Indigenous World 2019: The work of the UN Treaty Bodies and Indigenous Peoples Rights
The treaty bodies are the committees of independent experts in charge of monitoring the implementation by state parties of the rights protected in international human rights treaties. There are nine core international human rights treaties that deal with civil and political rights; economic, social and cultural rights; racial discrimination; torture; discrimination against women; child rights; migrant workers rights; persons with disabilities; and enforced disappearances.
The main functions of the treaty bodies are to examine periodic reports submitted by state parties, adopt concluding observations and examine individual complaints. Concluding observations contain a review of both positive and negative aspects of a state’s implementation of the provisions of a treaty and recommendations for improvement. Treaty bodies also adopt general comments and recommendations which are interpretations of the provisions of the treaties. A large number of treaty bodies’ general comments makes reference to indigenous peoples’ rights. However, so far, only the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Rights of the Child (CRC) have adopted general comments specifically addressing indigenous peoples’ rights.
This article contains a non-exhaustive overview of the main activities of the treaty bodies in relation to indigenous peoples’ rights, with a specific focus on the work of five treaty bodies: the CERD, the Committee on Economic, Social and Cultural Rights (CESCR), the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the CRC.[1]
The treaty bodies and indigenous peoples’ rights
Over the past decades, the treaty bodies have contributed to the development of a solid body of jurisprudence on indigenous peoples’ rights. In 2018, the committees formulated a large number of observations highlighting threats, acts of violence and other grave abuses faced by indigenous peoples; lands dispossession, absence of consultation and denial of the right to free and prior informed consent (FPIC); intersectional discrimination faced by indigenous women and children; as well as discrimination in accessing employment, education, health services and justice. The committees adopted a number of recommendations reminding state parties of their obligations to protect the rights of indigenous peoples to equality and non-discrimination including their rights to own, use, develop and control their lands, territories and resources and to FPIC. A number of state parties[2] were encouraged to ratify ILO 169 while a number of others were referred to the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
The Committee on the Elimination of Racial Discrimination
The CERD continued to adopt comprehensive observations and recommendations on indigenous peoples’ rights including under its early warning and urgent action procedures. The CERD underlined the multiple violations faced by indigenous peoples in particular in relation to their rights to: self-identification (Japan, Nepal)[3], non-discrimination (Sweden, Honduras, Peru, Japan)[4], participation (Peru, Nepal), representation (Honduras, Japan), land ownership (Nepal, Sweden, Japan, Peru, Honduras, Norway[5]) and FPIC (Sweden, Peru, Honduras). The CERD also expressed concerns in relation to: poverty and gaps in living standards (Honduras, Japan), forced labour (Peru) intersectional discrimination faced by indigenous women (Peru, Honduras Japan) as well as limited access to: justice (Honduras, Peru), health-care services (Honduras, Peru, China[6], Japan), employment (Japan, Peru) and education (Honduras, Peru, Japan). The CERD also highlighted acts of violence and harassment (Honduras, Peru, Nepal). In particular, violence against indigenous women (Norway, Peru, Japan), as well as torture, ill treatment and arbitrary detention of ethnic minorities (China). Finally, it noted the negative impact of development projects (Peru, Honduras, Nepal) including the threat they pose to the survival of indigenous peoples in voluntary isolation or initial contact in Peru.
Drawing on its General Recommendation No. 23 on the rights of indigenous peoples[7], the CERD made extensive recommendations addressing indigenous rights. The Committee notably called upon Japan to recognize the Ryukyu as indigenous peoples, Nepal to ensure the formal recognition of all indigenous peoples in its national legislation and Norway to facilitate the adoption of the Nordic Sámi Convention. The CERD recommended to adopt measures or affirmative actions to combat racial discrimination (Peru, Honduras, Sweden), poverty and discrimination in employment (Peru, Honduras, Japan), repeal laws that criminalize aspects of indigenous cultures, prosecute hate crimes against Sámi people (Sweden) as well as cases of labour exploitation and forced labour (Peru, Honduras). The Committee further called upon state parties to ensure access to health-care services (Japan, Honduras) and education (Japan, Nepal, Peru, Honduras) notably via the elaboration of an intercultural curriculum in Honduras or via intercultural bilingual education in Peru. The Committee advised Honduras and Peru to guarantee indigenous participation in public administration, China to ensure political representation of persons belonging to all ethnic groups, Japan to increase Ainu representation in consultative bodies and Nepal to respect the rights of indigenous peoples to freely choose their representatives and participate in government bodies.
