Use of Regional Human Rights System
A large amount of resources like oil or minerals are to be found on the land of Indigenous Peoples who depend on this land for their living. International law has some legal instruments to protect their rights:
- ILO Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries
ILO 169 recognises indigenous and tribal peoples’ right to:
- land ownership
- equality and freedom
- make decisions about projects that affect themGovernments that ratify the convention are legally bound to abide by it. Every country that ratifies ILO 169 strengthens its force overall, and gives indigenous peoples a greater chance of survival.
- The UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which was adopted by the United Nations General Assembly in September 2007. It sets out in 46 articles the views of the majority of the international community with regard to the rights of indigenous peoples and declares that the rights recognized in the Declaration constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. Self-determination as principle is set out in the declaration, including the right to freely pursue own economic, social and cultural development. It includes as well the right to own and control traditional lands, territories and resources and the right to participate in and consent to decision-making that may affect them.
Technically the declaration is a non-binding statement of principle, but restates existing international law norms pertaining to indigenous peoples’ rights. - Most Latin American countries have granted indigenous rights in their national constitution, taking the ILO Convention 169 as a model and including issues such as “self-determination”, “traditional territories”, “autonomy”, “consultation” and “uses and customs”.
In discussions with International Financial Institutions (IFI) especially the concept of “Free Prior Informed Consent” plays an important role. One of the recommendations of the World Bank’s Extractive Industries Review has been to ensure that borrowers and clients engage in consent processes with indigenous peoples and local communities directly affected by oil, gas, and mining projects, to obtain their free prior and informed consent. However, when reviewing its operational policies, the IFC weakened the concept of “Free Prior Informed Consent” into “free prior informed consultation”. Other Multilateral Banks have their difficulties in accepting the concept, too.
Meanwhile in Latin America the Inter-American Court of Human Rights has been used to challenge IFI and state decisions, including the granting of concessions for mining or logging. One precedent setting case is the “Case of the Saramaka People v. Suriname”. The Saramaka people are one of the largest of the Maroon tribes living with Suriname’s borders. Maroons are the descendants of escaped slaves who fought themselves free from slavery and established viable, autonomous communities along the major rivers of Suriname’s rainforest interior in the 17th and 18th centuries. Despite their recognized use and occupancy of the area, Suriname presently maintains that the Saramaka, and other Indigenous and Maroon peoples, have no rights to their lands and resources. Instead, the government asserts that these areas are owned by the state and can be exploited at any time. Suriname is thus the only state in the Americas that has failed to legally recognize and guarantee, at least to some extent, Indigenous and Maroon peoples’ rights to own, control, use and peacefully enjoy their lands, territories and resources.
Forest Peoples Programme, an organisation supporting forest peoples rights, reports that in 2002, the Inter-American Commission on Human Rights (IACHR) issued a request to the Government of Suriname asking that it “take appropriate measures to suspend all concessions, including permits and licenses for logging and mine exploration and other natural resource development activity on lands used and occupied by the 12 Saramaka clans until the Commission has had the opportunity to investigate the substantive claims raised in the case” and that it also “take appropriate measures to protect the physical integrity of the 12 Saramaka clans.”
This request is intended to protect the Saramaka people from human rights abuses and environmental degradation caused by Chinese and Surinamese logging companies operating in Saramaka territory while the IACHR conducts an investigation of the situation. Concessions held by the Chinese companies, which were granted without notifying the Saramaka, are presently guarded by active duty Surinamese military personnel. (Read the press release of the Forest Peoples Programme of 2002).
From the Commission the case was taken to the Inter-American Court on Human Rights, which issued a judgement in November 2007. The judgement says: “The State shall delimit, demarcate, and grant collective title over the territory of the members of the Saramaka people, in accordance with their customary laws, and through previous, effective and fully informed consultations with the Saramaka people, without prejudice to other tribal and indigenous communities. Until said delimitation, demarcation, and titling of the Saramaka territory has been carried out, Suriname must abstain from acts which might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the territory to which the members of the Saramaka people are entitled, unless the State obtains the free, informed and prior consent of the Saramaka people. With regards to the concessions already granted within traditional Saramaka territory, the State must review them, in light of the present Judgment and the Court’s jurisprudence, in order to evaluate whether a modification of the rights of the concessionaires is necessary in order to preserve the survival of the Saramaka people,…” (Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname (pdf), Judgment of November 28, 2007, page 61)
In countries where the constitution recognises rights of Indigenous peoples national Courts can be used to challenge mining or oil concessions, too.
Further information:
