Recognition of indigenous peoples - PragueMUN

PragueMUN

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Prague, February 2016 Prague Model United Nations Conference Model United Nations Prague o.s. Jaurisova 515/4 140 00 Prague 4 The Czech Republic Web: www.praguemun.cz Author: Kathleen Hassemann, Madeeha Mehmood Graphic Design: Jiří Drozd, MUN Prague

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Contents Committee description...................................................................................................................................................... 4 Topic A: Human Rights situation in Myanmar ....................................................................................................... 6 Introduction ..................................................................................................................................................................... 6 Countries’ positions...................................................................................................................................................... 9 Points to be discussed .............................................................................................................................................. 10 Sources ..............................................................................................................................................................................11 Topic B: Human Rights and Indigenous Peoples ................................................................................................13 Introduction ....................................................................................................................................................................13 Discussion of the topic.............................................................................................................................................. 14 Recognition of indigenous peoples................................................................................................................ 14 Practical implementation of indigenous peoples’ rights ...................................................................... 16 International investment and free trade agreements ............................................................................ 17 Country and block positions .................................................................................................................................. 18 Sources ........................................................................................................................................................................... 20

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Prague Model United Nations 2016

Committee description Since its creation in 2006 as a successor to the United Nations Commission on Human Rights by the UN General Assembly (GA) with Resolution 60/251, the Human Rights Council (HRC) has been the main body within the UN tasked with the protection and promotion of human rights for all people and peoples around the world. Its 47 geographically balanced member states are elected by the GA every three years and work on the basis of intergovernmental cooperation and dialogue. The Council meets no fewer than three times per year in its office in Geneva.1 Addressing human rights violations, promoting human rights education as well as providing the GA with recommendations on how to improve international law regarding human rights are among HRC’s main tasks. In order to do so, the Council examines the status and development of the human rights situation in all 192 UN member states periodically. This procedure is called Universal Periodic Review. Additionally, the so-called Complaints Procedure provides individuals as well as organizations with the possibility to bring specific human rights violations to the attention of the Council.2 Once the Council has decided to act on a thematic issue or human rights situation in a particular country, it can make use of its Special Procedures. They are “a central element of the United Nations human rights machinery”3 and can be employed for issues regarding civil, cultural, economic, political, and social rights. Special Procedures include measures such as country visits, communications to states and non-state actors, thematic studies, raising public awareness and organizing conferences and seminars. They are conducted by independent and impartial human rights experts who are neither employed nor remunerated by the UN for their work. Equipped with a mandate of up to six years, Special Procedures can either be carried out by an individual (Special Rapporteurs or Independent Experts) or by an expert group. Both are appointed by the HRC and report their findings to the GA on an annual basis. A working group is usually made up of five members, each representing a UN regional group: Africa, Asia, Latin America and the Caribbean, Eastern Europe and the Western group.4

1 cf. General Assembly resolution 60/251, Human Rights Council, A/RES/60/251 (3 April 2006). 2 cf. UN News Centre: FAQ's on the Human Rights Council, URL: http://www.un.org/News/dh/infocus/ hr_council/hr_q_and_a.htm (06.12.2015). 3 OHCHR: Special Procedures of the Human Rights Council, URL: http://www.ohchr.org/EN/HRBodies/SP/ Pages/Introduction.aspx (06.12.2015). 4 Ibid.

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Human Rights Council Currently, the HRC has mandated 41 thematic and 14 country-specific Special Procedures including working groups on arbitrary detention, discrimination against women in law and in practice, and people of African descent as well as Special Rapporteurs on the rights of persons with disabilities, the right to food, and the right to education.5 Common policy positions within the HRC are often found not among regional groups but rather among those defined by political and religious beliefs, such as the Non-Aligned Movement (NAM), the Organization of Islamic Cooperation (OIC), and the European Union (EU).6 Crossregional initiatives have been established increasingly on thematic issues such as people trafficking (Philippines/Germany), internally displaced persons (Austria/Uganda), and gender identity (South Africa/Brazil).7

5 cf. OHCHR: Special Procedures, URL: http://spinternet.ohchr.org/_Layouts/SpecialProceduresInternet/ ViewAllCountryMandates.aspx?Type=TM (06.12.2015). 6 cf. Rathgeber, Theodor (2013): Performance and Challenges of the UN Human Rights Council. An NGO’s View, International Policy Analysis Friedrich-Ebert-Stiftung, p. 3. 7 cf. ibid, p. 5.