State parties were recommended to ensure access to justice notably by increasing the number of interpreters and by providing free legal assistance (Peru, Honduras) and training judges and law enforcement officers on cultural knowledge of Sámi communities (Norway). Peru and Honduras were encouraged to eliminate the intersectional discrimination faced by indigenous women, Japan and Norway to protect indigenous women from violence and Peru to ensure the investigation of forced sterilization of indigenous women. The CERD further recommended to prevent, investigate and prosecute perpetrators of attempted killings, acts of violence and threats committed against indigenous leaders (Peru, Honduras, Nepal) and of custodial deaths, acts of torture and ill-treatment and harassment against members of ethnic minorities (China).
With respect to land rights, Nepal was recommended to resolve dispute over indigenous traditional lands including by revising its legislation, Honduras and Peru to ensure legal recognition and protection of the rights of indigenous peoples to own their lands and territories and Japan to adopt measures to protect Ainu land rights. The Committee additionally recommended Sweden to draw up legislation to further protect the land rights of Sámi people and Norway to improve its legal framework on Sámi land, fishing and reindeer rights. Peru was urged to expedite the establishment of indigenous reserves and to adopt measures for ensuring the physical and cultural survival of indigenous peoples in voluntary isolation or initial contact. Peru and Honduras were advised to establish a mechanism for filing land claims and for land restitution, Nepal to provide remedies to peoples affected by eviction and Honduras to give full effect to the judgments of the Inter-American Court of Human Rights.[8] The Committee called upon Peru, Nepal and Honduras to obtain the FPIC of indigenous peoples prior to the approval of any project or legislative/administrative measure affecting their rights. Sweden was requested to enshrine the right to FPIC into law and Honduras to carry out a review of its bill on prior consultation to be in line with international standards. Peru and Honduras, finally, were recommended to conduct environmental and social impact assessments (ESIAs) prior to development projects as well as to ensure compensation and benefits participation.
Under its Urgent Action Early Warning procedures,[9] the CERD considered a number of indigenous rights-related cases in Australia[10], Canada[11], Chile[12], French Guiana[13], Guyana[14], Papua New Guinea[15], the Philippines[16] and the United States of America[17].
The Committee on Economic, Social and Cultural Rights (CESCR)
The CESCR continued to make extensive reference to indigenous rights and notably underlined the absence of constitutional recognition of the Treaty of Waitangi in New Zealand[18] and of constitutional and legislative recognition of indigenous peoples in Bangladesh[19]. The Committee also underscored threats and acts of violence (Argentina[20]), gender-based violence (New Zealand), poverty (Mexico, Central African Republic (CAR)) [21], discrimination (South Africa[22], CAR, Mexico, New Zealand), difficulties in accessing employment (New Zealand, Mexico, CAR), health care services (CAR, New Zealand), education (Mexico, New Zealand, CAR), education in indigenous languages (New Zealand, Bangladesh, South Africa) and identity documents (CAR). The CESCR further highlighted the absence of indigenous participation in decision-making processes or political affairs (New Zealand, Bangladesh, CAR), failure to protect indigenous languages (Argentina, South Africa) and to promote cultural diversity (Mexico, Niger, Mali)[23]. In relation to land rights, the Committee expressed concerns about unresolved land disputes (Bangladesh), difficulties in obtaining lands (CAR), failure to demarcate indigenous lands (Argentina, Mexico), the absence of mechanisms to title indigenous lands (Argentina), evictions or expropriation (Argentina, Bangladesh), the clearing of protected forests (Argentina), the negative impact of economic projects (Mexico), as well as denial of the right to FPIC (Bangladesh, Argentina, Mexico).
The Committee formulated a number of recommendations covering the economic, social and cultural rights of indigenous peoples and notably called upon Bangladesh to enact a law recognizing and protecting the rights of indigenous peoples, CAR to adopt a national strategy to promote and protect the rights of indigenous populations favouring the implementation of the UNDRIP, New Zealand to implement the recommendations of the Waitangi tribunal and to bring domestic legislation and policy in line with the provisions of the UNDRIP and Bangladesh to intensify its efforts to implement the Chittagong Hill Tracts Peace Accord. State parties were invited to combat discrimination (CAR, Mexico, South Africa, New Zealand) notably via the introduction of a strategy to ensure that the nature and impact of unconscious bias towards Maori peoples is understood by governance bodies and employees in New Zealand. South Africa, Bangladesh and New Zealand were also advised to implement or set up mechanisms to ensure indigenous representation and participation in all decision-making processes affecting their rights.
