Indigenous Peopels and Minorities' Rights- definitional constraints

UNIVERSITY OF MALAYA
FACULTY OF LAW
ISSUES RELATING TO MINORITIES AND INDIGENOUS PEOPLES RIGHTS

To what extent has the development of international law on minorities and indigenous peoples suffered from the almost total absence of definition of key terms such as 'minority', 'people' and 'indigenous'? Why do so many indigenous groups resist the idea of a universal definition of indigenous and so many governments support it?

A "fraternity" is the antithesis of fraternity. The first... is predicated on the idea of exclusion; the second (that is, the abstract thing) is based on a feeling of total equality.
E.B. White, One Man's Meat, 1944





Humeirah F
LGA050031
Semester 1
26th October 2005

INTRODUCTION

June 28 1914 - A date of profound historical importance that culminated in the collapse of the Hapsburg Empire with the corresponding formation of new nation-states. The outbreak of the First World War was triggered by the assassination of Archduke Franz Ferdinand, whose tragic fate was the consequence of exposing his reformist ideas of ‘trialism’, recognizing equal rights of Slavs besides the Germans and Magyars in the Empire. Displeased, Serbian Nationalists then a small yet powerful group responded in fury .

Thirty years later, the aim to maintain international peace for which the League of Nations was founded, seemed to be clearly defeated as the world was struggling yet again to get back on its feet, weary and disillusioned after another bloody war which discriminated a specific class of individuals via what was termed the ‘T4’ filtration program.

At the root of these political upheavals that have scarred the world for life, was the undeniable fact that they sprung from obsessive notions of nationalism. The Serbs were offended because their interests were relegated to those of Slavs while Hitler, inspired by the ideology of ‘One nation one State’ launched his heartless project of ‘purging’ Germany and Poland of its ‘diseased populace’. This ideology insidiously infiltrated the substantive content of international law and became indirectly the mantra of the League of Nations.

The disintegration of this organization and the establishment of the United Nations after the Second World War did nothing much to weed out the roots of the previous causes of political and social turmoil. The insertion of Human Rights in the Universal Declaration of Human Rights 1948 exacerbated the problem. The issue of group rights which gained some importance after the First World War was clearly shelved and postponed indefinitely. The focus was on individualism and hence equal rights for all and this all-encompassing provision was deemed thoroughly adequate to treat issues raised by minorities and the like. The danger was imminent and yet unforeseeable: Nationalism and Human Rights were a lethal blend.


NATIONALISM + HUMAN RIGHTS = DEGENERATION OF LAWS ON MINORITIES AND INDIGENOUS PEOPLES’ RIGHTS

The principles enshrined in the concept of nationalism focus on the formation of states that represent particular nations as a whole. Unfortunately the feasibility of ‘pure’ states being separated by imaginary boundaries was, is and always will remain impracticable. The formation of Nation-states however has proved to be unstoppable with the interposition of ambitious leaders such as Adolf Hitler, Mohammad Ali Jinnah , Slobodan Milosevic and Saddam Hussein among others.

The best international instruments could do to suppress any reappearance of obsessive nationalism after the Second World War was to focus on democratic rights, advocating popular representation of governments in states. But with democracy comes the evil of the ‘tyranny of the majority’ . As the majority gets to decide who governs the State, minorities despite their right to equal citizenship and the enjoyment of rights, end up being under-represented in the government and are perpetually oppressed and left to themselves. John Packer states in this regard “…while the existence of human beings and states are ‘axiomatic’ in international law, the existence of human groups is problematic.” Thus in a system governed by the will of the majority there arises an immediate need to consider the collective groups as ‘special’ so that methods and ways are further devised to ensure their political participation as well.

Equally deplorable has been the fate of indigenous peoples. With the widespread application of western doctrines of nationhood, statehood, nationalism and human rights, indigenous groups have found themselves face-to-face with notions absurdly foreign to them. The American Indians for example were recognized as having rights by virtue of their essential humanity. They could however be denied their inherent rights through conquest if they lost a ‘just’ war, a term ironically left to the Europeans to be defined . To impose this upon a people already accustomed to its own political organization and social framework, has led to the effacement of generations of culturally rich and diverse indigenous groups.

Writers normally base their main objections on the impossibility of furthering Human Rights and protecting communal groups simultaneously upon one common and logical reasoning: the very fact of categorizing human beings into minority groups or as indigenous peoples goes against the essence of recognizing human beings as individuals worthy of equal recognition . As succinctly put by Prof S. James Anaya:

‘…the individual/state framework acknowledges the rights of the individual on the one hand and the sovereignty of the total social collective on the other. But it is not alive to the rich variety of intermediate or alternative associational groupings actually found in human cultures, nor is it prepared to ascribe to such groupings any rights not reducible either to the liberties of the citizen or to the prerogatives of the state.’

It is thus established that the principles governing international law are strewn with doctrinal fallacies that impede the development of law on minorities and indigenous peoples’ rights, simply because they do not recognize collective groups in the first place and have thus failed to define them.

DEFINITIONAL CONFLICTS – WHY ARE ‘PEOPLES’, ‘INDIGENOUS’, ‘MINORITIES’ NOT PROPERLY DEFINED AND WHAT HAVE BEEN THE EFFECTS OF THIS ON THE DEVELOPMENT OF INTERNATIONAL LAW?

The importance of identifying the natural legatees of rights is to empower them with the ability to enforce their rights in Courts of justice. If definitions are ambiguous and inchoate they would deny the affected group the relevant remedy. This is based on the premise of nulla crimen sine lege (no offence without a law). This is the importance of clarifying definitions. Professor Ermacora expounds this clearly when he says: ‘international law in a world of conflicts and tensions should give by its clarity a certain guidance to States” .

