Indigenous Women and International Law

By Dr. Myrna Cunningham Kain
April 2003

There has been much talk of democracy in recent decades. But even a cursory observation reveals that institutionalized racism against Indigenous Peoples is the norm in every "democratic" country. This racism expresses itself in many forms, but generally comes down to the fact that "to speak of Indigenous Peoples in Latin America is to speak of poverty."1 The failure to recognize Indigenous Peoples’ human rights is one of democracy’s great deficiencies.2

International instruments adopted through the United Nations system, including the Universal Declaration of Human Rights, the Convention for the Prevention of Genocide, the Convention for the Elimination of Racial Discrimination and the International Covenants for Economic, Social, Cultural, Civil and Political Rights, have created the basis for a body of human rights law. Civil society and the Indigenous movement have been important actors in this process, working to ensure that advances in individual human rights law are accompanied by progress in the area of collective human rights. The Indigenous movement in particular has worked to advance collective rights in both international and national arenas.

Despite this current Indigenous participation in the UN, it was not until 1971 that the UN Economic and Social Council first authorized "a general and complete study of the problems of discrimination against Indigenous populations" suggesting national and international measures "necessary to eliminate such discrimination, in collaboration with other organs and entities of the UN and with competent international organizations."

The resulting report, the "Study of Discrimination Against Indigenous Populations," or the Martinez Cobo Report, was presented in 1984.3 It clearly documented that the large majority of Indigenous Peoples were subject to discrimination, oppression and exploitation. It noted that in many countries, Indigenous Peoples did not have the same employment opportunities, access to public services, health services, religious and cultural freedoms or access to justice as other groups. The report also showed that Indigenous Peoples did not have access to meaningful participation in political life. It found that many Indigenous Peoples had either resigned themselves to their situation or turned to assimilation as the only way to improve their living conditions.4

Along with the disparities between Indigenous Peoples and other ethnic communities revealed in studies like the Martinez Cobo Report, basic indicators on literacy, health, education, and salary document a gap between men and women within Indigenous communities.5 Indigenous women recognize that the wellbeing of their peoples depends on "equality between men and women in decision-making in the public and private life".6 Their advocacy in the international arena is tied to the Indigenous struggle to be fully recognized as Peoples with unique philosophies, worldviews, and knowledge. One of these is a belief in a dualist relationship between men and women.7 Indigenous women recognize that the cultural wealth of Indigenous Peoples has its origin in the transmission of values and community education. Women, as the community’s midwives, advisors, spiritual guides and leaders are principally responsible for the preservation of knowledge, traditional values, wisdom and abilities.

The publication of the Martinez Cobo Report was followed in the UN by the creation of a Working Group on Indigenous Populations. Since the 1980s this group has served as an important space for hundreds of organizations and Indigenous leaders from all over the world to convene annually and present grievances. Although not a binding mechanism, the Working Group helped open new spaces for Indigenous Peoples within the UN system.

It is clear that eradicating disparities between Indigenous Peoples and non-Indigenous sectors will require much more than just broadening access to services.8 It requires the recognition of self-determination as a collective, fundamental human right of all peoples, like Indigenous Peoples, who share a language or a culture different from the majority.9 There is much progress to be made in this area. International legislation is limited because it uses the term "people," rather than Peoples to refer to Indigenous Peoples.10 While Indigenous pressure has succeeded in forcing some states to use the term Peoples, these states have established clauses restricting the rights attached to this term.11

Today there are only a limited number of judicial instruments that recognize collective rights. The United Nations and the OAS are currently debating Draft declarations on the rights of Indigenous Peoples. Though these resolutions would not be binding, their adoption would be an important step for Indigenous Peoples and the construction of a body of collective human rights law.

To date, Indigenous Peoples achievements in the UN system include ILO Convention 169, along with Declaration and Recommendations on the Environment (Rio de Janiero), Human Rights (Vienna), Gender (Beijing), Health (OMS/OPS), Education (UNESCO), Informed Participation (World Bank, Convention on Bio Diversity), creation of an Iberoamerican Indigenous Fund, and the Permanent Forum on Indigenous Peoples, which has already established a plan of action.

