During the 17th Session of the Working Group on Indigenous Populations [hereinafter 'WGIP'], held in Geneva from the 26th to the 30th July 1999, Special Rapporteur Mr. Miguel Alfonso Martinez presented the final version of a 'Study on treaties, agreements and other constructive arrangements between States and indigenous populations' (1) [hereinafter 'treaty-study']. Mr. Martinez had been working on the treaty-study since 1988, when the Commission on Human Rights recommended the Economic and Social Council to authorise his appointment as Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities [hereinafter 'Sub-Commission'](2).

His mandate was to prepare "an outline on the possible purposes, scope and sources of a study to be conducted on the potential utility of treaties, agreements and other constructive arrangements between indigenous populations and Governments for the purpose of ensuring the promotion and protection of the human rights and fundamental freedoms of indigenous populations"(3).

After the Commission on Human Rights and the Sub-Commission had reviewed the outline (4), the Economic and Social Council confirmed Mr. Martinez's appointment and authorised him to conduct the study (5).

The presentation of the treaty-study at the 17th Session of the WGIP gave rise to clashing reactions by indigenous representatives and non-governmental organisations. While it has generally been welcomed because it is the first United Nations document stating that treaties between indigenous populations and Governments are international in nature and that indigenous peoples are subjects of international law (6), it has generally been challenged because it sets up a new interpretation of the word 'indigenous', which is based on the difference between two distinct historical phenomena ('European colonialism' vs. 'expansion into adjacent territories'). By doing this, the Special Rapporteur has reinterpreted the 'indigenous status' of almost all African and Asian peoples and has thus reopened the major problem of differentiating 'indigenous peoples' from 'minorities' (7).

It is not the purpose of this paper to challenge the findings of the Special Rapporteur as regards the problematic issue of defining 'minorities' and 'indigenous peoples'. The paper will only give an overview of the most generally accepted differences between the two definitions in the United Nations framework and compare them with the Special Rapporteur's view. This will introduce the discussion on the legal consequences arising from qualifying a group as an 'indigenous people' instead of as a 'minority' under international human rights law. It will be shown that it is necessary to differentiate between minorities and indigenous peoples, by looking at their claims and at the individual and collective rights which are enshrined in the United Nations Declaration on the Rights of Persons Belonging to National, Ethnic, Religious or Linguistic Minorities [hereinafter 'declaration on minorities'] (8) and in the Draft Declaration on the Rights of Indigenous Peoples [hereinafter 'draft declaration'] (9).

It is noted that the nature of the subject made it difficult sometimes to exhaust a topic all in one section: for example, the topic of self-determination is necessarily dealt with in the context of the definition of 'peoples', but also when comparing the two declarations. The paper partly seeks to fill a gap voluntarily left by the Special Rapporteur, who stated that "it has not been possible for the Special Rapporteur to assess thoroughly all the possible connections between this [treaty-]problematique and the general question of 'the human rights of indigenous individuals'" (10). It also seeks to evaluate whether the Special Rapporteur's view, according to which "the new differentiation...is not to be construed as implying lack of recognition of those minorities' collective rights as distinct societies" (11), may be supported under current international law standards.

______top______

II. The most generally accepted differences between the definition of 'minority' and of 'indigenous people(s)' in the United Nations

  1.   The concept of 'minority'.
  2.   The various terms used to refer to indigenous groups: 'population', 'peoples', 'people'.
  3.   The approach of the 'treaty-study'.

II.1. The concept of 'minority'.

Article 27 of the International Covenant on Civil and Political Rights [hereinafter 'Covenant'](12) and the declaration on minorities are the only United Nations instruments dealing directly with 'rights of persons belonging to minorities' in general(13). However, neither of them contains a definition of 'minority'. Article 27 simply states: "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 the group, to enjoy their own culture, to profess and practise their own religion, or to use their own language". An important distinction between 'indigenous people' and 'minority' is automatically made when article 27 of the Covenant and various articles in the declaration on minorities(14) use the wording 'rights of persons belonging to minorities' [emphasis added], thus indicating an individualistic approach. While the category of individual rights "is more attuned to the traditional Euro-centric notion of human rights as accruing to individuals", the category of group rights "has been espoused more recently by third world nations in the search for their own expression of human rights"(15). It will later be shown that indigenous peoples' rights are usually granted as 'collective rights', i.e. as rights enjoyed by the group as such, rights which are collective in character where the beneficiary is the group.

It would be too difficult for the author to revisit the complex issue of the definition of 'minority'. As Professor Rodley suggested, "of particular note are the spheres of activity covered" by article 27: "culture, religion and language. It is a brief list, yet it captures the essence of what seems to be the defining characteristics of the minorities involved in the sorts of conflict that have been of major political concern"(16).

In the view of the Human Rights Committee, one of the characterising elements of a 'minority' is the numerical factor. In the case of Ballantyne and E. Davidson, and G. McIntyre v. Canada (17), three English-speaking Canadian citizens residing in the Province of Quebec alleged to be victims of violations of, inter alia, article 27 because they were forbidden to use English for purpose of advertising. The Human Rights Committee held that

"The minorities referred to in article 27 are minorities within such a State [ratifying State], and not minorities within any province. A group may constitute a majority in a province but still be a minority in a State and thus be entitled to the benefits of article 27. English-speaking citizens of Canada cannot be considered a linguistic minority"(18).

This finding has been regarded as 'narrow' by four members of the Committee, who observed in their individual opinion that the term 'minorities' should not be interpreted "solely on the basis of the number of members of the group in question"(19). They argued that,

"to take a narrow view of the meaning of minorities in article 27 could have the result that a State party would have no obligation under the Covenant to ensure that a minority in an autonomous province had the protection of article 27 where it was not clear that the group in question was a minority in the State considered as a whole entity"(20).

Even though well-justified in circumstances where an 'autonomous province' or region or federal state have the power to discriminate against minorities within that area (21), this opinion is usually not shared by the international community. It is nevertheless generally accepted that the numerical element needs to be put beside other elements to construe a definition of minority. One of the most acceptable and satisfactory definition is the one given by the Special Rapporteur of the Sub-Commission, Mr. Francesco Capotorti, in a 'Study on the rights of persons belonging to ethnic, religious and linguistic minorities':

"minority is a group which is numerically inferior to the rest of the population in a State, and in a non-dominant position, whose members possess ethnic, religious or linguistic characteristics which differ from those of the rest of the population and who, if only implicitly, maintain a sense of solidarity towards preserving their culture, traditions, religion or language" [emphasis added] (22).

Characterising features of the definition are the size of the group, its distinctiveness from the rest of the population and the non-dominant position (23). In the 'Second Progress Report' on the treaty-study, Mr. Martinez compares Mr. Capotorti's wording to the definition given by Mr. Jules Deschenes to argue that certain definitions of the term 'minority' may also be used to identify 'indigenous groups' (24). While Mr. Capotorti does not mention a minority's will to integrate with the majority of the population, Mr. Deschenes links the element of 'solidarity' - to be found also in Mr. Capotorti's definition - to the aim of achieving 'equality with the majority in fact and in law' (25). This is a fundamental difference between minorities and indigenous peoples: while the former may be satisfied by reaching de facto and de jure equality within the legal structures of the majority of the population, the latter would not accept such an assimilation into the institutions of the majority - assuming they do not constitute the majority. The issue of 'integrationist' and 'separationist' policies by the State will be clarified in the paragraph III.2.D.

