The UN activity in area of the indigenous peoples’ rights

The increased attention to problems of indigenous people (“first nations”) of the world and to the protection of their rights - in particular their relations with the governments of states where they reside and with the dominant groups of these societies - is a modern tendency in the development of conceptual terms and international standards in the area of human rights. The fact that concrete international legal documents are already adopted while more are being drafted, as well as the consideration of the issue as a whole and of its separate aspects by authoritative international forums, can be considered a reinforcement of this tendency. This is particularly well illustrated by the last decade activities of the United Nations Organization (UN), which is the most representative intergovernmental international organization.

In 1982, the Working Group on Indigenous Populations was established under the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission on Human Rights. The mandate of this Working Group provided, among other things, for drafting the text of the Declaration on the Rights of Indigenous Peoples. Sessions of the Working Group have been held annually in Geneva, with broad participation of the representatives of indigenous peoples. Starting in 1994, a representative of the Mejlis of the Crimean Tatar people has been taking an active part in the annual sessions of the Working Group. In large part, activities of the Working Group have been based on a fundamental research “Study of the problem of discrimination against indigenous populations.” The study, commissioned by UN member-states, began in 1970s and was completed by the Special Rapporteur of the Sub-Commission, Mr. Josй R. Martнnez Cobo, 13 years later, in 1987 (Dос. Е/СN/4/Sub/ 2/1986/7 and Аddenda 1-4).

One of the most important results of almost a decade of the Working Group’s fruitful activities was the Draft Declaration on the Rights of Indigenous Peoples. The text of the draft was completed and agreed upon, and thus prepared for further discussion (Dос. Е/CN/4/Sub.2/1993/26).

In 1994, the Sub-commission on Prevention of Discrimination and Protection of Minorities submitted this draft for consideration by the UN Commission on Human Rights (resolution 1994/45). The Commission decided to established the interim Working Group for further revision of the Draft Declaration on the Rights of Indigenous Peoples (Resolution 1995/32, 3 March 1995). Since then governmental experts, traditionally focused on the protection of interests of their states, have started to work on the text of the Draft Declaration which was prepared by UN experts with active participation of indigenous peoples. In April of 1996, at 56^th session of the Commission on Human Rights, the Chairperson Rapporteur of the Working Group, Mr. Josй Urrutia, delivered report on the first session of this group. Representatives of 61 states and of 64 NGOs and organizations of indigenous peoples took part in the work of this session. In spite of unavoidable collisions and conflicts of interests, positions and opinions, the Rapporteur noted extremely encouraging atmosphere of constructive cooperation between government experts and representatives of indigenous peoples organizations and NGOs.

Such course of events can be considered as evidence of a change in attitudes of governments and international intergovernmental organizations towards indigenous peoples and their problems. The era of confrontation or assimilation policy is gradually giving way. The need of the New Partnership that has been declared as the goal of the International year of Indigenous peoples is realized.

One should note that although the bureaucratic procedure of the adoption of the Declaration on the Rights of Indigenous Peoples is still far from completion, some articles and provisions of the Draft Declaration already are widely used in special legal literature (see, for example, “Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic” by Elsa Stamatopoulou in: Human Rights Quarterly, 16, 1994, pp.58-81). The Draft Declaration is being more and more often referred to when problems of indigenous peoples are discussed at international forums. Therefore, the long and painstaking work on the Declaration not only prompted increased attention to the rights of indigenous peoples, but also have noticeably influenced the development of general principles and conceptions in this rather new and not adequately developed area of international law and national legislations. The preparation of the Declaration constitutes an important step towards the development of universal international principles and the establishment of universally recognized legal standards in area of indigenous peoples’ rights.

In 1989, International Labor Organization Convention # 169 Concerning Indigenous and Tribal Peoples in Independent Countries, a legally binding international legal document, was adopted. (The Convention came into force on 5 September 1991; as of April of 1996 it was ratified by 9 states). This Convention is a much improved version of the ILO Convention # 107 which was adopted in 1957 and was ratified by more than 20 states. (In the opinion of international legal experts, the previous Convention #107 reflects an outdated, assimilationist approach to the problems of indigenous peoples). The Convention # 169 is also the result of a compromise between governments of the states where indigenous peoples live and indigenous peoples themselves. The importance of this document and its role in the development of minimal standards and general legal norms concerning the rights of indigenous peoples is hard to overestimate (see “Indigenous Peoples Between Human Rights and Environmental Protection” by Elaine Word, pp. 39-43, 1994, publication of the Danish Center on Human Rights).