The CESCR further recommended to improve or guarantee access to health care (Mexico, New Zealand, CAR, Niger), employment (Mexico, New Zealand), identity documents (CAR) and to eradicate slavery among indigenous populations (CAR). The Committee called upon CAR, Niger and Mexico to ensure access to education, notably via education in indigenous languages (Niger, Mexico, New Zealand, Bangladesh), culturally appropriate education curricula (New Zealand, South Africa, Niger) and intercultural bilingual education (Argentina), to protect/promote cultural rights and heritage (Argentina, Mali, Niger, Mexico) as well as to preserve indigenous languages (Argentina, New Zealand). Argentina was requested to combat impunity and identify state agents responsible for acts of violence, CAR to strengthen the protection of indigenous populations in the framework of the conflict and New Zealand to protect victims of gender-based violence as well as to investigate claims of abuse of children in state care.
In relation to land rights, the CESCR called upon Mexico to legally recognize the right to land ownership, Argentina and Mexico to complete the demarcation of indigenous lands and Argentina to secure land tenure and community lands. Drawing on its General comment No. 24 (2017) on state obligations in the context of business activities, the Committee recommended Argentina, New Zealand and Mexico to undertake human rights and environmental impact assessments before exploration or development projects. Argentina was recommended to relocate non-indigenous families settled in Lhaka Honat community, Mexico to ensure restitution of lands occupied by non-indigenous persons and Bangladesh to provide remedial mechanisms for land deprivation and land-dispute applications. The Committee further called upon Argentina, Bangladesh, Mexico and New Zealand to ensure or obtain the FPIC of indigenous peoples before developing projects or granting concessions, in accordance with ILO Convention 169 and the UNDRIP (Mexico).
The Human Rights Committee
The HRC continued to address the violations faced by indigenous peoples in relation to Articles 1, 2, 14, 25, 26 and 27 of the International Covenant on Civil and Political Rights (ICCPR). The Committee expressed concerns regarding discrimination faced by indigenous peoples (Norway, Algeria, El Salvador)[24], arbitrary arrests and detentions (Lao[25]), acts of violence (Guatemala[26], El Salvador), violence against Sámi women (Norway), forced evictions and relocations (Guatemala[27], Lao). The HRC further underlined lack of consultation (Guatemala, Belize[28], Lao); the absence of consultation mechanisms to facilitate indigenous peoples’ participation in decision-making processes (El Salvador); the absence of legal recognition and implementation of the right to FPIC as well as the absence of a legislative framework ensuring Sámi land rights, including fishing and reindeer husbandry (Norway); and the lack of recognition of customary land tenure of Maya peoples (Belize) and of the right of indigenous peoples to acquire land titles (El Salvador).
The Committee formulated a number of recommendations related to the protection of the civil and political rights of indigenous peoples and notably called upon El Salvador to protect the rights of indigenous peoples, Norway to adopt the Nordic Sámi Convention and combat discriminatory attitudes and practices towards Sámi peoples, and Algeria and El Salvador to adopt legislation against discrimination towards indigenous peoples. Both Guatemala and El Salvador were advised to increase indigenous representation in political and public life. The HRC also recommended strengthening institutions protecting the rights of indigenous persons including women (Guatemala), combat violence against women and girls and launch a new national plan of action to eliminate violence against women and girls (Norway). El Salvador and Guatemala were recommended to adopt special legislative measures or public policy for the protection of indigenous rights defenders victims of acts of violence and threats and ensure prosecution of perpetrators and redress to victims. Lao was requested to cease the persecution of the Hmong, ensure prosecution of perpetrators and provide redress to victims and their families. Belize was invited to comply with the Caribbean Court of Justice’ Consent Order calling for the recognition and protection of the customary land tenure of Maya peoples, El Salvador to adopt a legislation on the granting of land titles and Norway to enhance the legal framework on Sámi land, fishing and reindeer rights and ensure the legal recognition of fishing rights. The HRC called upon Norway, Guatemala, Belize and Lao to ensure consultation with indigenous peoples with a view to obtaining their FPIC for development projects that have an impact on their livelihood, lifestyle and culture (Lao), before concluding concession agreements (Belize) or taking measures affecting their way of life and culture (Guatemala). Norway was requested to adopt a law for consultation with a view to obtaining FPIC, El Salvador to create a national consultation mechanism to safeguard the exercise of the right to FPIC and Guatemala to amend laws impeding the exercise of the right to FPIC.