It is possible to state that a minority exists only in relation to a majority within the State, while an indigenous group does not need any numerical evidence to be characterised as such, as it will be clear from the following review of definitions of indigenous peoples. They constitute majorities in some States, such as Bolivia and Guatemala, and in their own territories (26). Nevertheless, it is true that the numerical element has some weight, since Latin-American countries where the indigenous population is numerically equal or superior to the Latin population have enshrined certain indigenous rights in the Constitution, including the right to administer justice according to indigenous rules (27). As it will emerge throughout the discussion, this field of international law is going through a 'positive transition'. This is why under these circumstances it may sound justifiable to accept the importance of the numerical element in order to recognise at least the most indisputable and conspicuous phenomena.

Beside the considerations of the numerical evidence, it should be noted that indigenous peoples are not themselves necessarily homogenous categories of mankind. They may have different religions, languages and customs, and so they can have minorities within their people (28). Moreover, it will emerge from the following paragraph that indigenous peoples share certain characteristics which minorities may not have, such as the historical continuity given by a link to ancestral territories.

______top______

II.2. The various terms used to refer to indigenous groups: 'population', 'peoples', 'people'.

Before examining the various terms used to refer to indigenous groups, a few words must be said on the meaning of 'indigenous'. In this respect, it is useful to follow an historical review of international practice prepared by the Special Rapporteur Ms. Daes in a working paper on the concept of 'indigenous people' (29). Although the Special Rapporteur could not find a "precise, inclusive definition", applicable to all regions of the world, she nevertheless suggested that the semantic roots of the terms used in international law (indigenous/autochtonous/aboriginal) share the element of 'priority in time'. They are used to indicate the first group which existed in a particular territorial area. There is however an important difference between the use of the term by the League of Nations and by the Pan-American Union: while the former used the term 'indigenous' to distinguish geographically between colonial powers and peoples living under colonial domination, the latter used it to identify "vulnerable ethnic, cultural, linguistic and racial groups within State borders, rather than the inhabitants of colonial territories that were distinct geographically from the administering Power" (30).

Ms. Daes then referred to article 73 of the United Nations Charter, which identified 'Non-Self-Governing Territories' as "territories whose peoples have not yet attained a full measure of self-government". The definition of 'Non-Self-Governing Territory' was later given in General Assembly resolution 1541 (XV), as a place which is "geographically separate and is distinct ethnically and/or culturally from the country administering it". It is worth noting here, although it will be the object of later discussion, that the Special Rapporteur found the definition to be applicable also to the concept of 'peoples' as beneficiaries of the right of self-determination, with an important conceptual difference: "the shift from a geographical conception [territory] to a sociological one [peoples] implies a broadening of the application of the principle of self-determination to include non-dominant groups within the boundaries of independent States" (31).

As already mentioned, there are several terms to refer to indigenous groups. Some use the term 'peoples', while others use 'populations'; some use the singular form 'people' instead of the plural form 'peoples'; others simply say 'communities' or 'groups'. According to Brownlie,

"the heterogeneous terminology which has been used over the years...involves essentially the same idea...Once a member of a people or community - or nation, minority or population - is expressing political claims in public discourse in Geneva..., and using the available stock of concepts so to do, it seems to me that the type of political consciousness involved is broadly the same...In order to obtain recognition of the claim to cultural identity, or to statehood, the claimant must accept the terms of the dialogue" (32).

Although the concept Professor Brownlie wants to convey is clear, it is nevertheless worth analysing the meaning generally attached to the different words because the choice of a specific term may have legal consequences, or at least may suggest a more or less progressive approach to the subject.

The most articulate and thorough definition of 'indigenous population' may be considered to be the 'working definition' put together by Special Rapporteur Mr. Martines Cobo in his 'Study on the problem of discrimination against indigenous populations'. The same definition has also subsequently been used as a guide to the application of the draft declaration (33), which does not contain any definition:

"379. Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.(...)
381. On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognised and accepted by these populations as one of its members (acceptance by the group)" [emphasis added] (34).

Characterising features of the definition are the emphasis on the historical element, the importance of the indigenous peoples' 'ancestral territories' - significantly in association with their 'ethnic identity' - the respect for their 'cultural patterns, social institutions and legal systems', the inter-generational aspect of their culture and the self-identification element. The overall emphasis on the historical element and self-identification is to be found also in other definitions, such as the one contained in article 1.b of ILO Convention n.169 (35). It will be explained in paragraph II.3 that stressing the importance of the historical element instead of the element of self-identification was the main cause of contrasts between Mr. Martinez and the indigenous representatives at the WGIP.

The use of the term 'peoples' instead of 'populations' is often interpreted as implying full and clear recognition of the right to self-determination, as enshrined in the United Nations Charter - articles 1.2 and 55 - or in article 1 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights (36). Article 1 of the United Nations Charter lists among the 'purposes of the United Nations' the development of "friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples". Article 1 of the Covenants states that "All peoples have the right to self-determination" and "by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development".

The term 'peoples' is also used in the African Charter on Human and Peoples' Rights (37) and in the Universal Declaration on the Rights of Peoples or Algiers Declaration (38). However, the use of the term 'peoples' or 'people' is usually not accompanied by a definition. The reason is probably the same as for the African Charter: "any attempt at a definition would probably have ignited a debate and raised issues which would effectively have blocked the adoption of the Charter. It is not unusual in law-making to leave tricky issues out, to be solved [later] in practice" (39). Moreover, even within the same document one may find that the same term can have several different meanings. For example, Kiwanuka argues that the meaning of 'people' in the African Charter is not 'consistent' and it is "always determined by the context of the particular rights referred to" (40).

It is worth mentioning two attempts to define the word 'peoples' - for the purpose of self-determination - within the United Nations framework. Special Rapporteur Espiell has defined it as "a specific type of human community sharing a common desire to establish an entity capable of functioning to ensure a common future" (41). Special Rapporteur Cristescu has given 'elements' than "can be taken into consideration in specific situations in which it is necessary to decide whether or not an entity constitutes a people fit to enjoy the right of self-determination" (42). These elements are indicated as follows:

"[1]...social entity possessing a clear identity and its own characteristics;
 [2]...a relationship with a territory...;
 [3] A people should not be confused with ethnic, religious or linguistic minorities..." (43).

Both studies state that a minority is not a people for the purpose of self-determination and the reason is found in the following principle, proclaimed in the 'Declaration on Principles of International Law Concerning Friendly Relations' (44), which affirms that 'the principle of equal rights and self-determination of peoples' should never be construed

"as authorising or encouraging any action which would dismember, impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples...and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour" (45).

The declaration is in line with the traditional view contained in other United Nations instruments, according to which self-determination is freedom from colonialism and it does not include the process of political liberation of one section of the population of an independent or majority ruled country (46).

When discussing the scope of the right to self-determination, this issue will be taken into consideration again to show that it is now generally accepted that the view, according to which indigenous peoples living in sovereign states and minorities as such are not entitled to self-determination, is no longer tenable. The travaux préparatoires of Article 1 of the Covenant do not show that the drafters intended to deny the right to peoples living in independent states (47). As Kiwanuka suggests, if we do not equate 'self-determination' with 'secession', it should be accepted that a 'minority' can fulfil all the requirements of a 'people' (48). This is also the major concern when deciding on the use of the singular or of the plural form of the term 'people(s)':

"the first meaning of 'people' is all the different communities (peoples), in fact, all persons within the boundaries of a country...that has yet to achieve independence or majority rule. Once independence (or majority rule) is achieved, no further independence is permissible. The rights of the different peoples would thereafter be protected as minority rights" (49).