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Prague Model United Nations 2016

Topic A: Human Rights situation in Myanmar Introduction The Republic of the Union of Myanmar, formerly known as Burma, is the second largest country in Southeast Asia and boasts a population of more than 50 million.8 Myanmar became an independent nation in 1948, and started out being a democratic nation succeeded by a military dictatorship in 1962. The dictatorship ended back in 2011, but even today, many of the party leaders have a military background. The country has been involved in what is known as one of the world's longest-running ongoing civil wars.9 The war between Myanmar's army and the jungle-dwelling Karen ethnic group that has been going on for the past 63 years. The war resulted in the jungle being rained down in landmines and more than 150,000 people fleeing into refugee camps by the Thai border. In 2011, the military junta was officially dissolved following a 2010 general election, and a nominally civilian government was installed.10 But former military leaders still wield enormous power in the country. Since coming to power last year, the government has freed hundreds of prisoners, eased media censorship and reached agreements with other ethnic minority rebel groups in a wide-ranging push to open up the country.11 This, along with the release of Aung San Suu Kyi has improved the country's human rights record and foreign relations, and has led to improvements in trade relations other economic sanctions.12 There is, however, ongoing scepticism and critique toward government's treatment of the Muslim Rohingya group and its poor response to the religious clashes. The largest cities in Myanmar face a high level of communal violence between Muslims and Buddhists, both in form

8 Myanmar. The New York Times, http://topics.nytimes.com/top/news/international/countriesandterritories/ myanmar/index.html 9 Winn, P: Myanmar: ending the world's longest-running civil war (March 12, 2012), Pittsburg Post Gazette 10 Burma ex-Prime Minister Thein Sein named new president. BBC News. http://www.bbc.com/news/worldasia-pacific-12362745 11 In Burma, civil war grinds on far from capital. The Washington Post. https://www.washingtonpost.com/ world/asia_pacific/in-burma-civil-war-grinds-on-far-from-capital/2012/06/28/gJQAxBV7AW_story.html 12 Obama administration eases Burma sanctions before visit. USA Today. http://www.usatoday.com/story/ theoval/2012/11/16/obama-lifts-sanctions-burma-visit/1710253/

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Human Rights Council: Topic A of physical attacks and sexual attacks. The government has been accused of not handling the clashes between these two groups assertively enough. According to an article from BBC, they have introduced overnight curfews or some hourly states of emergency, but there is no change in practice13. According to a report from Human Rights Watch, named “Burma: End ‘Ethnic Cleansing’ of Rohingya Muslims”, not only does the government fail to intervene in the violent clashes between the groups, it also takes an active part in the discrimination and violence against the Muslim Rohingya minority: Burmese officials, community leaders, and Buddhist monks organized and encouraged coordinated attacks on Muslim neighborhoods and villages in October 2012 to terrorize and forcibly relocate the population. The tens of thousands of displaced have been denied access to humanitarian aid and been unable to return home.14 Human rights in Myanmar under its military regime have long been regarded as among the worst in the world. International rights groups have accused the Burmese army of deliberate attacks against civilians, torture, rape, forced conscription and summary executions.15 Forced labor, human trafficking, and child labor are common.16 The Burmese Military Regime is also notorious for rampant use of sexual violence as an instrument of control, including allegations of systematic rapes and taking of sex slaves by the military17, a practice which continued in 2012. Both sides recruit child soldiers and seed the ground with land mines that have claimed the lives of combatants and civilians alike.18 The Special Rapporteur on the situation of human rights in Myanmar discusses how reforms have been under way in Myanmar and they “continue to create the prospect of significant improvements in the human rights situation”.19 But many areas need future efforts. The Special Rapporteur mentions areas such as accountability for human rights violations, rights of ethnic and religious minorities, the rights to peaceful assembly and association, representation of women in decision making processes, land rights and human rights and development. In the end, the major challenge for Myanmar has always been trying to achieve a transition from the military

13 Why is there communal violence in Myanmar? BBC News. http://www.bbc.com/news/world-asia-18395788 14 Burma: End ‘Ethnic Cleansing’ of Rohingya Muslims. Human Rights Watch. https://www.hrw.org/news/2013/ 04/22/burma-end-ethnic-cleansing-rohingya-muslims 15 Statement to the EU Development Committee. Human Rights Watch. https://www.hrw.org/news/2004/08/ 30/statement-eu-development-committee 16 U.S. Relations With Burma. U.S. Department of State. http://www.state.gov/r/pa/ei/bgn/35910.htm 17 Myanmar (Burma) Human Rights. Amnesty International. http://www.amnestyusa.org/our-work/countries/ asia-and-the-pacific/myanmar 18 Motlagh, J: In Burma, Civil War Grinds On Far From Capital (June 28, 2012), Washington Post 19 UN Resolution A/68/397

