United Nations Declaration On The Rights Of Indigenous Peoples .
International Work Groupfor Indigenous AffairsDÉCLARATION DES NATIONS UNIES SURLES DROITS DES PEUPLES AUTOCHTONES &African Commission onHuman and Peoples’ Rights(ACHPR)ADVISORY OPINION OFTHE AFRICAN COMMISSIONON HUMAN AND PEOPLES’ RIGHTS ONTHE UNITED NATIONS DECLARATION ONTHE RIGHTS OF INDIGENOUS PEOPLESCommission Africainedes Droits de l Hommeet des peuplesUNITED NATIONS DECLARATION ONTHE RIGHTS OF INDIGENOUS PEOPLES &AVIS JURIDIQUE DE LA COMMISSIONAFRICAINE DES DROITS DE L’HOMME ETDES PEUPLES SUR LA DÉCLARATION DESNATIONS UNIES SUR LES DROITS DESPEUPLES AUTOCHTONESInternational Work Groupfor Indigenous Affairs
UNITED NATIONS DECLARATION ONTHE RIGHTS OF INDIGENOUS PEOPLESADVISORY OPINION OF THE AFRICAN COMMISSIONON HUMAN AND PEOPLES’ RIGHTS ON THE UNITEDNATIONS DECLARATION ON THE RIGHTS OFINDIGENOUS PEOPLESAfrican Commission on Humanand Peoples’ Rights(ACHPR)2010InternationalWork Groupfor Indigenous Affairs
United Nations Declaration on the Rights of Indigenous Peoplesadopted by the United Nations General Assembly13 September 2007, document A/61/295Advisory Opinion of the African Commission on Human and Peoples’ Rightson the United Nations Declaration on the Rights of Indigenous Peoplesadopted by the African Commission on Human and Peoples’ Rightsat its 41st Ordinary Session held in May 2007 in Accra, Ghana Copyright: ACHPR and IWGIA - 2010Typesetting and Layout: Jorge MonrásPrepress and Print: Eks-Skolens Trykkeri, Copenhagen,DenmarkISBN: 978-87-91563-85-0AFRICAN COMMISSION ON HUMANAND PEOPLES’ RIGHTS (achpr)No 31 Bijilo Annex Layout - Kombo North District,Western Region - P.O.Box 673, Banjul, The GambiaTel: 220 441 05 05/441 05 06 - Fax: 220 441 05 04achpr@achpr.org - www.achpr.orgInternational Work Groupfor Indigenous AffairsClassensgade 11 E, DK-2100 Copenhagen, DenmarkTel: 45 35 27 05 00 - Fax: 45 35 27 05 07iwgia@iwgia.org - www.iwgia.org
This document has been produced with financial support fromthe Danish Ministry of Foreign Affairs
6United Nations Declaration on the Rights of Indigenous PeoplesTABLE OF CONTENTSFo r ew o r d.8United Nations Declaration on the Rightsof Indigenous Peoples.10Article 1.13Article 2.13Article 3.13Article 4.14Article 5.14Article 6.14Article 7.14Article 8.14Article 9.15Article 10.15Article 11.15Article 12.16Article 13.16Article 14.16Article 15.17Article 16.17Article 17.17Article 18.18Article 19.18Article 20.18Article 21.19Article 22.19Article 23.19Article 24.19Article 25.20Article 26.20
ADVISORY OPINION OF THE AFRICAN COMMISSION7Article 27.20Article 28.21Article 29.21Article 30.22Article 31.22Article 32.22Article 33.23Article 34.23Article 35.23Article 36.24Article 37.24Article 38.24Article 39.24Article 40.25Article 41.25Article 42.25Article 43.25Article 44.25Article 45.26Article 46.26Advisory Opinion of the African Commission on Humanand Peoples’ Rights on the United Nations Declarationon the Rights of Indigenous Peoples.28Introduction.28On the lack of a definition of indigenous populations.30On the question of self-determinationand territorial integrity.31On the right of the indigenous people to land,territories and resources.34On the right of indigenous peoples to establish separatepolitical and economical institutions.36Conclusion.37
8United Nations Declaration on the Rights of Indigenous PeoplesForewordThe UN Declaration on the Rights of Indigenous Peoples (UNDRIP)constitutes a landmark in the struggle of indigenous peoples worldwide, including in Africa. The Declaration is the culmination of a morethan 20-year-long multi-stakeholder debate and negotiation process within the United Nations, in which the representatives of indigenous peoples participated actively. It is a key instrument that addresses the historical and recurrent injustices facing indigenous peoples with comprehensive provisions to guarantee the enjoyment of their rights under universal norms and best practices.The UNDRIP is the most comprehensive international human rightsinstrument to explicitly address the rights of indigenous peoples, including economic, social, cultural, civil, political, spiritual and environmentalrights, along with the universally-established principle of the duty toprotect these rights, which is borne by all states.The wide spectrum of rights and freedoms that it covers, includingmost notably the right to self-determination, the right to their traditionallands and natural resources, the right to their traditional way of life andpolitical institutions, the right to their identity, the right to preserve andmaintain their cultural heritage, freedom from forcible relocation, theright to establish and control their educational systems and the right toparticipate in decision-making bodies, makes the UNDRIP a unique instrument that sets new universal legal standards for the protection of therights of indigenous peoples.In the words of the UN Secretary-General Ban Ki-moon, the UNDRIP“sets out a framework on which States can build or rebuild their relationships with indigenous peoples. The result of more than two decades ofnegotiations, it provides a momentous opportunity for States and indigenous peoples to strengthen their relationships, promote reconciliationand ensure that the past is not repeated”.11UN Secretary General, Ban Ki-Moon, “Protect, Promote Endangered Languages, Secretary Generalurges in message for International Day of World’s Indigenous Peoples”, 23 July 2008