According with UN resolution (Dос. А/RES/46/128 (1992)), 1993 was proclaimed as the International Year of World’s Indigenous Peoples. “New Partnership” was the slogan of the year, and it reflected profound changes in the attitude of the world community towards indigenous peoples’ issues. Comprehensive understanding of the situation of indigenous peoples in the world has been the goal of the year. Promoting more active participation of the indigenous peoples in solving all issues directly concerning them, at the national and international levels, was an important avenue of the activities of numerous organizations and institutions

In June 1993, the UN World Conference on Human Rights was held in Vienna. Paragraph 11 of the final document, known as Vienna Declaration and Program of Actions, discusses economic, social, and cultural rights of indigenous peoples. It also talks about the need to appreciate the distinctiveness of their separate identities, cultures and social organizations as a necessary condition not only for the preservation and development of the indigenous peoples themselves, but also as an undoubtedly positive phenomenon for future development of the humankind. (It is necessary to note that in this document, as well as in all other international documents on human rights, the rights of indigenous peoples and national minorities are covered in separate paragraphs. Separate treatment of national minority and indigenous peoples issues in the international law give guidelines for development of the appropriate national legislation in a way that it does not contradict internationally recognized conceptual approaches and legal norms). Among other decisions adopted by the Vienna Conference on Indigenous Peoples was a recommendation to the UN General Assembly to hold a Decade of Indigenous Peoples. Within this decade it was proposed to create within the UN organizational structures a standing forum for indigenous peoples.

In accordance with the UN General Assembly Resolution 48/163, in December 1994 International Decade of the World's Indigenous People commenced. The main goal of the decade was to strengthen international cooperation in solving such issues concerning indigenous peoples as human rights, environment, development, healthcare, culture, and education. UN specialized agencies and other international and national structures and agencies received recommendations to give special consideration to development and support programs for indigenous peoples. Since the Decade of the World’s Indigenous Peoples began, the strategy and concrete measures within the framework of the Decade was discussed on many occasions at technical meetings, seminars and sessions of UN Commission on Human Rights and its subsections. UN Secretary General addressed the General Assembly with preliminary report on a comprehensive program of action for the International Decade of the World’s Indigenous People (Dос. A/49/444). Detailed proposals for specific actions by all participants -UN structures, regional organizations, UN member-states, organizations of indigenous peoples, NGOs and other concerned parties, such as educational institutions, media, and business circles - were adopted by the second technical meeting held in Geneva on 20-21 July, on the eve of the 13^th session of the Working Group on Indigenous Populations. (32 UN member-states, different UN bodies, specialized agencies and intergovernmental organizations, including the UN European Economic Commission, the World Bank and others, international non-governmental organizations with and without a consultative status under the UN Economic and Social Council (ECOSOS) took part in this meeting, as well as 40 organizations and groups of the indigenous peoples and 38 other organizations and private persons. The states of former USSR were represented by the Russian Federation and Estonia. (See Dос. Е/СN.4/Sub.2/АС.4/1995/5)

The absence of Ukrainian government representatives at this and other similar meetings and forums significantly reduces Ukraine’s opportunity to actively participate in international cooperation, in particular prevents it from taking advantage of concrete projects and programs that are envisaged by the program of the Decade to improve the situation of indigenous peoples.

In June of 1995, a special meeting was held in Copenhagen to discuss concrete proposals with regard to the standing forum of indigenous peoples within the UN structure. Significant progress in solving this issue was achieved. It can be expected that a standing forum on indigenous peoples within the UN structure will be establishes in the near future.

During the 52^nd session of the Commission on Human Rights (April 1996) it was decided for the first time to discuss the issue on indigenous peoples’ rights as a separate item of the session’s agenda. The representatives of many countries who took part in work of the session expressed deep satisfaction with this decision. The participants of the meeting have agreed that introducing this new approach would allow to solve a number of issues related to indigenous peoples’ problems within the framework of modern international (universal) human rights standards.

Therefore, by delaying to recognize the presence of indigenous peoples within its borders - first of all the Crimean Tatar people - Ukraine weakens its position in receiving effective international assistance for solving the repatriation problem. Ukrainian government representatives are thus deprived of the possibility to fully participate in numerous actions of the UN and other organizations aimed at solving indigenous peoples’ problems. Ukraine is missing a chance to demonstrate convincingly its democratic orientation in line with modern international tendencies in the country’s domestic and foreign policy.

Attracting the attention of the international community to the problems of indigenous people of Crimea who were subjected to mass deportation and genocide and whose repatriation program now requires colossal financial costs, will undoubtedly promote more active participation of donor countries in the UN Development Program on the return and integration of the formerly deported.