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Prague Model United Nations 2016 mind-set that prevails within the Government to a democratic mind-set that upholds human rights.20 On July 21, 2008, Myanmar ratified the Charter of the Association of South East Asian Nations (ASEAN), raising controversy among member nations because of its abysmal human rights record and its continued detention of opposition leader Aung San Suu Kyi.21 In the analysis of this ratification, Arendshorst concludes that the military junta that currently holds power in Myanmar has committed numerous horrific human rights violations which in addition to harming the people of Myanmar, have created significant negative effects for other members of ASEAN. Although ASEAN established formal human rights standards for its members by creating AICHR22 all the problems are not solved. He believes that the best course of action is sanctions on or expel Myanmar for violating core principles of the ASEAN Charter.23 It seems as Myanmar has found a “way out” of having to be accountable for their human rights by joining a regional group with a “lower standard” of human rights than other international organizations. In recent news, a report by the International Federation for Human Rights24 states that following the recent November 2015 elections, political parties in Myanmar failed to prioritize or commit to core human rights issues. The report, titled “Half Empty: Burma’s political parties and their human rights commitments” is the first-ever survey of the country’s political parties’ attitudes towards human rights issues.

“Burma’s political parties will have to significantly change their policies and institutional prejudices to improve the human rights climate in the country. Unless they place human rights front and centre on their agenda, Burma will remain mired in old challenges – no matter which party wins the election” – FIDH President Karim Lahidji In an analysis from the Gatestone Institute from 2009, the conclusion to all Myanmar’s human rights violations and a military junta is the following: “The world, after all, does not have a Burma problem. It has a China problem.”25 China, unfortunately, sees Burma as a crucial asset. Beijing wants friendly authoritarian countries on its border—General Than Shwe’s hard-line regime 20 UN Resolution A/68/397 21 Ahrendshorst, J: The Dilemma of Non-Interference: Myanmar, Human Rights, and the ASEAN Charter (2009) Volume 8, Issue 1, p. 3. 22 ASEAN Intergovernmental Commission on Human Rights. http://aichr.org/ 23 Ahrendshorst, J: The Dilemma of Non-Interference: Myanmar, Human Rights, and the ASEAN Charter (2009) Volume 8, Issue 1, p. 3. 24 Burma/Myanmar International crimes committed in Burma: the urgent need for a Commission of Inquiry. International Federation for Human Rights. https://www.fidh.org/IMG/pdf/bu08.pdf 25 CHANG, Gordon G.: The Real Burma Problem. In: Gatestone Institute. International Policy Council: http://www.gatestoneinstitute.org/355/the-real-burma-problem

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Human Rights Council: Topic A certainly qualifies as one—and considers his territory to be strategic—because it provides an outlet to the Bay of Bengal and the Andaman Sea, thereby lessening Chinese dependence on the critical Strait of Malacca. Moreover, Myanmar is an important market. The generals’ new capital of Naypyidaw is, in many senses, made by China. Myanmar’s primary protector and sponsor, not surprisingly, is Beijing.

Countries’ positions So where does the world stand on Myanmar? Geopolitical blocs come together and the following paragraph is an attempt of giving an overview of them all:

ASEAN has been a little passive, as ASEAN countries are reluctant to condemn a fellow member, but this may be changing. Their interest as a group is regional stability.26

China With the close diplomatic and trade ties to Myanmar, it is seen as a big influencer in Myanmar. It has previously blocked UN resolutions on sanctions against Myanmar. As a country, the oil and gas in Myanmar is interesting to China, but belonging to that region, regional stability is of importance too.27

The EU The European Union is aware that it does not have much leverage over Myanmar, but is urging India and China to act with sanctions against the country. They have few economic interests in Myanmar, but France is heavily invested in a gas project between US Chevron and French Total. Furthermore, the only real action EU could take was to punish China through the Olympics, because they consider China the “puppet master” of Myanmar.28

India India has close diplomatic ties with Myanmar, but has several times voiced a worry about the current crisis in their internal affairs. They are, like other countries, protecting their oil interests in Myanmar and sell arms to the military regime in Rangoon.29

26 27 28 29

Where the world stands on Burma. BBC News. http://news.bbc.co.uk/2/hi/asia-pacific/7018285.stm Ibid. Ibid. Ibid.

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Prague Model United Nations 2016 Russia Russia is much less important than China to Myanmar, they still help China block any international attempt to put pressure on the Burmese government.30

United Kingdom The UK has been vocal in condemning the military government, but other than that they do not have many interests in Myanmar. But there is a quote from the UK Prime Minister Gordon Brown saying: “I want to see all the pressures of the world put on this regime now - sanctions, the pressure of the UN, pressure from China and all the countries in the region, India, pressure from the whole of the world."31

USA USA has taken a strong stand against the human rights violations in Myanmar and has announced several sanctions against the Burmese government. "The world is watching the people of Myanmar take to the streets to demand their freedom and the American people stand in solidarity with these brave individuals." US President George W Bush32

Points to be discussed To sum up, Myanmar has been a military dictatorship for many years, which did serious harm to their view on how to treat people in the society. Even after the end of the dictatorship, many of the military people stayed in power in government and the nation is known for three main problems to be discussed in this committee: 1)

The human rights violations in Myanmar, specifically the treatment of the Muslim Rohingya Minority 2) Problems with the progress in developmental work in the country because of its history 3) Its relationship with ASEAN that have not acted on the human rights violations of a member state, although UN and other Western Countries have condemned them.