On the other hand it must also be understood that these definitions should not remain static as this would deprive the law of its important characteristic of mutability. Having exposed both sides of the coin it must be said that the fact that the terms ‘indigenous’, ‘minorities’, ‘people’ are in constant flux should not prevent the meeting of minds over at least a general, all-encompassing terminology that would enable communal groups to be pro-active in what they seek.

 The definition of ‘indigenous’

A brief overview of some problems regarding definition of indigenous people may serve to elicit certain common characteristics of these groups. The appropriate point of departure seems to be the definition proposed in 1983 by UN Special Rapporteur Martinez Cobo, as it is the one most generally referred to at present:

'Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system. … On an individual basis, an indigenous person is one who belongs to these indigenous populations through self identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)’

The definition contains four elements which cannot be found in most contemporary definitions: historical continuity, distinct cultural forms, non dominance and self identification. The second and third elements are included in the definitions of 'minorities' as well. The first one being ‘historical continuity’ is very particular to the understanding of ‘indigenous: historical continuity, it is specified may refer to 'one or more' of the following factors: occupation of ancestral lands, common ancestry with he original occupants of the land, a distinctive culture, language, or residence in certain regions of the country. It may be noted that according to wording of this specification, historical continuity may in theory also appear from a tradition relating to a non-geographic factor such as language or culture. As for a tradition with regard to land, the fact that historical continuity may be exemplified by occupational of ancestral lands does not however make occupation a core condition of definition.

The notion of self-identification adds a subjective element to the objective criteria. Indigenous people themselves have recurrently expressed wish to retain exclusive right to determining who belongs to their group. Group identification does not depend on heritage and ancestry as on the practice of customary and cultural rites within the indigenous group. This element of self identification figures most prominently in the definition of ‘indigenous’ than in the context of ‘minorities’.

The element of historical continuity is linked to an experience of conquest or colonization and excludes as a result European minorities such as Basques, Catalans, Romany (gypsies) and migrant workers. On the other hand isolated or marginal groups that may not have suffered such a fate have come to be included in the term indigenous on account of their historic presence on a particular territory, the preservation of ancestral customs and their incorporation into a state with different national, social and cultural characteristics. Population groups such as the Karen in Thailand and the Chittagong hill tract tribes of Bangladesh are thus considered indigenous peoples. The ILO (International Labour Organization) conventions on indigenous peoples use a definition of indigenous similar to the Cobo definition which deals with two groups: indigenous and certain non-indigenous groups. The attribution of tribal characteristics to indigenous people has been abandoned in Convention no 169 which applies to tribal and indigenous peoples respectively.

One necessary element which unfortunately has been excluded in the interpretation of indigenous peoples is the particular relationship they share with the land they live on. This relationship referred to as ‘territorial basis’ has two aspects: a geographic and a spiritual one. In the Cobo report, territorial basis is recognized as crucial to the indigenous existence.

'All indigenous communities have and uphold a complete code of rules of various kinds which are applicable to the tenure and conservation of land as an important factor in the production process the foundation of family life and the territorial basis for the existence of their people as such. The whole range of emotional, cultural, spiritual and religious considerations is present where the relationship with the land is concerned... the lands form part of their existence.

A representative of the World Council of Indigenous Peoples once remarked: "Next to shooting indigenous people, the surest way to kill us is to separate us from our part of the earth.’ By thus denying them an important characteristic they consider unique to their identity, recognition of these rights where they have been violated has been denied consideration in international law.

 The definition of ‘minorities’

The United Nations Charter does not refer to minorities. Its provisions reflect the view that in order to ensure a stable society the means by which this should be done were to protect individual human rights and to adopt the principles of equality and non-discrimination. When the 1948 Universal Declaration of Human Rights was drafted, proposals for inclusion of an article on minorities were not accepted notwithstanding the General Assembly's affirmation of the need to deal with the fate of minorities. This constituted a major drawback in the recognition of those marginal groups by international law. Art 26 of declaration only calls for the promotion of ‘understanding, tolerance and friendship among...racial and religious groups.'

The establishment in 1946 of a sub commission of the United Nations Commission on Human Rights on the Prevention of Discrimination and the Protection of Minorities implied a certain concession in this respect. The Sub commission dealt with minority issues, produced several important documents on the subject, was instrumental in drafting art 27 of the ICCPR (International Covenant on the Protection of Civil and Political Rights) 1966 and appointed Special Rapporteur Franceso Capotorti to prepare his valuable study on minorities. The sub commission also worked on the definition of the term minority and transmitted to the commission on human rights the text prepared by J. Deschenes. However, the sub-commission placed more emphasis on discrimination in general than on minorities in the strict sense.

A major departure from the trend to replace minority rights by exclusively individual human rights was the 1948 Convention on Prevention and Punishment of the Crime of Genocide. Its individualist orientation is apparent from art 2(1) and 26 and 27.

The Travaux preparatoires of art 27 of ICCPR reflect reluctance of drafters to accept any reference to group or minority rights. Early texts referred to minorities and not to persons 'belonging to minorities'. The final text speaks only about rights of persons, individuals- although some concession to the idea of collective rights had to be introduced. Immigration states were against any text likely to recognize a special status for particular groups within the population. Multinational states feared the consequences of political fragmentation and secessionist trends. This may explain the absence of any reference to the classic term 'national minorities' - national groups are mentioned in the Prevention and Punishment of the Crime on Genocide 1948. It would have been more reasonable to refer to ‘shall enjoy’ than ‘shall not be denied the right’. This approach was criticized during the drafting process and by commentators as implying tolerance more than recognition of rights.

