Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous peoples - Mr. Rodolfo
Stavenhagen
The Special Rapporteur on indigenous peoples
presented his report to the Human Rights Council on 20 March
2007 (Statement)
He also participated
in side events on 20 and 21 March
Over the last two decades the situation of the
indigenous peoples worldwide and the enjoyment of their human rights
has become a key issue in the international arena. This development
is reflected in the establishment of the Working Group on Indigenous
Populations (WGIP) in 1982, the proclamation by United Nations
General Assembly of the International Decade for Indigenous Peoples,
1995-2004, , and the establishment of the Permanent Forum on
Indigenous Issues in 2000.
In 2001, the Commission on Human Rights
appointed Rodolfo Stavenhagen from Mexico as Special
Rapporteur on the situation of the human rights and
fundamental freedoms of indigenous people, , in response to
the growing international concern regarding the
marginalization and discrimination against indigenous people
worldwide. The mandate, initially created for a period of
three years by the Commission in its resolution 2001/57, represents a significant moment for
the ongoing pursuit of indigenous peoples to safeguard their
human rights, and is complementary to those of the WGIP and
the Permanent Forum and aims at strengthening the mechanisms
of protection of the human rights of indigenous
peoples. |
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In the above-mentioned resolution the
Commissionrequests the Special Rapporteur, inter alia, to gather,
request, receive and exchange information and communications from
all relevant sources, including Governments, indigenous people
themselves and their communities and organizations, on violations of
their human rights and fundamental freedoms; to formulate
recommendations and proposals on appropriate measures and activities
to prevent and remedy violations of the human rights and fundamental
freedoms of indigenous people; and to work in close relation with
other special rapporteurs, special representatives, working groups
and independent experts of the Commission on Human Rights and of the
Sub-Commission on the Promotion and Protection of Human Rights.
The mandate of the Special Rapporteur was renewed
by the Commission on Human Rights for an additional period of three
years in April 2004 (resolution 2004/62). In the same resolution, the Special
Rapporteur is requested to present a report to the General Assembly
on his activities over the three first years of the existence of the
mandate. The Special Rapporteur presented two reports to the General
Assembly in New York (A/59/258 et A/60/358).
Since his appointment, Mr. Stavenhagen has
concentrated on three main areas of work: thematic research on
issues that have an impact on the human rights situation and the
fundamental freedoms of indigenous peoples; country visits, and
communications with Governments concerning allegations of violations
of human rights and fundamental freedoms of indigenous peoples
worldwide. The Special Rapporteur has put in place several follow-up
mechanisms. Activities and developments in each of these areas of
work are briefly highlighted below.
1. Thematic research
Taking into consideration the major human rights
concerns faced by indigenous peoples worldwide, and in consultations
with, among others, indigenous organizations, Governments, experts
of the WGIP and other specialists, the Special Rapporteur identified
in his first report to the Commission a number of particular topics
that deserve special attention and in-depth research:
(a) The impact of development projects on the human
rights and fundamental freedoms of indigenous communities;
(b) Evaluation of the implementation of recent
legislation at the national level related to the rights of
indigenous peoples;
(c) Human rights issues for indigenous people in
the realm of administration of justice, including, where relevant,
the relationship between positive and customary (non-written) legal
systems;
(d) Cultural rights of indigenous peoples as
reflected in bilingual and intercultural education, as well as the
preservation and development of their own cultural heritage;
(e) Human rights issues - particularly economic and
social rights - regarding indigenous children, especially girls, in
different settings such as migration, trafficking of women and
girls, violent conflicts, the informal economy, etc.;
(f) Participation of indigenous peoples in
decision-making processes, autonomic arrangements, governance and
policy-making, with special regard to the full implementation of
civil and political rights;
(g) Old and new forms of discrimination against
indigenous people within a gender perspective, in the light of the
Declaration and Programme of Action of the World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance,
as well as measures and remedies undertaken to combat discrimination
and implement the human rights and fundamental freedoms of
indigenous peoples.
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In April 2002, Mr. Stavenhagen presented
these topics to the Commission as part of his plan of work for
the forthcoming years and informed the Commission that he
would concentrate on one topic a year. In 2002, the Commission
formally adopted in resolution 2002/65 the Special
Rapporteur's plan of work and requested him to pay particular
attention to those topics that impact on the situation of the
human rights and fundamental freedoms of indigenous people and
which may contribute to advancing the debate on fundamental
issues of the "draft United Nations declaration on the rights
of indigenous peoples". |
Since then, the Special Rapporteur has presented
three annual thematic reports to the Commission. The first thematic
report (E/CN.4/2003/90) focused on the impact of
large-scale development projects on human rights and fundamental
freedoms of indigenous peoples and communities. His second thematic
report (E/CN.4/2004/80) focused on the question of access
to the administration of justice by indigenous peoples and
indigenous customary law. The third report (E/CN.2005/88) focused on hindrances and
inequalities that indigenous peoples face in relation to the access
to and the quality of education systems .
