This article has been written by Ms. Mahima Chandra, a 2nd year student of Lloyd Law College, Greater Noida
ABSTRACT: –
As far as individual rights are concerned, their most comprehensive enumeration can be found in UNDRIP. Analysing UNDRIP thematically, discussing key issues ranging from self-determination and autonomy to land rights, rights to culture, development, socio-economic rights and rights to redress. This chapter addresses some of these issues and the problems they present. A primary focus on indigenous peoples’ participation in modern society’s government rather than on preservation and development of their own autonomy and decision-making structures is thus somewhat misguided. The UN Declaration must be seen in light of the effective conservation of indigenous culture. Protecting indigenous peoples’ land is essential to effectively preserving their customs.
Keywords: – autonomy; human rights; indigenous peoples; self-determination; UNDRIP; United Nations Declaration.
UNDRIP: – The United Nations General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007. It is a historic accomplishment for the global acknowledgment and defence of indigenous peoples’ rights. Numerous types of individual and collective rights, including those related to culture, identity, language, education, health, employment, and land rights, are outlined in the declaration for indigenous peoples. It highlights the values of equality, non-discrimination, and the freedom to self-determination. This followed more than twenty years of discussion within the UN system. Indigenous representatives played key roles in the development of this Declaration.
Indigenous rights came into being later in the process of constructing the global framework for the affirmation, defence, and advancement of human rights. For a very long time, it was believed that states alone should be concerned with the conditions of indigenous peoples and that the UN had no role or obligation to play as long as countries upheld the fundamental rights of every citizen. It was thought that national freedom would benefit the indigenous people residing in the former European colonies during the decades that the UN was concerned with decolonization. All of the colonial peoples were frequently regarded as “indigenous.” States did not come to acknowledge the presence of “indigenous and tribal” peoples in certain sovereign states until much later. Convention 107 on “indigenous and tribal people in independent countries” was adopted by the International Labour Organization in 1957, bringing indigenous peoples within its purview on an international level.
There are over 370 million Indigenous people in Latin America, Africa, Asia, North America and Pacific Islands. They are most impoverished, marginalized and frequently victimized people in the world. The three pillars of this Declaration: –
- The rights of the self Determination.
- The right to lands, territories and resources.
- Cultural rights.
In alignment with the United Nations Working Group on Indigenous Populations’ responsibility to establish standards, the Declaration’s drafting process got underway. During the Working Group’s years of deliberation, which started in the early 1980s, representatives of indigenous peoples from all around the world actively engaged. The UN’s five-member Working Group formed and endorsed a draft of the Declaration in 1993, and it was then submitted to the UN Commission on Human Rights in 1994. The Commission on Human Rights then organized for indigenous people to attend working group meetings and formed a working group of the Commission’s member states to review the Declaration. Few states taking part in the Commission working group would accept the previous draft Declaration without major modifications, as was evident from the beginning. This led to a near-deadlock in the discussions for a period of time with many participating indigenous representatives proclaiming on nothing less than the Sub Commission draft. However, over the course of the working group’s eleven-year existence, agreement on fundamental ideas and associated recommendations became more and more clear. Luis Enrique Chavez of Peru, who headed the Commission working group, began making suggestions in 2005, and these eventually resulted in a completely new text. The chairperson’s phrases were ultimately accepted by the Human Rights Council in 2006, having by then surpassed the Commission on Human Rights, with almost all participating indigenous groups and states coming to agree with it. The UN General Assembly was asked to take final action on the text by the same resolution that the Council submitted.
But a year later, the General Assembly would finally approve it due to divisions among the African governments. African states had generally abstained from the prior negotiations surrounding the Declaration, probably believing that its applicability to them would be limited or non-existent. However, it was now evident that numerous African communities were asserting their indigenous status, and that a large number of African states, if not all of them, might find themselves scrutinised in accordance with the Declaration’s criteria. African nations, led by Namibia, suggested postponing the Declaration’s vote so that some of its terms might be reviewed. Following votes in Favor of the postponement by the Third Committee of the General Assembly and the General Assembly in plenary, a confusing and occasionally unclear series of diplomatic exchanges took place. Ultimately, a package of changes negotiated by Mexico that addressed major issues without fundamentally changing the Declaration satisfied the African states. The modifications gave several of the Declaration’s clauses a wider scope and emphasized the necessity of contextualizing its application in light of the vast range of situations in which it might be applicable.
On September 13, 2007, 144 UN Member States, including the majority of African states, voted to accept the Declaration amidst cheers from indigenous peoples. Notably, despite the negotiated modifications, Australia, Canada, New Zealand, and the United States abstained from voting for it, isolating themselves in their disagreement to the language. 3 9 Eleven states—Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, and Ukraine—recorded abstentions.
IMPLEMENTATION: – Despite an issue, the UN General Assembly’s widely publicized the enactment of the UN Declaration on the Rights of Indigenous Peoples (Declaration) on September 13, 2007, marked a momentous shift in the history of indigenous peoples worldwide, both now and in the future. For a minute, see the indigenous world as it was. Then consider the current state of affairs that indigenous peoples find themselves in: invasion, colonization, exploitation, supremacy and servitude, which has left many of us in a state of chaos. Now, finish reading the Declaration from start to finish and imagine what a world “might someday be’’.