Under article 5(4) of its Optional Protocol, the HRC adopted views[29] on complaints submitted by the President of the Sámi Parliament of Finland[30] and by twenty-five members of the Sámi people[31] against Finland.[32] The HRC also adopted views[33] following a complaint[34] submitted by two Canadian members of the First Nations in British Columbia.[35]
The HRC adopted General comment No. 36 (2018) on article 6 of the ICCPR, on the right to life, which makes reference to the rights of indigenous peoples.[36]
The Committee on the Rights of the Child (CRC)
The CRC continued expressing concerns about multiple forms of discrimination faced by indigenous children (Guatemala, Panama, Argentina, El Salvador, Norway, Lao)[37] in particular in relation to access to healthcare (Guatemala, Panama), education or bilingual education (Guatemala, Panama, Lao). It also underlined child poverty (Guatemala, Panama, Argentina), child mortality and malnutrition (Guatemala, Panama), child abuse (Argentina, Norway, Guatemala) as well as child labour and sexual exploitation of indigenous children (Guatemala). The Committee further noted the absence of legislative and policy frameworks to protect the right of indigenous children to FPIC (Guatemala), the harmful effects of mining activities and the use of agrochemicals by corporations on environment and on the health of children (Argentina), the presence of explosive ordnance affecting children (Lao) and disputes over landownership which resulted in forced evictions of indigenous children and families (Guatemala).
Drawing on its General Comment No. 11 on indigenous children, the CRC made a number of recommendations addressing the rights of indigenous children and notably invited state parties to take measures to combat or eliminate discrimination (Norway, Angola[38], Argentina, El Salvador, Guatemala, Panama, Sri Lanka[39], Lao), prevent hate speech and violence (Norway, Sri Lanka), prevent and reduce abuse, violence and exploitation (Norway, Guatemala, Panama), ensure access to health services (Guatemala, Panama, Argentina, El Salvador); including by developing programmes in local languages (Lao) or by ensuring culturally sensitive health services in indigenous languages (Panama). The Committee also called upon state parties to improve standards of living or tackle poverty (El Salvador, Argentina, Panama, Guatemala), eliminate food insecurity (El Salvador, Panama), provide care programmes for child victims of mines or explosive ordnance (Lao), ensure access to birth certificates (Argentina, Panama) and quality education (Argentina, El Salvador, Guatemala, Panama), notably via Sámi-language education (Norway) or intercultural bilingual education programmes (Guatemala, Panama, El Salvador).
In relation to land rights, the CRC recommended Sri Lanka to ensure the preservation of the rights, traditions and lands of indigenous children, Guatemala and Panama to consult with indigenous peoples including indigenous children in order to obtain their FPIC before adopting and implementing legislative or administrative measures that may affect them and Argentina to strengthen implementation of measures to protect the physical and mental health of indigenous children from environmental harm caused by the impact of mining and agro-chemicals, hold entities responsible accountable and afford effective remedies to victims. The CRC requested Panama to prevent evictions of indigenous families and children and Guatemala to consider the impact of forced evictions on children and ensure the implementation of resettlement plans and humanitarian assistance.
