Indigenous peoples and human rights

Patrick Thornberry

• Publisher: Manchester University Press
• Year: 2013
• Print ISBN:
  9780719037948
  9780719037931
• eBook ISBN:
  9781847795144
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

This book is a full-length study of the rights of indigenous peoples in international law, focusing in particular on instruments of human rights. The primary reference point is contemporary law, though the book also examines the history of indigenous peoples through the lens of historical legal discourses. The work critically assesses the politics of definition and analyses contested definitions and descriptions of indigenous groups. Most of the chapters are devoted to detailed examination of existing and emerging human rights texts at global and regional levels. Among the instruments considered in the book are the International Covenants on Human Rights, the UN Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the African Charter on Human and People's Rights, and the ILO Conventions on Indigenous and Tribal Peoples.

Part I
Indigenous peoples in international law: basic notions

1
We are still here

My people have been here since time began. I know how the world began, and I know how the world will end.¹

Identities and names

A great flow of contemporary discussion and debate has made an international public increasingly aware of the presence of peoples described as indigenous, who appear to exist in every inhabited region of the globe. Some names associated with the term ‘indigenous’ are familiar to a wide public: the Australian Aborigines, the Crees, the Guarani, the Igorot and Inuit, the Jumma and the Kuna, the Maasai, the Maori, the Mapuche and the Maya, the Mbuti (Pygmies), Miskitos and Mohawk, the Navajo, the San/Basarwa (Bushmen) of the Kalahari, the Saami, Sioux, Tuareg and Yanomami.² Knowledge of names may be matched by a rougher knowledge that the peoples are nomadic, sedentary, hunter-gatherers, pastoralists, surviving in tough environments – rainforests and deserts, the High Andes and the High Arctic. In some cases, a mode of society is built into the name, so the Jumma people derive from ‘Jum’, which means ‘shifting cultivation’.³ The names of most will perhaps be known only to a restricted or élite ‘public’ of administrators, anthropologists, environmentalists, geographers, historians, non-governmental organisations (NGOs) of many stripes, philanthropists, sociologists, writers. In some cases we have learned, or ought to have learned, to call the peoples by the names that they prefer; to avoid ‘Eskimo’ and say ‘Inuit’.⁴ Using the ‘old’ names in the descriptive vocabulary of our own cultures can signify dismissive or patronising ethnocentric attitudes towards ‘primitive peoples’. Sometimes the discrimination is stubbornly embedded in a language. Hence the complaint of the Alliance of Taiwan Aborigines that the Chinese version of UN documents referred to them as tuzu renmin, meaning ‘savage’ or ‘primitive’, and their request that it should be changed to yuanzu minzu, meaning original peoples.⁵ Peoples who choose a name based on their self-understanding may have to wait before the world’s knowledge catches up with it. As one writer notes:

We have a big problem when it comes to the name of our people. We have been called by many different names … like Bushmen and Basarwa. Bushmen means ‘people from the Bush’ and Basarwa means ‘people who don’t own anything’. Yet, we had things. We had our land and they took it away from us and started calling us ‘peoples who don’t own anything’ But our real names are N/oakwe in Botswana and Ju/’hoansi in Namibia.⁶

It is also true that originally pejorative terms may have their uses in raising levels of recognition, and groups sometimes reclaim them.⁷ For example, ‘Bushman’ may be pejorative, but it may stick better than ‘San’, or N/oakwe or Ju/’hoansi, and can be of use to the groups in reminding the world of their existence.⁸ On ‘Igorot’, a writer from that group observes that this is ‘a derogatory name they call us, meaning “barbarians”, “pagans” or “uncivilized”. But because the word … literally means “people of the mountains” it has since evolved as a term with which the peoples of the Cordillera identify themselves’.⁹ On the colourful but patronising term ‘Pygmy’, it has been noted that ‘Official government policy in Zaire is that Pygmies should be “emancipated” and considered as being no different from other citizens – indeed the use of the term “Pygmy” is officially banned. In practice this means promoting sedentarization’.¹⁰ The consequence or intention of this statement – which uses the morally improving language of emancipation and equality – is that recognition of the separate existence and cultural/ economic organisation of the group is likely to be diminished in the consciousness of a broader public. This illustrates a paradox in indigenous and minority rights, that is, the deployment of edifying concepts like equality, which are eminently capable of working against group existence and identity.¹¹ Standing out as a subject of rights creates real dilemmas for groups in their relations with society as a whole.¹² The public assertion of a separate identity can provoke rejection and counter-reaction – a backlash – on the part of those in wider national communities who characterise themselves as competitors in rights and resources or claim against ‘privileges’ assigned to one group over another. As one strident political actor in Norway put it: ‘If the Lapps go on enjoying different rights from other Norwegians … in ten years’ time it will be like Bosnia – we’ll be machine-gunning each other’.¹³ A backlash is often available for indigenous peoples, and for others such as ethnic minorities who engage in a ‘politics of recognition’,¹⁴ a ‘politics of difference’¹⁵ or simply a politics for the vindication of internationally recognised rights. The bad press for indigenous groups has also emerged from a dislike of the ‘different’ customs and practices of these ‘others’, which remains in evidence in contemporary appraisals of indigenous cultures from the standpoint of human and animal rights.¹⁶