ADVISORY OPINION OF THE AFRICAN COMMISSION9In a similar vein, during its 42nd session, the African Commission onHuman and Peoples’ Rights welcomed the adoption of the Declaration,stating that “with the adoption of the UN Declaration a giant step hasbeen taken towards securing the survival of indigenous peoples and theirunique cultures based on their own needs and visions”.2Long before the adoption of the UNDRIP, the African Commission onHuman and Peoples’ Rights had already taken several bold steps aimedat better protecting the human rights of indigenous communities livingin Africa. Among others, it set up the Working Group on IndigenousPopulations/Communities in 2001, which has since then been conducting promotional and protection missions to different countries, undertaking research and publishing reports on the rights of indigenous peoples.More specifically, the African Commission played an active role in thedebate surrounding the adoption of the UNDRIP. At its 41st Ordinary session held in May 2007, in Accra, Ghana, the African Commission adoptedan “Advisory Opinion on the United Nations Declaration on the Rightsof Indigenous Peoples”, in which it stated that the rights enshrined in theUNDRIP were consistent with the African Charter on Human and Peoples’ Rights and the jurisprudence of the African Commission on Humanand Peoples’ Rights.As a testimony to the continuing support and advocacy of the UNDRIP, the African Commission’s Working Group on Indigenous Populations/Communities has produced this combined publication of the UNDRIP and the Advisory Opinion. It is our hope that this publication willbe widely used by all relevant stakeholders in Africa, including regionalinstitutions, governments, civil society, indigenous peoples’ organization, the judiciary, academia and donors, in a concerted effort to promoteand protect the rights of indigenous peoples in Africa.Commissioner Musa Ngary BitayeChairperson of the African Commission’s Working Groupon Indigenous Populations/Communities2 ACHPR Res.121 (XXXXII) 07: Resolution on the United Nations Declaration on the Rights of Indigenous Peoples
10United Nations Declaration on the Rights of Indigenous PeoplesUnited Nations Declaration on the Rightsof Indigenous PeoplesAdopted by General AssemblyResolution 61/295 on 13 September 2007The General Assembly,Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed byStates in accordance with the Charter,Affirming that indigenous peoples are equal to all other peoples, whilerecognizing the right of all peoples to be different, to consider themselvesdifferent, and to be respected as such,Affirming also that all peoples contribute to the diversity and richness ofcivilizations and cultures, which constitute the common heritage of humankind,Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of nationalorigin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,Reaffirming that indigenous peoples, in the exercise of their rights, shouldbe free from discrimination of any kind,Concerned that indigenous peoples have suffered from historic injusticesas a result of, inter alia, their colonization and dispossession of theirlands, territories and resources, thus preventing them from exercising, in
ADVISORY OPINION OF THE AFRICAN COMMISSION11particular, their right to development in accordance with their own needsand interests,Recognizing the urgent need to respect and promote the inherent rights ofindigenous peoples which derive from their political, economic and socialstructures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructivearrangements with States,Welcoming the fact that indigenous peoples are organizing themselves forpolitical, economic, social and cultural enhancement and in order to bringto an end all forms of discrimination and oppression wherever they occur,Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them tomaintain and strengthen their institutions, cultures and traditions, and topromote their development in accordance with their aspirations andneeds,Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable developmentand proper management of the environment,Emphasizing the contribution of the demilitarization of the lands and territories of indigenous peoples to peace, economic and social progress anddevelopment, understanding and friendly relations among nations andpeoples of the world,Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, educationand well-being of their children, consistent with the rights of the child,Considering that the rights affirmed in treaties, agreements and other constructive arrangements between States and indigenous peoples are, in
12United Nations Declaration on the Rights of Indigenous Peoplessome situations, matters of international concern, interest, responsibilityand character,Considering also that treaties, agreements and other constructive arrangements, and the relationship they represent, are the basis for a strengthened partnership between indigenous peoples and States,Acknowledging that the Charter of the United Nations, the InternationalCovenant on Economic, Social and Cultural Rights 3 and the InternationalCovenant on Civil and Political Rights, as well as the Vienna Declarationand Programme of Action,4 affirm the fundamental importance of theright to self-determination of all peoples, by virtue of which they freelydetermine their political status and freely pursue their economic, socialand cultural development,Bearing in mind that nothing in this Declaration may be used to deny anypeoples their right to self-determination, exercised in conformity with international law,Convinced that the recognition of the rights of indigenous peoples in thisDeclaration will enhance harmonious and cooperative relations betweenthe State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith,Encouraging States to comply with and effectively implement all their obligations as they apply to indigenous peoples under international instruments, in particular those related to human rights, in consultation andcooperation with the peoples concerned,Emphasizing that the United Nations has an important and continuing roleto play in promoting and protecting the rights of indigenous peoples,Believing that this Declaration is a further important step forward for therecognition, promotion and protection of the rights and freedoms of indigenous peoples and in the development of relevant activities of theUnited Nations system in this field,34See resolution 2200 A (XXI), annex.A/CONF.157/24 (Part I), chap. III.