Art 27 contains elements of group protection and is understood as a group protection provision as well. Dinstein takes a stronger view, asserting that in his opinion the purpose of art 27 is to grant collective human rights to the members of a religious minority qua as a group. He points that art 27 is not to be rendered meaningless it must go beyond ambit of art 18 of the ICCPR which deals freedom of religion. Hailbronenr supports a liberal interpretation of art 27 by stating that its very existence indicates that 'ethnic linguistic or religious minorities posses special rights in addition to other Human Rights,' that ' cultural traditions and institutions can be maintained only on a collective basis' that ' it’s the community that maintains cultural institutions, schools and other establishments and therefore that states must not deny the right of the individuals to enjoy the values of their communities and in so doing, protect the every existence of these communities themselves. Thornberry suggests that art 27 contains a programmatic element, similar to those which exist in the Social Covenant and in the Universal Declaration, It is a "promotional requirement' with a 'framework character' which needs to be supplemented by a clearer statement of the rights and duties of minorities.

The variety of views expressed on this subject shows the shortcomings of the covenant's approach to minority rights and the denial of recognition of minority groups in international law.
 The definition of ‘Peoples’

In the post-war period international instruments and resolutions relating to self determination have invariably referred to the people as being entitled to the right of self -determination. The problem however was that the peoples cannot decide their own fate, according to this principle, until someone decides who are the ‘people’. Rupert Emerson pointed out in 1971 that the term people had never attained any generally accepted meaning which can be applied to the diverse world of political and social reality . In 1983 Sir Ian Sinclair the Legal Adviser to the British Foreign and Commonwealth office, declared that there is no internationally accepted definition of the term 'peoples'. This inability to determine a generally accepted definition of the term 'peoples' has denied affected groups a locus standi to claim rights in the international law framework.

Art 1(2) of UN charter declares that one of purposes of UN is to 'develop friendly relations among nations based on respect for the principle of equal rights and self-determination of ‘peoples'. In 1951 Kelsen made an early attempt to define 'people' by equating the word 'peoples' in art 1(2) with that of 'states'. As only states could possess equal rights in general international law, Kelsen concluded that the reference to peoples in the clause meant states. The travaux preparatoires to the charter however reveal that those who drafted art 1(2) did not intend the word 'peoples' to signify states. When art 1(2) was being drafted the Belgian delegate expressed concern over use of word ‘peoples’ and submitted that word ‘states’ would be more appropriate . The proposal was rejected by a drafting committee which explained that ‘people’ was a separate and distinct concept from ‘state’ and the terms were not interchangeable. Art 1 (2) meant to proclaim equal rights of peoples as such. Equality of rights, the committee said, was meant to extend in the charter to states, to nations and peoples. This was confirmed in resolution XXV which interpreted in the charter when it said that all peoples had right to self determination and that every state had duty to respect this right. Kelsen’s analysis was wrong.

In the post-war period self determination was identified with decolonization. This approach to self determination necessarily means that the term people must be defined solely within the context of decolonization. Within that context the term can only mean term can only mean population of non-self governing territory.

Those who assert that ‘people’ means only colonial or dependent people interpret art 1(2) of the united nations charter by reference to chapter XI, XII and XIII so that the word peoples in article 1(2) is understood to refer only to peoples in non self governing or trust territories. Art 1 of the HR covenant is interpreted in the same manner.

The decolonization definition is further circumscribed by paragraph 6 of resolution 1514(XV) which prohibits any impairment of the existing territorial boundaries of non self governing entities. This means the term ‘people’ is not only limited to colonial population but also limited to a given colonial population within pre-existing boundaries. In other words people are defined by the territory of the non self governing entity in which they find themselves. ‘The fact that those found within such territory may comprise the most diverse and disparate cultural, linguistics or religious groups does not exclude them from this definition. Such peoples are expected to overcome their differences through what is known as ‘nation-building’, whereby those differences which exist amongst various groups would be subsumed in an overriding loyalty to the state.’

The General Assembly however noted subsequently that the right of self-determination extend to Resolution 2625(XXV) include non-colonial peoples e.g. 'people of South Africa' and ‘people of Palestine’.

People are also defined broadly in the representative government theory of self-determination. The representative government post is that self determination is an ongoing and universal right whereby the population of given territorial unit exercises population sovereignty in the election of its government. People are defined as an entire territorial unit comprising non self governing territories and independent states. Adherents of the representative government theory assert that this understanding of peoples underlay drafting of art 1(2) of the charter. Moreover art 1 of both Covenants on International Human Rights (ICCPR and ICESCR) state that all peoples have the right to self-determination. The article does not limit the right to populations of non-self-governing territories but presupposes stable boundaries. Reference to the travaux preparatoires reveals support for the contention that "concerning principles of self-determination...it was stated that the principles conformed to the purposes of the charter only in so far that it implied the right of self-government of peoples and not the right of secession.' The representative government definition of people is characterized by two features (1) it is universal in scope applying to both sovereign and independent states and to non-self governing territories. And (2) the peoples in question comprise the entire population of political entity which means people defined by territorial limits of the state. These two features of people under representative government achieve the objective of periodic exercise of popular sovereignty within a given political unit in order to obtain a representative government.

This definition however fails to consider the enormous impact of linguistic, cultural and religious factors on the way in which populations identify themselves. Populations do not in general consider themselves as one people if they reside in same established territorial limits. The interposition of the majority rule prevents minorities from asserting their rights. As J S Mill states:

“Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow feeling, especially if they read and spell different languages, the united public opinion necessary to the working of representative government, cannot exist. The influences which form opinions and decide political acts are different in the different sections of the country. An altogether different set of leaders have the confidence of one part of the country and of another. The same books, newspapers, pamphlets, speeches do not reach them. One section does know what opinions or what instigations are circulating in another. The same incidents, the same acts, the same system of government affect them in different ways....’