One of the most recent documents which set an important 'precedent' for the use of the singular form 'people' instead of 'peoples' was the 'Vienna Declaration and Programme of Action', adopted at the end of the United Nations 'World Conference on Human Rights', held in Vienna from the 14th to the 25th of June 1993. The Declaration affirms that

"States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them...States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination..." (para.20).

Professor Rodley noted that the choice of the term 'people' or 'peoples' was one of the 'controversial items' at the World Conference (50). He further commented that the prevailing of the former "could, of course, be a temporary situation, pending a determination of the issue within the framework of finalising" the draft declaration (51).

The term 'peoples' is now very much used also in United Nations documents on indigenous issues, as it is clear by the use of it in the treaty-study and in the context of other studies, such as Special Rapporteur Mr. Martines Cobo's 'Study on the Problem of Discrimination Against Indigenous Populations' (52) and Special Rapporteur Ms. Daes' 'Study on Indigenous People and their Relationship to Land' (53), or at the WGIP (54). However, the documents often clarify that "the use of the term 'peoples'...shall not be construed as having any implication regarding the rights which may attach to the term under international law". This is stated, for example, in Article 1.1 of ILO Convention n.169, which constitutes the only legally binding instrument on the rights of indigenous peoples.

As a very strong suggestion that indigenous peoples constitute 'peoples' in the 'international law meaning' of the term, we may cite the Advisory Opinion of the International Court of Justice in the Western Sahara case. The Court was faced with two questions. The first concerned the applicability of the concept of 'terra nullius' to the territory of Western Sahara, for the purpose of 'occupation'. The second concerned the legal ties of the territory of Western Sahara with the Kingdom of Morocco and the Mauritanian entity. The Court recognised the political structures and land ties of semi-nomadic Berber tribes as sovereign governments entitled to territory demarcated by their routes. It did not accept the argument put forward by Mauritania, according to which the 'Mauritanian entity', or 'Bilad Shinguitti' or 'Shinguitty country', constituted "a distinct human unit, characterised by a common language, way of life, religion and system of laws, featuring two types of political authority: emirates and tribal groups" (55). Also, Mauritania suggested that, since those emirates and tribes did not constitute a State, "the concepts of 'nation' and of 'people' would be the most appropriate to explain the position of the Shinguitti people at the time of colonisation" (56). The Court found that,

"while there existed among them many ties of a racial, linguistic, religious, cultural and economic nature, the emirates and many of the tribes in the entity were independent in relation to one another, they had no common institutions or organs. The Mauritanian entity therefore did not have the character of a personality or corporate entity distinct from the several emirates or tribes which comprised it...The nomadic peoples of the Shinguitti country possessed rights relating to the lands through which they migrated. These rights constituted legal ties between Western Sahara and the Mauritanian entity. They were ties which knew no frontier between the territories and were vital to the very maintenance of life in the region" (57).

Thus the Court did not find legal ties of such a nature as might affect the application of the principle of self-determination through the free expression of the will of the peoples of the territory (58). It is also true, however, that in certain Latin-American countries where the magnitude of the indigenous population is much bigger, this reasoning is not applied.

______top______

II.3. The approach of the 'treaty-study'.

Although departing from Mr. Cobo's definition of 'indigenous populations', which places a great emphasis on the indigenous peoples' perception and conception of themselves, i.e. on the self-identification element, Mr. Martinez has given precedence to the historical element, thus entering a 'conflict' with those who argue that self-identification should be more important. This is not only argued by indigenous peoples, but also by Government representatives. For example: the observer for Denmark at the WGIP stated that indigenous peoples have a "general right to self-identification" and so "indigenous peoples, rights and issues should not be defined in any historical, geographical or other context" (59); Article 1.2 of ILO Convention n.169 identifies 'self-identification' as "a fundamental criterion for determining the groups to which the provisions of this Convention apply".

Giving precedence to the historical element in any attempt to define what is 'indigenous' makes it clear that the subject can be highly influenced by new interpretations of certain concepts pertaining to the domain of History or Political Science. This is what happened with Mr. Martinez's treaty-study, which draws a distinction between 'invasion' and 'colonialism', stressing that

"it would be wrong to place on the same footing the phenomenon of territorial expansion in general [presumably including invasion by other indigenous peoples] and the unique and specific historical fact of the organised colonialisation of peoples of other continents by the European Powers, starting in the XVI century" (60).

The Special Rapporteur explained that, while 'territorial expansion' takes place at the expense of peoples who have 'many basic similarities' with the conquerors, 'colonialism' takes place at the expense of 'culturally different peoples'. Consequently, while the process of expansion "usually results in the incorporation of the inhabitants into the body-politic of the nation which has expanded", the process of colonialism necessarily leads to ruling the conquered peoples as "subjects outside the political process" (61).

Having laid down these premises, Mr. Martinez drew his conclusions in regard to the African and Asian context, provoking contrasting reactions by the different indigenous peoples of the world who were attending the meeting in Geneva:

"the end of traditional colonial power in Africa and Asia necessarily and radically changed the concept of what was meant by 'indigenous' as a result of a new political context whose most visible symbol was the independence of the State. In this new context, the reins of political power...were taken over by ethnic and national social groups whose indigenous status was (and is) as unquestionable as that of other ethnic groups or nations which, although also living in the territory of the new State, did not emerge from the process of decolonisation as the dominant sectors of this new political entity which demanded and obtained its international recognition" (62).

While indigenous representatives made interventions criticising the treaty-study in that it denies the existence of indigenous peoples in Asia and Africa (53), it seems clear that the issue should actually be considered from the opposite point of view. The Special Rapporteur, in his concluding observations at the WGIP, stated that the term 'indigenous' has been invented by the colonisers, the conquistadores. Therefore, given that the decolonisation period is now over in Asia and Africa, the term is not appropriate anymore because all peoples there fall within the qualifier 'indigenous', as they are all indigenous to those territories (64). What makes the difference is that some of those peoples are now in a 'dominant position' because they have political power and can therefore rule over the others, who have consequently become minorities (65).

The Special Rapporteur did not deny the existence of human rights violations in Asia and Africa, nor was his new distinction meant to imply "lack of recognition of those minorities' collective rights as distinct societies" (66). He only stated that the WGIP would not be the appropriate forum to address their complaints:

"many representatives of what they decribe as State-oppressed groups/minorities/peoples in Africa and Asia have brought their case before the Working Group on Indigenous Populations for lack of other venues for the submission of their grievances. This situation is now being remedied with the establishment of the Working Group on Minorities" (67).

Although it seems clear that the Special Rapporteur would like to see the recognition of collective rights to minorities and indigenous peoples as 'peoples', it must be further considered how appropriate it is to state that minorities have collective rights and, in particular, that they merit those very special collective rights that indigenous peoples are entitled to - or at least they are a lot closer to recognition than minorities - such as land rights and self-determination. As Professor Ian Brownlie suggests, we need to be careful in assessing rights that have not yet been clearly established:

"The elements of the formation of rules in general international law - international custom - are not some esoteric invention; rather they provide criteria by which the actual expectations and commitments of States can be tested. International law is about the real policies and commitments of governments, it is not about the incantations of secular or religious morality" (68).