30 Where the world stands on Burma. BBC News. http://news.bbc.co.uk/2/hi/asia-pacific/7018285.stm 31 Ibid. 32 Ibid.

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Human Rights Council: Topic A

Sources  Myanmar. The New York Times, http://topics.nytimes.com/top/news/international/ countriesandterritories/myanmar/index.html  Winn, P: Myanmar: ending the world's longest-running civil war (March 12, 2012), Pittsburg Post Gazette  Burma ex-Prime Minister Thein Sein named new president. BBC News. http://www.bbc.com/news/world-asia-pacific-12362745  In Burma, civil war grinds on far from capital. The Washington Post. https://www.washingtonpost.com/world/asia_pacific/in-burma-civil-war-grinds-on-farfrom-capital/2012/06/28/gJQAxBV7AW_story.html  Obama administration eases Burma sanctions before visit. USA Today. http://www.usatoday.com/story/theoval/2012/11/16/obama-lifts-sanctions-burmavisit/1710253/  Why is there communal violence in Myanmar? BBC News. http://www.bbc.com/ news/world-asia-18395788  Burma: End ‘Ethnic Cleansing’ of Rohingya Muslims. Human Rights Watch. https://www.hrw.org/news/2013/04/22/burma-end-ethnic-cleansing-rohingya-muslims  Statement to the EU Development Committee. Human Rights Watch. https://www.hrw.org/news/2004/08/30/statement-eu-development-committee  U.S. Relations With Burma. U.S. Department of State. http://www.state.gov/r/pa/ei/bgn/ 35910.htm  Myanmar (Burma) Human Rights. Amnesty International. http://www.amnestyusa.org/ our-work/countries/asia-and-the-pacific/myanmar  Motlagh, J: In Burma, Civil War Grinds On Far From Capital (June 28, 2012), Washington Post  UN Resolution A/68/397  Ahrendshorst, J: The Dilemma of Non-Interference: Myanmar, Human Rights, and the ASEAN Charter (2009) Volume 8, Issue 1, p. 3.  ASEAN Intergovernmental Commission on Human Rights. http://aichr.org/  Burma/Myanmar International crimes committed in Burma: the urgent need for a Commission of Inquiry. International Federation for Human Rights. https://www.fidh.org/IMG/pdf/bu08.pdf  CHANG, Gordon G.: The Real Burma Problem. In: Gatestone Institute. International Policy Council: http://www.gatestoneinstitute.org/355/the-real-burma-problem 11

Prague Model United Nations 2016  Where the world stands on Burma. BBC News. http://news.bbc.co.uk/2/hi/asiapacific/7018285.stm

To read more, please see  General knowledge about Burma/Myanmar: https://www.cia.gov/library/publications/the-world-factbook/geos/bm.html  HRW World Report on Myanmar: https://web.archive.org/web/20130630121229/http://www.hrw.org:80/world-report2012/world-report-2012-burma  About Myanmar and Rohingya Minority: http://www.undispatch.com/the-8-stages-of-genocide-against-burmas-rohingya/  The U.S. position on Myanmar and thee Rohingya Minority: http://www.uscampaignforburma.org/about-burma/conflict-and-humanrights/rohingya-ethnic-cleansing.html  Myanmar’s military junta: http://content.time.com/time/world/article/0,8599,2064470,00.html  NGO that advocates for displaced people’s rights in Burma: http://www.burmalink.org/background/burma/human-rights-violations/overview/

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Human Rights Council: Topic B