The numbers game

The question of how many indigenous exist on the planet is contentious. Even where the peoples concerned are identified and ‘quantified’, they may be denied the use of the term ‘indigenous’, in case such a description introduces notes of priority and privilege or ‘a sort of snobbery’¹⁷ into intercommunal or community–State relations. The dispute about figures is usually politics rather than analytics, normative not cognitive, a question of imposing an outside will upon the people, of contesting their self-description. In some cases, disagreement is sincere, a matter of striving to understand the categorisation.¹⁸ The contentious issue of description and definition – examined in detail later – has become important in the context of current legal politics. The growing respect for the principle of self-identification as an essential aspect of individual and group freedom complicates mere figures.¹⁹ People exercise their preferences and choose to identify with a group or not.²⁰ Discrimination against a group may influence public declarations of group affiliation. Individuals change their minds.²¹ Groups may consist in cultural formations with a history, or represent the creations of State laws.²² Statistics abound but are not consistent.²³ ‘Rough guides’ to the figures are legion, and the present introduction is in a similar vein – the reader will already note the casual use of ‘indigenous’ in the present chapter. The Independent Commission on International Humanitarian Issues (ICIHI) claims general agreement on what, in detail, look like fuzzy statistics:

there are an estimated 200 million indigenous people in the world totalling approximately 4 per cent of the global population … It is estimated that there are some 250,000 Aborigines in Australia, 300,000 Maoris in New Zealand, 60,000 Saami … 100,000 Inuits … in circumpolar States, some 30 to 80 million (the low figure being governments’ estimates; the high figure that of the indigenous themselves) indigenous peoples in Central and South America and 3 to 13 million indigenous people in North America (depending if the Chicanos and Metis are included). In Asia, using a definition of indigenous peoples which includes tribal and nomadic peoples, there are estimated to be some 150 million … In the broader sense … several million in Africa could be included.²⁴

A global tabulation prepared by the International Work Group for Indigenous Affairs (IWGIA) claimed 100,000 Inuit, 80,000 Saami and 1 million Russian indigenous, 1.5 million indigenous in North America, 13 Million in Mexico and Central America, 17.5 highland Indians and 1 million lowland Indians in South America, 14 million nomads in Africa, and 350,000 indigenous between the San/Basarwa and the Pygmies, 58 million indigenous in South and West Asia, 30 million in Southeast Asia, 67 million in East Asia, 250,000 Australian Aborigines and 350,000 Maoris.²⁵ This tabulation also listed 15 million Pacific people. In all, this amounts to just under 220 million.²⁶ Figures of the order of 200–300 million are now commonplace,²⁷ even in UN publications.²⁸ Many governments are alleged to undercount their indigenous population. ‘Statistical ethnocide’²⁹ is always a possibility. In the context of the Adivasi population of Bangladesh, a study noted:

Many observers feel that undercounting has been done deliberately to emphasize the marginality of the Adivasi population. Lower numbers mean that their legitimate demands can be more easily dismissed or ignored by governments and thus excluded from relief aid or development programmes.³⁰

Examples of possible undercounting from South and Central America include Guatemala (official figure 2.5 million; unofficial figure almost 4 million), Mexico (official figure just over 5 million; 12 million unofficial) and Peru (official 3.6 million; unofficial 9.1 million).³¹ While figures shift, depending on who defines and who counts, the complexity of the indigenous world presented to us appears formidable. Writing on biodiversity, Gray observes that

the world biodiversity crisis is matched by a world ‘cultural diversity’ crisis. Indigenous peoples live predominantly in areas of high biodiversity while at the same time comprise 95 percent of the cultural diversity in the world.³²

Despite claims that ethnocidal³³ processes have been at work, the complexity of the indigenous world still astounds, considering that absolute numbers may not be great. Random examples, some presented by indigenous organisations, include Mayas in Guatemala:

The Mayas live in 22 inhabited areas, most of them being located in the Western part of the country and each one having its own language; four of them are the most important languages spoken: K’iche, Mam, Kaqchikel and K’ek’chi and less important ones such as Tzutuhil, Q’anjobal, Pocomam, Pocomchi, Chu, Ixil, Jacalteco, Aguateco and others.³⁴

There are some nine Saami dialects for that small population (by world standards): South, Ume, Pite, Lule, North, Inari, Skolt, Kildin and Ter.³⁵ The Saami are only one of seventy-one circumpolar peoples.³⁶ Roraima State in the upper North of Brazil

has a population of 35,000 natives among which we count Yanomami (7,000), Macuxi (11,000), Wapixana (5,000), Ingariko (1,000), Wai-Wai (1,000) and Taurepang as well as 10,000 natives that live at the periphery of the state cities.³⁷

San groups in Namibia – some the subject of intensive anthropological scrutiny – include the Hei//om, !Khu, Ju/’hoansi, !Xu (or Vasekele), Khwe, Naron, //Khuau-//esi, !Xo, Nharo, /Nu-//en and/Auni.³⁸ The total number for this complex population is 33,100. At the other end of the scale, some 51 million Adivasis are claimed for India.³⁹ It may be added that, besides languages and the modes of association with lands and territories, indigenous complexity also relates to forms of political organisation, kinship and family organisation, systems of property, beliefs and spirituality, worlds of knowledge and histories – all that can be comprised or imagined in portmanteau terms like ‘culture’, ‘ethnicity’, ‘religion’ and the rest...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Table of cases
• List of abbreviations
• Introduction
• Part I Indigenous peoples in international law: basic notions
• Part II Global instruments on human rights
• Part III Regional human rights protection and indigenous groups
• Part IV ILO treaties on indigenous peoples
• Part V Emerging standards specific to indigenous peoples
• Part VI Indigenous peoples and human rights
• Annexes
• Select bibliography
• Index
• Footnotes