It being now clear that Mr. Martinez never intended to deny the existence of indigenous peoples in Africa and Asia, it is time to address what legal consequences are implied by his treaty-study. Bearing in mind that Reports of United Nations Special Rapporteurs are not legally binding, it may be argued that their views set respected 'precedents' which are brought into consideration during the drafting of binding instruments. Moreover, the distinctions made by Mr. Martinez may be a useful tool in the hands of Governments which have always been hostile to indigenous peoples, especially in a field of international law which is developing and where there are not sufficient international instruments for the protection of their rights. Although the discussion contained in the following pages may seem somewhat speculative, not touching upon the issue of implementation, such consideration may be usefully put beside Mr. Martinez's following statement: "the Special Rapporteur has not been in a position to assess all the possible overlaps and contradictions of every treaty-related issue and the overall indigenous problematique in the African and Asian contexts" (69).

A comparison of the two United Nations Declarations which have been referred to will be useful for identifying the different sets of rights to which the indigenous peoples and minorities are entitled.

______top______

III. The 'draft declaration on the rights of indigenous peoples' vs. 'the declaration on the rights of persons belonging to national or ethnic, religious or linguistic minorities'

  1.   Introductory remarks.
  2.    Comparing the two Declarations.
    2.a    Individual rights vs. collective rights.
    2.b    Individual rights vs. collective rights.
    2.c    Land rights.
    2.d    Integrationist approach vs. separatist approach .
    2.e    Right to participation and consent.

III.1. Introductory remarks.

Before looking at the different rights guaranteed to minorities and indigenous peoples in the two United Nations Declarations and before an evaluation of the implications arising from those differences, some general considerations need to be addressed, firstly about the nature of United Nations Declarations, and secondly about the appropriateness of maintaining the traditional general categorisation of rights as 'civil and political' vs. 'economic, social and cultural' in the indigenous field.

In the hierarchy of sources of international law, Declarations proclaimed by resolutions of the General Assembly are formally 'recommendations':

"[i]n formal terms the status of these instruments is prescribed by the Charter of the United Nations as normally being that of recommendations (articles 10-14). It is not seriously doubted, however, that such resolutions can serve as evidence either of what is meant by potentially ambiguous terms of international treaties or of customary international law"(70).

The Preamble of the declaration on minorities recognises in particular "the need to ensure even more effective implementation of international human rights instruments with regard to the rights of persons belonging to national or ethnic, religious and linguistic minorities" (para.10). On the one hand, the language of certain articles of the Declaration clearly expresses the need for a "more effective implementation": for example, article 1 says that "States shall adopt appropriate legislative and other measures" to protect the existence and the identity of minorities; article 4 says that "States shall take measures where required to ensure that persons belonging to minorities may exercise fully and effectively all their human rights and fundamental freedoms". On the other hand, the same language suggests a certain hesitation on behalf of the drafters where States are required to adopt positive measures "where required" (art.4.1), "wherever possible" (art.4.3) or "where appropriate" (art.4.4). The language used in Declarations and the history of adoption assume an important role in the assessment of the nature of these documents and thus of the importance that should be given to them when interpreting or applying provisions of treaties or conventions (71).

So, the declaration on minorities can be seen as further pression put on States to implement certain rights already guaranteed to persons belonging to minorities by article 27 of the Covenant, as interpreted by the Human Rights Committee; by other binding provisions in international law, such as CERD (in particular article 2), the Convention on the Rights of the Child(72) (in particular articles 2 and 30), the Convention on the Prevention and Punishment of the Crime of Genocide(73) and the International Covenants; by non-binding provisions, such as those contained in the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief(74).

The draft declaration must be placed in a different context. The Preamble states that "this Declaration is a further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of the United Nations activities in this field" [emphasis added]. It is the first United Nations instrument recognising certain fundamental rights of indigenous peoples and that looks for ways to implement them. Ms. Mary Robinson, United Nations High Commissioner for Human Rights, said that the draft declaration

"in many ways represented the acknowledgement of a new generation of rights: it covered the range of civil, cultural, economic, political and social rights; it drew on the right to development; it recognised, as it stood at present, the individual and collective rights of indigenous peoples"(75).

The High Commissioner also "said that the Working Group [on the draft declaration] represented an unusual standard-setting activity by which governmental delegations had an opportunity to talk directly with the beneficiaries of the draft declaration" (76). The text was adopted after long years of deliberation in the WGIP and in the Sub-Commission, with the effective participation of indigenous peoples and observers for the governments (77). This procedure places a particular importance on the claims enshrined in the draft, some of which may be considered actual rights of indigenous peoples, while others only potential rights. In the author's point of view, the draft declaration should be a 'special' reference when entering a discussion on indigenous peoples' rights. The peculiarity of their position and culture throughout history, including all the historical misdeeds against them, extensively documented by various writers and not considered here, should allow indigenous peoples to have a preferential platform in order to express their claims. Thus, it seems right to start considering these claims by looking at a document approved by them.

It has often been argued that, while indigenous peoples are more interested in economic, social and cultural rights - in particular in the 'collective aspect' of these rights - minorities are more interested in civil, political and cultural rights. In the author's view, this distinction has been blurred over the past two decades for various reasons, first of all the important affirmation in the mentioned 'Vienna Declaration and Programme of Action' that "all human rights are...indivisible and interdependent and interrelated" and so "[t]he international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis"(78).

As regards specifically the field of indigenous and minorities rights, let's first make one comment on article 27 of the Covenant, which provides that "persons belonging to ethnic, religious or linguistic minorities...shall not be denied the right...to enjoy their own culture, to profess and practise their own religion or to use their own language" [emphasis added]. These rights pertain to the domain of 'cultural rights' and, due to the negative language of the article, it may seem that States are simply under an obligation 'not to interfere' with their enjoyment. However, the Human Rights Committee clarified that "a State Party is under an obligation to ensure that the existence and the exercise of such rights are protected against their denial or violation" [emphasis added] (79). Such obligation is usually performed through 'action' on behalf of the State, i.e. with the adoption of so-called 'positive measures'. This may seem to be valid not only in the field of individual rights, traditionally civil and political, but also in the field of collective rights, since the Human Rights Committee further stated that "positive measures by States may also be necessary to protect the identity of a minority" (80). This interpretation, which would favour a 'collective rights approach' even within the minorities' field, seems to be weakened by the wording of the article and by the first paragraph of General Comment n.23, which reaffirms a literal interpretation of article 27 by saying that it "establishes and recognises a right which is conferred on individuals belonging to minority groups" [emphasis added]. Even though the issue of collective rights will be further analysed in paragraph III.2.A, it can be anticipated now that the wording of article 27, the above mentioned General Comment, the case-law of the Human Rights Committee, and the declaration on minorities do not support a group rights approach.

Secondly, it is interesting to point out the findings of the Human Rights Committee in the Kitok case (81). The Committee in fact enlarged the scope of article 27 by affirming that an economic activity falls within the protection of article 27 inasmuch as it belongs to the culture of the people in question. Consequently, the activity of reindeer husbandry was seen to belong to the culture of the Sami people. As explained by the Committee,

"The regulation of an economic activity is normally a matter for the state alone. However, where the activity is an essential element in the culture of an ethnic community, its application to an individual may fall under Article 27 of the Covenant" (82).