‘Peoples’ can be interpreted along ethnic differences as well. This is what the General Assembly was willing to do when ethnic conflicts would arise and solve the problem by drawing ethnic boundaries: in 1946 for e.g. it sanctioned the partition of the Palestine mandate into Jewish and Arab states.

Moreover British Cameroon was divided in to Rep of Cameroon and Nigeria in 1958 due to the political wishes of regions explained in a report by the Special mission sent to British Cameroon by the GA. The mission found that 'on the whole the national affinities of these broad groups of peoples in terms of language, customs and social intercourse tend to be stronger with their immediate neighbor on one of the other depending on the locality to the adjoining territory of Nigeria and the Cameroon under the French administration than between one another.’

This pragmatic approach of GA was abandoned after UN resolution 1514(XV) in 1960. Para 6 declared that any attempt to disrupt 'the national unity and the territorial integrity in a country is incompatible with the purposes and principles of charter of UN.’ The focus was more on stabilizing boundaries rather than creating new ones. Paragraph 2 declared that all people had a right to self determination and that by virtue of that right they freely determine their political status. Ethnic groups within non self governing states could not now be considered peoples because they were prohibited by paragraph 6 from establishing their own Nation-states and therefore unable to freely determine their political status as 'peoples' were entitled to do so under paragraph 2. From then on the GA was reluctant to grant secession to ethnic groups. The case of the Cyprus Greeks and the Turkish Cypriots arose therefore only from external use of force which was of course a result of the loss of many human lives. The active measures adopted to ‘reunite’ ethnic communities was proven a failure when Netherlands transferred West Indies to Indonesia in 1962, without a plebiscite. The GA surprisingly approved the transfer even if there were no similarities in ethnicity, language, race and culture.

Although the GA has not generally recognized ethnic groups as peoples in the context of non-self-governing territories since the adoption of resolution 1514(XV), it has continued to recognize some ethnic groups as peoples in other contexts. This occurred both explicitly and implicitly. For example, resolution 2672c(XXV) of 8 December 1970 the GA explicitly recognized that people of Palestine are entitled to equal right and self determination and recognized the ethnic group as a people. The GA implicitly recognized an ethnic group as people when Bangladesh was admitted to the UN on 17 September 1974 by GA resolution 3203 (XXIX).

Defining peoples as ethnic groups can be a problem because of the case of the Jews, for example. Language and culture in the case of Jews are not common characteristics. While religion is commonly attributed this too is rejected because some Jews convert yet are still given ‘jewishness’ characteristic. If Jews convert to Christianity, Chief Rabbi of Palestine during UN special committee on Palestine replied that even a Jew who abandoned Judaism for another faith continues to be a Jew ‘although not a good Jew’. Moreover the Law of Return of Israel in 1950 which declares that every Jew has the right to come to this country as an immigrant has made it necessary to establish who is a Jew. This contentious issue provoked a constitutional crisis in Israel in 1969 case of Shalit v Minister of Interior where the petitioner sought leave to register his minor children as Jews in registry although born from non-Jewish mother. The High court held by a majority of 5 to 4 that the registration officer in the ministry of interior could not question the declaration of a person as to the affiliation with a certain nation, as distinct from the affiliation with a certain religion. The courts' decision caused a furore throughout Israel and resulted in the 1970 amendment to the Law of Return and the population registry law which defined a Jew as a person who was born of a Jewish mother or who has converted to Judaism, despite Jewish Religious law which prohibits such recognition to children. Israeli law therefore now defines ‘jewishness’ in terms of affiliation with the Jewish religion even though such affiliation has declined in importance with many Jews. The important conclusion to be made from this case is that definitional difficulties can give rise to complex situations as above which could deny protection to affected groups through international remedies.

 Is ‘indigenous’ a neutral term between ‘minorities’ and ‘peoples’?

The truism that only ‘peoples’ and not ‘minorities’ posses a right to self determination could be the main reason that state parties have showed reluctance to employ that term ‘peoples’ in the context of indigenous communities. At present however indigenous groups are commonly addressed as peoples due to a gradual change in the general opinion brought about first and foremost by the indigenes themselves and a process by both ILO and the United Nations.

The separate understanding of Indigenous people next to minorities and peoples can be questioned. Capotorti's definition on ‘minorities’ cited above may equally apply to indigenous groups. But opinions differ as to whether a distinction between these two categories is justified. Indigenous peoples themselves however have always strongly objected to being regarded as minorities as the term is considered as denying their separate and unique identity. The plight of minorities is more towards the recognition of their equal rights while that of indigenous groups is to their distinct rights as people who have a cultural, social and political make-up that is altogether different from that of the dominant group. Moreover indigenous people refuse to be labeled as ‘minorities’ because this would deny them the right to self-determination which extends to peoples and not minorities.

Should indigenous peoples then be subsumed under the general category of 'peoples’? Though some ambiguity exists with regards to this term as well, it is clear that it fits them more appropriately than any other. In his 1978 study on the right to self determination the UN special Rapporteur Cristescy proposed the following definition:

‘The term ‘people’ denotes a social entity possessing a clear identity and its own characteristic. It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population.

Not infrequently, the right of self determination becomes involve in the definition, thus leading to a somewhat circular reasoning which qualifies a group as a people on the basis of its perceived right to self determination, while this right is on the other hand attributed to the group on the basis of its definition as people. Indigenous peoples seem to fit the definition of minorities as well as peoples and this is often a subject of great contention whenever it arises. States are thus reluctant to further efforts in establishing a clear definition for fear that self-determination may lead to political fragmentation.

Whatever definitional difficulties encountered through time, the United Nations alongside the ILO and other interested organizations have not been discouraged to further their programs to recognize the crisis surrounding issues concerning indigenous peoples and minorities. A synopsis of laws affecting the fate of these communal groups will be made below starting from the inter-war period to the current date. It will be found that on the whole, the plight of these groups has not been left unattended despite definitional constraints.