Topic B: Human Rights and Indigenous Peoples Introduction The phrase Indigenous Peoples has largely been shaped by the expansionism of European colonialism from the 15th and 16th century onwards. It was established in order to highlight the contrast between the colonialists’ spirit of discovery, their wish to spread out to other parts of the world, and the place-based, territory-bound existence of the peoples they encountered.33 Today, approximately more than 370 million people in 90 countries, roughly 5 percent of the world population, identify as belonging to an indigenous community.34 As a result of their colonization, indigenous peoples all over the world have been suffering violations of their human rights such as dispossession of their lands and resources, forced assimilation, discrimination, and subjugation for centuries. Only since the latter half of the 20th century has the movement for the promotion of human rights for indigenous peoples gained in importance and has been successful in addressing human rights violations on a global scale. These efforts culminated eventually in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which was adopted on 13 September 2007 by the GA with an overwhelming majority of 143 member states.35 Another achievement of the modern indigenous rights movement lies in the fact that today’s international law does not provide a universally acknowledged definition of the term Indigenous Peoples. As the former UN Working Group on Indigenous Populations ChairpersonRapporteur pointed out, “indigenous peoples have suffered from definitions imposed by others” continuously denying them the right “to determine their own membership” 36. Nevertheless, there are some key factors that help understanding rather than defining the concept of indigenous 33 cf. Alfred, Taiaiake; Corntassel, Jeff (2005): Being Indigenous: Resurgences against Contemporary Colonialism, Government and Opposition (Volume 40, Issue 4), pp. 597–614, here: p. 597. 34 cf. Asia Pacific Forum of National Human Rights Institutions; Office of the United Nations High Commissioner for Human Rights: The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions, Sydney/Geneva 2013, p. 3. Hereinafter: UNDRIP Manual. 35 cf. ibid, pp. 4-5. 36 Note by the Chairperson-Rapporteur of the Working Group on Indigenous populations, Ms. Erica-Irene Daes, on criteria which might be applied when considering the concept of indigenous peoples, E/CN.4/Sub.2/AC.4/1995/3 (21 June 1995), p. 4.

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Prague Model United Nations 2016 peoples. One of the most fundamental aspects is self-identification both on the individual and the collective level. Therefore, on the one hand, an indigenous person self-identifies as belonging to an indigenous population and, on the other hand, is also recognized and accepted by this population as one of its members.37 Various other factors such as strong links to territories and surrounding natural resources, distinct social, economic or political systems, as well as distinct language, culture and beliefs need to be taken into account when reflecting on who is considered indigenous.38

Discussion of the topic The scope of the debate at PragueMUN 2016 regarding the topic Human Rights and Indigenous Peoples is based on the most pressing aspects the Special Rapporteur has identified and has continued to address in her Annual Reports to the HRC and the GA in recent years. Among the most relevant topics are the recognition of indigenous peoples by their government and political institutions, the practical implementation of their rights, especially since the adoption of UNDRIP in 2007, as well as the consequences and implication for indigenous peoples following a sharp increase in foreign investment related to indigenous peoples’ lands, waters and natural resources. It is important to keep in mind that those topics do not concern human rights of individual indigenous persons as those are secured by other international human rights law, such as the Universal Declaration on Human Rights (UDHR) or the International Covenant on Civil and Political Rights (ICCPR). The debate shall rather revolve around indigenous populations’ claim to their rights as peoples.39

Recognition of indigenous peoples The issue of recognizing indigenous peoples and their rights usually affects countries the most whose societies are considered settler societies. Such forms of society are “organized around the settlers’ political domination over the indigenous population”40. Non-recognition has its roots in

37 Study of Discrimination against Indigenous Populations by Jose Martinez Cobo, Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/SUB.2/1986/7/ADD.4 (1986), para. 381. 38 cf. Office of the United Nations High Commissioner for Human Rights (2013): Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No. 9/Rev.2, p. 3. 39 cf. Lutz, Ellen L.: Recognizing Indigenous Peoples Human Rights, URL: https://www.culturalsurvival.org/ publications/voices/australia/recognizing-indigenous-peoples-human-rights (15.12.2015). Hereinafter: Lutz, Cultural Survival. 40 Weitzer, Ronald: Transforming Settler States: Communal Conflict and Internal Security in Northern Ireland and Zimbabwe, Berkeley 1990, p. 24, URL: http://ark.cdlib.org/ark:/13030/ft2199n7jp/ (14.12.2015).

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Human Rights Council: Topic B the native inhabitants’ exclusion from the creation and design of the nation that was established on their ancestral territories. It often resulted in racial discrimination, exclusion from the country’s constitution and social marginalization.41 Following their colonization, indigenous peoples were also usually deprived of their right to “exercis[e] control over their own communities, and participat[e] in decision-making processes and the design of policies and programs that affect their communities”42. On an international level, UNDRIP has provided important steps toward the involvement and consultation of indigenous peoples in decision-making by acknowledging their own political procedures and institutions.43 44 Such provisions are especially important when it comes to decisions involving conflicts of interest between indigenous communities and the State, e.g. regarding the rights to their traditional lands and resources.45 On the national level, acknowledgement and recognition of indigenous peoples have taken various forms over the course of time. Such measures include the designation of parliamentary seats to indigenous representatives in order to enable political participation in decision-making processes as is the case in New Zealand, as well as explicit recognition in many countries’ constitutions, e.g. in Finland, Norway and Sweden.46 However, constitutional recognition of indigenous peoples and their identities has not yet become universal reality. For example, the Australian Constitution makes no mention of Aboriginal and Torres Strait Islander Peoples, thereby neglecting the country’s history prior to the British colonization. Furthermore, even today, it still allows for racial discrimination in the form of disqualification from voting and enacting discriminatory laws.47 Even graver seems the situation on the African continent where virtually no country apart from the Republic of Congo has officially