In this meaning, article 27 can therefore be interpreted as entering also the field of economic rights.

Thirdly, the nature of the relationship between indigenous peoples and their 'ancestral territories' may be considered another piece of evidence against the argument that indigenous peoples are more concerned with economic, social and cultural rights. Loss of ancestral lands could turn into a violation of their right to life, constituting a serious threat to their survival as individuals and as peoples, not only because of the economic importance of their lands - which very often constitutes their only source of sustenance - but also because of the spiritual and sacred relationship they have with it. As commented by Mr. Martinez Cobo,
"[i]t is essential to know and understand the deeply spiritual relationship between indigenous peoples and their land as basic to their existence as such and to all their beliefs, customs, traditions and culture...The experiences of indigenous peoples are full of well-documented cases of what happens when their rights to religious freedom and culture are violated by the expropriation of the land with which they have been linked...for thousands of years" (83).

On several occassions during the seventeenth session of the WGIP or in the ambit of 'sector meetings' taking place at the same time (84), indigenous representatives made various comments on the land issue, some of them clearly showing the unique importance they attach to it for its multi-purpose value (85). Also the Sub-Commission recently acknowledged that "lack of secure land rights" and "impediments to efforts for the promotion and protection of indigenous communities and the environment, are imperilling the survival of indigenous peoples" (86).

Fourthly, another document supporting the importance of civil and political rights for indigenous peoples is Mr. Cobo's 'Study on the Problem of Discrimination against Indigenous Populations'. When we look at the 'special areas for action' listed in section K of the Study, we find three areas concerned with civil and political rights: a whole section on 'political rights', one on 'religious rights and practices' and one on 'equality in the administration of justice and legal assistance'. Also, when we think of the importance attached by indigenous peoples to self-determination, it is difficult to argue that they are more focused on economic, social and cultural rights. Although the right to self-determination includes economic, social, and cultural factors, it is the political factor which is probably the essential pre-condition from which all the others depend. For indigenous peoples in particular, economic, social and cultural rights could be achieved only with the enjoyment of self-determination (87).

A conclusion which can be drawn from all the above is that indigenous peoples' rights are difficult to categorize in the same way as others' rights. They have particular problems and features that need to be addressed within a framework which is capable of adapting itself to their specific needs and realities. Also, they probably could not be satisfied with a purely legal framework. I share the view of Ulltveit-Moe and Plant who, researching on the 'human rights challenges' posed by 'indigenous demands in the new world order', wrote in the concluding statements:

"Indigenous peoples could not be served by either a narrow CPR or ESCR paradigm, if pursued in isolation from the other. The individualism associated with the exclusive CPR tradition would be anathema, as conflicting with the essence of their culture...But an ESCR paradigm is often associated with a strong State, empowered to develop or redistribute land in the interests of economic development and social justice. This can also be anathema to indigenous peoples..." (88).

______top______

III.2. Comparing the two Declarations.

III.2.A. Individual rights vs. collective rights.

Generally, the first important difference, which may be considered to be the one from which all the others follow, is the absence of a collective rights approach in the declaration on minorities. Like article 27 of the Covenant, the declaration applies to 'persons belonging to minorities'. Each right is granted to individuals belonging to a minority. The only article where there is a faint indication of a 'group approach' is article 1, according to which "States shall protect the existence and the national, ethnic, cultural, religious and linguistic identity of minorities within their respective territories...". Also article 3.1 is phrased in a way as to avoid to use the term 'collective'. It states, in fact, that "persons belonging to minorities may exercise their rights...individually as well as in community with other members of their group" (89).

On the contrary, the draft declaration contains mainly group rights - 'rights of peoples' and 'collective rights'. The only articles dealing with an exclusively individual right are article 5, which states that "every indigenous individual has a right to a nationality"; article 6, which states that "indigenous peoples...have the individual rights to life, physical and mental integrity, liberty and security of the person"; article 32, which protects "the right of indigenous individuals to obtain citizenship of the States in which they live"; article 43, stating that "all the rights and freedoms recognised herein are equally guaranteed to male and female indigenous individuals" (90).

The individualistic approach derives from the discussion having been placed for a long time within the ideological clash between socialist systems, which emphasize the interests of the State and the group - e.g.: family, tribe - and capitalist systems, which emphasize the individual's interests (91). However, contemporary international law is taking a progressive approach towards these issues, as it can be demonstrated by the importance and the attention given to group rights (92). Articles 19 to 24 of the African Charter, for example, protect peoples' rights and the Preamble to the Charter clearly states that

"it is essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights".

The peoples' rights enshrined in the Charter are equality, right to existence and self-determination, right to freely dispose of the peoples' wealth and resources, right to economic, social and cultural development, right to national and international peace and security and the right to a general satisfactory environment favourable to the peoples' development. The inclusion of some newly-codified rights, such as the right to development, the right to peace and the right to a satisfactory environment, marks the Charter out as the first international treaty which enshrines these rights.

A question that arises is whether these rights are protected as collective rights because they would not be adequately protected in the context of individual rights? This is the argument used by Brownlie to respond to the "assumption lying behind the classical formulations of standards of human rights" that "group rights would be taken care of automatically as the result of the protection of the rights of individuals" (93).

Brownlie recognises three types of 'group-claims', clarifying that there may be others: first, the claim to positive action to maintain the cultural and linguistic identity of communities (94); secondly, the claim to land rights in traditional territories; and thirdly, the right to self-determination (95). He finds a double common denominator in the recognition and characterisation of group rights, including minorities, in the following: 'the prescription of a basic standard of equality or non-discrimination' and 'the guarantee of the maintenance of group identity'. This double purpose is recognisable in the declaration on minorities and in the draft declaration. Also De Zayas recalls that the difference between the concept of 'equality and non-discrimination' and 'protection of minorities' was emphasized in a United Nations study of 1949 and that basically the difference is that "the protection of minorities...requires positive action to safeguard the rights of the minority group" (96). Under this approach, there is no conceptual difference between the protection of minorities and the protection of indigenous peoples.

The demand for positive action to maintain the identity of communities may run the risk of resulting in discriminatory measures towards other communities in the society (97). It is necessary to find a balance of interests so that such positive action can be tolerated by the rest of the society as 'positive discrimination' and does not become 'reverse discrimination'. As commented by the Human Rights Committee,

"such positive measures must respect the provisions of articles 2.1 and 26 of the Covenant both as regards the treatment between different minorities and the treatment between persons belonging to them and the remaining part of the population. However, as long as those measures are aimed at correcting conditions which prevent or impair the enjoyment of the rights guaranteed under article 27, they may constitute a legitimate differentiation under the Covenant, provided that they are based on reasonable and objective criteria" (98).

The requirement of 'reasonable and objective criteria' is also the requirement which is to be found with regard to the individual rights to equality and non-discrimination. Does this mean that the whole issue of collective rights is actually brought back to individual rights? As already mentioned, some argue that article 26 of the Covenant would be enough, having the Human Rights Committee clarified that,

"where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment..." (99).