The Declaration holds a special place within the UN system. The fact that the Declaration’s main beneficiaries, indigenous peoples, were actively involved in each step of the standard-setting process during its negotiation is largely to blame for this. Native Americans have so succeeded in their attempts to “re-define the terms of their survival in international law” as active participants. The idea that indigenous peoples and our individual treaties were covered by international law existed before the Declaration was adopted. But it is now undeniable that we are subjects of international law rather than just objects. Because the Declaration is non-binding and aspirational, some may try to minimize its significance.
However, there are also very good arguments to be made for the Declaration’s specific provisions to be regarded as customary international law, even if they are binding on the governments who rejected its acceptance.
The Declaration’s affirmation of several collective human rights unique to indigenous peoples—such as the right to self-determination, to lands, territories, and resources, the recognition of treaties, the prohibition against forced assimilation, the destruction of culture, genocide, or any other act of violence, and the rights upholding indigenous spirituality, culture, education, and social welfare—is another significant aspect of the document and demonstrates its comprehensive nature.
In Article 3, the right to self-determination is stated clearly. A few states sparked some controversy over the wording by taking stances that lacked evidence and needlessly drawn out the discussion. In my opinion, indigenous peoples ultimately succeeded in their attempts to guarantee that our right to self-determination was acknowledged without reservation, restriction, or bias. The Declaration’s final wording only restates current international law pertaining to the right to self-determination. The exercise of any other human right is contingent upon the right to self-determination, as indigenous peoples have contended. Moreover, Article 4, which addresses autonomy and self-government, only lays forth the internal procedures by which we shall advance our cultural, social, and economic growth. The Declaration recognizes indigenous peoples’ deep connection to their environment and upholds our right to the lands, territories, and resources that we have historically owned, inhabited, or obtained in any other way. The Declaration also covers issues like acknowledging indigenous land tenure systems, protecting the environment and its potential for production, providing compensation for lands, territories, and resources that have been taken, confiscated, occupied, used, or damaged without our free, prior, and informed consent, and recognizing our right to set our own priorities and develop our own plans for the development or use of these resources.
It is evident from the Declaration’s approval that the UN’s member states are able to accept indigenous peoples. These criteria offer the foundation required for both a human rights-based strategy and a fresh understanding of the relationship between the state and indigenous people. Therefore, the Declaration ought to be seen as the new “manifesto” for constructive political, legal, social, and economic action on a national and worldwide level. The current task is to force governments to take action, persuade them to view their responsibilities and duties seriously, and instil in them our feeling of urgency regarding the Declaration’s implementation.
Unfortunately, there are a lot of places in the world where implementation is actually urgently needed. The state, UN, and international community must give recent events in Bolivia, Brazil, Paraguay, and the Central Kalahari their prompt attention. There will be a genuine chance to use the Declaration in an effort to address these circumstances after the necessary steps have been taken to put an end to any violence. For instance, the problems that President Evo Morales and the people of Bolivia are confronting present a chance to discuss the conflicting rights and interests of indigenous peoples, state sovereignty, and the rights and interests of non-indigenous peoples within the country. The broad contours of the right to self-determination and the specific application of that right by indigenous communities in Bolivia, along with the acceptance of the Declaration as a framework, present a chance to resolve the dynamics and operationalize these vital rights through analysis and dialogue.
CONCLUSION: –
Indigenous peoples have made a significant impact on the global human rights agenda. By doing this, they have sparked a movement against state-centred power structures and policies that did not previously recognize the importance of indigenous institutions, cultures, and group identities. Because of this movement, there is now more concern on the world scene for indigenous peoples and a variety of globally recognized standards that stem from broadly applicable human rights principles. The UN Declaration on the Rights of Indigenous Peoples and other international treaties express these values, and they are also evident in the ongoing multilateral and authoritative conversations regarding the rights of indigenous peoples.
The extent to which indigenous peoples have had their rights fully acknowledged internationally is still growing as they pursue their cause. However, new and emerging standards regarding indigenous peoples are a basis for nonconforming behaviour to be scrutinized within the international system’s human rights program, depending on how much they are accepted by pertinent international players. Such examination could play a crucial, if not pivotal, role in many indigenous peoples’ struggle for survival. “In the human rights framework of the modern international system, the movement toward a new normative order concerning indigenous peoples is a dramatic manifestation of the capacities for social progress and change for the better.”
References: –
https://indigenousfoundations.arts.ubc.ca/un_declaration_on_the_rights_of_indigenous_peoples/
https://scholar.law.colorado.edu/cgi/viewcontent.cgi?article=2385&context=faculty-articles
https://www.iwgia.org/images/publications/making_the_declaration_work.pdf
https://www.ohchr.org/Documents/Issues/IPeoples/UNDRIPManualForNHRIs.pdf
https://biocultural.iied.org/un-declaration-rights-indigenous-peoples
https://www.justice.gc.ca/eng/declaration/about-apropos.html
https://indigenousfoundations.arts.ubc.ca/un_declaration_on_the_rights_of_indigenous_peoples/
http://link.springer.com/10.1007/978-3-030-30018-0_30
https://www.jstor.org/stable/762411