This year, the Special Rapporteur has focused his
main report (E/CN.4/2006/78) on the question of constitutional
reforms, legislation and implementation of laws regarding the
promotion and protection of rights of indigenous people and the
effectiveness of their application, as well as on the implementation
of international norms and decisions of bodies in charge of
overseeing the respect of relevant international treaties and
conventions. During the First International Decade on Indigenous
Peoples (1994-2004) many countries have carried out legislative
processes and constitutional reforms towards the recognition of the
indigenous peoples and their rights, including the recognition of
languages, cultures and traditions, the need of prior and informed
consultation, the regulation of access to natural resources and
lands and, in some cases, the recognition of autonomy and
self-government.
Despite those advances, there is still an
“implementation gap” between legislation and day-to-day reality;
enforcement and observance of the law are beset by a myriad of
obstacles and problems. The main problem is the vacuum between
existing legislation and administrative, legal and political
practice. This divide between form and substance constitutes a
violation of the human rights of indigenous people. To close the gap
and narrow the divide is a challenge that must be addressed through
a programme of action for the human rights of indigenous people in
the future.
On the basis on his conclusions and taking into
account the important research work for the preparation of his
report, the Special Rapporteur recommends, inter alia, that
Governments assign high priority to the quest for concrete measures
and actions that will help close the existing gap between laws for
protecting the human rights of indigenous people and their practical
implementation. He also recommends that be developed a coordinated
and systematic policy, with the participation of the indigenous
peoples, that cuts across the various ministries concerned with
indigenous issues. In consultation with indigenous peoples’
institutions, the Special Rapporteur recommends the establishment of
bodies for consultation and participation on all general and
particular measures that affect them, with special attention to
legislation, natural resources and development projects. He
considers crucial, in parallel with the new laws, the establishment
of monitoring and evaluation mechanisms and practices and mechanisms
for the implementation of the standards established with the
participation of the indigenous peoples. Parliaments should
establish, where they do not yet exist, commissions on indigenous
affairs and on human rights, and those already in existence should
be made responsible for ensuring that legislative proposals respond
effectively to the needs and requirements of the indigenous peoples
in consultation with those peoples. Likewise, they should carefully
monitor the use of the budgets allocated to the areas of protection
and promotion of the rights of indigenous peoples and communities.
The Special Rapporteur calls for a prompt adoption of the necessary
statutory and organic laws for the effective implementation of the
standards established in laws on the human rights of the indigenous
peoples. In cases of inconsistency between laws, priority and
precedence should be given to those that protect the human rights of
the indigenous peoples, and conflicts that may arise from such
inconsistencies should be resolved in good faith and by common
agreement.
Moreover, the Special Rapporteur recommends the
establishment of independent mechanisms, such as the human rights
observatories, for determining the appropriate criteria and
indicators for systematic monitoring of enforcement of laws
concerning the rights of the indigenous peoples. The Special
Rapporteur also calls for the respect and full application of
international human rights standards relevant to indigenous peoples.
The Special Rapporteur concludes his report with a number of
recommendations addressed to the international community and civil
society.
2. Country
visits
A crucial component of the Commission's
expert mandate is on-site country visits in order to open
constructive dialogue with the Government, indigenous
communities, and other relevant organizations, and report to
the Commission on Human Rights on the situation of indigenous
peoples. Country visits are an excellent way of analysing and
understanding in situ the situation of indigenous peoples in
the light of every possible circumstance and represent also an
important tool to raise awareness in the international
community. Country visits are also becoming an important
pillar of the mandate as they provide a means to assess the
extent to which the protection, assistance and development
needs of indigenous peoples and communities are being met at
the local and national level. |
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In 2002, the Special Rapporteur undertook country
visits to Guatemala (see E/CN.4/2003/90/Add.2) and the Philippines (see E/CN.4/2003/90/Add.3). In 2003 he visited Mexico
(see E/CN.4/2004/80/Add.2) and Chile (see E/CN.4/2004/80/Add.3). In March and May 2004,
respectively, the Special Rapporteur visited Colombia (see E/CN.4/2005/88/Add.2) and Canada (see E/CN.4/2005/88/Add.3).