Nevertheless, Rodley argues that indigenous communities are in a special situation and that "the particular arguments...invoked to justify a group rights claim for indigenous communities do not usually apply to 'ordinary' minorities" (100). This is the same argument used to support the need for a 'special regime' for indigenous peoples, issue further discussed in section III.2.D. It is also on the same 'line of thought' of Mr. Martinez, when he states that a pure legal framework is not enough when dealing with indigenous issues because there are important ethical, political and historical factors to be taken into consideration (101).

In my view, the Australian case of Gerhardy v. Brown (102), which will now be briefly illustrated, is very useful to explain the difference between 'special measures' required to allow a group to reach equality with the rest of society and 'special measures' required by indigenous peoples. It is this difference which has a major role in not 'allowing' the indigenous claims to be resolved within the individual rights framework. In 1981 South Australia enacted a Land Rights Act transferring the Pitjantjatjara reserve lands in the North-West of South Australia to Pitjantjatjara ownership. The Act contained exclusion provisions to the effect that nobody except for a Pitjantjatjara could enter the reserve without a permit from the corporate body of the Pitjantjatjara. Such provisions were challenged as being discriminatory towards non-Pitjantjatjaras, on the basis of a Racial Discrimination Act of 1975, enacted to implement CERD. The High Court of Australia decided that the measures were not discriminatory because they would fall within the 'special measures' allowed by article 1.4 of CERD.

As suggested by Nettheim, "the result in the High Court was the right one, but there are problems in the basis for the decision" (103). After stating in advance that "existing human rights instruments such as CERD" provide for "differentiation of groups...only in the case of 'special measures' of limited duration designed solely to assist the integration of individual members of those groups within the national society", he noted that

"there is much to be said for the view of [Judge] Millhouse J...in rejecting that argument, namely that the Land Rights Act was not designed as a short-term measure for the purposes of assimilation but as acknowledgement of the claims of the Pitjantjatjaras to long-term differential status as a distinct people within the nation" [emphasis added] (104).

Again, the different approach of minorities and indigenous peoples towards the rest of the population gives a basis and a reason for such consideration.

One may still wonder what is the need for a distinction between individual rights of minorities and collective rights of indigenous peoples, if their implementation happens with special measures anyway. One of the differences is that peoples cannot invoke those rights as collective because the rights which can be invoked under the Optional Protocol are only individual rights, as explained in paragraph III.2.B. Also, peoples would not be satisfied by invoking them as individual rights because of the different framework they are asking for. Thus, even though it is noteworthy that article 27 has brought within the ambit of the Covenant 'collective values', such as minority cultures and languages, it is not possible to invoke them under the Optional Protocol.

______top______

III.2.B. Self-determination.

The second striking difference is the absence of the right to self-determination in the declaration on minorities, while the draft declaration has it enshrined in article 3 and in two declaratory paragraphs.

It has already been considered in paragraph II.2 why a minority has not traditionally been recognised as a 'people' for the purpose of self-determination. A comment should be made also on the Covenant, being the declaration on minorities 'inspired by the provisions of article 27'. The Human Rights Committee has clearly excluded that article 27 contains similar guarantees to article 1, which protects the right to self-determination (105). In the Lubikon Lake Band case, the Committee held:

"the question whether the Lubikon Lake Band constitutes a 'people' is not an issue for the Committee to address under the Optional Protocol...[which] provides a procedure under which individuals can claim that their rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive" (106).

Subsequently, the Committee further clarified the issue in the above mentioned General Comment 23 of 1994, whose paragraph 3.1 states:

"the Covenant draws a distinction between the right to self-determination and the rights protected under article 27. The former is expressed to be a right belonging to peoples and is dealt with in a separate part (Part I) of the Covenant. Self-determination is not a right cognisable under the Optional Protocol. Article 27, on the other hand, relates to rights conferred on individuals, in Part II of the Covenant and is cognisable under the Optional Protocol".

Interestingly, this issue had been earlier considered also in the case of A.D. v. Canada in 1984 (107), declared inadmissible because of lack of standing of the author in so far as he claimed to represent the Miqmak tribal society. The author, however, raised an interesting point. He disagreed with Canada's contention that the right of self-determination constitutes only a collective right, citing the already mentioned 'Study on the Right of Self-determination', where Special Rapporteur Gros Espiell supports the view that self-determination is also an individual right (108). Apart from the difficulties in conceiving an individual right to self-determination - given also the wording of article 1 of the Covenant - such interpretation would not help making the right cognisable under the Optional Protocol, being the right enshrined in the first section of the Covenant. However, this would be only a procedural obstacle within the Covenant's framework.

Differently, article 3 of the draft declaration proclaims that "indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development" (109). By the end of 1997, the Working Group on the Draft Declaration held three informal meetings on article 3. The Chairman-Rapporteur Mr. Urrutia stated that all States upheld the right of peoples to self-determination, as recognised by international law, but that it was 'essential' to understand the meaning of draft article 3, "as this right underpinned other articles in the draft" (110). The Chairman then explained the various positions held by States. One group stressed the need for further clarification on the implications of the exercise of the right to self-determination within the legal framework of existing States and suggested to reflect this in the Draft; another group expressed concern about the implications of a 'wide recognition' of the right, since it could be inclusive of the right to secession; another group stated that the peoples entitled to self-determination should be "the entire peoples of a State or those who could constitute themselves as a sovereign independent State, and not sub-national groups within the State" (111) . In response to this last view, it is worth saying that many indigenous representatives clearly stated that they did not aspire to secede from existing States and that international law already provides for secession only "in extreme cases, where the right of self-determination...[is] denied" (112).

This has been recently confirmed by the Supreme Court of Canada. The Court was requested to give an advisory opinion on whether or not Quebec would be entitled to secession, i.e. to the maximum form of self-determination, under international law. The Court stated that it was not necessary to decide whether the Quebecers constitute a 'people' or not, because a right to secession arises, apart from situations that definitely do not apply to Quebec - i.e.: colonial empire, alien subjugation, domination or exploitation -

"possibly where 'a people' is denied any meaningful exercise of its right to self-determination within the State of which it forms a part...A State whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognised by other states" (113).

Does this mean that a distinction between 'minority' and 'people' would be necessary in order to grant the widest form of self-determination in a situation of oppression by the government? Does this mean that a people would be entitled to it, but not a minority?

Reviewing the range of claims which indigenous peoples invoke as being part of their right to self-determination, they seem to vary from some sort of political autonomy to, in extreme and rare cases, secession. Cassese distinguishes between internal and external self-determination. The former is the peoples' right to freely determine their political status through 'broad autonomy' within a State and through corresponding participation within the State's political decision-making process (114). The latter is the right of peoples to determine their political status and socio-economic development free from external interference (115). Having previously seen that the concept of 'people' is often adapted to the context in which it is used, it may be argued that a minority can at least constitute a 'people' for the purpose of 'internal self-determination'. After all, the main attributes of 'peoplehood' have been indicated as being "commonality of interests, group identity, distinctiveness and a territorial link". A minority may have all these attributes, even though some more considerations should be addressed as to the meaning of 'territorial link'. The minority would probably have a chance of having the right of self-determination recognised only if it were territorially concentrated in one specific region where it constitutes a majority.

Attempts have been made to find objective criteria to distinguish which peoples would have the full range of self-determination options and which would not. Clinebell and Thompson, for example, confirmed the position taken so far. They referred to the Montevideo Convention on the Rights and Duties of States and they concluded that

"a people...capable of constituting a State in international law would have a right of self-determination which would include the choice of independence; a people that did not so qualify would still have a right to self-determination but one which would not extend beyond a degree of self-government and autonomy within the nation" (117).