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cf. Australian Human Rights Commission: About Constitutional Recognition, URL: https://www.humanrights.gov.au/publications/about-constitutional-recognition (14.12.2015). Commonwealth of Australia: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel. 2 Comparative and international recognition, URL: http://www.recognise.org.au/ wp-content/uploads/shared/uploads/assets/html-report/2.html (14.12.2015). Hereinafter: ATSI Expert Panel. cf. ibid. cf. General Assembly resolution 61/295, United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (13 September 2007), Art. 18 & 19. Hereinafter: UNDRIP. cf. Lutz, Cultural Survival. cf. ATSI Expert Panel. cf. Australian Human Rights Commission: Constitutional reform: FAQs - Why reform of the Constitution is needed, URL: https://www.humanrights.gov.au/publications/constitutional-reform-faqs-why-reformconstitution-needed (16.12.2015).

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Prague Model United Nations 2016 recognized their indigenous population or has adopted laws regarding the rights of their indigenous peoples.48

Practical implementation of indigenous peoples’ rights The value of any international declaration, resolution or treaty is measured by its practical implementation. Apart from political will, technical capacity and financial commitment, states often face various other challenges to the practical implementation of indigenous peoples’ rights.49

Lack of awareness and understanding of UNDRIP50 The most basic obstacle to the practical implementation of indigenous peoples’ rights is the lack of awareness of UNDRIP and its contents. State legislators as well as national human rights institutions play a key role in translating international standards and agreements to a reality which is meaningful for indigenous peoples.51 Relevant actors from government officials to judicial authorities need to be provided with the required perceptiveness regarding such issues as well as the necessary competence and technical training in order to protect indigenous peoples’ rights.

Differing or conflicting interpretations about the application of indigenous peoples’ rights Particularly in situations of competing interests, e.g. regarding rights to lands and resources, conflicting interpretations and application of indigenous peoples’ rights can seriously hamper a consistent and comprehensive implementation of those rights. Not only the State and indigenous peoples can be parties to such conflicts, also other actors such as businesses and nongovernmental organizations might pursue their own agenda, thus, developing their own understand of indigenous peoples’ rights. According to the Special Rapporteur, much more work needs to be done with respect to assistance, guidance and mediation in such conflicts.52

48 cf. International Work Group for Indigenous Affairs: Indigenous peoples in Africa - a general overview, URL: http://www.iwgia.org/regions/africa/indigenous-peoples-in-africa (16.12.2015). 49 United Nations, General Assembly, Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli Corpuz, A/HRC/27/52 (11 August 2014), p. 8. Hereinafter: A/HRC/27/52. 50 cf. ibid. 51 cf. UNDRIP Manual, p. 40. 52 cf. A/HRC/27/52, p. 9.

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Human Rights Council: Topic B Insufficient structured and joint efforts for implementation Regarding a concerted effort in the implementation of indigenous peoples’ rights, it is essential to involve indigenous peoples from the outset, i.e. in “defining the issues to be addressed”53 as well as in determining the indicators used in order to “assist with the detection of discrimination, inequality and exclusion”54. In many countries, there is a need for relevant disaggregated data as the foundation for well-formed policies addressing indigenous peoples’ rights on the one hand, and for monitoring and evaluating existing measures designed to overcome inequalities and discrimination on the other hand.55

International investment and free trade agreements An increase in foreign investments as well as the negotiation of free trade agreements with important trade partners are generally viewed as a positive sign of a country’s economic stability and growth. Seldom do such agreements and treaties take into account potential negative impacts on the indigenous population.56 Bilateral, regional, and pluri-/multilateral agreements are first and foremost “designed to protect foreign investors and their interests within States hosting investment projects”57. The rights of the host State’s indigenous population may, for example, be violated in cases of investor-State dispute settlements which are usually exempt from domestic judicial review. Indigenous land claims, as mentioned specifically e.g. in Articles 25 and 26 UNDRIP, are among the rights most commonly violated by foreign investment treaties. Reclaiming indigenous land that was taken by foreign investors can lead to enormously high compensation cost which States or indigenous communities are often unable to afford. For example, the mining company South American Silver Limited is currently claiming 385.70 million USD in a lawsuit against its host State, the Plurinational State of Bolivia. The outcome is still pending.58 As was mentioned previously, including representatives of the indigenous population in decision-making processes which concern their communities and territories is one of the basic

53 A/HRC/27/52, p. 8. 54 Ibid. 55 cf. United Nations, General Assembly, Rights of indigenous peoples, including their economic, social and cultural rights in the post-2015 development framework, A/69/267* (6 August 2014), p.13. 56 cf. United Nations, General Assembly, Rights of indigenous peoples, A/70/301 (7 August 2015), p.5. Hereinafter: A/70/301 (2015). 57 Ibid, p. 6. 58 cf. UNCTAD: Investment Dispute Settlement: South America Silver v. Bolivia, URL: http://investmentpolicyhub.unctad.org/ISDS/Details/524 (20.12.2015).