ADVISORY OPINION OF THE AFRICAN COMMISSION13Recognizing and reaffirming that indigenous individuals are entitledwithout discrimination to all human rights recognized in internationallaw, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development aspeoples,Recognizing that the situation of indigenous peoples varies from region toregion and from country to country and that the significance of nationaland regional particularities and various historical and cultural backgrounds should be taken into consideration,Solemnly proclaims the following United Nations Declaration on the Rightsof Indigenous Peoples as a standard of achievement to be pursued in aspirit of partnership and mutual respect:Article 1Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedomsas recognized in the Charter of the United Nations, the UniversalDeclaration of Human Rights5 and international human rights law.Article 2Indigenous peoples and individuals are free and equal to all otherpeoples and individuals and have the right to be free from any kind ofdiscrimination, in the exercise of their rights, in particular that basedon their indigenous origin or identity.Article 3Indigenous peoples have the right to self-determination. By virtue ofthat right they freely determine their political status and freely pursuetheir economic, social and cultural development.5Resolution 217 A (III).
14United Nations Declaration on the Rights of Indigenous PeoplesArticle 4Indigenous peoples, in exercising their right to self-determination,have the right to autonomy or self-government in matters relating totheir internal and local affairs, as well as ways and means for financing their autonomous functions.Article 5Indigenous peoples have the right to maintain and strengthen theirdistinct political, legal, economic, social and cultural institutions,while retaining their right to participate fully, if they so choose, in thepolitical, economic, social and cultural life of the State.Article 6Every indigenous individual has the right to a nationality.Article 71. Indigenous individuals have the rights to life, physical and mentalintegrity, liberty and security of person.2. Indigenous peoples have the collective right to live in freedom,peace and security as distinct peoples and shall not be subjected toany act of genocide or any other act of violence, including forciblyremoving children of the group to another group.Article 81. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.2. States shall provide effective mechanisms for prevention of, andredress for:
ADVISORY OPINION OF THE AFRICAN COMMISSION15a) Any action which has the aim or effect of depriving them oftheir integrity as distinct peoples, or of their cultural values orethnic identities;b) Any action which has the aim or effect of dispossessing them oftheir lands, territories or resources;c) Any form of forced population transfer which has the aim oreffect of violating or undermining any of their rights;d) Any form of forced assimilation or integration;e) Any form of propaganda designed to promote or incite racial orethnic discrimination directed against them.Article 9Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of anykind may arise from the exercise of such a right.Article 10Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreementon just and fair compensation and, where possible, with the option ofreturn.Article 111. Indigenous peoples have the right to practise and revitalize theircultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites,artefacts, designs, ceremonies, technologies and visual and performing arts and literature.2. States shall provide redress through effective mechanisms, whichmay include restitution, developed in conjunction with indigenous
16United Nations Declaration on the Rights of Indigenous Peoplespeoples, with respect to their cultural, intellectual, religious andspiritual property taken without their free, prior and informedconsent or in violation of their laws, traditions and customs.Article 121. Indigenous peoples have the right to manifest, practise, developand teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacyto their religious and cultural sites; the right to the use and controlof their ceremonial objects; and the right to the repatriation of theirhuman remains.2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession throughfair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.Article 131. Indigenous peoples have the right to revitalize, use, develop andtransmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designateand retain their own names for communities, places and persons.2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understandand be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or byother appropriate means.Article 141. Indigenous peoples have the right to establish and control theireducational systems and institutions providing education in theirown languages, in a manner appropriate to their cultural methodsof teaching and learning.