The Committee on the Elimination of Discrimination against Women
The CEDAW made a large number of references to violations and intersectional discrimination faced by indigenous women and girls (Australia, Chile, Fiji, Suriname, Mexico, Nepal, New Zealand)[40] and underlined the absence of recognition of the rights of the First Nations in Australia and of the right of indigenous peoples to self-determination in Nepal. The Committee underscored poverty and inequalities (Suriname, Mexico, Congo[41], Nepal), high rates of maternal mortality (Mexico) and suicides (Australia). It also noted difficulties in accessing healthcare (Australia, Chile, Malaysia[42], Mexico, Nepal, Suriname, Lao[43]), sexual and reproductive health education and services (New Zealand, Suriname) and birth registration (Australia, Congo, Lao, Mexico). The CEDAW further underlined high school drop-out rates (Chile, Congo, Malaysia, Nepal; Australia) and discrimination in relation to access to education (Australia, Chile, Congo, Lao, Mexico, Nepal, Suriname, New Zealand) and employment (Chile, Malaysia, Nepal, Suriname, Australia[44], Mexico). The Committee noted lack of representation of indigenous women in political and public life or decision-making processes (Chile, Malaysia, Nepal, Lao, Suriname), barriers to gaining access to justice (Chile, Mexico, New Zealand, Suriname), high rates of incarceration (Australia, New Zealand) and removal and placement of indigenous children (Australia). The CEDAW further highlighted gender-based violence (Nepal, New Zealand, Australia, Chile), in particular threats, sexual abuse and killings of indigenous women rights defenders and the disproportionate application of anti-terrorism legislation to criminalize certain acts by indigenous women (Chile). The Committee also expressed concerns regarding the lack of recognition of land ownership (Chile, New Zealand) and land titles (Mexico), difficulties in claiming native titles (Australia) and disparities accessing lands (Lao, Nepal, Congo). The CEDAW further underlined the absence of consultation to ensure FPIC of affected women prior to development projects conducted in Chile, Mexico, Australia, Papua New Guinea and South Africa, the negative impact of extractive industries and agribusiness companies (Suriname) and forced evictions (Chile, Palestine, Mexico).
The CEDAW made a large number of recommendations aimed at promoting and protecting the rights of indigenous women and girls and notably called upon Nepal, New Zealand, Lao, Mexico and Fiji to undertake measures to eliminate intersectional discrimination; Chile, Mexico, New Zealand to implement poverty reduction strategy or measures; to amend the Nepalese Constitution to explicitly recognize the rights of indigenous women to self-determination in line with the UNDRIP; and to recognize First Nations in the Australian Constitution. The Committee requested state parties to promote access to education (Suriname, Mexico, Chile, Lao, Nepal, New Zealand, Congo) notably via the provision of bilingual education (Suriname), intercultural education (Lao) or the elimination of schooling costs (Congo). The CEDAW further invited state parties to improve access to: birth registration (Mexico, Congo, Australia), employment and economic development (Australia, Chile, Lao, Malaysia, Suriname, Nepal, Mexico), healthcare services (Australia, Malaysia, Nepal, New Zealand, Mexico), justice for victims of gender-based violence or discrimination (Chile, Mexico) particularly via the introduction of a system of mobile courts (Mexico), and representation in political and public life (Malaysia, Australia, Lao, Suriname, Nepal) and in decision-making-processes (Chile, Malaysia, Suriname, Australia, Mexico). Australia was requested to address intergenerational trauma in culturally appropriate ways and eliminate the overrepresentation of indigenous children in out-of-home care while both Australia and New Zealand were asked to provide alternatives to detention. Chile was recommended to ensure that perpetrators of violence against indigenous women human rights defenders be prosecuted and punished and to not apply anti-terrorism legislation for acts committed in connection with the assertion of land rights.
In relation to land rights, the Committee recommended Chile, New Zealand and Mexico to recognize and protect indigenous women’s right to land tenure or land ownership, Suriname to develop a policy to overcome inequalities limiting access to land, Congo to ensure access to property and provide reparations and compensation, Nepal to enhance access to land and natural resources and Australia to train more indigenous legal professionals to provide legal assistance to make claims under land rights schemes. The CEDAW further called upon Mexico, Chile and Australia to ensure that development projects are implemented with the FPIC of indigenous women and notably include benefit-sharing arrangements (Australia, Mexico). Chile and Australia were recommended to set up mandatory consultation mechanisms on the right to FPIC and Mexico to establish a legal framework on FPIC. In relation to business and human rights, Suriname was advised to strengthen its legislation governing the conduct of companies to establish minimum standards for environmental protection and Australia to establish a mechanism to investigate violations of women’s human rights by corporations and ensure compensation for victims of such violations, including the victims of the Bougainville conflict.
The CEDAW adopted General recommendation No. 37 (2018) on the gender-related dimensions of disaster risk reduction in the context of climate change which makes reference to the rights of indigenous women and girls.[45]
Notes and References
[1] Due to length, the activities of the Committee against Torture (CAT), Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), Committee on Migrant Workers (CMW), Committee on the Rights of Persons with Disabilities (CRPD) and Committee on Enforced Disappearances (CED) were not included.