A number of States have ratified ILO Convention 169, while others have established their own policies to improve relations with Indigenous Peoples. The ILO has always recognized Indigenous Peoples as distinct from traditionally-understood rural communities. In 1957, after a long study, it adopted the Convention on Indigenous Populations and Tribal Populations, known as Convention 107.

Convention 107 was significant because "for the first time, an international institution established binding, obligatory standards with respect to a range of Indigenous problems (not only labor conditions)".12 The convention recognized collective land rights, the right to native-language education and the validity of common law. But it had a paternalistic and protectionist perspective and its ultimate objective was the assimilation of Indigenous Peoples in the name of a homogenous national state. "As a consequence of the growing criticisms of this perspective, the ILO decided to push for a revision of the Convention. This led the General Conference to adopt Convention 169 on the Indigenous and Tribal Populations in 1989. Convention 169 is now ratified by various member states and, to date, it constitutes the only international judicial instrument on the human rights of Indigenous Peoples."13

Convention 169 establishes fundamental aspects of human rights and Indigenous law, including traditional land rights, common law and the right to health and life. It states that Indigenous Peoples must be consulted in good faith prior to the establishment of any policies that concern them and stresses that governments must consider Indigenous Peoples’ values and insights in relation to environmental conservation. It also recognizes Indigenous Peoples’ right to be protected from exploitative labor agreements. The convention stipulates that governments, in collaboration with interested Peoples, must submit "a coordinated and systematic plan for protecting the rights of Peoples and guaranteeing respect for their integrity"(Article 2, Convention 169).

ILO Convention 169 is the first international judicial instrument that uses the term "Indigenous Peoples," although it restricts the meaning of the term Peoples in order to conform to other international conventions.14

Important aspects of Convention 169 include:

• Article 3, which states: "Indigenous and tribal peoples must fully enjoy the fundamental human rights without obstacles or discrimination."
• Article 4, which declares that, "the values and social, cultural, religious and spiritual practices of said peoples" must be recognized.15
• Article 8, which establishes that "before applying the national legislation to interested peoples, governments must appropriately take into consideration their customs and common laws."
• Article 10, which establishes that "when penal sanctions are imposed by general legislation to members of said peoples, they must take into account their economic, social and cultural characteristics." It also establishes that states should give preference to sanctions other than incarceration.
• Article 12, which states that "The interested peoples must have protection against violations of their rights and be able to initiate legal procedures, either on their own or through representative organizations in order to assure respect for their rights."

These successes in international legislation are achievements of a dynamic Indigenous movement which is articulating its goals in the international arena and throughout the Americas, as well as through the World Council of Indigenous Peoples, the Continental Campaign of 500 Years of Indigenous, Black and Popular Resistance, the Indigenous Summit and, more recently, the First Summit of Indigenous Women.

Indigenous women are an especially valuable part of this movement. By promoting multi-ethnic democracy and a more integrated and balanced respect for human rights, Indigenous women are forcing a re-conceptualization of the nature of the state.

The Convention for the Elimination of Discrimination Against Women, the Optional Protocol of Belem do Para and the recommendation from Beijing and its successors have been important opportunities for Indigenous women to give voice to their issues and ideas. Through these processes, Indigenous women have formed their own spaces—including the international network of Indigenous Women and the international Forum of Indigenous Women—in which to articulate their positions and proposals and, above all, to assert their own identities.

At the First Summit of Indigenous Women, held in December 2002, Indigenous women reaffirmed the urgent need to increase their own participation in the international arena, noting that existing international conventions had been "formulated from positions of power and the perspective of the dominant discourse." The Summit enabled Indigenous women to develop and reach consensus on a Plan of Action, which includes a chapter on human rights, and provided a valuable space for exchanging ideas and strengthening international participation.

