp. 123-133. Davenport, F.G. & Paullin, C.P., eds., European Treaties Bearing on the History of the United States and Its Dependencies to 1648 1967. Davis, S.H. Land Rights and Indigenous Peoples: the Role of the Inter-American Commission on Human Rights Cambridge, Mass.: Cultural Survival, Report 29, 1988. Díaz, B. The Conquest of New Spain London: Penguin, 1963. Dinstein, Y. editor, The Protection of Minorities and Human Rights Dordrecht: Martinus Nijhoff, 1992. — Collective Human Rights of Peoples and Minorities, The International and Comparative Law Quarterly vol. 25, 1976, pp. 102-120.

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