Laws And Conventions Affecting Indigenous Peoples International Law Essay International Law Essay

Laws And Conventions Affecting Indigenous Peoples International Law

With a substantial portion of the world’s indigenous peoples living in Asia and the Pacific, virtually every country in the region has an indigenous population. While the effectiveness of provisions may vary, some countries recognize the unique status of indigenous peoples and offer the privileges and protections of citizenship. Few countries have enacted laws that recognize any rights of indigenous peoples to ancestral lands, or that support indigenous peoples regaining and strengthening their social, cultural, and legal institutions. In many cases, enforcement of laws that may exist has been inadequate.

Some countries have experienced conflicts between interests of indigenous peoples and interests of dominant and mainstream communities. These conflicts most often relate to control over and exploitation of natural resources in the areas indigenous peoples claim as traditional domains. Appropriation of ancestral territories or resources in these territories by governments or external interests most often is justified as a part of economic development and growth. Indigenous peoples’ sparse occupation of large areas of land and nonintensive use of resources often is characterized by external interests as economic inefficiency or lost opportunity. Indigenous peoples’ land and resource management practices sometimes are viewed as unsustainable or environmentally damaging.

At the national level, in some cases, new laws, policies, and other measures may be necessary to reconcile competing demands and conflicting interests, especially if interests of indigenous peoples are to be protected. In any case, however, the Bank must respect the will of governments, including legislation and policy that exists and the power of eminent domain that governments possess. Country programs and project selection will be developed in cooperation with governments. When difficulties are encountered, the Bank may be able to provide guidance or assistance through mechanisms such as policy dialogue and technical assistance.

International Conventions and Declarations
The international community has shown increasing concern for the protection of the rights of indigenous peoples. Conventions and declarations of the international community provide a broad framework, as well as specific statements regarding the protection of indigenous peoples and their interests, cultures, ways of life, cultural survival, and development. It may be noted that some international instruments relating to indigenous peoples have not been ratified by large numbers of the international community.

The United Nations Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights (1966) have specific significance for indigenous peoples. The Universal Declaration provides a common standard for the human rights of all peoples and all nations, and proclaims the importance of traditional, political, and civil rights, as well as basic economic social and cultural rights. The Covenant spells out civil and political rights and guiding principles based on the Universal Declaration.

The 1957 International Labour Organisation (ILO) Convention No. 107, Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, addresses the right of indigenous peoples to pursue material well-being and spiritual development, and was a first international instrument in specific support of indigenous peoples. Largely because of its view that indigenous peoples should be integrated into the larger society, a view that subsequently came to be seen by many as inappropriate, Convention No. 107 was followed in 1989 by ILO Convention 169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries.

Convention No. 169 presents the fundamental concept that the way of life of indigenous and tribal peoples should and will survive, as well as the view that indigenous and tribal peoples and their traditional organizations should be closely involved in the planning and implementation of development projects that affect them. As the most comprehensive and most current international legal instrument to address issues vital to indigenous and tribal peoples, Convention No. 169 includes articles that deal with consultation and participation, social security and health, human development, and the environment. To date, Convention No. 169 has been ratified by only a few countries, and so far by none in the Asian and Pacific Region.

Agenda 21 adopted by the United Nations Conference on Environment and Development (UNCED) in 1992 recognizes the actual and potential contribution of indigenous and tribal peoples to sustainable development. The 1992 Convention on Biodiversity calls on contracting parties to respect traditional indigenous knowledge with regard to the preservation of biodiversity and its sustainable use. The Vienna Declaration and Programme of Action emerging from the 1993 World Conference on Human Rights recognizes the dignity and unique cultural contributions of indigenous peoples, and strongly reaffirms the commitment of the international community to the economic, social, and cultural well-being of indigenous peoples and their enjoyment of the fruits of sustainable development.

The United Nation’s 1993 Draft Declaration on the Rights of Indigenous Peoples, developed with the direct participation of indigenous peoples representatives and currently under consideration within the United Nations, addresses issues such as the right to participation, the right of indigenous peoples to direct their own development, the right of indigenous peoples to determine and develop priorities and strategies for the development or use of ancestral territories and resources, and the right to self-determination. The emerging concern for indigenous peoples prompted the United Nations to declare 1993 as the International Year of the World’s Indigenous Peoples and the decade from December 1994 as the Indigenous Peoples Decade.

Practices of Other International Institutions
Among comparator organizations, World Bank policies and practices are the most relevant to the Bank. The World Bank’s Operational Directive 4.20: Indigenous Peoples establishes specific approaches to indigenous peoples in World Bank operations. Through its operational directive, the World Bank recognizes and takes into consideration issues such as the identification of indigenous peoples, the attachment of indigenous peoples to land and resources, the significance of distinct linguistic and cultural identities, and the primarily subsistence nature of indigenous peoples’ production systems. World Bank policy calls for indigenous peoples’ informed and willing participation in development, and respect for indigenous peoples’ dignity, human rights, and cultural uniqueness. For development interventions that affect indigenous peoples directly and significantly, an indigenous peoples development plan is required.

Another comparator organization with direct relevance to the Bank is the Inter-American Development Bank (IDB). While IDB does not have a specific policy addressing indigenous peoples, it does address their concerns through its operational activities, an approach IDB considers more relevant to the circumstances of its region. Operational processes relating to involuntary resettlement, poverty reduction, rural development, and environmental and social impact assessment all include specific consideration of indigenous peoples’ concerns. In the IDB region, the poorest segments of society often are indigenous peoples, and projects are designed specifically to assist these groups. In the IDB, creation of special funds to support activities such as enterprise development and capacity building provide other avenues for the pursuit of issues relating to indigenous peoples. The representative offices that IDB maintains in its client countries provide a basis for country-specific consideration of indigenous peoples concerns.

Among United Nations agencies, the United Nations Development Programme (UNDP) has undertaken a number of programs to address indigenous peoples concerns. In the Bank’s region, the objectives of UNDP’s Highland Peoples Programme, covering Cambodia, Lao People’s Democratic Republic, Thailand, and Viet Nam, are to increase organizational capacities and opportunities among highland communities, in participatory planning, management, and coordination; establish and/or reinforce exchange mechanisms and procedures; and work for the overall development of highland communities in the four countries covered.
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