The issue was addressed at the Working Group on Minorities (118). Mr. Eide stated that the right to self-determination is not covered by the declaration on minorities and article 8.4 makes it clear that "nothing in the...Declaration may be construed as permitting any activity contrary to...territorial integrity of States". A similar provision is however contained in the draft declaration, whose article 45 says that "nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity...contrary to the Charter of the United Nations". Again, if such provisions can be interpreted as an obstacle to secession, they should not obstruct internal self-determination.

Is this view confirmed by the Inter-American Commission on Human Rights, which addressed the issue of whether indigenous peoples have the right to self-determination in the Miskito case? The specific question addressed by the Commission was "whether or not ethnic groups...have additional rights [to those set forth in article 27 of the Covenant], particularly the right to self-determination or political autonomy" (119). The Commission held that:

"the present status of international law does recognise observance of the principle of self-determination of peoples, which it considers to be the right of a people to independently choose their form of political organisation and to freely establish the means it deems appropriate to bring about their economic, social and cultural development. This does not mean, however, that it recognises the right to self-determination of any ethnic group as such" (120).

After describing self-determination as the 'external self-determination' mentioned above, the Court goes on stating that such right is not recognised "to any ethnic group as such". If international law moved towards the direction of recognising minorities as 'people' in this meaning of self-determination, the obstacles of article 27 would not deny a right to self-determination, but there would still be the problem of individual right vs. collective right for the Optional Protocol (121).

The issue of self-determination and of the holders of such right cannot be analysed further, being a highly disputed question that could probably be settled only by the Human Rights Committee, either under the State reporting procedure or by deciding an inter-State communication.

______top______

III.2.C. Land rights.

A third difference is that the declaration on minorities does not protect land rights, a fundamental factor of an indigenous peoples' culture and survival, as already mentioned and as it can be inferred by the devotion of a whole section of the draft declaration (part VI) to land issues. The Preamble recognises territorial rights as one of the 'inherent rights' of indigenous peoples, deriving from "their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies". Indigenous peoples have the "...right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used..." (art.25); they have the "...right to own, develop, control and use the lands and territories..." (art.26); they have the "...right to the restitution of the lands, territories and resources...which have been confiscated, occupied, used or damaged without their...consent...", or at least they have the "...right to just and fair compensation..." (art.27). Article 13.1 of ILO Convention No.169 makes it clear that Governments, in applying the provisions of Part II of the Convention (122), must respect

"the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspect of this relationship".

A closely related basic instrument is the Declaration on Permanent Sovereignty Over Natural Resources, which protects in article 1 "the right of peoples and nations to permanent sovereignty over their natural wealth and resources". The second paragraph of the preamble states that the "status of permanent sovereignty" is "a basic constituent of the right to self-determination" (123). As commented by Novak, "Governments that systematically and grossly disregard the economic rights...of their citizens violate the right of self-determination of their peoples just as much as those that trample upon civil and political rights" (124).

The relationship of indigenous peoples to their lands, territories and resources is the object of a study conducted by Ms. Daes, who singled out a number of elements which identify the importance and uniqueness of such relationships (125). She mentioned the "various social, cultural, spiritual, economic and political dimensions and responsibilities", the "collective dimension" and the "inter-generational aspect...crucial to indigenous peoples' identity, survival and cultural viability".(126) These elements descend directly from the main characteristics which distinguish indigenous peoples from minorities as discussed so far.

One of the main differences with individual property rights is that indigenous peoples claim collective and exclusive rights in specific areas, basing their claim on the concept of 'traditional ownership of a group' (127) . Very simply, the existence of 'aboriginal rights', including land ownership, in Canada - but the concept may also generally be applied to indigenous rights everywhere - is due to the fact that,

"when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status"(128).

At the national level, where aboriginal title is recognised, indigenous peoples do have some legal rights to assert in the domestic system. In this case, the main problems are concerned with enforcement of the laws and their non-discriminatory application and interpretation (129). The situation is considerably worse in those countries which do not acknowledge any legal capacity of the indigenous communities to own land.

The questions whether States are under an obligation to recognise and respect the lands, territories and resources of indigenous peoples and whether they are under an obligation to demarcate (130) those lands have been recently brought before the Inter-American Court of Human Rights (131). The community of Awas Tingni, living in Nicaragua, filed a petition with the Inter-American Commission, alleging that the Government of Nicaragua has not met its legal obligation under the Constitution and international law because it failed to recognise and safeguard the community's rights to their lands. It is argued that "traditional indigenous land tenure systems and patterns of land use are an aspect of culture that is protected by article 27 of the Covenant" (132). This case may have great importance in determining the scope of international legal obligations in this respect.

Within the Inter-American system, it is also worth mentioning the case of the Enxet-Lamenxai Communities, dealing with the land claims of the indigenous communities of Lamenxai and Riachito of Paraguay, submitted to the Inter-American Commission. In March 1998, a friendly settlement agreement (133) was signed with the Paraguayan State, which agreed to acquire 21,884.44 hectares of land, hand it over to the aforesaid indigenous communities, and register it with the competent authorities as belonging to those communities. Although the Paraguayan State had previously complied with its commitment to acquire the land and hand it over to the communities, the title deed formalities were still pending. During the on-site visit, the Paraguayan State told the Commission that on July 27, 1999, it had registered the land in the communities' names, formally establishing a collective model of ownership (134).

The question that arises is whether minorities could be entitled to 'traditional' land rights. Governments would strongly oppose to the recognition of a collective model of property ownership based on 'ethnic' control because it would force them to surrender their jurisdiction over local matters. They would argue that it could in the end result in ethnic disputes and instability and it would thus become a "threat to national unity, territorial integrity and the peaceful enjoyment of national sovereignty". (135) The strength of such political claims would certainly alert Governments against the recognition of minorities' land rights. However, it is more appropriate to look for the juridical reasons why it can be argued that minorities are not entitled to land rights. In my view, those reasons are deduced from the comments made so far as regards the elements of priority in time and the territorial link.

Land rights are indigenous-specific rights, which clearly differentiate indigenous peoples from minorities. Together with self-determination, of which they constitute the economic component, they are the most important claim. They are also the most neglected ones, due to the fact that they may go against the economic interests of the State (136). As already stressed, the very survival of indigenous peoples is at risk owing to the continuing threats to their lands.

______top______

III.2.D. Integrationist approach vs. separatist approach.

A fourth difference, already dealt with throughout the paper, can be pointed out in the more 'integrationist' approach of the declaration on minorities, as opposed to the more 'separatist' approach of the draft declaration. The declaration on minorities seems to fit minorities' rights into the international human rights law framework (137). Its purpose is to protect the diversity of minorities' cultures within multi-cultural and multi-ethnic societies, mainly through information, education, participation and mutual understanding and interest between all social groups. Differently, the draft declaration seems to seek a separate place or, as some commentators suggest, a 'special regime' for the protection of the rights of indigenous peoples (138).