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Prague Model United Nations 2016 rights guaranteed by UNDRIP.59 However, negotiations for free trade agreements and foreign investment agreements are usually carried out strictly confidentially by Government officials only, thus violating indigenous peoples’ rights to free, informed and prior consent, participation, consultation and self-determination.60 In her 2015 report to the GA, the Special Rapporteur mentions many more negative impacts such agreements might have on indigenous peoples, like assaults on their cultural rights, cultural appropriation, denial of the rights to self-determination and self-governance, and unequal power relations between indigenous peoples and corporations and States, leading to systemic effects that are contributing to the perpetuation of the disregard for indigenous peoples’ rights.61

Country and block positions With the indigenous population worldwide being comprised of more than 370 million individuals of at least 5.000 distinct peoples living in over 90 countries,62 human rights and indigenous peoples is a globally relevant topic. As such, it was being fully recognized on a global scale with the adoption of UNDRIP in 2007. However, even though the Declaration was adopted immediately by 143 countries, eleven member states abstained while four countries even voted against it. Those countries were Australia, Canada, New Zealand and the USA. As all four countries share a similar history of colonialism, they also justified their voting results in a similar fashion. Among the reasons given for voting against the Declaration was e.g. the danger of undermining their own State’s sovereignty by recognizing such a level of autonomy for indigenous peoples. Although all four countries changed their position later on and have endorsed the declaration, critics still claim that “each nation’s commitment remains lukewarm at best”63. In Africa, the protection of indigenous peoples’ rights is an even greater challenge as there persists a common misconception that “all Africans are indigenous” and that, therefore, the term indigenous peoples cannot be applied to Africa.64 As a result, only in few African countries are

59 60 61 62 63

cf. UNDRIP, Art. 18. cf. A/70/301 (2015), p. 12. cf. ibid, pp. 13-16. cf. IWGIA: The Indigenous World, URL: http://www.iwgia.org/regions (20.12.2015). The University of British Columbia, Indigenous Foundations: UN Declaration on the Rights of Indigenous Peoples, URL: http://indigenousfoundations.arts.ubc.ca/home/global-indigenous-issues/un-declarationon-the-rights-of-indigenous-peoples.html (20.12.2015). 64 cf. African Commission on Human and Peoples’ Rights (ACHPR); International Work Group for Indigenous Affairs: INDIGENOUS PEOPLES IN AFRICA: THE FORGOTTEN PEOPLES? The African Commission’s work on indigenous peoples in Africa, Copenhagen 2006, p. 12.

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Human Rights Council: Topic B indigenous peoples recognized and, apart from the Republic of Congo, no African country so far has passed specific legislation protecting indigenous peoples’ rights. In Asia, where two thirds of the world’s indigenous population are living, indigenous peoples also face grave violations of their human rights, such as assimilation pressure, violent repression, and social marginalization.65 Nevertheless, in recent years, some states, such as Japan, Nepal, Indonesia, and the Philippines, have made some progress regarding the recognition of indigenous peoples, their languages and distinct cultures, as well as the right to their lands.66 The European Union, together with the Latin American and Caribbean group, was one of the key driver in drafting and adopting UNDRIP. With its Strategic Framework and Action Plan for Human Rights and Democracy the EU also commits to the incorporation of human rights in trade agreements and strengthening corporate social responsibility.67 However, UN experts have already voiced their concern over the negative impacts the Transatlantic Trade and Investment Partnership (TTIP) might have on indigenous peoples and minorities.68 Furthermore, Europe and the EU also need to face their responsibilities regarding the fact that domestic companies may be the source for the violation of indigenous peoples’ rights, especially those involved in extractive industries such as mining which potentially have great impact on indigenous lands and resources.69

65 cf. IWGIA: The Indigenous World – Asia, URL: http://www.iwgia.org/regions/asia (20.12.2015). 66 cf. UN Department of Public Information: Indigenous Peoples in the Asian region, Thirteenth Session of the UN Permanent Forum on Indigenous Issues, Discussion on Thursday, 15 May 2014, 10 a.m. – 1 p.m., URL: http://www.un.org/esa/socdev/unpfii/documents/2014/press/asia.pdf (20.12.2015). 67 cf. Directorate-General for External Policies of the Union, Policy Department: In-Depth Analysis: Indigenous Peoples, Extractive Industries and Human Rights, EXPO/B/DROI/2013/23, Brussels 2014, pp. 25-26. Hereinafter: EXPO/B/DROI/2013/23. 68 cf. OHCHR: UN experts voice concern over adverse impact of free trade and investment agreements on human rights, URL: http://www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=16031&LangID=E (20.12.2015). 69 cf. EXPO/B/DROI/2013/23, p. 27.