[2] Notably China, Japan, Bangladesh, South Africa, New Zealand, Malaysia, Suriname, Panama and El Salvador
[3] CERD/C/JPN/CO/10-11; CERD/C/NPL/CO/17-23
[4] CERD/C/SWE/CO/22-23; CERD/C/HND/CO/6-8; CERD/C/PER/CO/22-23
[5] CERD/C/NOR/CO/23-24
[6] CERD/C/CHN/CO/14-17
[7] Contained in document A/52/18, annex V.
[8] In the cases of the Garífuna Communitiers and the Garífuna Triunfo de la Cruz Community.
[9] In 1994, the CERD decided to establish early warning and urgent procedures as part of its regular agenda. They are directed at preventing existing problems from escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.
[10] Regarding the impact of the Carmichael Coal Mine and Rail Project in Queensland on the Wangan and Jagalingou peoples, see http://bit.ly/2Tbdc8R
[11] Regarding the reform of the Department of Indian Affairs and Northern Development and the proposal for the elaboration and adoption of the Recognition and Implementation of Indigenous Rights Framework; the impact of the Site C dam on indigenous peoples in British Columbia as well as the Trans Mountain Pipeline Expansion Project and its impact on the Secwepemc people see http://bit.ly/2Tg8tmB; http://bit.ly/2T8KoxF; http://bit.ly/2TcmYaP
[12] Regarding the impact of a touristic and real estate project on Mapuche communities in Coñaripe see http://bit.ly/2TcmWzJ
[13] Regarding the impact of the Russo-Canadian consortium Colombus Gold and Nordgold mining project on Kali’na and Wayana peoples see http://bit.ly/2Td3AdG
[14] Regarding the situation of the Akawaio villages of Tassarene and Kangaruma and of the Wapichan people of the South Rupununi as well as the impact of a mining project on Marudi Mountain on the Wapichan people, see http://bit.ly/2T4Obwd; http://bit.ly/2Tbeq46
[15] Regarding the impact of the use of Special Agricultural Business Leases on indigenous lands, see http://bit.ly/2T8qmU3
[16] Regarding the inclusion of Victoria Tauli Corpuz, two former UN experts as well indigenous leaders and human rights defenders in the list of persons accused of affiliation with terrorist organisations as well as alleged killings of 60 human rights defenders in 2017 see http://bit.ly/2T9SXbv and http://bit.ly/2T81yf6
[17] Regarding the impact of the “zero tolerance policy” of migration on indigenous migrants and asylum seekers from Guatemala, El Salvador, Mexico and Honduras, see http://bit.ly/2T9qwdW
[18] E/C.12/NZL/CO/4
[19] E/C.12/BGD/CO/1
[20] E/C.12/ARG/CO/4
[21] E/C.12/MEX/CO/5-6; E/C.12/CAF/CO/1
[22] E/C.12/ZAF/CO/1
[23] E/C.12/NER/CO/1; E/C.12/MLI/CO/1
[24] HRC/C/NOR/CO/7; HRC/C/DZA/CO/4; HRC/C/SLV/CO/7
[25] HRC/C/LAO/CO/1
[26] HRC/C/GTM/CO/4
[27] HRC/C/GTM/CO/4
[28] HRC/C/BLZ/CO/1/Add.1
[29] HRC/C/124/D/2668/2015 and HRC/C/124/D/2950/2017
[30] Communication No. 2668/2015
[31] Communication No. 2950/2017
[32] The complainers claimed their right to effectively participate in public affairs was violated by the electoral roll call being extended to 97 new electors. The Committee found that Finland improperly intervened in the complainers’ rights to political participation regarding their specific rights as an indigenous people. The Committee requested Finland to review the Sámi Parliament Act so that the criteria for eligibility to vote in Sámi Parliament elections are defined and applied in a manner that respects the right of the Sámi people to exercise their right to internal self-determination in accordance with the IHRC, which Finland ratified in 1975 (HRC/C/124/D/2668/2015 and HRC/C/124/D/2950/2017)
[33] HRC/C/124/D/2020/2010
[34] Communication No. 2020/2010
[35] The complainers claimed that their rights to equality before the law and non-discrimination (article 26) and right, in community with the other members of their group, to enjoy their own culture (article 27), were violated by the sex-based hierarchy for the determination of entitlement to Indian registration status contained in the Indian Act. The Committee found that the continuing distinction based on sex in section 6(1) of the Indian Act constituted discrimination, which has impacted the right of the authors to enjoy their own culture together with the other members of their group. The Committee requested Canada (a) to ensure that section 6(1)(a) of the 1985 Indian Act, or of that Act as amended, is interpreted to allow registration by all persons including the authors who previously were not entitled to be registered under section 6(1)(a) solely as a result of preferential treatment accorded to Indian men over Indian women born prior to 17 April 1985 and to patrilineal descendants over matrilineal descendants, born prior to 17 April 1985; and (b) to take steps to address residual discrimination within First Nations communities arising from the legal discrimination based on sex in the Indian Act (HRC/C/124/D/2020/2010).
