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Pritchard, Sarah; Heindow-Dolman, Charlotte --- "Indigenous peoples and international law: - A critical overview" [1998] AUIndigLawRpr 38; (1998) 3(4) Australian Indigenous Law Reporter 473


Indigenous peoples and international law:

A critical overview

Sarah Pritchard and Charlotte Heindow-Dolman [1]

Introduction

In this article we propose to identify a range of international legal standards which have particular implications for indigenous peoples. International law, once an obliging instrument in the expansion of empire, has been affected in recent decades by complex integrative trends which have diffused the economic and political power of even the most powerful states. These trends include the globalisation of capital markets and corporate and banking organisation; transnational flows of people, drugs, data and culture; the proliferation and increasing sophistication of modern information systems and communications technologies; and the threat of environmental degradation. Trade has become a major concern of developed states as they compete for markets, including in the area of technology in which intellectual property rights play an increasingly important role.

Another critical dimension of the contemporary international legal regime has been the emergence of global movements of non-state actors who have challenged the international community to develop responses to issues not previously thought to require international cooperation. These actors, situated in civil society, have demanded the development of transnational human rights regimes, regimes to tackle issues related to peace, overpopulation, hunger, debt and the environment. In recent years, indigenous peoples have been highly effective in demanding a normative response from the international community to the issues which arise from their specific historical experiences, distinct identities and contemporary aspirations.

These trends have led to an enormous growth in multilateral law-making amongst states. International law has responded to the aspirations of civil society actors, and been a force for justice and transformation in a number of spheres. In some areas, international standards have assumed an authoritative and constraining role in relation to state and other powerful non-state actors.

In other areas, international regimes have been developed which reflect the perspectives and interests of powerful states and non-state actors. In this article we explore the impact of some of the major normative developments since 1945 upon indigenous peoples. We examine, in turn, normative developments concerning indigenous peoples' rights, human rights, the environment, and trade and finance.

From the perspective of indigenous peoples, there is no doubt that the most transformative and liberating developments have been those specifically concerned to enumerate international standards in relation to indigenous rights. International law has at different times addressed the processes by which title to indigenous peoples' territories can be acquired,2 but the question of indigenous rights after the completion of territorial acquisition has not been the subject of international legal discourse. With the development of a United Nations Draft Declaration on the Rights of Indigenous Peoples and the adoption by the International Labour Organisation in 1989 of a Convention concerning Indigenous and Tribal Peoples in Independent Countries (No 169), the international community has been challenged to elaborate standards which recognise the political and legal systems, land and resource rights, and cultural, linguistic and spiritual identities of indigenous peoples.

The post-war period has also witnessed considerable developments in the codification of human rights law and the establishment of international enforcement procedures. Many of the principal human rights treaties contain general standards relevant to the situations and aspirations of indigenous peoples. In recent years several of the international enforcement procedures ("human rights treaty bodies") have paid special attention to the implications of general human rights standards for indigenous peoples.

Within human rights law, a distinct body of human rights jurisprudence on the rights of indigenous peoples is emerging. In the area of international environmental law, codification and harmonisation have occurred at an unprecedented pace over the past two decades. Here, indigenous peoples have argued for recognition of the right to control the resources, including their biological resources. A number of more recent multilateral initiatives have acknowledged the role of indigenous communities in environmental management and sustainable development, in particular in relation to the conservation of biodiversity. These developments have not, however, been based on recognition of the distinct rights of indigenous peoples in relation to the environment and to their territories and resources. In addition, the scientific community has increasingly acknowledged the value of, and need to protect indigenous peoples' ethnobiological knowledge.

In the area of trade, standardisation has been a key factor in the promotion of industrial and economic development. Recent normative developments have facilitated the concentration of economic power and insulated the international trade regime from the concerns of environmentalists, labour movements, local communities and indigenous peoples. The promotion of foreign direct investment and increasing deregulation of transnational corporations have become a global trend. In this context, there has been enormous pressure from developed states to establish a regime of intellectual property rights in order to protect their own technological innovations and gain access to the biological and other resources of the south. The recently concluded Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) will facilitate access by transnational corporations to new markets in developing countries and ownership of the genetic resources of local and indigenous communities. Indigenous peoples face a significant challenge in attempting to gain a voice in the World Trade Organisation, the body within which the TRIPs Agreement operates.

Finally, within multilateral lending institutions such as the World Bank there has been a growing awareness of the potential impact of development projects on the lives of indigenous communities. Although this has led to requirements which seek indigenous participation in development planning and implementation, it has not, however, resulted in any significant recognition of indigenous peoples as subjects in the development process.

Rights of Indigenous Peoples

A. UN Draft Declaration on the Rights of Indigenous Peoples

In 1971 the UN Economic and Social Council (ECOSOC) authorised the Sub-Commission on Prevention of Discrimination and Protection of Minorities ("the Sub-Commission") to make a comprehensive study of the problem of discrimination against indigenous populations and to suggest measures for eliminating such discrimination. [3] Before the study was concluded, the Sub-Commission was authorised to establish a Working Group on Indigenous Populations, comprising five of the Sub-Commission's members, to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations, and to give special attention to the evolution of standards concerning the rights of such populations. [4]

The Working Group on Indigenous Populations (WGIP) held its first session in August 1982.5 In 1985, the WGIP decided that its aim should be to produce "a draft declaration on indigenous rights" for eventual adoption and proclamation by the General Assembly of the UN. At its eleventh session in 1993, the WGIP agreed upon a final text of the Draft Declaration on the Rights of Indigenous Peoples ("Draft Declaration"). [6]

The Draft Declaration is informed by the themes of indigenous control and consent. It recognises self-determination as the central aspiration of indigenous peoples. In language which evokes common art 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, art 3 of the Draft Declaration states: "Indigenous peoples have the right of self-determination. By virtue of this right they freely determine their political status and freely pursue their economic, social and cultural development." Article 4 recognises the right of indigenous peoples to maintain and develop their distinct characteristics and legal systems, while participating fully in the life of the state. As a specific form of self-determination, the Draft Declaration recognises the right of indigenous peoples to autonomy or self-government in matters relating to their internal and local affairs (art 31).

The Draft Declaration also affirms the rights of indigenous peoples to determine their own citizenship; to develop and maintain their institutional structures and juridical customs and traditions; to determine the responsibilities of individuals to their communities; to maintain and develop relations and co-operation with other peoples across borders; and to the recognition and enforcement of treaties, agreements and other constructive arrangements concluded with states or their successors (arts 32-36).

Articles 6-8 address threats to the survival of indigenous peoples as distinct peoples. Article 6 proclaims the collective right of indigenous peoples to live in freedom, peace and security as distinct peoples, and to full guarantees against genocide, including the removal of children. Articles 7 and 8 recognise collective and individual rights to maintain and develop distinct identities and characteristics, including the right of self-identification. These articles also affirm the right not to be subjected to ethnocide or cultural genocide, including prevention of and redress for dispossession, imposed assimilation and integration and the right to maintain and develop distinct identities and characteristics, including the right to self-identification. Articles 9-11 address rights to belong to an indigenous community or nation, not to be forcibly removed from their lands or territories, and to special protection and security in periods of armed conflict. Articles 12-14 are concerned with rights connected with the cultural, religious and linguistic identity of indigenous peoples. These include rights to practise and revitalise cultural traditions and customs (including the restitution of cultural, intellectual, religious and spiritual property); to practice and develop spiritual and religious traditions (including to have access to religious and cultural sites and to the repatriation of human remains); and to the revitalisation, use and transmission of histories, languages, oral traditions, writing systems and literature. Articles 15-18 specify a number of educational, information and labour rights. These include the rights of indigenous children to all forms and levels of education of the state; and the right of indigenous peoples to establish and control their own education systems and institutions (arts 16 and 17).

Articles 19-24 are concerned with participatory rights, the right to development and other social and economic rights. In accordance with arts 19-20, indigenous peoples have the right to participate fully in all levels of decision-making and implementation in matters affecting their rights, lives and destinies; and in devising legislative or administrative measures that may affect them. States are required to obtain their consent before adopting and implementing such measures. Significantly, arts 22-24 stipulate that indigenous peoples have the right to special measures for the improvement of their economic and social conditions; and to develop and determine priorities and strategies for exercising their right to development.

A major concern of the Draft Declaration is rights connected with the distinctive relationship of indigenous peoples with their lands, territories, waters and coastal seas, and other resources. In accordance with Article 26, indigenous peoples have the right to own, develop, control and use the lands, territories, waters and coastal seas, flora and fauna and other resources they have traditionally occupied or otherwise used. This includes the right to recognition of laws, customs, land tenure systems and institutions for the development and management of resources. Articles 27 and 28 affirm rights to restitution of, or just and fair compensation for, lands, territories and resources confiscated or used without consent, and to the conservation and protection of the total environment and productive capacity of those lands, territories and resources. In accordance with art 29, indigenous peoples are entitled to recognition of their ownership, control and protection of their intellectual and cultural property, and have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations. Article 30 recognises the right of indigenous peoples to require that states obtain their free and informed consent prior to the approval of any project affecting their lands, territories or other resources, particularly in connection with the development, utilisation or exploitation of mineral, water and other resources.

In 1994 the WGIP submitted the Draft Declaration to its parent body, the Sub-Commission. The members of the WGIP considered that the text "was comprehensive and reflected the legitimate observations of indigenous peoples as a whole, as well as a number of suggestions and concerns advanced by Observer Governments."7 At its 46th session in August 1994, the Sub-Commission adopted the text transmitted by the WGIP and decided to submit it to its parent body, the Commission on Human Rights (CHR). In 1995 the Commission on Human Rights established a working group to consider the Draft Declaration.