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Sources Documents  Note by the Chairperson-Rapporteur of the Working Group on Indigenous populations, Ms.

Erica-Irene Daes, on criteria which might be applied when considering the concept of indigenous peoples, E/CN.4/Sub.2/AC.4/1995/3 (21 June 1995).  Study of Discrimination against Indigenous Populations by Jose Martinez Cobo, Special Rapporteur of the Sub Commission on Prevention of Discrimination and Protection of Minorities, E/CN.4/SUB.2/1986/7/ADD.4 (1986).  United Nations, General Assembly, Report of the Special Rapporteur on the rights of indigenous peoples, Victoria Tauli Corpuz, A/HRC/27/52 (11 August 2014).  United Nations, General Assembly, Rights of indigenous peoples, including their economic, social and cultural rights in the post-2015 development framework, A/69/267* (6 August 2014).  United Nations, General Assembly, Rights of indigenous peoples, A/70/301 (7 August 2015).

Websites  Australian Human Rights Commission: About Constitutional Recognition, URL: https://www.humanrights.gov.au/publications/about-constitutional-recognition (14.12.2015).  Australian Human Rights Commission: Constitutional reform: FAQs - Why reform of the Constitution is needed, URL: https://www.humanrights.gov.au/publications/constitutionalreform-faqs-why-reform-constitution-needed (16.12.2015).  International Work Group for Indigenous Affairs: Indigenous peoples in Africa - a general overview, URL: http://www.iwgia.org/regions/africa/indigenous-peoples-in-africa (16.12.2015).  International Work Group for Indigenous Affairs: The Indigenous World – Asia, URL: http://www.iwgia.org/regions/asia (20.12.2015).  Lutz, Ellen L: Recognizing Indigenous Peoples Human Rights, URL: https://www.culturalsurvival.org/publications/voices/australia/recognizing-indigenouspeoples-human-rights (15.12.2015).  OHCHR: UN experts voice concern over adverse impact of free trade and investment agreements on human rights, URL: http://www.ohchr.org/FR/NewsEvents/Pages/ DisplayNews.aspx?NewsID=16031&LangID=E (20.12.2015). 20

Human Rights Council: Topic B  Commonwealth of Australia: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel. 2 Comparative and international recognition. URL: http://www.recognise.org.au/wp-content/uploads/shared/uploads/assets/html-report/ 2.html (14.12.2015).  UN Department of Public Information: Indigenous Peoples in the Asian region, Thirteenth Session of the UN Permanent Forum on Indigenous Issues, Discussion on Thursday, 15 May 2014, 10 a.m. – 1 p.m., URL: http://www.un.org/esa/socdev/unpfii/documents/2014/ press/asia.pdf (20.12.2015).  Weitzer, Ronald: Transforming Settler States: Communal Conflict and Internal Security in Northern Ireland and Zimbabwe, Berkeley 1990, URL: http://ark.cdlib.org/ark:/13030/ ft2199n7jp/ (14.12.2015).

Others  African Commission on Human and Peoples’ Rights (ACHPR); International Work Group for Indigenous Affairs: INDIGENOUS PEOPLES IN AFRICA: THE FORGOTTEN PEOPLES? The African Commission’s work on indigenous peoples in Africa, Copenhagen 2006.  Alfred, Taiaiake; Corntassel, Jeff (2005): Being Indigenous: Resurgences against Contemporary Colonialism, Government and Opposition (Volume 40, Issue 4), pp. 597–614.  Asia Pacific Forum of National Human Rights Institutions; Office of the United Nations High Commissioner for Human Rights: The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions, Sydney/Geneva 2013.  Directorate-General for External Policies of the Union, Policy Department: In-Depth Analysis: Indigenous Peoples, Extractive Industries and Human Rights, EXPO/B/DROI/2013/23, Brussels 2014.  Office of the United Nations High Commissioner for Human Rights (2013): Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No. 9/Rev.2.  Rathgeber, Theodor: Performance and Challenges of the UN Human Rights Council. An NGO’s View, International Policy Analysis Friedrich-Ebert-Stiftung, Geneva 2013.

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