What are Indigenous Rights?
This post was originally published by the First Peoples Worldwide blog in 2014
We throw around the term “human rights” a lot. It’s a term that gets people listening, at least for a moment – we know that human rights abuses are bad, that we’re supposed to oppose regimes that withhold human rights, that human rights are good, happy things.
But really, what are we talking about here? And how does that apply to Indigenous Peoples?
Human rights are certain rights that are inherent to all human beings, regardless of nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. All humans are entitled to human rights, without discrimination. But that makes “human rights” sound like a lunch special from your favorite delivery place. We need to get a little deeper.
Human rights are interrelated, interdependent, and indivisible.
The OHCHR explains this further, saying that “all human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law, and freedom of expression; economic, social, and cultural rights, such as the rights to work, social security, and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated, and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.”
Human rights were first outlined in the Universal Declaration on Human Rights in 1948; the 1993 Vienna World Conference on Human Rights took it further in stating that it is the duty of the state to promote and protect all human rights and fundamental freedoms, regardless of their political, economic, and cultural systems.
The OHCHR says, “human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect, and to fulfill human rights. The obligation to respect means that states must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires states to protect individuals and groups against human rights abuses. The obligation to fulfill means that states must take positive action to facilitate the enjoyment of basic human rights.” All countries in the world have ratified at least one declaration on human rights, and 80 percent have ratified four or more of the core human rights treaties.
Indigenous rights, however, are not synonymous with human rights, and the difference distills to the underlying driving force of each movement. Whereas human rights are based on individual rights, Indigenous rights are based on collective, or group rights. The difference seems simple, but it is incredibly important.
Whereas individual rights assert the right of all humans to live as equal participants in society, collective rights allow a group of people, in order to preserve their unique and traditional cultures, to live separately from mainstream society, while still having access to the rights afforded the dominant society.
As Indigenous Foundations explains, “Aboriginal rights are collective rights which flow from original peoples’ continued use and occupation of certain areas. They are inherent rights which Aboriginal peoples have practiced and enjoyed since before European contact. Because each [tribe] has historically functioned as a distinct society, there is no one official overarching Indigenous definition of what these rights are. Although these specific rights may vary between Aboriginal groups, in general they include rights to the land, rights to subsistence resources and activities, and the right to self-determination and self-government, and the right to practice one’s own cultural customs including language and religion.”
Indigenous peoples, however, remain among the most marginalized and oppressed populations in the world, suffering rampant rates of poverty, disease, illiteracy, political marginalization, and forced assimilation. Some argue that this is because of widespread misunderstandings of the concept of collective versus individual rights.
As the University of Minnesota explains, “In international discussions on the protection and promotion of Indigenous Peoples’ human rights, some states have argued that a more conscientious application of human rights standards would resolve the issue. On the other hand, Indigenous peoples argue that such international human rights standards have failed to protect them thus far. What is needed, they argue, is the development of new international documents addressing the specific needs of the world’s Indigenous Peoples. Although the Universal Declaration on Human rights is designed to protect the human rights of all individual human beings, international law concerning collective human rights remain vague and can fail to protect the group rights of International Peoples.”
Many important Indigenous Peoples rights are not framed in specific Indigenous Peoples rights treaties, but are part of more general treaties, such as the Convention on the Elimination of All Forms of Discrimination Against Women, the International Covenant on Economic, Social, and Cultural Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination.
As the UNRIC explains further, despite the growing visibility of Indigenous Peoples on the international field in the past fifty years, “It has not been easy for the international community to create legal instruments that would guarantee their autonomy, cultural integrity, and protection of their special rights.”
“Why can’t we just fall back on the existing and internationally recognized human rights treaties?” they implore. “Because most human rights treaties reflect an individualistic concept of rights and rights holders. But for many Indigenous peoples their identity as an individual is inseparably connected to the community to which that individual belongs. Therefore, the problem is that whilst human rights treaties and instruments guarantee individual rights, Indigenous peoples ask for protection of their collective rights as a group.”
As Douglas Sanders of Human Rights Quarterly says, “collective rights have not achieved the level of acceptance accorded to individual rights. While no one would attack the idea of individual rights and expect to be taken seriously, respectable arguments are often made against the recognition of collective rights. Some argue that collective rights are inconsistent with individual rights. Minority groups are often seen as destabilizing factors in an international system based on states. South Africa has used ‘group rights’ to justify apartheid. Some Western countries see assertion of rights of peoples,” “collective rights,” and “solidarity rights” as making the authoritarian agenda of some third world states. So while support for the idea of collective rights has clearly grown, the theoretical and practical debates are not over.”