The new working group (CHRWG) held its first session in Geneva in late 1995. The CHRWG had the task of deciding what would happen to the text produced by the WGIP. At the end of the first session it was possible to conclude that "[i]n general, both Governments and indigenous organisations agreed that the draft `United Nations declaration on the rights of indigenous peoples' as adopted by the Sub-Commission constituted a sound basis for discussions to come."8 At the first session, the text was reviewed part by part in order to identify where there was general consensus and which articles would require greater deliberation. A second session in 1996 saw lengthy discussion of the rules of procedure and modalities of participation of indigenous peoples. As at the first session, discussion of textual issues remained at a general level. [9] The third session of the CHRWG in 1997 saw the debate concerning indigenous participation largely unresolved, indigenous resistance to any textual changes maintained, and the adoption at first reading of two of the easier provisions of the Draft Declaration. After three sessions, resolution of the debate on modalities of participation remains uncertain. However, for the time being consensual working methods have prevailed in relation to all aspects of the CHRWG's work, including proposed textual amendments. [10]

Whether the Draft Declaration as presently formulated will be adopted by the UN General Assembly is far from certain. A majority of governments have indicated that they are unwilling to agree to all provisions as currently formulated. Even upon adoption by the General Assembly, the Draft Declaration will be a non-binding declaration. This means that it will not create any direct obligations for the states that sign it. It will, however, contribute to a growing body of customary international law in the area of indigenous peoples' rights. There are signs that the Draft Declaration is already having an impact on law and policy in many of the countries that have participated in its elaboration, as well as in the practice of international and regional organisations and agencies. Most significantly, and irrespective of its formal juridical status, the Draft Declaration possesses exceptional legitimacy in the eyes of the world's indigenous peoples. In the words of Matthew Coone Come, Grand Chief of the Grand Council of the Crees:

Every paragraph of the Draft Declaration is based upon known instances of the violations of the human rights of indigenous peoples. There is nothing theoretical, abstract, or speculative about the substantive content of the Draft Declaration. The Draft Declaration began as a cry from the indigenous peoples for justice, and it is drafted to confirm that the international standards which apply to all peoples of the world apply to indigenous peoples. It is an inclusive instrument, meant to bring indigenous peoples into the purview of international law as subjects of international law. [11]

The Draft Declaration is a significant manifestation of a movement within international law, in the words of Native American lawyer Professor Jim Anaya, "to develop, however grudgingly or imperfectly, to accommodate indigenous peoples' demands."12 Developments in the WGIP and elsewhere attest to a substantial level of international concern for indigenous peoples and a slow convergence of international opinion about the content of indigenous peoples' rights. While the specific contours of these rights are still evolving, the core elements of a new generation of internationally operative norms are finding increasing recognition. [13]

B. ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries (No. 169)

The International Labour Organisation (ILO) was the first among international organisations to develop standards for the protection of indigenous peoples. Early instruments include the Forced Labour Convention 1930, Recruiting of Indigenous Workers Convention 1936, Contracts of Employment (Indigenous Workers) Convention 1939 and Penal Sanctions (Indigenous Workers) Convention 1939.14 In 1957 ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No 107) was adopted. [15] This Convention, ratified by 27 ILO members, [16] was until recently the only international instrument specifically concerned with indigenous rights. It deals with matters of general policy, rights relating to land, recruitment and conditions of employment, vocational training, handicrafts and rural industries, social security and health, and education and means of communication. Among the more important of the Convention's provisions are those relating to land rights. Article 11 stipulates that "the right of ownership, collective or individual" of the members of the populations concerned over the lands which they traditionally occupy shall be recognised. States parties are obliged to recognise native title and indigenous forms of land ownership. The right of ownership in Article 11 is qualified by Article 12 which permits the removal of indigenous peoples from the lands they occupy in the interests of national security, development or their health.

ILO Convention No 107 reflects an integrationist philosophy, widely held in the 1950s, and it employs protective and integrationist language.17 Growing scepticism about this orientation resulted in a virtual halt in ratifications, and the activities of indigenous peoples at the UN during the 1980s increased pressure for its revision. After a tense revision process from which indigenous peoples were largely excluded, [18] ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No 169) was adopted by the ILO's General Conference in June 1989. [19] ILO Convention No 169 entered into force on 5 September 1991. [20] Its general orientation is expressed in Pt. I, art 7(1) which provides:

[T]o decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible over their economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly.

In applying the ILO Convention, governments are to consult with the peoples concerned through appropriate procedures, in particular through their representative institutions, with the objective of achieving agreement or consent (art 6(1)). Part I also contains provisions relating to the retention of customs and institutions, the recognition of methods customarily practised for dealing with offences, and penalties and procedural safeguards in legal proceedings (arts 8-12). Part II enumerates rights in relation to land and resource ownership. Art 14(1) provides that the "rights of ownership and possession of the peoples concerned over the lands they occupy shall be recognised". The effective protection of rights of ownership and possession are to be guaranteed (art 14(2)), and adequate procedures established to resolve land claims (art 14(3)). The rights to the natural resources pertaining to these lands are to be safeguarded (art 15(1)). Where the state retains ownership of mineral or subsurface resources, procedures for consultation are to be established to ascertain the degree to which the interests of the peoples concerned would be prejudiced. Where programs of exploration or exploitation are undertaken, the peoples concerned shall participate wherever possible in the benefits and receive fair compensation for any damage (art 15(2)). Subsequent parts of the ILO Convention deal with recruitment and conditions of employment (art 20), vocational training, handicrafts and rural industries (arts 21-23), social security and health (arts 24-25), education and means of communication (arts 26-31), and contacts and co-operation across borders (art 32).

At the time of its adoption in 1989, there was widespread disenchantment with ILO Convention No. 169 among indigenous peoples. There was criticism of its avoidance of the issue of self-determination; qualified use of the term "peoples"; [21] procedural requirements of "consultation" and "participation" rather than an obligation to obtain consent; qualified recognition of indigenous customs and institutions; failure to recognise indigenous ownership of the resources pertaining to their lands; and the denial to indigenous peoples of access to the ILO's implementation monitoring procedures. [22] Since its adoption in 1989, a number of indigenous peoples' organisations have taken an increasingly pragmatic view, and while maintaining their reservations, have expressed support for the ratification of the Convention. [23] With all its shortcomings, ILO Convention No 169 remains the only international treaty specifically concerned with indigenous peoples' rights, and represents the most concrete manifestation of the growing responsiveness of the international community to indigenous peoples' demands and aspirations.

Human Rights

A. International Human Rights Standards

The United Nations concern with human rights dates back to the adoption of the Charter of the United Nations in 1945. Article 1 of the Charter provides that the promotion and encouragement of respect for human rights and fundamental freedoms for all shall be a main purpose of the UN. In Articles 55 and 56, UN Member States promise to take joint and separate action for the achievement of universal respect for, and observance of, human rights for all. Since 1945, numerous steps have been taken in the development of a comprehensive international human rights system. The Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948, represented the first step in the development of this system. In 1965, the International Convention on the Elimination of All Forms of Racial Discrimination was adopted, and in 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). A series of other human rights treaties have been adopted which deal with specific categories of human rights, or with the human rights concerns of particular groups. These include the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child.

Within the UN system, many different bodies are concerned with questions relating to human rights. In the classification of these bodies, a broad distinction can be made between charter-based bodies, established with reference to the human rights provisions of the UN Charter, and treaty-based bodies, established pursuant to particular human rights treaties. The charter-based bodies include the Economic and Social Council which, in accordance with Article 68 of the Charter, has established a number of "functional commissions", including a Commission on Human Rights (CHR) and a Commission on the Status of Women (CSW).

Unlike charter-based bodies, which apply to all UN Member states, treaty-based bodies supervise states parties' compliance with a particular human rights treaty. The principal treaty-based bodies are the Committee on the Elimination of Racial Discrimination, the Human Rights Committee, the Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination Against Women, the Committee Against Torture and the Committee on the Rights of the Child. In accordance with the terms of particular treaties, these bodies exercise a range of supervisory powers through a state reporting procedure and the adoption of "general comments" or "general recommendations" and, in a number of instances, pursuant to individual and inter-state communications procedures. Through these supervisory procedures, treaty-based bodies have generated a significant body of human rights jurisprudence. In the following section, we identify the standards established under the principal human rights treaties, as well as any jurisprudence concerned with the particular human rights of indigenous peoples.

B. Principal Human Rights Treaties

1. International Convention on the Elimination of All Forms of Racial Discrimination

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) was adopted by the UN General Assembly on 21 December 1965 and entered into force on 4 January 1969. [24] Article 1 of CERD defines the term "racial discrimination" broadly as:

... any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

It can be seen that a positive intention to discriminate is not a prerequisite for determining racial discrimination. In assessing whether or not racial discrimination exists within the terms of the CERD, either a subjective intent or objective consequences will suffice. Parties to the CERD undertake "to pursue ... a policy of eliminating racial discrimination ... and promoting understanding among all races ..." (art 2(2)). Segregation and apartheid are condemned (art 3), as are propaganda and organisations based on ideas of racial superiority and attempting to promote racial discrimination and hatred (art 4). States parties undertake in

art 5 "to prohibit and to eliminate racial discrimination ... and to guarantee the right of everyone, without distinction ... to equality before the law".

Article 5 of the CERD contains a lengthy, non-exhaustive list of rights, the enjoyment of which equality before the law is to be guaranteed. Political and civil rights include the right to equal treatment before the organs administering justice; to security of the person; to participation in elections, in government and in public affairs; to leave any country and to return to one's own country; to nationality; to freedom of thought, conscience and expression; and to freedom of assembly and association. Economic, social and cultural rights, the equal enjoyment of which is guaranteed, include the right to work; to just and favourable conditions of work and protection against unemployment; to form and join trade unions; to housing, public health, medical care, social security, education and training; and to equal participation in cultural activities.

Indigenous peoples do not enjoy on an equal footing many of the rights articulated in Article 5. Policies of involuntary relocation, it might be argued, infringe the guarantee of equality before the law in the enjoyment of "the right of freedom of movement and residence". The guarantee of equality before the law in the enjoyment of the right to marriage and choice of spouse and the right to inherit may require recognition of indigenous customs and customary laws. The undertaking to guarantee equality of the law in the enjoyment of "the right to own property alone as well as in association with others" is particularly relevant to the recognition and protection of indigenous land-ownership rights.25

The definition of racial discrimination does not include "special measures" taken to secure the development and protection of particular racial groups (art 1(4), 2(2)). Special measures are taken to ensure to such groups full and equal enjoyment of their human rights and fundamental freedoms. They are subject to provisos that they:

(1) do not lead to the maintenance of unequal or separate rights for different racial groups; and

(2) are not continued after the objectives for which they were taken have been achieved.

In international legal usage, therefore, "racial discrimination" refers not to any distinction or differentiation, but only to those which are arbitrary, invidious or unjustified. A reference to race becomes discriminatory where it lacks an objective basis and reasonable cause. The test of reasonable classification seeks to ensure substantive rather than formal equality before the law.26

The provisos in art 1(4) and 2(2) make it clear that special measures are envisaged as a temporary response to disadvantage, aimed at achieving a specified result within some more or less definite period of time. Some special measures may, however, need to acquire a certain permanency if the objectives for which they are taken are to be achieved.27 The specific disadvantages and needs of particular groups may necessitate the indefinite maintenance of special measures. To the extent that indigenous peoples are perceived as temporarily disadvantaged racial groups in plural societies, the CERD's "special measures" can be invoked to support more conventional forms of affirmative action. Given the considerable disadvantage of indigenous peoples in the enjoyment of many basic human rights, not least of all economic, social and cultural rights, the value of these provisions should not be underestimated.

The aspirations of indigenous peoples cannot, however, be accommodated merely by the adoption of prima facie discriminatory special measures of protection. Indigenous peoples are seeking recognition of their rights to control their institutions, territories and development without interference and to establish and conduct relationships with non-indigenous institutions on the basis of consent. These are issues which the essentially defensive concept of special measures is not capable of addressing. [28]

Compliance with the CERD is supervised by the Committee on the Elimination of Racial Discrimination (CERD Committee), which consists of 18 experts "of high moral standing and acknowledged impartiality". [29] The Committee supervises compliance in three ways:

(1) States parties undertake to submit periodic reports on the legislative, judicial, administrative and other measures they have taken to give effect to the CERD. Indigenous peoples' organisations seek to provide CERD Committee members with material to ensure that pertinent questions are directed to government representatives who may be inclined to focus on more positive aspects of states' performance of their obligations. [30]

(2) The CERD Committee may consider communications by a state party which is concerned that another state party is not giving effect to the provisions of the CERD. [31] Although there is no requirement for a specific recognition of the CERD Committee's competence to receive communications from states, this procedure is unlikely to play a significant role in securing compliance with the CERD.

(3) The CERD Committee may also consider petitions from individuals and groups of individuals claiming violations of their rights under the CERD. [32] This procedure is available only upon the exhaustion of local remedies and where a state party has made a declaration recognising the CERD Committee's competence to receive individual petitions. [33]

As well as exercising its functions under these three procedures, the CERD Committee, like other human rights treaty-based bodies, has initiated the practice of adopting "General Recommendations". These are of a general nature and refer either to the obligations of states parties arising under a specific provision or issues concerning the implementation of the instrument more generally. In 1997 the CERD Committee adopted a General Recommendation concerning indigenous peoples, in which it "affirmed that discrimination against indigenous peoples falls under the scope of the Convention and that all appropriate means must be taken to combat and eliminate such discrimination".34 The CERD Committee called upon all States Parties to:

(a) recognise and respect indigenous peoples' distinct culture, history, language and way of life as an enrichment of the State's cultural identity and to promote their preservation;

(b) ensure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity;

(c) provide indigenous peoples with conditions allowing for a sustainable economic and social development compatible with their cultural characteristics;

(d) ensure that members of indigenous peoples have equal rights in respect of effective participation in public life, and that no decisions directly relating to their rights and interests are taken without their informed consent;

(e) ensure that indigenous communities can exercise their rights to practice and revitalise their cultural traditions and customs, to preserve and practice their languages.35

The CERD Committee further called on parties to the CERD to:

... recognise and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return these lands and territories. Only when this is for factual reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories. [36]

Since 1993, the CERD Committee has also developed early warning and urgent procedures where there is particular cause for concern on the basis of actual or potential circumstances. Early warning measures are intended to prevent existing problems escalating into conflicts, and include confidence-building measures to identify structures to strengthen racial tolerance and solidify peace. Urgent procedures respond to problems requiring immediate attention in order to prevent or limit the scale or number of serious violations of the CERD.37 In an extraordinary step, on 14 August 1998 the CERD Committee adopted a decision concerning Australia.38 This decision requests the Government of Australia to provide the CERD Committee with information on "the changes recently projected or introduced to the 1993 Native Title Act, on any changes of policy ... as to Aboriginal land rights, and of the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner." The CERD Committee wishes to examine the compatibility of any such changes with Australia's obligations under the CERD in the presence of a representative of the Australian Government at its next session. [39]

2. International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR)40 was adopted by the UN General Assembly on 16 December 1966 and entered into force on 23 March 1976. It contains a catalogue of civil and political rights. Art 1 states that all peoples have the right to self-determination. In the context of the UN Working Group on Indigenous Populations, much debate has focussed on the entitlement of indigenous peoples to self-determination. While strong arguments exist for the inclusion of indigenous peoples among those peoples entitled to self-determination under general international law, the Human Rights Committee, the treaty-based body established to supervise implementation of States Parties' obligations under the ICCPR, has shed little light on the "peoples" to whom art 1 applies. While the Human Rights Committee has consistently reaffirmed self-determination as a right of all peoples, it has declined to receive individual complaints of violations of art 1. [41]

Part II of the ICCPR contains general provisions relevant to all the rights in the ICCPR Covenant. Pursuant to art 2, states parties undertake to adopt legislative and other measures to give effect to the rights recognised in the ICCPR and to ensure effective remedies for persons whose rights have been violated. In a general comment on art 2, the Human Rights Committee stated that the obligations contained in the provision are of both a positive and a negative nature:

The Committee considers it necessary to draw to the attention of States Parties the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of those rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States Parties to enable individuals to enjoy their rights. [42]

Part III (arts 6-27) contains a catalogue of civil and political rights; indigenous peoples routinely experience violations of many of these rights. Arts 6-11 enumerate the right to life; the prohibition of torture and cruel, inhuman or degrading treatment or punishment; the prohibition of slavery, servitude and forced or compulsory labour; liberty and security of the person; the humane treatment of persons deprived of their liberty; and the principle of non-imprisonment for inability to fulfil a contractual obligation. Arts 7-10 and 14 provide scope for an examination of the impact of the criminal justice system on indigenous peoples. Art 12 contains a guarantee of liberty of movement and freedom to choose residence. Arts 13-16 the right to a fair trial; the prohibition of the retroactive application of criminal law; and the right to recognition as a person before the law. Art 17 guarantees freedom from interference with privacy, family and home. These provisions are potentially relevant in protecting indigenous communities from interference and maintaining entry restrictions. Art 18 guarantees freedom of thought, conscience and religion, and is relevant to securing protection against interference with indigenous peoples' control of their territories, sacred sites, skeletal remains, burial artefacts and other items of religious or cultural significance. Arts 19-22 guarantee freedom of opinion and expression; the prohibition of advocacy of national, racial or religious hatred; the right to peaceful assembly; and the right to freedom of association. Arts 23 and 25 contain rights relating to the family, marriage and children. Together with the prohibition of racial discrimination in art 2(1) and 26, arts 23 and 25 may be interpreted to require recognition of indigenous custom and law in relation to marriage and kinship and the care and education of children. Art 25 enumerates citizens' participatory rights, including the right to take part in the conduct of public affairs and to have access to public service. In this connection, questions arise as to indigenous peoples' rights of participation where decisions affecting their rights and interests are made.43 Whether the guarantees in

art 25 are merely formal or of a substantive character remains to be clarified. If the latter interpretation is correct, then it may be necessary to make appropriate arrangements to secure the enjoyment of participatory rights and thus establish an equilibrium between non-indigenous and indigenous institutions. [44]

Article 26 contains a guarantee of equality before the law and equal protection of the law. In a general comment on art 26, the Human Rights Committee stated that:

[T]he Committee believes that the term "discrimination" as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground ... and which has the purpose or effect of nullifying or impairing the enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. [45]

Article 27 provides that members of ethnic, religious or linguistic minorities shall not be denied the right, in community with the members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. Indigenous peoples have rejected attempts to equate their rights with those of minorities. The status of ethnic minorities in an integrated national setting, they argue, is incompatible with their right of self-determination, in particular with a right to determine their own political status, to pursue their own economic activities, and to maintain and develop their distinct cultures and forms of social organisation. This distinction has been accepted in the practice of the UN, which has established separate procedures to elaborate standards on minority and on indigenous rights.46 Without prejudice to their right to self-determination and other distinct rights, however, some indigenous peoples have recognised the value of the protection afforded in art 27. While the "minorities" and "peoples" who are the beneficiaries of arts 1 and 27 have evaded precise definition, academic commentators are agreed that they are neither co-extensive nor mutually exclusive categories. [47]

The jurisprudence of the Human Rights Committee has demonstrated that art 27 can be of assistance in requiring states to recognise and secure the special relationship of indigenous peoples with their territories, and to recognise the cultural importance of traditional economic activities. In a general comment adopted in 1994, the Human Rights Committee affirmed the significance of art 27 in securing measures to ensure the participation of indigenous peoples:

[T]he Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, specially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law. The enjoyment of those rights may require positive legal measures of protection and measures to ensure the effective participation of members of minority communities in decisions which affect them. [48]

A minimalist interpretation of art 27 imposing an obligation on states parties merely to refrain from activities which interfere in the enjoyment of the rights in art 27 no longer commands support. The Human Rights Committee's general comment provides that art 27 "does recognise the existence of a `right'" and that "positive measures by States may ... be necessary to protect the identity of a minority and the rights of its members". In their reports, states parties should indicate the measures they have adopted to ensure the "full protection of these rights".49

Some indigenous critics have observed that art 27 protects the rights of individual persons belonging to minorities, and not the rights of groups as such. [50] Clearly, important aspects of the claims of indigenous peoples are not adequately covered by prescriptions for individuals. [51] Article 27, it appears, is something of a hybrid between individual and collective rights. [52] The rights may be asserted by individual members, but the collective existence and well-being of the group are presupposed. In its views in relation to Article 27 rendered under the First Optional Protocol to the ICCPR, the Human Rights Committee has demonstrated an awareness of the need to balance the interests of the group with those of individual members. The Human Rights Committee's general comment on art 27 notes that "[a]lthough the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of the minority." [53]

In accordance with art 28, the Human Rights Committee was established to supervise states parties' compliance with the ICCPR. The Human Rights Committee consists of 18 members of high moral character and recognised competence in the field of human rights. There are several procedures for monitoring implementation of the ICCPR:

(1) States parties are required to submit periodic reports on measures adopted to give effect to the rights recognised in the ICCPR, and on progress made in the enjoyment of those rights.54 Indigenous peoples' organisations submit information which is frequently inconsistent with accounts provided in states' reports. [55]

(2) Articles 41 and 42 provide for declarations recognising the Human Rights Committee's competence to receive communications from one state party claiming that another state party is not fulfilling its obligations under the ICCPR. Unlike the equivalent procedure under CERD, the competence of the Human Rights Committee to receive inter-state complaints does not result automatically upon ratification or accession. As with the equivalent procedure under CERD, the ICCPR's inter-State communications procedure has not yet been used.

(3) The First Optional Protocol (Optional Protocol) to the ICCPR establishes an optional individual communications procedure, pursuant to which individuals claiming that their rights under the ICCPR have been violated may submit a written communication to the Human Rights Committee once "all available domestic remedies" have been exhausted. [56]

In a series of "views" pursuant to the Optional Protocol, the Human Rights Committee has confirmed the applicability of art 27 of the ICCPR to indigenous peoples, and interpreted the provision flexibly and contextually. In Lovelace v Canada the Human Rights Committee found that Lovelace's "right of access to her native culture and language in community with other members of her group" had been interfered with.57 In Kitok v Sweden the Human Rights Committee held that:

a restriction upon the right of an individual member of a minority must be shown to have a reasonable and objective justification and to be necessary for the continued viability and welfare of the minority as a whole. [58]

In the cases of Lovelace and Kitok, the Human Rights Committee confirmed the legitimacy of systems of special rights to ensure the cultural survival of indigenous groups. In Ominayak v Canada the Human Rights Committee declined to consider whether the Lubicon Lake Band constituted a people under art 1 of the ICCPR. Instead, it found that there had been a violation of art 27, stating that:

[T]he rights protected by Article 27 include the right of persons, in community with others, to engage in economic and social activities which are part of the culture of the community to which they belong. [59]

In Lansmann v Finland the Human Rights Committee recalled that economic activities may come within the ambit of art 27 where they are an essential element of the culture of an ethnic community. The Committee reiterated its dictum in Kitok's case that "the right to enjoy one's culture cannot be determined in abstrac to but has to be placed in context". The Committee rejected the submission of Finland that art 27 only protects traditional means of livelihood. The fact that Saami reindeer herders have adapted their methods of reindeer herding and now employ the help of modern technology did not prevent them from relying upon art 27.60 Indigenous peoples have begun exploring the limits of the right of their members "in community with the other members of their group, to enjoy their own culture". The decisions of the Human Rights Committee to date indicate that art 27 can be invoked to secure for indigenous peoples a certain amount of autonomy in the pursuit of traditional activities in their territories. The Committee has shown sensitivity to the need to find a balance between the rights of individual members and the interests of indigenous peoples as a whole. In the Lovelace, Kitok, Ominayak and Lansmann cases, art 27 was invoked in an essentially defensive manner. It remains to be seen whether the positive action required of states to implement their obligations under art 27 will address the land needs of dispossessed indigenous peoples and support indigenous aspirations for collective political rights.

In the recent case of Hopu and Bessert v France, the Committee confirmed the significance of arts 17(1) (right to privacy) and 23(1) (protection of the family), as well, in ensuring respect for the cultural and spiritual identity of indigenous peoples. [61] The case concerned the construction of a hotel complex on the site of a pre-European burial ground, adjacent to a traditional fishing ground. The authors of the communication, indigenous Polynesians, claimed to be victims of violations of, amongst others, arts 17 and 23 of the ICCPR. They contended that "the construction of the hotel on the contested site would destroy their ancestral burial grounds, which represent an important place in their history, culture and life and would arbitrarily interfere with their privacy and their family lives". [62] In concluding that the hotel's construction did interfere arbitrarily with the authors' right to privacy and family, the Committee observed that:

[T]he objectives of the Covenant require that the term "family" be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term "family" in a specific situation. It transpires from the authors' claims that they consider the relationship to their ancestors to be an essential element of their identity and to play an important role in their family life. [63]

3. International Covenant on Economic, Social and Cultural Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR)64 was adopted on 16 December 1966 and entered into force on 3 January 1976. Article 1 states the right of all peoples to self-determination, in wording identical to that employed in art 1 of the ICCPR. Articles 2-5 (Part II) contain provisions relevant to the enjoyment of all the rights set out in the Covenant. Articles 6-15 (Part III) contain a catalogue of economic, social and cultural rights, in the enjoyment of which indigenous peoples experience considerable disadvantage. States parties recognise the right to work; to the enjoyment of just and favourable conditions of work; to join and form trade unions and to strike; and to social security (arts 6-9). Article 10 is concerned with the protection of the family, of mothers, children and young persons. In accordance with

art 11, states parties agree to take steps to ensure the realisation of the right to an adequate standard of living, including adequate food, clothing and housing, and the continuous improvement of living conditions. Article 12 recognises the right to the enjoyment of the highest attainable standard of mental and physical health; Article 13 the right to education. Article 15 is concerned with rights to take part in cultural life, to enjoy the benefits of scientific progress and its applications, and to the protection of moral and material interests resulting from scientific and artistic productions.

The only international measure for monitoring supervision of the ICESCR is a state reporting procedure. States parties undertake to submit periodic reports on measures adopted and progress made in achieving observance of the rights recognised in the Covenant.65 The Committee on Economic, Social and Cultural Rights was established in its present form in 1985 and consists of 18 independent experts. [66] In order to attribute normative content to economic, social and cultural rights and to develop a body of jurisprudence in this field, the Committee has in recent years strongly supported the adoption of an optional protocol to the ICESCR. [67] In addition, detailed guidance as to the measures expected in implementation of States' obligations under the Covenant is provided in the Committee's general comments. [68]

The ICESCR imposes an obligation on States Parties to adopt legislative and other measures with the objective of promoting the full realisation of the rights in the Covenant (art 2(1)). Where measures adopted do not adequately address the disadvantage of indigenous peoples in the enjoyment of these rights, there will be a violation of the undertaking in art 2(2) to guarantee the exercise of the rights in the Covenant without discrimination. There will also be a violation of art 5(e) of the CERD, and the enforcement procedures of that Convention may be available. Where the appropriate declaration has been made, these procedures include the individual communications procedure under art 14. As well, there will be a violation of the general prohibition of discrimination in art 26 of the ICCPR, so the option of submitting an individual communication under the First Optional Protocol to the ICCPR may also arise.

4. Convention on the Elimination of All Forms of Discrimination Against Women

The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted on 17 June 1980 and entered into force on 3 September 1981.69 The term "discrimination against women" is defined in art 1 as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."

In 1992, the Committee on the Elimination of Discrimination Against Women adopted a general recommendation specifying that the general prohibition of sex discrimination includes gender-based violence. Gender-based violence is defined as "violence that is directed at a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty." [70] The general recommendation calls on states parties to take measures necessary to prevent gender-based violence, whether occurring in public or private life. [71] Parties to CEDAW undertake to pursue by all appropriate means a policy of eliminating discrimination against women. [72] Like arts 1(4) and 2(2) of the CERD,

art 4 of the CEDAW allows temporary special measures aimed at accelerating de facto equality between men and women. Article 6 requires appropriate measures to suppress the exploitation of women; arts 7-12 require measures to ensure women's equality in political and public life at the national and international levels, in national laws, in education, employment and labour rights, and in access to health facilities.

Article 13 concerns equality in areas of economic and social life, including the right to family benefits, financial credit and recreational activities. Article 14 requires states sarties to take account of the particular problems of rural women and to take measures to ensure that they participate in and benefit from rural development.

The Committee on the Elimination of Discrimination Against Women consists of 23 experts of high moral standing and recognised competence.73 In accordance with art 18, states parties are required to submit periodic reports on legislative, judicial and other measures taken in accordance with the provisions of the Convention. [74]

5. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Torture Convention) was adopted on 10 December 1984 and entered into force on 26 June 1987. [75] In art 1 "torture" is defined as:

[A]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Neither exceptional circumstances nor orders from a superior officer or public authority may be invoked as a justification for torture.76 Acts of torture, attempts to commit torture and complicity or participation in torture are offences under criminal law. [77] In certain circumstances, states parties are required to take measures to establish jurisdiction over offences of torture. [78] Article 2(1) imposes an obligation on states parties to take effective legislative, administrative, judicial or other measures to prevent acts of torture in territories under their jurisdiction.

In art 16, states parties undertake to prevent in territories under their jurisdiction "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1". In particular, individuals alleging they to have been subjected to such acts in the territories under the jurisdiction of a state party are entitled to complain to its competent authorities. [79]

In accordance with art 17(1), a Committee against Torture has been established consisting of ten experts of high moral standing and recognised competence. States parties report every four years on measures taken to give effect to their obligations under the Torture Convention. In accordance with optional procedures established under arts 21 and 22, the Committee can also receive inter-state and individual communications relating to the fulfilment by states parties of their obligations under the Torture Convention.80 Disputes between states parties concerning the interpretation or application of the Torture Convention can also be referred to the International Court of Justice. [81] The Torture Convention also establishes a confidential procedure for the examination of reliable information containing "well-founded indications that torture is being systematically practised in the territory of a State party".82

6. Convention on the Rights of the Child

The Convention on the Rights of the Child (CROC) was adopted on 20 November 1989 and entered into force on 2 September 1990.83 CROC recognises that, in addition to the full range of human rights recognised in international law, children are entitled to a range of rights relating to their special needs and interests as children. [84] The term "child" is defined as "every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier". [85] States parties are obliged to respect and ensure the rights in CROC to each child within their jurisdiction without discrimination of any kind. [86] In relation to all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, CROC stipulates a general standard against which the operation of national laws and practices is to be evaluated. This provides that in all actions concerning children "the best interests of the child shall be a primary consideration". [87] States parties undertake to respect the responsibilities, rights and duties of parents or, where applicable, members of the extended family or community, to provide, "in a manner consistent with the evolving capacities of the child" appropriate direction and guidance in the exercise by the child of the rights recognised in the Convention. [88] CROC addresses the civil and political, as well as the economic, social, cultural and humanitarian rights of the child.

With respect to indigenous children in many countries, national laws and practice fall far below the standards articulated in CROC. [89] In Australia, concern has been expressed that in the area of juvenile justice State and Territory governments have enacted legislation which contravenes the provisions of CROC. [90] Of particular significance to Aboriginal and Torres Strait Islander children is the recognition in art 30 of the right of indigenous children, in community with other members of their group, to the enjoyment of their culture, the practise of their religion and the use of their language. To date, this is the only provision of a treaty adopted under the auspices of the UN specifically concerned with indigenous rights. Article 20 stipulates that, when considering options for children deprived of their family environment, regard must be paid to the desirability of continuity in their upbringing and to their ethnic, religious and linguistic background. Other rights of particular relevance for indigenous children include the right to life and development; to protection from violence and neglect; to the highest attainable standard of health; to a standard of living adequate for the child's physical, mental, spiritual, moral and social development; to education in a manner directed to the development of respect for the child's cultural identity; and to a variety of dispositions in connection with alleged infringements of the penal law. [91]

CROC provides for the establishment of a Committee on the Rights of the Child. The ten expert members, elected by the states parties, are of high moral standing and recognised competence, and serve in their personal capacity. States parties must submit periodic reports on measures adopted to give effect to the rights recognised in CROC, and on progress made in the enjoyment of those rights.92 The Committee reports every two years to the UN General Assembly, through ECOSOC. [93] The Convention contains no provision for inter-state or individual complaints, although the individual communications procedure pursuant to the Optional Protocol to the ICCPR is also available to children and youth and their advocates.

Environment

In this part we look first at recognised international environmental standards and a body of general principles and rules of international environmental law. Second, we identify provisions of those environmental instruments which are particularly relevant to indigenous peoples. Finally, we describe a number of recent initiatives concerned with biodiversity conservation and indigenous peoples' ethnobiological knowledge.

A. International Environmental Standards

International environmental standards fall into four categories: environmental quality standards; product standards; emission standards; and technology or process standards. [94]

In addition to specific categories of recognised environmental standards, there exists a general body of principles and rules which apply to the protection of all aspects of the environment. These are not contained in a single binding international instrument of global application. Rather, they can be discerned from a large body of practice and enjoy broad, if not universal, support. [95] These are:

  • the principle that States have sovereignty over their natural resources and the responsibility not to cause environmental damage; [96]
  • the principle of preventive action;
  • the principle of good neighbourliness and international cooperation;
  • the principle of sustainable development;
  • the precautionary principle;
  • the polluter-pays principle; and
  • the principle of common but differentiated responsibility. [97]

B. Recent International Environmental Instruments and Indigenous Peoples

1. Stockholm Declaration

The Declaration that resulted from the first United Nations Conference on the Human Environment held in Stockholm 1972 -- the so-called Stockholm Declaration -- reinforces the importance of environmental preservation for the protection of human life on the planet. The Stockholm Declaration recognises that the enjoyment of basic human rights can be jeopardised when people and their communities do not enjoy a proper, safe and healthy environment.

The Stockholm Declaration contains a list of principles, the first of which reaffirms the fundamental right to "freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being".98 Other principles relate to the protection of natural resources, [99] the capacity of the earth to produce renewable resources, [100] wildlife and its habitat, [101] the exhaustion of non-renewable resources, [102] the prevention of the discharge of toxic substances, [103] pollution104 and the promotion of social and economic development. [105]

According to principle 15, "planning must be applied to human settlements ... avoiding adverse effects on the environment and obtaining maximum social, economic and environmental benefits for all. In this respect projects which are designed for colonialist and racist domination must be abandoned."106 Finally, principle 21 of the Stockholm Declaration affirms that States have the "sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." [107]

2. UNESCO Convention for the Protection of the World Cultural and Natural Heritage

International law has traditionally regarded sovereignty over domestic natural resources as inherent in Statehood. Increasingly, albeit tentatively, the international community has sought to preserve natural resources which transcend national borders. The Convention for the Protection of the World Cultural and Natural Heritage,108 adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1972, represents the development of the notion that some of these natural resources may constitute part of a common heritage, or merit designation as a "world heritage site" (national resources of international interest).

The World Heritage Convention establishes a test for evaluating national capabilities to provide proper protection for world heritage sites. This test assumes that local resources -- economic, scientific and technical -- are often insufficient. [109] The World Heritage Convention also posits the insufficiency of resources as the cause of inadequate or nonexistent protection of many world heritage sites. [110] It reaffirms the principle of national sovereignty, stating that sovereignty shall be respected and that international participation may only consist of assistance and cooperation. [111] At the same time, it provides that "[e]ach State Party to this Convention recognises the duty of ensuring the identification, protection, conservation, presentation and transmission to future generations of the world's cultural and natural heritage." [112] The purpose of the World Heritage Convention is to achieve international cooperation in the protection and preservation of unique and important cultural and natural heritage in different parts of the world. Cultural heritage, as defined by the Convention, comprises monuments, groups of buildings and historic sites. [113] Natural heritage consists of physical and physiographical formations and natural sites.114 Significantly the identification of world heritage sites is a duty of individual States. [115] To date, most of the sites that have been listed have been cultural. [116]

The significance of the World Heritage Convention for indigenous peoples was affirmed in the Declaration Reaffirming the Self Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area, adopted at the Julayinbul Conference, held in North Queensland in 1993.117 This calls upon "Federal and State Governments to honour and fulfil the serious and important international and domestic commitments which they have made about the rights of Indigenous Nations and Peoples relating to the care, protection and use-control of their territories." [118] These commitments include relevant obligations under the World Heritage Convention.

3. Rio Declaration on Environment and Development

Twenty years after Stockholm, the international community convened in Rio de Janeiro, Brazil, to forge a new consensus on international environmental policies to protect the world's biological diversity and its ecosystems.119 One result of the 1992 United Nations Conference on Environment and Development (UNCED) was the 1992 Rio Declaration on Environment and Development. A Plan of Action to carry out the principles contained in the Rio Declaration was also adopted, the so-called Agenda 21. [120] Reaffirming the principles contained in the 1972 Stockholm Declaration, the Rio Declaration states that "human beings are at the centre of concerns" and that all humans have the right to a "healthy and productive life in harmony with nature". [121] Individual states carry the primary responsibility for solving their "sovereign" environmental issues. [122] At the same time, they shall strive to work co-operatively "in a spirit of global partnership" [123] in order to achieve a proper balance between development and protection of the environment, [124] with the twin aims of "eradicating poverty" [125] and protecting the "integrity of the Earth's ecosystem". [126]

Principle 8 of the Rio Declaration proclaims that "States should reduce and eliminate unsustainable patterns of production and consumption and promote appropriate demographic policies", while doing their best to "enact effective environmental legislation" [127] resulting from the "participation of all concerned citizens".128 Principle 22 recognises that `indigenous people have a capacity to achieve sustainable development and states provides that:

Indigenous people and their communities and other local communities have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognise and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.129

Increasingly, the international community has recognised that where indigenous peoples retain their traditional territories and maintain their traditional land-based values, they will also ensure that their environment is protected and that their natural resources are not depleted. Indigenous peoples have developed environmentally safe economic practices, sustained their societies without overexploiting the environments they inhabit, and applied effective ecomanagement practices. [130] To some extent, these insights are reflected in the Rio Declaration. [131] However, the Rio Declaration and the processes of UNCED have also been criticised by indigenous peoples. The Kari-Oca Declaration, adopted in 1992 in Kari-Oca, Brazil, as a counter balance to UNCED, is one reflection of such criticism. [132] Indigenous sentiments are also captured in the words of former Aboriginal and Torres Strait Islander Social Justice Commissioner Michael Dodson:

References to indigenous interests in international instruments are, in effect, no more than gestures of etiquette while the pie of the world's bio-riches is sliced into Nation State servings. These servings are passed around the table amongst those who have been invited and can afford to be there. [133]

4. UNCED Statement of Forest Principles

The Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests134 that emerged from the 1992 UNCED illustrates growing international concern for the preservation of the world's forests as both a common heritage and an important habitat for many species. In addition, the Statement of Forest Principles recognises for the first time protection of the rights of indigenous peoples as a critical factor in the protection of the environment. Principle 5(a) provides:

National forest policies should recognise and duly support the identity, culture and the rights of indigenous people, their communities and other communities and forest dwellers. Appropriate conditions should be promoted for these groups to enable them to have an economic stake in forest use, perform economic activities, and achieve and maintain cultural identity and social organisation, as well as adequate levels of livelihood and well-being, through, inter alia, those land tenure arrangements which serve as incentives for the sustainable management of forests. [135]

The Statement of Forest Principles also reaffirms the national, cultural, spiritual, historical and religious value of forests. [136] In particular, art 12(d) recognises the value of "indigenous capacity and local knowledge regarding the conservation and sustainable development of forests". [137]

5. UN Convention on Biological Diversity

The 1992 UN Conference on Environment and Development also saw the adoption of the UN Convention on Biological Diversity (the CBD). This treaty embodies the notion that traditional indigenous techniques and knowledge are essential to the conservation of biodiversity and the "sustainable use of its components". [138] The CBD recognises the importance of maintaining the most diverse biological resources possible, together with the preservation of entire ecosystems. [139] It reaffirms national sovereign rights, as well as the significance of social and economic development as the main tools in the eradication of poverty. [140] Contracting parties are committed to identifying and monitoring the components of biological diversity, to identifying activities that may have adverse impacts on conservation measures, and to maintaining and organising proper data. [141] They also agree to protect areas essential to the preservation of biological diversity by protecting ecosystems and adopting recovery measures when necessary. [142]

The CBD requires Contracting Parties to develop national legislation for the protection of endangered species. [143] In accordance with art 8(j) they must "respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles". [144] Art 8(j) has been subjected to considerable criticism by indigenous peoples. It has been noted, for example, that the phrase "embodying traditional lifestyles" suggests that this provision applies only to "indigenous peoples who are isolated, fossilised in some cultural time-warp living in a never changing present", and excludes peoples who have "adapted their lifestyles to reflect the contemporary and continuing colonial situation in which [they] find [themselves]." [145] Another concern is that art 8(j) is placed under the heading of "In Situ Conservation". Indigenous peoples are opposed to use of the concept of protected areas, as it has often resulted in the deprivation of their land and resources. [146]

Article 15(1) affirms the "sovereign rights of States over their natural resources" and establishes that "the authority to determine access to genetic resources rests with the national governments".147 This emphasis on State sovereignty is also of concern to indigenous peoples:

The problem of exclusive state sovereignty is the most critical in the Convention, because unless it is interpreted in a positive manner, which respects indigenous peoples' rights, it stands to undermine the very cultural diversity with which biological diversity closely relates.148

In accordance with art 16, contracting parties shall "provide and/or facilitate access for and transfer to other contracting parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources". From an indigenous perspective, this provision is also problematic. In the promotion of biotechnology and as a part of the deal between North and South, "the North receives access to resources in return for recognising the South's rights over the resources."149 Indigenous peoples, in whose territories many of these resources lie, on the other hand, are "written out of the scheme and consequently fear being laid open to gene hunters and bio-prospectors, granted access on the basis of national agreements, rather than indigenous consent". [150]

In the final analysis, despite its recognition of the knowledge of indigenous peoples in the area of environmental management practice, the CBD is not founded on any respect for the distinct rights of indigenous peoples. It remains to be seen whether indigenous peoples' management capacity and rights will be recognised in the interpretation and implementation of the CBD.

C. Biodiversity and Indigenous Peoples' Ethnobiological Knowledge

Over the past decade, a number of professional organisations and networks have been especially concerned with codes of ethics and conduct for research and biodiversity prospecting, as well as with issues relating to intellectual property rights and compensation for use of genetic resources. Many of these organisations and networks have been supportive of indigenous peoples' aspirations and struggles.151 The academic literature on sustainable agriculture, ethnobiological knowledge [152] and sustainable development has grown steadily. In 1988, a meeting of the International Society of Ethnobiology, held in Belm, Brazil, and attended by representatives of indigenous peoples and local communities, scientists and environmentalists, formulated the Declaration of Belm. [153] This proposes that substantial resources be diverted to an inventory of biological knowledge, that procedures be developed to compensate indigenous peoples for the utilisation of their knowledge and biological resources, and that educational programs be developed to alert the global community to the value of ethnobiological knowledge. Two years later in Kunming, China, the International Society of Ethnobiology adopted the Kunming Action Plan. [154] This sets out principles to be followed by a proposed "Global Coalition for the Defense of Biological and Cultural Diversity". One principle is that Coalition members should "help secure the recognition of traditional and indigenous knowledge as inventive and intellectual and, therefore, worthy of protection in all legal, ethical and professional frameworks". [155]

Other initiatives relevant to biodiversity conservation and indigenous peoples' ethnobiological knowledge include the conclusions and recommendations of a United Nations Technical Conference on Practical Experience in the Realization of Sustainable and Environmentally Sound Self-Development of Indigenous Peoples (1992);156 and the Manila Declaration Concerning the Ethical Utilization of Biological Resources (1992) [157] which was adopted by the Seventh Asian Symposium on Medicinal Plants and Spices (ASOMPS VII), attended by 283 scientists from 31 countries. The Manila Declaration states that:

  • developing countries are a major centre of biological resources of increasing value and interest;
  • the key to their full exploitation often lies in knowledge possessed by indigenous peoples;
  • the role of indigenous knowledge has been insufficiently recognised;
  • national governments have sovereignty over their biological resources; and
  • current practices of exploitation of these resources are frequently inequitable and favour technologically advanced organisations and/or developed countries. [158]

Documents which are particularly representative of the views of indigenous peoples in relation to issues of biodiversity conservation and the protection of ethnobiological knowledge include:

  • the Kari-Oca Declaration (1992), adopted at a meeting of indigenous peoples held in Kari-Oca, Brazil, as a reaction against processes during UNCED in Rio, which essentially excluded indigenous peoples; [159]
  • the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993), adopted at the first international conference on the cultural and intellectual property rights of indigenous peoples, held in Whakatane, Aotearoa/New Zealand; [160]
  • the Julayinbul Statement on Indigenous Intellectual Property Rights, together with a Declaration Reaffirming the Self Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area (1993), negotiated at a Rainforest Aboriginal Network Conference held in Jingarrba, North Queensland in 1993. [161]

Trade And Finance

In this part we first provide an overview of instruments relating to trade. These are numerous and affect all aspects of the daily activities of consumers and producers. Standardisation is a key element in promoting industrial and economic development and trade. Despite the significant impact of trade on indigenous peoples however, no trade-related standard-setting activities have to date acknowledged, let alone addressed, the aspirations and entitlements of indigenous peoples. Second, we consider recent initiatives by multilateral lending institutions, especially the World Bank, to increase the participation of indigenous peoples in projects financed by them. These developments, which seek to minimise the impact of projects financed by multilateral financial lending institutions on indigenous communities, have not, however, been premised upon recognition of their rights.

A. International Trade Standards

One feature of the gigantic increase in international trade during the present century has been the creation of international standards to facilitate the exchange of goods and services worldwide through the harmonisation of individual countries' technical requirements and legal rules. [162] Standards and conformity assessment can either facilitate trade or impede its expansion by acting as "`hidden"' or non-tariff barriers. Free trade advocates argue that it is important to make a distinction between two different types of technical regulations. One type of regulation is for the purposes of protecting consumer health and safety and the environment from unsafe or substandard products and/or processes. Another kind of regulation is intended for protectionist purposes;163 that is, against the liberalisation and deregulation of international trade and the rationale of the General Agreement on Tariffs and Trade/World Trade Organization, the European Union and other free trade areas. The most important international trade standards include international standards in relation to contracts; regulating transport; and dealing with product/process standards or technical standards. [164]

B. Trade-Related Issues and Indigenous Peoples

Historically, the international trade regime has been rather parochial, with its own rules, players, and jargon. This insularity is increasingly under challenge from environmentalists, public interest groups, labour movements and indigenous peoples.165 There are four main challenges to the international trading system.166

The first is the critique from the environmental movement, which questions the efficiency of trade in economic terms. It contends that externalities not reflected in prices can send the wrong signals to the market, and that trade in general, and international trade especially, will amplify these signals. Environmentalists are also concerned about the possible negative consequences of the world trade regime's narrow regulatory framework. A conspicuous example is the notorious Tuna-Dolphin decision of the GATT167 Dispute Settlement Panel, [168] a case which has triggered continuous debate between free trade proponents and environmentalists. There are also concerns that governments are underregulating in order to retain or attract investment by trans-national corporations and that the "ever-freer trade" agenda and the trans-global transport of goods are resulting in the over-consumption of non-renewable resources.169

A second issue posing a challenge to the global trading system relates to labour standards. These include standards relating to child labour, forced labour, trade unions and non-discrimination in employment. This issue involves both economic and moral dimensions. The economic critique is that when production is based on coercive relationships, it can not be said that market outcomes are good for all. The moral critique is that international trade requires rules regarding labour standards. The moral critique is modified to some extent by the fact that all governments have at least enacted rudimentary regulation on domestic labour standards and that the International Labour Organisation (ILO) has been elaborating international standards for almost eighty years.

A third issue challenging the international trade ethos relates to employment and income. The critique is that even if trade makes nations (as a whole) better off financially, the benefits are not uniformly distributed. Some people are hurt by trade. Despite suggestions throughout the 20th century that trade-injured workers should be compensated or given adjustment assistance, these efforts have been disappointing.170

The fourth issue constituting a challenge to the international trading system relates to community and culture.171 The critique is that even if trade makes states better off financially as a whole, it can devastate communities through changes in production patterns and the impregnation of local culture with foreign influences. These concerns relating to community and culture are not identical; the former is focused more on specialisation, the latter on exchange. One author has noted, "although people want to come together to trade much more freely, they want to be independent politically and culturally".172 Both of these concerns are being increasingly articulated, not least in connection with the rights of indigenous peoples.

C. International Trade-Related Standards and Indigenous Peoples

1. Trans-national Corporations, Foreign Direct Investment and the Multilateral Agreement on Investment

At the beginning of the 1990s, there were almost 37,000 trans-national corporations (TNCs) in the world.173 Their influence on the global economy is immense. In the words of one author: "[W]ith the exception of a handful of nation-states, multinationals are alone in possessing the size, technology, and economic reach necessary to influence human affairs on a global basis". [174] By 1990, the worldwide outflow of foreign direct investment (FDI) -- equivalent to a measure of the productive capacity of TNCs -- was estimated to be $234 billion. [175] In 1992 the stock of FDI totalled $2 trillion. [176] Parent TNCs have spawned more than 170,000 foreign affiliates and subsidiaries, forty percent of which are located in developing countries. [177] The reins remain firmly held in developed countries, where ninety percent of parent TNCs have their headquarters. [178]

The growth in the number, size, and influence of TNCs has become a matter of international concern. Critics argue that the post-war proliferation of TNCs has become increasingly focused on the exploitation of the natural and human resources of developing countries.179 Ethical issues arising from TNC activities include bribery and corruption, employment and personnel issues, marketing practices, impacts on the economy and development patterns of host countries, environmental and cultural impacts, and political relations with host and home country governments. [180] It is also claimed that TNCs have grown beyond the control of national governments and operate in a legal and moral vacuum "where individualism has free reign".181

In spite of concerns about the ethical and other aspects of TNC activity, promotion of FDI has been a recent global political trend. At the seventh UN Conference on Trade and Development in 1987, a new international consensus was reached on "structural adjustment" in the form of privatisation, deregulation and liberalisation of national economies, in return for the easing of the debt burden on developing countries. This paved the way for a substantial expansion in TNC activities, especially in developing countries.182 Such expansion has been assisted by recent regional and global free trade agreements. A result of these initiatives has been a shift away from earlier proposals for the regulation of TNCs. This is signalled in the UN's recent abandonment of its fifteen-year efforts to produce a Code of Conduct for Transnational Corporations. [183] Recent policy initiatives at the international level concerning TNCs focus instead on developing guidelines and even treaties to facilitate FDI, [184] with the principal issues being the development of standards for fair and equitable treatment, national treatment and most favoured nation treatment.185 This is disturbing, not only because TNCs represent such an extraordinary concentration of economic power, but also because they operate in a wide range of pollution-intensive and hazardous industries. TNCs are active in resource development industries such as mining, petroleum and agri-business, which can seriously affect environmentally sensitive areas, and produce a loss of biodiversity and devastating consequences for indigenous peoples.

Petroleum exploitation and development in Amazonia is one example. Transnational oil corporations threaten the unique cultural and physical ecology of the rain forest of Amazonia, which is shared by indigenous peoples and features an immense diversity of tropical flora and fauna.186 The international community has recognised that TNCs are the primary actors in the devastation of the region. [187] However, Amazonian states have allowed TNCs to use more or less unregulated and unrestricted methods of oil production.

It is in this context that the Multilateral Agreement on Investment ("MAI"), negotiated within the Organization for Economic Cooperation and Development (OECD), is especially alarming. The MAI has been described as "a charter of rights and freedoms for multinational enterprises and international investors",188 which will give them actionable rights against governments, without imposing any corresponding responsibilities and liabilities upon investors. The goal of the MAI is "to ensure a high minimum standard of treatment for foreign investors and their investment" and to prevent discrimination in favour of local investors or investment; [189] that is, to set high standards for investment liberalisation by "levelling the playing field" and easing market access as far as FDI is concerned. [190] The MAI would also guarantee investment protection and establish legally binding procedures for dispute settlement. [191] The MAI would be enforceable against contracting governments not only by other contracting governments, but also by foreign investors who claim they have been disadvantaged in actual or planned investments. Governments and communities adversely affected by investors/investments would have no rights to take action under the MAI unless they were in breach of a domestic law. [192]

2. Intellectual Property Rights

Intellectual property rights (IPRs) are legal rights which may be asserted "in respect of the product of the human intellect".193 At the international level, there have been several efforts to harmonise standards and procedural rules for intellectual property protection. The two earliest regimes are contained in the 1883 Paris Convention for the Protection of Industrial Property194 and the 1886 Berne Convention for the Protection of Literary and Artistic Works. [195] These form the basis for most international instruments concerning intellectual property protection subsequently adopted. [196] Traditionally, intellectual property law has covered copyright, trade marks, designs law, confidential information and patents. The development of new technologies has substantially broadened the concept of intellectual property to include the legal protection of broadcasting, computer programs and biotechnology processes. With the commitments established by the 1992 UN Conference on Environment and Development (the Rio Declaration, Agenda 21 and the Convention on Biological Diversity) [197] another aspect of intellectual property protection has been internationally recognised: indigenous peoples' intellectual property rights. [198]

Until approximately ten years ago, there was little discussion of the idea of sharing with indigenous peoples intellectual property rights pertaining to the use of indigenous knowledge in exploiting biological resources. Nor was there any recognition of the propriety of compensating peoples for the use of biological resources that occur in their territories in the development of, for example, new medicines and chemicals.199 Increasingly, these ideas have gained currency among scientists involved in exploration and pharmaceutical firms.200 There are, however, a number of obstacles in using intellectual property rights as a means of compensating indigenous peoples for use of their biological knowledge. One problem, for example, is the conflict between the "individual" approach prevalent in European-derived intellectual property laws and the "communal" approach of indigenous peoples to property ownership. [201]

In recent years there has been a significant new development affecting intellectual property rights -- the creation of the World Trade Organization (WTO).202

Under the new rules of the GATT 1994, all member countries must ensure that their national IPR laws conform with the GATT/WTO Agreement on Trade-Related Intellectual Property Rights (TRIPs). [203] The GATT/WTO's TRIPs Agreement will significantly alter the manner in which plants, animals and other biological resources are used for agricultural and pharmaceutical purposes. [204] The Agreement embraces an industrial model whereby the products of scientific research become the private property of the product's corporate sponsors. [205] It reflects new rules developed during the Uruguay Round of GATT which are in conflict with existing national laws in many countries [206] and also with the traditions of many agricultural and indigenous communities, in which knowledge of the nutritional and medicinal uses of plants and the results of plant breeding are shared as a community resource.207

(a) The TRIPs Agreement and Indigenous Peoples

An important aspect of indigenous peoples' intellectual property is their ethnobiological knowledge; that is, their knowledge concerning the utility, diversity and chemical characteristics of biological resources in their environment. There is growing concern that the TRIPs Agreement will facilitate "biopiracy". [208] This refers to the practice of some transnational companies of using biological or genetic resources from developing countries (for example, medicinal plants or traditional seed varieties) to develop useful products which earn profits, while the traditional owners and developers of the seeds or discoverers of the medicinal plants receive nothing.

Examples abound. For instance, one US pharmaceutical company stood to make millions of dollars from two drugs, an anti-carcinogenic and an anti-leukemia agent, the source of which is Madagascar. The tikluba plant, long used by indigenous peoples in the Brazilian Amazon, has been developed by a pharmaceutical giant as an anti-coagulant. Genetic resistance to Southern Corn Leaf Blight, which caused $1 billion damage to US crops in the 1970s, was obtained from a West African field. And barley genes taken from Ethiopia have been estimated to be worth $50 million annually to US agriculture. [209] Once modified, such genetic material can be patented by corporations or individuals who then appropriate all financial benefits.210 The TRIPs Agreement recognises only private rights and makes no provision for the protection of intellectual property held communally, such as indigenous traditional knowledge.211 Farmers in developing countries will have to pay for new seeds, pesticides and pharmaceuticals developed from their own genetic resources. Indigenous peoples will be left uncompensated for the use of their knowledge.

A Decision on Trade and Environment, [212] taken at the Ministerial Meeting of the GATT in Marrakech on 14 April 1994, called for the establishment of a Committee on Trade and Environment open to all members of the WTO.213 This Committee will initially address "the relationship between the provisions of the multilateral trading system and trade measures for environmental purposes, including those pursuant to multilateral environmental agreements",214 and "will consider "the relevant provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights as an integral part of its work". [215] An analysis of the relevant provisions of the TRIPs Agreement, together with an analysis of the relationship between the WTO and multilateral environmental agreements, may lead the Committee to consider the provisions of the Convention on Biological Diversity which recognise the rights of "local and indigenous communities". [216] Thus, it is conceivable that the Committee will be required to discuss issues pertaining to indigenous peoples' intellectual property. It is important to recall, however, that the whole raison d'tre of GATT/WTO is to promote "ever-freer trade" [217] and open up new markets, in which bioprospecting (or biopiracy) is likely to flourish. From an environmental perspective, the ethos of "ever-freer trade" is not reconcilable with an environmentally sound way of life. As Daly and Cobb put it: "[C]ontinuous growth in the scale of the aggregate economy could only make sense in the context of an unlimited environment". [218] With this fundamental dilemma in mind, it is likely to be immensely difficult for indigenous peoples to "get a voice" in the GATT/WTO.

(b) Convention on Biological Diversity and Intellectual Property Rights of Indigenous Peoples

Originally signed by 150 States present at the 1992 UN Conference on Environment and Development in Rio de Janeiro, the objectives of the Convention on Biological Diversity are the conservation of biological diversity, the sustainable use of its components and the equitable sharing of the benefits arising out of the utilisation of genetic resources, including appropriate access to genetic resources and transfer of technologies. The CBD exemplifies the newfound awareness among developing countries of the value of their genetic resources and their interest in demanding and receiving compensation for the exploitation of those resources, usually in the form of intellectual property rights. [219] Though it is too early to determine how the Convention will affect the role of intellectual property rights in the area of plant-derived products, the publicity surrounding its adoption has been an important factor in bringing issues concerning the exploitation of genetic resources into public consciousness.

A number of provisions of the CBD are relevant to intellectual property in general, and indigenous peoples' intellectual property in particular. Articles 15 and 16 together assert the interdependence of those countries controlling genetic resources and those creating technologies that make use of such resources. Art 15(1) recognises "the sovereign rights of states over their natural resources" and establishes that "the authority to determine access to genetic resources rests with the national governments". [220] Article 15 thus refutes the notion that genetic resources are part of the "common heritage of mankind". This principle formed the basis of the UN Food and Agriculture Organization's 1983 International Undertaking on Plant Genetic Resources.221

A third annex to the Undertaking, adopted in 1991, affirms that the concept of "common heritage" is subject to the sovereign rights of nations over their plant genetic resources. [222] From an environmental perspective, it is generally preferable for individual states to retain sovereignty over natural resources. Where these resources form part of the "global commons", all too often a "free-for-all" or "use and abuse" attitude emerges, and there is no incentive to conservation. Indigenous advocates, on the other hand, have strongly criticised the assertion of state sovereignty over natural resources contained in the CBD. [223] Article 15 also encourages countries to facilitate access to their genetic resources for environmentally sound uses "on mutually agreed terms" and "subject to prior informed consent" of the country having sovereignty over the resources. [224]

In accordance with art 16, contracting parties shall "provide and/or facilitate access for and transfer to other contracting parties of technologies that are relevant to the conservation and sustainable use of biological diversity or make use of genetic resources".225 Access to and transfer of technology shall be provided on "terms which recognise and are consistent with the adequate and effective protection of intellectual property rights". [226] In effect, this provision reinforces the intellectual property rights of industrialised countries, with no mention of those of indigenous peoples. However, art 8(j) recognises that the respect, maintenance and preservation of the "knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles [is] relevant for the conservation and sustainable use of biological diversity." National legislation should promote the application of the general principles established by art 8(j) "with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations, and practices". [227]

The CBD clearly accepts that the knowledge, innovations and practices of indigenous communities are relevant to the sustainable use of biodiversity. Further, it recognises that the traditional knowledge and practices of local and indigenous communities have commercial value. Finally, it links sustainable development and commercial value with the traditional concept of intellectual property rights. The latter two points are especially important in this context. First, it is significant that the CBD identifies economic value, once benefits arise from utilisation of such traditional knowledge and practices, and states that these benefits are to be shared. Second, when the Convention discusses knowledge, innovations and practices and entitles local and indigenous communities to be their holders, it links these concepts with the vocabulary typically used for the definition of the proprietors of intellectual property rights.228 It is arguable that the language of the CBD should be interpreted to include the traditional knowledge and practices of indigenous peoples within the current system of national and/or international laws. However, compensation is geared towards the preservation of the biological diversity of the native habitat, rather than direct compensation to indigenous peoples for the use of their knowledge. [229] Without downplaying its shortcomings with respect to compensation and protection of ethnobiological knowledge, there is no doubt that the CBD is the most significant international instrument to date to recognise the interests of indigenous peoples in relation to intellectual property.

D. Multilateral Lending Institutions and Indigenous Peoples

Over the past two decades, grass-roots movements and international environmental and human rights organisations have become increasingly vocal in their criticism of multilateral lending institutions. Organisations such as the Center for International Environmental Law, the Natural Resources Defense Council and the Environment Defense Fund have challenged the lack of public participation and accountability in the World Bank, the International Monetary Fund and the European Bank for Reconstruction and Development.230 They have contended that the principal biological foundations of the global economy -- forests, croplands, grasslands and fisheries -- are threatened by unsustainable exploitation and outright destruction, in part as a result of economic activities supported by the multilateral development banks. [231]

Increasingly, the World Bank has acknowledged some of its mistakes, including the devastating effects of many of its projects on indigenous peoples.232 In 1982, the World Bank formally committed itself to honouring at least certain indigenous rights and preferences in connection with projects affecting indigenous peoples.233 The 1982 Guidelines required the World Bank to preserve the identity and individual and collective rights of "tribal" peoples. [234] They recognised tribal land rights and urged the World Bank to require borrowing nations to uphold these rights.235 In relation to tribal rights to land, the 1982 Guidelines affirmed the 1948 Universal Declaration of Human Rights as a guide in relation to "tribal issues and land title". [236] They further urged that indigenous groups be included in project decision-making. They stated the Bank's policy "to assist with development projects that do not involve unnecessary or avoidable encroachment onto territories used or occupied by tribal groups". [237] The 1982 Guidelines did not, however, require indigenous consent and participation. Instead, they "urged" that such consent and participation be fostered.238

In 1991, the World Bank revised its policies and issued an Operational Directive on Indigenous Peoples (Operational Directive 4.20). [239] Operational Directive 4.20 is said to reflect developments within the indigenous movement during the decade since the adoption of the 1982 Guidelines. It uses the term "indigenous" rather than "tribal" to refer to "groups with a social and cultural identity distinct from the national majority". [240] It appears to mandate the "informed participation" of indigenous peoples. It recognises past problems in dealing with local government organisations, [241] and states that development "[p]lans that draw upon indigenous knowledge are often more successful than those introducing entirely new principles and institutions".242 Thus, the 1991 Directive goes further than the 1982 Guidelines in requiring that indigenous peoples have input into development planning and that development plans take account of indigenous social structures. The 1991 Directive also provides that the World Bank should not finance any project when "adverse impacts are unavoidable and mitigation plans acceptable to local people cannot be developed". [243]

Ultimately, the 1991 Operational Directive does not make significant advances in the recognition of indigenous rights. It does state that "Bank policy is to assist with the legal recognition of customary or traditional land tenure systems where this is necessary".244 It goes further than the 1982 Guidelines in calling for World Bank assistance in obtaining legal recognition of customary land title, but does not affirm, as the 1982 Guidelines did, the authority of UN instruments as guides in relation to indigenous rights to land title. The 1991 Operational Directive makes important advances in the area of indigenous participation in development plans, yet does not recognise the emerging discourse on international indigenous rights. [245]

Conclusions

The picture which emerges from an analysis of the impact of international standards on indigenous peoples is an uneven one. In the area of indigenous peoples' rights, there have been significant normative developments in which we can discern a coalescence between the perspectives of indigenous peoples and the responses of the international community. In the sphere of human rights, we see the increasing application of general human rights standards to the specific concerns of indigenous peoples, and the emergence of a specific branch of human rights jurisprudence concerned with indigenous peoples' human rights. In the context of international environmental law, there have been some important steps towards recognition of the particular needs of indigenous communities in relation to the environment and to their territories and resources. It is in the arena of trade that the international community has shown complete indifference to the effects of trans-national corporations and foreign direct investment on the world's first peoples. Indeed, recent developments in the GATT/WTO pose a direct threat to many of the rights of indigenous peoples recognised in international human rights law and practice.