Three decades ago, also the indigenous movement used to be more assimilationist. The change towards a more separatist policy is clear from the differences between ILO Convention No.107 'Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries' (139), and ILO Convention No.169, which was a revision of the former one. The Preamble of Convention No.107 states that the aim of the Convention is "the protection of the populations concerned, their progressive integration into their respective national communities, and their improvement of their living and working conditions" [emphasis added]. Conversely, the word 'integration' is absent in the later Convention, whose Preamble stresses that

"developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all regions of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards".

Even though Convention No.169 has been ratified only by thirteen countries, the standards it sets are used for a progressive and updated interpretation of the provisions of the older Convention, which had been ratified by twenty countries (140).

The discussion on 'integrationist' or 'separatist' policies is strongly linked to the general debate whether or not indigenous rights could find satisfactory protection within the general framework of group rights. A negative answer would justify the need of a 'special regime' for the protection of indigenous individual and collective rights. I follow the view of those commentators who argue that indigenous claims are very specific to the indigenous peoples' own history of discrimination and inequity, to their very different culture and life-style, to their particular needs (141). Bearing all this in mind, there are special reasons why their category should be entitled to have a separate protection (142). Falk's 'aspiration for a special regime' is becoming reality with the drafting of a Declaration on the Rights of Indigenous Peoples and the creation of a United Nations Permanent Forum on Indigenous Peoples (143). In 1988, he wrote that the movement towards such regime

"acknowledges the impact of past experience, in particular, the appreciation that to grant mere autonomy to indigenous people, or to assure their participation in the dominant society on the basis of equality and non-discrimination is insufficient. That is, there is a special set of demands and grievances that cannot be easily understood, much less accommodated, by existing international law rules, procedures, and structures for ascertaining and protecting human rights" (144).

Unfortunately, Falk's aspirationist wish for the drafting of a 'Convention' on the rights of indigenous peoples, has been so far appeased by the drafting of a Declaration, which is a non-legally-binding instrument. The fact that there is also a declaration on minorities does not necessarily mean that a special regime has been established also for minorities. Indeed, as stated earlier, that declaration does not add 'new rights', but mainly stresses the duty of States to adopt special measures in order to implement already existing rights.

Brownlie believes that the topics of indigenous peoples, self-determination and the treatment of minorities should be all included within the framework of group rights. He argues that

"the rights and claims of groups with their own cultural identities are in principle the same: it is the problem of implementation of standards which vary, because the facts will vary...For the protection of group rights, precisely because a very delicate balance of interests is called for, the existence of an efficient and sensitive legal system is immensely important" (145).

In my view, Falk and Brownlie are expressing similar ideas. While Falk supports a complete 'special regime', as regards both individual and group rights, Brownlie talks of a 'special regime' as regards implementation within the general group rights framework because he believes that collective rights should be limited to those rights not adequately recognised as protected in the context of individual rights. Similarly, Prott argues that

"Statements of rights of minorities and of indigenous peoples often restate rights which are already well secured in legal instruments. What may be at stake here is not so much a right which is different in respect of those communities, as an implementation which is not as effective as for the majority populations. Nevertheless, the restatement may contain additional elements called for by the particular importance of that right for the group concerned" (146).

______top______

III.2.E. Right to participation and consent.

To conclude the comparison between the two declarations, a fifth difference is the special position given to indigenous peoples' participation and consent to all measures affecting them. Article 20 of the draft declaration states that

"Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them. States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures" (147).

Article 40, which requires the United Nations to mobilise "financial co-operation and technical assistance" for the "full realisation of the provisions of...[the] Declaration", also calls for the establishment of "ways and means of ensuring participation of indigenous peoples on issues affecting them". Indigenous peoples' participation and consent to questions affecting them is crucial in order to understand and respect their different culture and life-style. This is particularly important as regards mining and energy projects by western companies which indigenous territories are more and more subjected to.

Persons belonging to minorities do not find the same provisions enshrined in the declaration on minorities and this may be a direct consequence of the already discussed 'specialness' of the indigenous peoples' needs and claims (148). However, the declaration on minorities contains a similar provision, with a more cautious language. Article 2.3 affirms the right of persons belonging to minorities "to participate effectively in decisions on the national and, where appropriate, regional level concerning them or the regions in which they live, in a manner not incompatible with national legislation" [emphasis added]. The issue of effective participation of minorities was dealt with extensively at the fifth session of the Working Group on Minorities, but if we compare such 'participation' to the 'consent' required by the draft declaration, it is clear that they represent two different levels of involvement.

The 'participation problem' has been recently considered by domestic jurisdictions. For example, the Colombian Constitutional Court, in a decision on oil operations affecting the indigenous group of the U'Wa, held that an exploration license should not have been granted because the U'Wa people had not been properly consulted, contrary to the right of participation in the Colombian Constitution and in ILO Convention No.169 (149).

Minorities could seek the protection offered by article 27 in this respect. The Human Rights Committee, after stating that "culture manifests itself in many forms", including "such traditional activities as fishing or hunting and the right to live in reserves protected by law", also affirmed that the enjoyment of the cultural rights protected by article 27 "may require positive legal measures of protection and measures to ensure effective participation of members of minority communities in decisions which affect them" (150). The Committee did not find a violation in the Lansman case (151), where the authors were reindeer breeders of Sami ethnic origin who challenged the plans of the Finnish Central Forestry Board "to approve logging and the construction of roads in an area covering about 3,000 hectares of the area" (152) where they lived. After noting that the Committee to which the authors belonged had been consulted "in the process of drawing up the logging plans and in the consultation" and that the same Committee "did not react negatively to the plans for logging", the Human Rights Committee decided that

"the State party's authorities did go through the process of weighing the authors' interests and the general economic interests in the area specified in the complaint when deciding on the most appropriate measures of forestry management" (153).

That the consultation process was unsatisfactory to the authors did not alter the Committee's decision. It cannot be assessed, however, why the authors of the complaint did not object to the plans during the consultation process. What is relevant though is the difference with the draft declaration, which requires 'consent' and not only 'participation'.

Another provision in the Covenant may be invoked in this respect, even though the protection it offers has proved to be weak. Article 25 protects the right of every citizen "to take part in the conduct of public affairs". A case was brought against Canada for a violation of article 25 (154). In 1982, Canada included a provision in the Constitution which reaffirmed "the existing aboriginal and treaty rights of the aboriginal peoples of Canada". Then, it convened a series of constitutional conferences to negotiate and clarify the meaning of that provision, allowing four NGOs to participate and represent all the aboriginal peoples of Canada. The Miqmak people, original inhabitants of the Atlantic sea cost of Canada which they call Mikmakik, asked to participate to the conferences, but they were refused. The question posed by them to the Human Rights Committee was whether a State could negotiate changes in constitutional rights of - or changes in treaties with - an indigenous people, without that people's direct participation in the negotiations. The Committee stated:

"although prior consultations, such as public hearings or consultations with the more interested groups, may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25.a of the Covenant cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs" (155).

The Committee concluded that there was not a violation of article 25. Since the constitutional conferences were aimed at redefining 'aboriginal and treaty rights' which affected the Miqmak people as an indigenous people who had signed a treaty with Canada, the Committee's decision raises some doubts, especially when it is known that participants in the conference were renegotiating that specific treaty (156).

Although the question of 'effective participation' of minorities is currently discussed at the Working Group on Minorities and is given more and more importance, so far the discussion has never arrived as far as the draft declaration, whenever it requires 'consent' by the indigenous groups involved (157).

______top______

IV. Conclusions