Washington, D.C. August 10, 2016. On the International Day of the World’s Indigenous Peoples, Victoria Tauli-Corpuz, the United Nations Special Rapporteur on the rights of indigenous peoples, and Francisco Eguiguren, Rapporteur on the Rights of indigenous peoples of the Inter-American Commission on Human Rights (IACHR) urge States in the Americas to ensure indigenous people’s right to meaningful and effective participation in decision-making processes related to development or investment plans which may affect their rights and their cultural survival, and to affirm their right to a self-determined development.
Both human rights monitoring bodies express their concern with regards to the way development measures have historically been and remain undertaken at the expense of indigenous peoples in the continent, and in disregard of their recognized rights to consultation, effective participation, and benefit sharing. In its report on extractive industries, the IACHR acknowledged that the region is plagued by a constant structural problem that relates to the granting of concessions, authorizations and permits of all kinds without complying with indigenous peoples’ right to consultation and, where appropriate, free, prior and informed consent. The IACHR also underlined how States often confuse benefit sharing agreements – which are mandatory pursuant to inter-American and International Human Rights Law – with voluntary or charitable deeds within the realm of corporate social responsibility policies.
The UN Special Rapporteur on the Rights of Indigenous Peoples presented her report before the UN General Assembly in 2015 which focused on the impacts of investments and free trade on the human rights of indigenous peoples. This report provided a general overview of the issue touching on some of the impacts of international investment agreements on indigenous peoples rights as well as the more systemic issues associated with International Investment Law regime. The second report on international investment agreements, bilateral investment treaties will be presented to the Thirty Third session of the Human Rights Council this year. This report seeks to further contextualize and examine those impacts by focusing on concrete cases filed by investors against several States, many of which are in Latin America, which have direct implications on the protection of indigenous peoples rights. In these reports, the Special Rapporteur seeks to promote coherence across International Investment Law and International Human Rights Law and ensure that State fulfillment of duties pertaining to indigenous peoples rights is not obstructed by protections afforded to investors.
The IACHR Rapporteur and the United Nations Special Rapporteur reiterate that the right to effective participation includes the right to free, prior and informed consultation and consent of indigenous communities in good faith, in accordance with their customs and traditions, using culturally-appropriate procedures. It also includes the right to benefit from the exploitation, industrialization and marketing of resources found in their territories, including knowledge and traditional practices, as well as the right to obtain fair compensation for damages they may sustain in the process.
In furtherance of the right to effective participation, both human rights experts also assert the right of indigenous peoples to define their own priorities of development. Said right, which was previously recognized in the United Nations Declaration on the Rights of Indigenous Peoples, and was recently reaffirmed in section 29 of the American Declaration on the Rights of Indigenous Peoples, entitles them “to maintain and determine their own priorities with respect to their political, economic, social, and cultural development in conformity with their own world view” and “to be guaranteed the enjoyment of their own means of subsistence and development, and to engage freely in all their economic activities”.
Both Rapporteurs also insist that the objective of benefit sharing or self-determined development involves the redress of historic injustices which resulted from the colonization and dispossession of their lands suffered by indigenous peoples. It also encompasses the need to foster a new form of development in accordance with their own needs and interests, in the aims of improving living conditions of indigenous communities. Both human rights monitoring bodies affirm that the right to effective participation and the recognition of self-determined development are key to ensuring the necessary minimum standards for indigenous peoples to be able to enjoy the full range of their human rights and fundamental freedoms. Increasing indigenous people’s self-determination over their development increases economic means within communities, and has significant positive repercussions on their capacity to guarantee other political, economic, social and cultural rights.
Education is another means to drive development within indigenous communities. Although the situation is improving in the hemisphere, quality deficiencies in education centers to which indigenous peoples have access, the distance between communities and schools, the lack of relevance of the curricula for indigenous children, culturally inappropriate methods of teaching and learning, the failure to teach indigenous languages, as well as prejudice and discrimination still affect indigenous people’s access to education. Indigenous people’s control over their educational systems and institutions, which would address many of these issues, has been recognized as a right in section 24 of the American Declaration on the Rights of Indigenous Peoples and must also be encouraged by States in the region.
The fulfillment of these obligations is particularly relevant given the recent adoption by the United Nations of the Sustainable Development Goals. In particular, education, benefit sharing and self-determined development, in empowering indigenous communities, will be conducive to the implementation of the goal of ending poverty in all its forms everywhere. Poverty is a key obstacle to the exercise of all civil, political, economic, social, and cultural rights, and its eradication is paramount to the full exercise of the rights of all indigenous peoples.
The IACHR is an autonomous organ of the OAS, and derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance of human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected by the General Assembly of the OAS in a personal capacity and do not represent their countries of origin or residence. The Special Rapporteur on the rights of indigenous peoples, is and independent expert whose mandate is established by the Human Rights Council.
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