HISTORY AND EVOLUTION OF LAWS IN THE INTER-WAR PERIOD

(i) Minorities

The acknowledgement, albeit limited of existing minority and indigenous groups needing protection in the inter-war period can be evidenced in Europe at least, by the Paris Peace Settlement- For example the Treaty Concerning Recognition of Poland. Art 4 of this treaty corresponded to Art 93 of the Versailles Peace Treaty which also guaranteed the protection of minorities. The latter could address complaints to the League of Nations which received hundreds of complaints from Hungarian authorities in Romania and German authorities in Poland and Czechoslovakia. Sovereign states could and did take up their complaints. It must however be noted that minorities had no locus standi to be before the Committee of the Council which investigated the issue in dispute.

In an Advisory opinion by the Permanent Court of International Justice (PCIJ) in schools set up specially for minorities in the Albania Case the Court referred to art 5 of the Albanian declaration of 1921, which provided for the equal treatment of Albanian minorities. Thus an amendment in 1937 to close down private schools blatantly penalized Albanian minorities it would affect them more although the new provision did not show any outright discrimination. The court stated that whether the provision had the effect of affecting minorities was a question of fact and not just law.

Meanwhile the atmosphere of growing recognition for sovereignty of states rose due to the gradual appreciation of positivism that recognized international law as being between and not above the states . Hence international intercession on behalf of minorities was deemed incompatible with that. The withdrawal of Poland from the League of Nation’s system of minority protection, followed by Germany’s complete break up with the League of Nations remained unchallenged. This explains why the protection of Minority Rights failed to become a norm of customary international law.

On the whole, the international judicial protection of Minority Rights was far more common in the years between the two World Wars and the Permanent Court of International Justice issued many judgments and advisory opinions in this field. The identification of minority groups depended however solely on a factual evaluation by the courts in question, based on abstract criteria. Minority groups were had limited powers to claim unjust treatment and there was no effective mechanism to identify them.

(ii) Indigenous peoples

In the context of indigenous peoples, several cases reveal how courts of ‘civilized’ nations failed to recognize the rights of these groups. In 1928 an international arbitration involved competing claims to the Island of Palmas between the United States and the Netherlands .The United States claim was based primarily on Spain which based its title on discovery. The tribunal ruled in favour of the Netherlands because of its authority over the island, excluding considerations of former treaty agreements between the chief of the indigenous tribes, reducing their importance to being mere ‘facts’. The tribunal stated that such ‘contracts between a State… and native princes of chiefs of peoples not recognized as members of the community of nations…are not, in the international law sense, treaties, or conventions capable of creating rights and obligations.’ Once again the absence of definition and recognition of these groups proved to be a handicap in the development of international law on the rights of indigenous groups.

HISTORY AND EVOLUTION OF LAWS IN THE POST-WAR PERIOD

The omni-presence of Nationalism could be felt even after the ravages of the two Wars. It seems that the lesson had not been learnt. Thus after the Second World War, victorious allies chose to uproot minorities or even whole populations instead of guaranteeing Human Rights in their homelands. Art XIII of 1945 of Postdam Protocol had the effect of transferring some 14 million Germans from Poland including Czechs, and Hungarians – 2 million Germans perished in the process. This policy formulated by the Allies was in stark defiance to the tacit agreement that such forced migration practices would no longer occur.

On December 10 1948 the United Nations General Assembly (UNGA) adopted the UDHR. It made no mention of Minorities’ Rights. At most the only remedy sought could be through the provisions on Equality and Non-discrimination . However Peoples’ Rights were recognized limitedly through the political process of decolonization by granting them the right to self-determination.

Individuals including members of minorities and indigenous groups had no standing to appear before the ICJ (International Court of Justice). According to the ICJ Statute, only Sovereign states or UN organs can seize the ICJ of a case. Individual members had locus standi but only limitedly in the UNHR (United Nations Human Rights) Committee. The European Committee and the Court of Human Rights and the Inter American commission and Court of Human Rights were barely used for redress. The European and American Conventions lacked specific provisions on the protection of Minority Rights and contained only articles on Non-discrimination.

In 1970 ECOSOC Committee adopted Resolution 1503 pursuant to the Sub Commission on Prevention of Discrimination and Protection of Minorities and subsequently the Commission on Human Rights could investigate in confidential procedures complaints received from individuals or groups concerning ‘a consistent pattern of gross and reliably attested violations of human rights.’ They had access to general proceedings where they could submit pleas but under 1503 there was no guarantee of international judicial protection. The initiators of the proceedings had to show that they had exhausted all possible domestic remedies. Individuals could appear although not collective members and their pleas could only be based on Non-discrimination (art 26) an Identity rights (art 27) under the International Covenant of the Protection on Civil and Political Rights 1966 (hereafter ICCPR). It is clear that the Covenant did not offer a term for people and minorities. For example, the disabled are factually a minority but do not constitute a minority for the purposes of art 27and migrants who are ‘new minorities’ are not covered by art 27.

The Optional Protocol to the ICCPR entered into force on 23 March 1976 giving locus standi to individuals who claim to be victims of violations of their Covenant rights by a State party to the Protocol may submit complaints to the Committee who will first ascertain their legitimacy. These decisions are quasi-judicial in nature and are read like judgments but are however not legally binding. The main difference between resolution 1503 and the Optional Protocol is that the former is about the internal procedure to be followed for the violation to be remedied. However the same matter cannot be pursued by any other international body at the same time.

In the case of Singh Bhinder v Canada in a claim of a religious and ethnic minority who was being prevented to wear his turban during the course of his employment. Art 26 on non-discrimination was raised by the claimant together with the provision on freedom of religion enshrined in art 18. While it was admittedly held that there was no discrimination in this case, what was clearly failed to be observed was that the claimant in question was a member of a minority group. Failure thus to identify these minorities denies them the special status they deserve.

