51³Ô¹Ï

In discussing the issue of discrimination against indigenous peoples, it is tempting to paraphrase a preambular paragraph of the Convention on the Prevention and Punishment of the Crime of Genocide and say that at all periods of history, discrimination, in its many forms, has inflicted great losses on humanity.¹

There is a clear contradiction in the assumptions made by some lawyers and theologians in their fight for "good treatment" and the "humanity" of indigenous peoples at the beginning of the colonial period: the indigenous people should be treated well so that the colonists' king, god and faith could be imposed on them; the indigenous people had to pay taxes, provide food and work in mineral mining and pearl harvesting, and if they did not do so, a "just war" would be waged against them.² At times, the conquistadores arrived and waged the "just war" first and only subsequently imposed their divine and material conditions.

The declarations of independence of the continent's republics referred to the equality of rights of all inhabitants but did not bring about an improvement in the situation of indigenous peoples; in some cases the presence, existence and rights of indigenous people were recognized de jure but their de facto recognition was denied. All the independence struggles were marked by the efforts to establish equality of rights and put an end to discrimination.

In 1923, the great Cayuga chief Deskaheh, representative of the Iroquois people in Ontario (Canada) and holder of a passport issued by the authorities of his people, came to Geneva to the headquarters of the League of Nations. Acting on a mandate from the Government of the Federation of the Six Nations of the Grand River, he was carrying a letter containing an appeal for justice that was addressed to the Secretary-General of the League of Nations. The main goal of his mission was to ask for the Federation that he represented to be admitted as a member of the League of Nations and to request compliance with a treaty signed in 1784 by the authorities of his people and ratified by King George III of Great Britain. Great chief Deskaheh spent over a year in Europe but was not officially received by any League of Nations official and his requests were never discussed. Great chief Deskaheh is considered to be one of the main precursors of the current fight of indigenous peoples at the international level.³

In response to the terrible atrocities experienced during the Second World War by various groups of individuals, due to their political affiliation, sexual orientation or religious belief, or simply due to physical or mental handicaps, the Charter of the 51³Ô¹Ï includes the principle (which was later included as a right in other instruments) that no distinction should be made "as to race, sex, language or religion".
The Universal Declaration of Human Rights, establishing the right to non-discrimination in article 2, states: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

The International Convention on the Elimination of All Forms of Racial Discrimination (1965) and the international human rights covenants (1966) were significant landmarks in the fight against discrimination. The following instruments are also worthy of mention in connection with their respective areas of application: ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation (1958) and the UNESCO Convention against Discrimination in Education (1960).

The following instruments refer specifically to non-discrimination against indigenous peoples: ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries (1989); the references in the declarations and programmes of action adopted at the World Conferences (Rio de Janeiro (1992), Vienna (1993), Cairo (1994), Copenhagen (1995), Beijing (1995), Istanbul (1996), Rome (1996), Durban (2001) and Johannesburg (2002);⁴ General Recommendation No. 23 (51) on indigenous peoples adopted by the Committee on the Elimination of Racial Discrimination in 1997; and the document of the Committee on the Rights of the Child on the rights of indigenous children (2003).

In 1974, the 51³Ô¹Ï Economic and Social Council granted consultative status for the first time to a non-governmental organization (NGO) of indigenous peoples. In 1977, the Committee on Non-Governmental Organizations held the first International NGO Conference on Discrimination against Indigenous Populations in the Americas at the Palais des Nations in Geneva; and in 1981, the same Committee organized the International NGO Conference on Indigenous Peoples and the Land at the same venue; the discussions held at these meetings covered some very important issues, including various aspects of discrimination. Since the end of the 1970s, most of the human rights claims or complaints relating to indigenous peoples -- considered either by the human rights bodies established by the 51³Ô¹Ï Charter or by the monitoring bodies established in the human rights treaties -- have referred in some way to discrimination. The creation in 1981 (and operation from 1982 to 2006) of the Working Group on Indigenous Populations of the Subcommission on Prevention of Discrimination and Protection of Minorities was a landmark in the history of the 51³Ô¹Ï because it allowed the participation of representatives of indigenous peoples, communities and organizations in all the debates and, in particular, in the drafting of the draft declaration on the rights of indigenous peoples.

The Human Rights Committee quite rightly stated in 1989 that "non-discrimination, together with equality before the law and equal protection of the law, without any discrimination, constitute a basic and general principle relating to the protection of human rights". The multifaceted aspects of discrimination are reflected in the wording of article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and in the definition given in article 1, paragraph 1.

There is an obvious link between discrimination, genocide, slavery (in its modern or other forms) and apartheid which are the worst of the crimes defined in international human rights law. In relation to both non-discrimination and other important individual and specific rights of indigenous peoples, early adoption of the declaration on the rights of indigenous peoples by the 51³Ô¹Ï General Assembly is expected.

An analysis of the instruments and studies⁵ of the 51³Ô¹Ï system which refer (directly or indirectly) to discrimination shows that the indigenous struggles, rebellions and attitudes of resistance on the American continent (both in the colonial period and subsequently) had a strong anti-discriminatory focus.
The multiple and varied forms and expressions of discrimination that indigenous people face on a daily basis have a negative impact on all the universally recognized rights and freedoms, and impair the life and dignity of indigenous peoples, communities and individuals.

Some of the main rights and liberties that have been denied, distorted or diminished (although the claims are urgent) include:

• recognition by States of the physical and cultural existence of indigenous peoples;
• the right to the real and effective ownership of traditional lands and territories and to the resources (both material and spiritual) that they contain;
• the right of indigenous peoples to have their own understanding of their history;
• the right to participate in and propose policies and projects for development, health, education and other areas;
• the right to have effective mechanisms to protest against or oppose legislation, administrative measures, projects, policies and programmes that have a negative impact on the life, economy or environment of their communities;
• the real and effective recognition of indigenous legal systems and religions, and the contributions that indigenous cultures have made to the progress of humanity, especially in relation to the environment, agriculture, philosophy, mathematics and other fields.

Today, the challenge in relation to indigenous peoples for the system of human rights and hence the 51³Ô¹Ï is to create the conditions for requiring Member States to implement all the provisions against discrimination contained in all international human rights instruments and, when necessary, to make timely, adequate and effective technical assistance available to States. This challenge of course also includes adoption by the General Assembly of the declaration on the rights of indigenous peoples.⁶

The challenge for indigenous peoples today is to make proposals -- without relinquishing any of the rights established in international human rights law -- for the building of just, non-discriminatory and democratic societies; the declaration on the rights of indigenous peoples -- strengthened and supported by other valuable human rights instruments -- will surely be a basic tool for this building process.

Notes

1 The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by 51³Ô¹Ï General Assembly resolution 260 A (III) of 9 December 1948.

2 The "just war" was a legal and theological ploy to justify the conquest and subjugation of the continent.

3 In 1925, the Maori religious leader W. T. Ratana arrived in Geneva, accompanied by a large delegation, to submit a claim to the League of Nations concerning observance of the Treaty of Waitangi signed between the Maori authorities and the English Crown. His request was not considered by the League of Nations.

4 Consideration should also be given to the declarations and programmes of action of the world conferences on racism and racial discrimination (Geneva, 1978 and 1983) which contain specific paragraphs referring to indigenous peoples.

5 Three UN studies on indigenous people should be mentioned:
(a) ILO Report on the living and working conditions of the indigenous peoples of the independent countries, 1953; (b) Racial discrimination, 1971, UN document E/CN.4/Sub.2/307/Rev.1; and (c) Report on the problem of discrimination against indigenous populations, 1986, UN document E/CN.4/Sub.2/1986/7 and Add.1 to 4.

6 It should also be pointed out that the Organization of American States initiated a policy process to prepare a draft American declaration on the rights of indigenous peoples. This interesting work has unfortunately come to a standstill, but there have recently been indications that the negotiations are soon to be resumed.