The Special Rapporteur has finalized the reports on
his two last visits, to South Africa (see E/CN.4/2006/78/Add.2) and New Zealand (see E/CN.4/2006/78/Add.3), for presentation to the
competent body.
The Special Rapporteur has requested visits to
the Governments of Kenya, the Russian Federation and Malaysia. In
the context of communications addressed to him on specific
situations, the Special Rapporteur has also expressed interest in
visiting Botswana, the Lao People’s Democratic Republic and New
Caledonia.
3. Communications
The Special Rapporteur receives a large number of
communications providing him with information about allegations of
violations of the human rights and fundamental freedoms of
indigenous peoples. The main sources for these communications are
non-governmental organizations, indigenous organizations,
intergovernmental organizations and United Nations procedures
concerned with the protection of human rights.
He analyses such information and decides whether or
not to take action. Given the difficulty in assessing the degree of
credibility of any particular allegation, great care must be
exercised in the evaluation of every communication and sources are
therefore urged to include all relevant documentation and evidence
in support of the allegation. In the case of violations of the
rights of individuals, full information should include: full
name of the victim, clear name of the community at risk when
applicable, age, place of residence or origin, profession, marital
status etc and the precise circumstances of the incident such as
date, place, description of how the event occurred etc. When
the victims of alleged violations are communities or members of
distinct collectivities (tribal communities, families etc), full
information should include social and cultural context, references
to public policies and specific circumstances under which the
alleged violation occurred, as well as the characteristics of the
group and when, if applicable, the nature of the human rights gap
and the demands of the people concerned.
The main type of communications sent by the Special
Rapporteur are "urgent appeals" in cases of imminent danger of
violations of the human rights of individuals, or even entire
indigenous communities. He also transmits "allegation letters" to
Governments on cases of less urgent character. Over the past two
years, the Commission's expert has strengthened the coordination
with other human rights special mechanism and participated in joint
communications with other special mechanisms of the Commission.
Follow-up of the cases in which his intervention has been required
is a matter of particular concern to the Special Rapporteur and
therefore, a third type of communication is also under consideration
in the form of follow-up letters on earlier communications.
Please note that as a general rule, both urgent
appeals and letters of allegation remain confidential until
published in the annual report of the Special Rapporteur to the
Commission on Human Rights. A summary of such communications and the
replies received from the concerned Government are formally included
in the first addendum to the Special Rapporteur's annual report to
the Commission.
4. Follow-up
activities
In all his thematic and country visit reports, Mr.
Stavenhagenincludes recommendations that he considers important for
the advancement of the promotion and protection of indigenous
people’s rights. Although mainly addressed to Governments, some are
also addressed to United Nations agencies and programmes, indigenous
peoples’ organizations and civil society and academic institutions.
In this context, the Special Rapporteur has initiated a monitoring
process of the implementation of the recommendations included in his
reports, with a view to preparing a comprehensive study on the best
practices in the implementation of the recommendations, as requested
by the Commission in resolution 2005/51.
In preparation of this study, the Special
Rapporteur will request specific information from Governments, civil
society organizations and agencies and programmes of the United
Nation system. He also takes the opportunity of his participation in
seminars and meetings organized by indigenous people organizations
and academic institutions to discuss effective methods for the
implementation of recommendations and its monitoring. Although
general information is of great interest, the most useful
information for the preparation of this specific study relates to
concrete actions carried out pursuant to the Special Rapporteur’s
reports or to put into practice specific recommendations included in
his reports. Mr. Stavenhagen has prepared a progress report that
provides an overview of the main recommendations, as well as
information on current activities for the preparation of the study
(E.CN.4/2006/78/Add.4), including some follow-up
visits to certain countries.
For more information:
The mandate of the Special Rapporteur is serviced
by the Office of the United Nations High Commissioner for Human
Rights in Geneva: OHCHR, United Nations, 1211 Geneva 10,
Switzerland.
Contact Person: Luis Rodríguez-Piñero Royo Tel. + 41 - 22 917 91
34; fax + 41 - 22 917 60 10 Email: indigenous@ohchr.org Website:
www.ohchr.org/english/issues/indigenous/rapporteur/
The resolutions and the mandate, the thematic
reports, the reports on country visits, and the reports containing
summaries of communications with governments are available on the
web site of the United Nations High Commissioner for Human Rights:
www.ohchr.org
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