The advent of the Convention on prevention on Genocide did little to provide a satisfactory definition of ‘minorities’ per se. Hence Art 11 of the Convention speaks of genocide victimizing ‘national, ethnic, racial or religious groups’-. This is referred only in terms of total effacement of the group in question and does not include any other means of suppressing them, as for example undermining or destroying their cultural or linguistic attributes. Moreover it could also refer to majority groups.

The European Convention on the Protection of Human Rights and Fundamental Freedoms also contained no explicit protection of Minority Rights. But art 14 stated ‘association with national minority is prohibited ground for discrimination’. In Belgium Linguistics case French speaking parents in Belgium required the State to provide French linguistic schools. The Right to education and Right to family was invoked jointly. The court held that art 14 could not operate independently and the violations of those rights could not be established. The claim thus failed.

Art 27 of the ICCPR does not place the government under any positive duties to promote minority culture or religion. Art 27 consists simply of a duty not to interfere with minorities in its enjoyment of rights. ‘In those states in which minorities’ exist can be taken to mean that states determine whether or not they exist. Capotorti says this evaluation is based on objective/factual criteria. Lovelace v Canada cleared this ambiguous provision by denying States the prerogative to decide which groups it could classify as minorities and confer rights upon accordingly, since it was often an instrument of abuse. On this matter subsequent enactment such as art 2(1) of the Declaration on the Rights of Persons in Developing National or Ethnic Religious and Linguistic Minorities refrained from giving such discretion to States.

Another instrument phrased to protect minorities is the Convention on the Elimination of All Forms of Racial Discrimination if they claim to be victims of discrimination based on their national, ethnic or racial origin. The procedure of complaint and conditions attached are similar to those under the Optional Protocol of the ICCPR and is dealt with by an expert committee called the Committee on the Elimination of Racial Discrimination (CERD). The committee has not dealt with any issues relating to minorities directly but on discrimination. However a blatant limitation to this Convention was apparent in the case of Demba Talibe Diop v France concerning a Senegalese lawyer who was denied a license to practice by the Nice Bar. The committee did not find a violation and referred to art 1 para 2 which provides that the Convention ‘shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens.’

Two other important provisions in this instrument provide for the protection of minorities: art 4 and art 2 para 2 which provides for special measures. To a certain extent State Parties members to the Convention have taken active steps to incorporate the policies in their own subsequent domestic legislation. For example, The Race Relations Act was passed in 1976 to protect people against discrimination or abuse on the grounds of race, colour, nationality or ethnic background. It does not outlaw racial prejudice as such - only education and contact will achieve that - but it does offer considerable protection against most problems encountered at work, at school, in banks, pubs, clubs or restaurants.

The definition of racial harassment in the law does not specifically include religious groups, but some of these, including Jews and Sikhs, are almost certainly covered because of the way the courts have interpreted the act. The House of Lords for example decided that Sikhs did constitute an "ethnic" group because they had a long shared history and a cultural tradition of its own, along with a common geographical origin, a common language and literature or common religion different from neighbouring groups. In fact, the government takes this kind of behaviour so seriously that it included a series of new laws in the Crime and Disorder Act in 1998. It even defined what made an offence racially aggravated. The prosecution has to prove that there was "racial hostility at the time of committing the offence, or immediately before or after doing so" or "that the offence was motivated wholly or partly by racial hostility". If it does so, that will lead to longer sentences and steeper fines.

In Hungary, the radio and television board recently awarded a license for an FM radio frequency to radio C in Budapest, Central Europe's first independent station run by Roma. Regarding housing for Roma, there have been initiatives in Romania and Slovakia that have brought together Roma and non-Roma to build houses, which has worked to stem negative stereotypes of Roma as passive recipients of social benefits. In addition, the Roma themselves have founded several political parties and movements in many societies and have grouped into several dozen civic associations. The fact that Governments have simply admitted that the Roma are the victims of intolerance and discrimination has been a major step forward in some countries.

One of the main hurdles faced while trying to incorporate rights of minorities in international instruments was the unwillingness of governments to accept and recognize such rights for fear that these groups might be empowered to cause more political trouble and demand right to secede. Provisions on non-discrimination and equality contradict the grant of ‘special rights’ to minorities by virtue of the need to preserve minority characteristics as explained above. But with time the rules on non-discrimination and equality have been interpreted widely to include special treatment to minorities by virtue of their vulnerable position. This has been seen as the best means to ensure their ‘equality’. Thus the Human Rights committee commented on the non-discrimination provision under the ICCPR.

That the term ‘discrimination’ as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.’

The Committee went on to say that a purposive approach to interpreting the provision would do it best justice since identical treatment did not mean equal treatment per se. Discrimination in treatment is legitimate if its purpose is to fulfill the spirit of the Covenant.

LOCUS STANDI OF INDIGENOUS PEOPLES’ AND MINORITIES IN THE LAST TWENTY YEARS

(i) Indigenous Peoples

Two initiatives, within the UN Working Group on Indigenous Peoples and the International Labour Organization (ILO) were of great importance in the recognition of Indigenous peoples’ rights. Firstly the draft Universal Declaration on Indigenous Rights (hereinafter Draft Declaration) enabled many indigenous groups to get together and address their issues directly together with non-governmental support groups and academics . During the 1993 session, indigenous groups valiantly showed their conviction and increasing power to further their interests in what was known as the ‘battle of the ‘s’’ which although lost, remained imprinted in the minds of member state representatives who recognized their political hegemony in the issue at stake. Although the present convention is considered merely aspirational and does not have the force of a Convention, it has exerted positive influence over state practice in the context of indigenous rights.