ADVISORY OPINION OF THE AFRICAN COMMISSION172. Indigenous individuals, particularly children, have the right to alllevels and forms of education of the State without discrimination.3. States shall, in conjunction with indigenous peoples, take effectivemeasures, in order for indigenous individuals, particularly children, including those living outside their communities, to have access, when possible, to an education in their own culture and provided in their own language.Article 151. Indigenous peoples have the right to the dignity and diversity oftheir cultures, traditions, histories and aspirations which shall beappropriately reflected in education and public information.2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudiceand eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and allother segments of society.Article 161. Indigenous peoples have the right to establish their own media intheir own languages and to have access to all forms of non-indigenous media without discrimination.2. States shall take effective measures to ensure that State-owned mediaduly reflect indigenous cultural diversity. States, without prejudice toensuring full freedom of expression, should encourage privatelyowned media to adequately reflect indigenous cultural diversity.Article 171. Indigenous individuals and peoples have the right to enjoy fullyall rights established under applicable international and domesticlabour law.
18United Nations Declaration on the Rights of Indigenous Peoples2. States shall in consultation and cooperation with indigenous peoples take specific measures to protect indigenous children fromeconomic exploitation and from performing any work that is likelyto be hazardous or to interfere with the child’s education, or to beharmful to the child’s health or physical, mental, spiritual, moralor social development, taking into account their special vulnerability and the importance of education for their empowerment.3. Indigenous individuals have the right not to be subjected to anydiscriminatory conditions of labour and, inter alia, employment orsalary.Article 18Indigenous peoples have the right to participate in decision-makingin matters which would affect their rights, through representativeschosen by themselves in accordance with their own procedures, aswell as to maintain and develop their own indigenous decision-making institutions.Article 19States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order toobtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.Article 201. Indigenous peoples have the right to maintain and develop theirpolitical, economic and social systems or institutions, to be securein the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities.2. Indigenous peoples deprived of their means of subsistence and development are entitled to just and fair redress.
ADVISORY OPINION OF THE AFRICAN COMMISSION19Article 211. Indigenous peoples have the right, without discrimination, to theimprovement of their economic and social conditions, including,inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation, health and social security.2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economicand social conditions. Particular attention shall be paid to the rightsand special needs of indigenous elders, women, youth, childrenand persons with disabilities.Article 221. Particular attention shall be paid to the rights and special needs ofindigenous elders, women, youth, children and persons with disabilities in the implementation of this Declaration.2. States shall take measures, in conjunction with indigenous peoples, toensure that indigenous women and children enjoy the full protectionand guarantees against all forms of violence and discrimination.Article 23Indigenous peoples have the right to determine and develop prioritiesand strategies for exercising their right to development. In particular,indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and socialprogrammes affecting them and, as far as possible, to administer suchprogrammes through their own institutions.Article 241. Indigenous peoples have the right to their traditional medicinesand to maintain their health practices, including the conservation
20United Nations Declaration on the Rights of Indigenous Peoplesof their vital medicinal plants, animals and minerals. Indigenousindividuals also have the right to access, without any discrimination, to all social and health services.2. Indigenous individuals have an equal right to the enjoyment of thehighest attainable standard of physical and mental health. Statesshall take the necessary steps with a view to achieving progressively the full realization of this right.Article 25Indigenous peoples have the right to maintain and strengthen theirdistinctive spiritual relationship with their traditionally owned orotherwise occupied and used lands, territories, waters and coastalseas and other resources and to uphold their responsibilities to futuregenerations in this regard.Article 261. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.2. Indigeno
UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES adopted by the United Nations General Assembly 13 September 2007, document A/61/295 ADVISORY OPINION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES' RIGHTS ON THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
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