[36] Para 23 of the General comment requires state parties to take special measures of protection towards persons in situations of vulnerability - whose lives have been placed at particular risk because of specific threats or pre-existing patterns of violence - which include indigenous peoples. According to Para 26, the duty to protect life also implies that state parties should take appropriate measures to address the general conditions in society that may give rise to direct threats to life or prevent individuals from enjoying their right to life with dignity. These general conditions may include degradation of the environment and deprivation of land, territories and resources of indigenous peoples. Para 61 finally provides that the right to life must be respected and ensured without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or any other status, including caste, ethnicity, membership of an indigenous group, sexual orientation or gender identity. Legal protections for the right to life must apply equally to all individuals and provide them with effective guarantees against all forms of discrimination, including multiple and intersectional forms of discrimination (HRC/C/GC/36).
[37] CRC/C/GTM/CO/5-6; CRC/C/PAN/CO/5-6; CRC/C/ARG/CO/5-6; CRC/C/SLV/CO/5-6; CRC/C/NOR/CO/5-6; CRC/C/LAO/CO/3-6
[38] CRC/C/AGO/CO/5-7
[39] CRC/C/LKA/CO/5-6
[40] CEDAW/C/SUR/CO/4-6; CEDAW/C/CHL/CO/7; CEDAW/C/FJI/CO/5; CEDAW/C/SUR/CO/4-6; CEDAW/C/MEX/CO/9; CEDAW/C/NPL/CO/6; CEDAW/C/NZL/CO/8
[41] CEDAW/C/COG/CO/7
[42] CEDAW/C/MYS/CO/3-5
[43] CEDAW/C/LAO/CO/8-9
[44] CEDAW/C/SUR/CO/4-6
[45] Para 26 of the General recommendation calls upon state parties to ensure that all policies, legislation, plans, programmes, budgets and other activities relating to disaster risk reduction and climate change are gender responsive and grounded in human rights-based principles, including equality and non-discrimination, with priority being accorded to the most marginalized groups of women and girls, such as those from indigenous groups. Para 31 calls upon state parties to take specific, targeted and measurable steps: (a) To identify and eliminate all forms of discrimination, including intersecting forms of discrimination, against women in legislation, policies, programmes, plans and other activities relating to disaster risk reduction and climate change. Priority should be accorded to addressing discrimination in relation to the ownership, access, use, disposal, control, governance and inheritance of property, land and natural resources, as well as barriers that impede the exercise by women of their full legal capacity and autonomy in areas such as freedom of movement and equal access to economic, social and cultural rights, including to food, health, work and social protection. Para 36 requires state parties to take positive measures to ensure that women belonging to indigenous groups are provided with opportunities to be represented in forums and mechanisms on disaster risk reduction and climate change, at the community, local, national, regional and international levels, in order to enable them to participate in and influence the development of policies, legislation and plans relating to disaster risk reduction and climate change and their implementation. Para 37 underlines that women should be accorded equality before the law and that the recognition of the legal capacity of women as identical to that of men and equal between groups of women, including indigenous women, as well as their equal access to justice, are essential elements of disaster and climate change policies and strategies. Finally, Para 54 e) calls upon state parties to promote the understanding, application and use of the traditional knowledge and skills of women in disaster risk reduction and response and climate change mitigation and adaptation as well as to identify and eliminate all forms of discrimination against women in legislation, policies, programmes, plans and other activities relating to disaster risk reduction and climate change. CEDAW/C/GC/37
Mélanie Clerc is a Human Rights Officer at the Office of the High Commissioner for Human Rights. She is the former Secretary of the UN Voluntary Fund for Indigenous Peoples and the focal point on indigenous peoples and minorities in the Human Rights Treaties Branch.
Luisella Preciado Gómez is a Fellow at the Office of the High Commissioner. She is a Lawyer and former staff member of the Centro de Derechos Humanos Fray Bartolomé de Las Casas in Mexico.
The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations.
Tags: Global governance