Secondly the Indigenous and Tribal Peoples Convention (no 169) was adopted by 152 member states of the ILO in order to review the Indigenous and Tribal Populations Convention (No 107) which was regarded as assimilationist and inadequate. This jolted other organizations such as the World Bank and the Organization of American States into action as concern grew over the fate of indigenous peoples. Writers have expressed the positive change noticed during these activities since there has been direct participation of indigenous groups, which was lacking in previous fori regarding such issues. It must also be noted that the Working Group Draft Declaration contains languages requiring consent of indigenous peoples in any direct or indirect interferences by state authorities into their social, cultural or environmental affairs. The draft of the Inter-American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights emanates from the experience gained in drafting the declaration on the Rights of Indigenous Peoples.

In 2000, the UN department of Economic and Social Affairs (ECOSOC), one of the six main organs of the United Nations, set up a Permanent Forum treating issues relating to indigenous communities . This has been, by far the greatest laudable achievement by active groups working for the right of indigenous groups. After a first international decade being decreed for indigenous peoples, a resolution was passed on 22 December 2004 for a second one by the General Assembly.

Pursuant to this, Rodolfo Stavenhagen was appointed as the first Special Rapporteur on Indigenous Peoples on 24 April 2001 to formulate recommendations to prevent and remedy violations of indigenous peoples’ rights and work with other experts of the UN Commission on Human Rights and of the Sub-Commission on the Promotion and Protection of Human Rights.

(ii) Minorities

In the context of minorities, on 18 December 1992 the UNGA adopted the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. It was high time that minorities, as special collective groups, were recognized by international instruments. Thus the June 1992 Report by the UN Secretary General on the role of human rights and minority rights in preventing conflict and in making and keeping peace stated:

‘One requirement for solutions to these problems lies in commitment to human rights with a special sensitivity to those of minorities, whether ethnic, religious, social or linguistic. The League of Nations provided a machinery for the international protection of minorities. The General Assembly will soon have before it a declaration on the rights of minorities. That instrument together with the increasingly efficient machinery of the United Nations dealing with human rights, should enhance the situation of minorities as well as the stability of the States.’

This was the first international human rights instrument devoted solely to minority rights. It must however be noted that disappointingly, minority representatives did not have a role in the drafting process and this should be considered a major drawback in recognizing the plight of minorities and trusting their abilities to identify their own problems. It must be also pointed out that proposals to attach a serious monitoring mechanism to the Declaration have not yet been accepted, undermining the importance of the issue.

Gudmundur Alfredsson and Alfred de Zayas opine that a precise definition of ‘minorities’ is not necessary because the answer ‘is known in 90 percent or more of the possible cases, and that governmental and intergovernmental practice, including the jurisprudence of judicial organs, will eventually bring clarity to any remaining problems.’ They hope that eventually even immigrants workers would gain the status of minorities.

It must be noted that art 41 if the ICCPR allows governments to bring up issues relating to the performance of fellow governments in pertinent issues including issues relating to minorities but by far, Governments have shown reluctance to take such a step.

The OSCE (Organization for Security and Cooperation in Europe) High Commissioner on National Minorities was established in 1992 to ensure peace and stability with respect to ethnic differences between OSCE participating States. In his keynote address at the opening of the OSCE Minorities Seminar in Warsaw in 1994, High Commissioner van der Stoel stated the following:

"(...) I won't offer you [a definition] of my own. I would note, however, that the existence of a minority is a question of fact and not of definition. In this connection, I would like to quote the Copenhagen Document of 1990 which (...) states that 'To belong to a national minority is a matter of a person's individual choice.' (...) I would dare to say that I know a minority when I see one. First of all, a minority is a group with linguistic, ethnic or cultural characteristics, which distinguish it from the majority. Secondly, a minority is a group which usually not only seeks to maintain its identity but also tries to give stronger expression to that identity."

Definitional constraints have not been the main instruments in obstructing the development of law on Indigenous groups and Minorities’ rights in International law. This is evidenced by the growing recognition and political presence of such communities in the activities of the United Nations and the ILO, despite the continued absence of settled definitions. But it is to be noted that the problem needs to be resolved soon because of its bearings on other pertinent issues. One of these is the reinforced disagreement on the categorization of indigenous groups as such by governments and the corresponding retaliation by them

THE PROBLEM OF A UNIVERSAL DEFINITION

Although the importance of clarifying definitions in international law has already been established, many indigenous groups still resist the idea of having one universal definition of the term 'indigenous'. For instance, during the many years of debate at the United Nations Working Group on Indigenous Populations (WGIP), observers from indigenous organizations developed a common position and rejected the idea of a formal definition of indigenous peoples. An example of their position can be seen in the 1996 report of the Working Group :

“We, the Indigenous Peoples present at the Indigenous Peoples Preparatory Meeting on Saturday, 27 July 1996, at the World Council of Churches, have reached a consensus on the issue of defining Indigenous Peoples and have unanimously endorsed Sub-Commission resolution 1995/32. We categorically reject any attempts that Governments define Indigenous Peoples. We further endorse the Martinez Cobo report in regard to the concept of “indigenous”. Also, we acknowledge the conclusions and recommendations by Chairperson-Rapporteur Madame Erica Daes in her working paper on the concept of indigenous peoples .”

There are various reasons as to why indigenous peoples adopt such a stance towards the idea of having a universal definition of the term 'indigenous':


 The right to self determination

The unqualified right to self determination, set out in Articles 1 and 55 of the UN charter, article 1 of both the ICESCR and the ICCPR, and the Vienna Declaration, is a basic principle of international law and the foundation of the international human rights system. It must be noted that the Charter does not expressly confer a right of self-determination but it obligates member states to adhere to the principle of self-determination so long as it promotes the purposes of the United Nations. The right to self determination is one of the most sensitive issues concerning indigenous peoples. Article 3 of the UN Draft Declaration on the Rights of Indigenous Peoples states:

"Indigenous peoples have the right to self determination. By virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development".

