Sociology

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Patrick Thornberry

The International Covenant on Civil and Political Rights (ICCPR) was adopted by the UN General Assembly and entered into force on 23 March 1976. The Covenant has been ratified by 148 States, including many with significant indigenous populations. The Covenant is a complex statement of rights incorporating several domains of discourse: those of collective rights (self-determination), undifferentiated individual rights (most of the text), and minority rights (Article 27); it does not include a specific article on indigenous rights. The First Optional Protocol to the ICCPR, which allows for communications from individuals who claim to be victims of violations of Covenant rights, has 98 States' parties. In the main text of the ICCPR and the Optional Protocol, procedures for implementation centre on the eighteen-member Human Rights Committee (HRC), elected as independent experts by secret ballot of the States' parties. The Committee formally takes decisions by simple majority, but working methods allow for attempts to reach a consensus—an approach ‘which has been the rule ever since the Committee' inception’.

in Indigenous peoples and human rights
Article 27 and other global standards on minority rights
Patrick Thornberry

The most regular examinations of indigenous issues by the Human Rights Committee in the reporting procedure and under the Optional Protocol have taken place in connection with Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The examination of indigenous rights has proceeded despite the fact that Article 27 deals with ‘minorities’ and not indigenous groups.

in Indigenous peoples and human rights
Abstract only
Patrick Thornberry

This introductory chapter briefly sets out the focus of the book, namely human rights instruments and principles. The explorations in the present work suggests a measure of openness in the articulation and application of human rights norms—that they are developmental, adaptive and sensitive to a degree to local interpretations—imperfectly expressed in doctrines such as the ‘margin of appreciation’. The chapter then addresses questions regarding the coherence of the concept of indigenous peoples; the modalities through which indigenous rights should be advanced; the extent to which cultural expression can be qualified in the name of human rights; the nature of the indigenous engagement with international law and institutions; and the limits of contemporary human rights discourse and its potential to accommodate indigenous concepts, mores and world-views.

in Indigenous peoples and human rights
Patrick Thornberry

Following a resolution of the Organisation of American States General Assembly—itself prompted by the Inter-American Commission on Human Rights (IACHR)—the IACHR began consultations in 1992–93 ‘Concerning the Future Inter-American Legal Instrument on Indigenous Rights’, having recognised the need for such an instrument from the late 1980s. The consultations eventuated in a ‘Draft of the Inter-American declaration on the Rights of Indigenous People’, approved by the IACHR on 18 September 1995, revised to a ‘Proposed American Declaration on the Rights of Indigenous Peoples’, approved by the Commission on 26 February 1997. This brief description of an emerging instrument suggests that the final text may differ considerably in form and content from the UN draft. In particular, the text appears to be more integrationist than the draft Declaration, focusing on cultural integrity rather than self-determination.

in Indigenous peoples and human rights
Patrick Thornberry

The major instrument of the UN devoted to the issue of race discrimination is the International Convention on the Elimination of All Forms of Racial Discrimination. The Convention was adopted by the General Assembly on 21 December 1965 and entered into force on 4 January 1969. By December 2001, the Convention had 161 States' parties. The text incorporates a preamble of twelve paragraphs, seven substantive articles (Part I of the Convention), a further nine articles addressing implementation (Part II) and nine articles on entry into force, denunciation, revision, reservations, etc. (Part III).

in Indigenous peoples and human rights
In particular Article 30
Patrick Thornberry

The Convention on the Rights of the Child (CRC) is the latest of the major UN treaties on human rights. The text contains a mix of general human rights and humanitarian law principles which are adapted to the special circumstances of children such as freedom of expression, freedom of thought, conscience, and religion, and the right to education, and new rights including as those relating to fostering and adoption and rights to protection from sexual and other exploitation. The CRC is the only general UN human rights treaty to devote a specific article to indigenous rights, coupling them with rights of minorities in what is essentially a development of Article 27 of the International Covenant on Civil and Political Rights. Article 30 of the CRC provides: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with the other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.

in Indigenous peoples and human rights
Patrick Thornberry

This chapter takes the draft Declaration on the Rights of Indigenous Peoples as a potential future global standard for indigenous peoples—‘emerging law’—and appraises its principal characteristics. The draft Declaration incorporates a far-reaching ensemble of pro-indigenous concepts. The process of drafting and debating has contributed to and been the beneficiary of a broad and ongoing process of indigenous sensitisation in the international community. The prospects for the survival of the draft in anything like its present form are unclear. However, despite the difficulties in reaching accommodation, there has been a narrowing of differences between indigenous peoples and governments in key respects over the whole process.

in Indigenous peoples and human rights
Abstract only
Patrick Thornberry

This chapter presents raw statistics which claim to account for an indigenous world. It begins with a discussion of the identities and names of indigenous peoples. It then considers debates over the question of how many indigenous populations exist on the planet, followed by a discussion of the rights abuses and other assaults upon the dignity experienced by indigenous peoples. It describes the Working Group on Indigenous Populations, a Permanent Forum for Indigenous People, the draft Declaration on the Rights of Indigenous Peoples, summits, and regional organizations.

in Indigenous peoples and human rights
Abstract only
Concept, definition, process
Patrick Thornberry

This chapter takes a preliminary look at indigenous peoples through a selection of general statements which represent key indicators of international law and practice. Most of the instruments and statements assessed here were drafted primarily by governments and thus reflect a largely external view. In contrast, the draft Declaration and indigenous statements can be quarried to provide a window on the self-understanding of indigenous groups. The chapter deals in the broad conceptualisation of the issue, including complications from the ‘neighbour effects’ of rights of minorities and rights of peoples generally. The narrower question of definition is also accounted for. Conventional approaches to concept and definition involve recourse to subjective (the will to survive) and objective factors (possession of distinct ‘characteristics’). These have been supplemented by problematising approaches which seek to illuminate the web of ethical, political, and epistemological considerations justifying the use of ‘indigenous’, and its contestation.

in Indigenous peoples and human rights