At the Summit, Indigenous women also reaffirmed their fundamental demand for states to adopt the UN Draft Declaration of Rights of Indigenous Peoples. This Declaration emphasizes fundamental issues including collective rights, Indigenous self-determination and the right to economic, social and cultural development. Though the Declaration would not be binding, its approval would, for the first time, establish the bases of intercultural co-existence in our societies.

Indigenous Peoples see the UN and OAS Draft Declarations on the Rights of Indigenous Peoples as means to establish states’ political will to effectively confront exclusion and institutionalized racism against Indigenous Peoples and create new relationships between states and Indigenous communities. The UN Draft Declaration in particular is the result of a participatory process begun in the 80s, which has successfully established broad agreement through dialogue between states and Indigenous organizations. The UN Working Group on Indigenous Populations was integral through this process.

The United Nations Draft Declaration aims to establish the basic conditions necessary for Indigenous Peoples to exercise their human rights to health, education, development, land and collective intellectual property, while recognizing their diversity as subjects of collective rights. It recognizes Indigenous Peoples’ right to collectively-owned lands, collective intellectual property, self-determination, autonomy and political participation in all levels of government as well as their right to have a say "in any laws and administrative measures that directly affect them."16

The Draft Declaration recognizes the collective identity of Indigenous Peoples. It acknowledges that Indigenous Peoples view themselves as parts of a distinct and collective whole and that, as a result, they have the right to self-determination separate from the State or any international organizations. The Declaration also proclaims that States must accept Indigenous Peoples’ distinct identity and co-exist with Indigenous communities within a framework of peace and development. It requires that States meet the needs of Indigenous Peoples, including allowing international relations with these collectives. The Draft Declaration, therefore, establishes the basis for States’ to recognize Indigenous autonomy and self-determination.17

Indigenous organizations have been involved in creating the OAS Draft Declaration of the rights of Indigenous Peoples as well. When the draft began in 1989, the OAS did not establish means to facilitate Indigenous participation. But in 1999, through a General Assembly resolution (Ag/RES.1601 (XXXIX-0/99), the Assembly opened itself to Indigenous Peoples’ participation. A Working Group was formed and there is now an annual meeting between governments and Indigenous Peoples in order to advance the discussion of the draft.

But the most relevant recent development in Indigenous rights in the Inter-American system is the Interamerican Court of Human Rights (IACHR) judgment in the Awastingni case. In this case, an Indigenous community (the Sumu/Mayangna of Nicaragua) demanded that the State concede control over its ancestral territory. The Court ruled in favor of the Indigenous community, recognizing its right to the territory even in the absence of a title of community property and ordered the Nicaraguan government to develop a procedure to define and delineate Indigenous territories.

The Awastingni case established a basis for increasing recognition of Indigenous Peoples’ territorial rights and right to self-determination. For Indigenous Peoples, having autonomy and self-determination means having the power to govern their own communities and to establish and maintain their own institutions and projects, while also having access to effective means of political participation at the national and international level.

The Awastingni case illustrates the importance of Indigenous Peoples’ participation in both theoretical and practical advances in human rights at the international level. Legal changes are generating shifts in the balance of power and establishing means through which Indigenous Peoples can exercise their rights as autonomous peoples with full capacity to decide on economic, social and cultural polices and to recover and reclaim their development and recognize their individual and collective rights.

The recent decades of Indigenous women’s international participation– from walking the halls of the UN to winning the Nobel Peace Prize in 1992 – have served as a beginning for a long and complex process of reconciliation and negotiation. Indigenous women have laid a foundation that will nurture the spirits of justice and fairness. They have won agreements between Indigenous Peoples and non-Indigenous communities, and built bridges of trust to facilitate change. But Indigenous women confront many challenges in continuing their human rights work at the international level. Creating new alliances with Indigenous and non-Indigenous women and consolidating old alliances is a fundamental task. International organizations like MADRE have valuable experiences to share in this respect. The job ahead is to continue the work which has been started: fostering recognition and respect for the Indigenous wisdom, knowledge, and science of which women are the ultimate bearers and advancing Indigenous women’s alliances, capacity and individual and collective leadership.