According to the indigenous delegates at the working group, the right to self determination is the 'fundamental provision in the declaration' . It is for them an essential part of indigenous peoples’ rights and a prerequisite for the exercise of their spiritual, social cultural, economic and political rights, as well as their practical survival. Therefore it is felt that the Draft Declaration will be meaningless without unless the right to self determination is accepted.

The right to self determination precludes having a universal definition to the term 'indigenous', and the importance of self determination to indigenous peoples is one of the reasons why they resist so much the idea of a universal definition. Having a universal definition will take away that right. Indigenous people endorse the Cobo report and want to be able to determine their status as indigenous, independently of any external consent by governments.


 The lack of definition of terms like 'peoples' and 'minorities': 'Definition' vs. 'Identification'

Many indigenous representatives pointed out that central concepts in international human rights instruments are often not defined , and therefore there should be no reason as to why it would be essential to have an all-inclusive international definition of the term ‘indigenous peoples’. In the sixty- year history of developing International Law within the United Nations system, there have been many terms which were never formally defined e.g. the notions of peoples and minorities. However, this lack of definition has not hindered the UN in recognizing the right of peoples to self determination and adopting the Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities . The lack of a formal definition of the terms "minorities" and "peoples" in international law has not been crucial to the promotion, protection or monitoring of the rights of these entities. It was argued that indigenous rights therefore also could be implemented without a definition of "indigenous peoples". Moreover, it has been argued that a definition of 'indigenous peoples' is not a prerequisite for adoption of the Draft Declaration on the Rights on Indigenous Peoples. Some have gone even further, claiming that a universal definition of indigenous peoples is neither desirable nor necessary for the advancement of work on the Draft Declaration ; it is only essential to acknowledge that such people exist, and that they have a right to be recognized as such and to freely exercise their culture, language or religion. The need for a universal definition would greatly slow down the process of ratification of any declaration or international treaty by UN member states, due to the difficulty that would arise in reaching a consensus on a proper definition. It is argued that for practical purposes, the understanding of the term provided in the Matinez Cobo report or the ILO Convention 169 should suffice.


 Lack of good will from governments

Certain UN member states have insisted on a formal definition of the term 'indigenous peoples' with a view to excluding indigenous peoples rather than achieving clarity about the meaning of the term. States have used the categorization and labeling of different groups to exclude them from influence and participation. Some governments may wish to underestimate the percentage of the population who are indigenous in order to minimize indigenous peoples' political role or deny them access to land, and could use the creation of a universal definition as a tool to achieve that. An example of this occurred in 2002 when the Government of Botswana expelled all the Kalahari Bushmen from the lands they had lived off for at least twenty thousand years. Government ministers described the Bushmen as "stone age creatures" and likened their forced eviction to a cull of elephants. These events passed almost without comment in the world's media, at a time when the eviction of a number of white people from land in nearby Zimbabwe was headline news

Some indigenous representatives also expressed the view that if an explicit definition were included in the draft declaration, it could be used to prevent some indigenous peoples from benefiting from the moral, political and legal impact of the declaration.

The concept of self-determination as opposed to a universal definition is however a double-edge sword. Some governments endorse the idea of having a universal definition of the term, and resist the idea of the right to self determination. They fear that recognition of the right to self determination for indigenous peoples could endorse secession. However self determination could also simple mean full autonomy for a people over its political, economic and cultural affairs; greater participation in national and local political affairs; enhanced respect for a people’s choice of government; or greater respect for individual civil and political rights . Michla Pomerance views self-determination ‘as a continuum of rights, as a plethora of possible solutions, rather than a rigid absolute right to full external self-determination in the form of independence.’ Thus the fear of government that the principle of self determination would necessarily lead to the dismemberment of the country is unfounded. This however explains their reluctance to leave the definition open-ended as opposed to it being universal.

It is also interesting to note how the position of member states with respect to the issue of self determination can change drastically with change in internal government. For instance, Australia was at the forefront of the international community in recognising the right of self determination of its indigenous population. However, with the election of the Howard Liberal government in 1996, Australia's position drastically changed to opposing the inclusion of the article on the right to self determination in the Draft Declaration. This illustrates how consensus building among member states to find a universal definition can seriously be hindered by changes in national policy and reinforces the argument that the endeavour to find a universal definition of the term ‘indigenous’ will greatly inhibit advancement of work on indigenous peoples’ rights.

 State to State differences

Any watertight definition of the term would limit the flexibility of Governments and peoples in applying relevant instruments to their own national circumstances. Various States have used their own domestic definitions for indigenous groups, referring to them by their own distinctive names or tribes. Having one rigid definition of the term indigenous would greatly hinder the ability of States to identify their own indigenous groups, thereby excluding some groups from the rights which they would otherwise have enjoyed.


CONCLUSION

Understanding why minorities require more protection than majority groups is similar to understanding why a baby needs more protection than an adult. While human rights thus acknowledge equal rights for all, they fail to recognize the fact that the feeling of being ‘more equal than others’ held by the majority already exists.

In 1923 Haudenosaunee Chief Deskaheh traveled to Geneva to speak to the League of Nations and defend the right of his people from any external interference. He returned home, disappointed at not having been given the right to speak. Today leaders of indigenous tribes are actively engaged in drafting of resolutions within the United Nations and their participation in other committees such as the CEDAW (Convention on the Elimination of All forms of Discrimination Against Women), CITES (Convention on International Trade of Endangered Species of Wild Fauna and Flora) and the CRC (Convention on the Rights of the Child) are important revelations of the importance accorded to them on the international front.

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