Over the past twenty years, indigenous peoples' organisations have become knowledgeable in the doctrines of international law and in the intricacies of international legal procedures. The sophistication and effectiveness of their international advocacy is reflected in the emergence of a distinct body of norms concerned with indigenous peoples' rights and the development of a discrete body of human rights jurisprudence relating to indigenous peoples. In the years ahead, the major challenges for international indigenous advocacy will lie in the realm of the GATT/WTO and, especially for indigenous peoples in the South, the multilateral financial institutions. The decisions made in these fora are likely to have a far greater impact on the lives and futures of indigenous peoples than those made by the more impartial and benevolent bodies of human rights experts.


[1] Sarah Pritchard is a Senior Lecturer in the Faculty of Law at the University of New South Wales. Charlotte Heindow-Dolman is a Swedish lawyer who completed a LLM in the Faculty of Law at the University of New South Wales in 1997.

[2] J Anaya, Indigenous Peoples in International Law, Oxford University Press, New York, 1996; J Anaya, "The rights of indigenous peoples and international law in historical and contemporary perspective", 1989 Harvard Indian Law Symposium (1990); M Lindley, The Acquisition and Government of Backward Territory in International Law, Longmans, Green & Co, London, 1926; A Snow, The Question of Aborigines in the Law and Practice of Nations, Putnam & Sons, London, 1921.

[3] ECOSOC resolution 1589 (L), 21/5/1971, para. 7 and Sub-Commission resolution 8 (XXIV), 18/8/1971. The full report, entitled The Study of the Problem Against Indigenous Populations, is issued in consolidated form as UN Doc.

E/CN. 4/Sub. 2/1986/7, Add. 1-3.

[4] ECOSOC resolution 1982/34.

[5] See generally D Sanders, `The UN Working Group on Indigenous Populations' (1989) 11 Human Rights Quarterly 406.

[6] Reproduced in (1996) 1 AILR 133.

[7] Report of the Working Group on Indigenous Populations on its Twelfth Session UN Doc. E/CN. 4/Sub. 2/1994/30, para. 133.

[8] Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of

3 March 1995
UN Doc. E/CN.4/1996/84.

[9] S Pritchard, "Working Group on Indigenous Populations: mandate, standard-setting activities and future perspectives" in S Pritchard (Ed) Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998

pp. 40-64; S Pritchard, "The United Nations and the Making of a Declaration on Indigenous Rights" (1997) 3 Indigenous Law Bulletin 4; Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995 UN Doc. E/CN. 4/1998/106.

[10] S Pritchard, "Commission on Human Rights Working Group (CHRWG) Third Session 27 October - 7 November 1997" [1998] IndigLawB 26; (1998) 4(10) Indigenous Law Bulletin 4.

[11] At a seminar organised by the Aboriginal and Torres Strait Islander Commission, Sydney, 1995. From the authors' files.

[12] J Anaya, Indigenous Peoples in International Law, Oxford University Press, New York, 1996 p. 49.

[13] Ibid, pp. 55, 57. See also S Pritchard, "Native Title from the Perspective of International Standards" [1998] Australian Yearbook of International Law (forthcoming).

[14] International Labour Organisation, Report VI(I): Partial Revision of the Indigenous and Tribal Populations Convention 1957 (No 107) (1988), 3-4; L Swepston/ R Plant, "`International standards and the protection of land rights of indigenous and tribal populations"' (1985) 124 International Labour Review 91, at 91-93.

[15] ILO Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No 107) 328 UNTS 247.

[16] The Australian Government of Gough Whitlam was committed to ratification but encountered vigorous opposition from the Government of Queensland: G Whitlam, "Australia's international obligations", in G Nettheim (Ed), Human Rights for Aboriginal People in the 1980s, Legal Books, Sydney, 1983.

[17] Article 2(1), the central policy provision, gives governments "the primary responsibility for developing co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries".

[18] H Berman, "The International Labour Organisation and indigenous peoples: revision of ILO Convention 107 at the 75th session of the International Labour Conference 1988", in J Ferguson (Ed), Aboriginal Peoples and Treaties, Hunters Hill, Conventions Coverage International, 1989; A Gray, "Report on the Meeting of the International Labour Organization's Revision of Convention 107, Geneva, June 1989" [1989] IWGIA Yearbook 173.

[19] See ILO, Report VI(I): Partial Revision of the Indigenous and Tribal Populations Convention 1957 (No. 107) (1988),

8-17. Reproduced in [1996] AUIndigLawRpr 73; (1996) 1.3 Australian Indigenous Law Reporter 472.

[20] ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No. 169) 28 ILM 1382. Australia has not ratified Convention No 169. A report sent by the Australian Government to the ILO Director-General in 1991 indicated that, on preliminary examination, Australian law and practice complied with most provisions of Convention No 169. Although the Aboriginal and Torres Strait Islander Commission has recommended ratification, a number of Aboriginal and Torres Strait Islander organisations continue to call for wider community consultations: see Aboriginal and Torres Strait Islander Social Justice Commissioner "Consideration of ratification of ILO No 169" in Second Report 1994, AGPS, Canberra, 1995.

[21] Article 1(3) provides that the use of the term "shall not be construed as having any implications as regards the rights which may attach to the term under international law".

[22] See Resolution of the Indigenous Peoples Preparatory Meeting in Geneva Relating to the International Labor Organization's Convention Concerning Indigenous and Tribal Peoples in Independent Countries, 1989 [1989] IWGIA Yearbook 196; also S Venne, "The New Language of Assimilation: A Brief Analysis of ILO Convention 169" (1989)

2 Without Prejudice 53.

[23] Indigenous organisations from Central and South America, the Saami Council, Inuit Circumpolar Conference, World Council of Indigenous Peoples and National Indian Youth Council have supported ratification: J Anaya, Indigenous Peoples in International Law, Oxford University Press, New York, 1996 p. 49.

[24] International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 [1975] ATS 40.

[25] The High Court of Australia has interpreted s. 10 of the Racial Discrimination Act 1975 (Cth) ("the RDA"), which limits racially discriminatory legislative interference in the enjoyment of rights such as those referred to in art 5 of the CERD, as imposing a restraint upon the legislative power to extinguish or diminish common law native title. In Mabo v Queensland (1988) 166 CLR 186, the High Court held that the Queensland Coast Islands Declaratory Act 1985 (Qld), which purported to extinguish the traditional native title of the Murray Islanders, was nullified by the operation of s. 10 of the RDA. The Court held that s. 10 "clothes the holders of traditional native title who are of the native ethnic group with the same immunity from legislative interference with their enjoyment of their human right to own and inherit property as it clothes other persons in the community" (at 219). In Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373 the High Court held that s. 7 of the Land (Titles and Traditional Usage) Act 1993 (WA) which purported to extinguish native title and replace it with "rights of traditional usage" was inconsistent with s. 10 of the RDA. The Court held that holders of s. 7 rights would have less security than they would have as holders of native title (at 441).

[26] W McKean, "The meaning of discrimination in international and municipal law" (1970) 44 British Yearbook of International Law 177 at 185-6; L Lustgarten L, Legal Control of Racial Discrimination, Macmillan, London, 1980, pp .3-37; E Vierdag, The Concept of Discrimination in International Law, Martinus Nijhoff, The Hague, 1973, pp. 86-9. Referring to "the drafting history of the Convention, the pre-existing and widely-accepted meaning of discrimination in international law, and the apparent consensus of writers", the Australian Law Reform Commission has expressed support for an interpretation of the CERD as prohibiting only invidious and not benign discrimination: Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report 31, AGPS Canberra, 1986, para. 150.

[27] J Crawford, "International law and the recognition of Aboriginal customary laws', in B Hocking (Ed) International Law and Aboriginal Human Rights, Law Book Company, Sydney 1988 p. 43.

[28] See generally S Pritchard, "Special Measures" in the Race Discrimination Commissioner's The Racial Discrimination Act 1975 (Cth): A Review, AGPS, Canberra, 1995 pp. 183-232; S Pritchard, "Native Title from the Perspective of International Standards" [1997] Australian Yearbook of International Law (forthcoming).

[29] CERD Pt II, art 8-25.

[30] Australia's tenth and eleventh periodic reports were due in 1994 and 1996 and have not yet been submitted.

[31] CERD art 11.

[32] CERD art 14.

[33] On 28 January 1993 Australia deposited a declaration under art 14. This means that the CERD Committee can receive communications from persons or groups subject to Australian jurisdiction: Australia Core Document UN Doc HRI/CORE/1/Add 44 at 78. See generally M O'Flaherty, "Individual Communications: the Convention Against Torture and the Convention on the Elimination of All Forms of Discrimination" in S Pritchard (Ed) Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998, p.126; also S Pritchard, N Sharp, S Rodrigues, Petitioning the CERD Committee: Individual Complaints Under the Racial Discrimination Convention, Australian Human Rights Centre, University of New South Wales, Human Rights Booklet No 2, August 1998.

[34] Committee on the Elimination of Racial Discrimination General Recommendation XXIII (51) Concerning Indigenous Peoples UN Doc CERD/C/51/Misc 13/Re 4 para. 1, reproduced in (1998) 3(1) AILR 142.

[35] CERD Committee's General Recommendation Concerning Indigenous Peoples para. 4.

[36] CERD Committee's General Recommendation Concerning Indigenous Peoples para. 5.

[37] As at the end of 1997 the following states were subject to early warning and urgent procedures: Algeria, Bosnia and Herzegovina, Burundi, Croatia, Cyprus, Democratic Republic of the Congo, Israel, Liberia, Mexico, Papua New Guinea, Russian Federation, Rwanda, The Former Yugoslav Republic of Macedonia, and Yugoslavia.

[38] UN Doc CERD/C/53/Misc 17/Rev 2.

[39] Discussing the text of the decision, Committee Member Professor Rudiger Wolfrum noted that the situation in Australia was clearly deteriorating, and that the request for information was not a "mere nicety" but "referred to an obligation on the part of Australia to engage in dialogue with the Committee." UN Doc CERD/C/SR 1287, 14 August 1998, para. 33.

[40] International Covenant on Civil and Political Rights 999 UNTS 171 [1980] ATS 23.

[41] In Ominayak v Canada, the Human Rights Committee expressed the view that the First Optional Protocol to the ICCPR provides a procedure under which individuals or groups of individuals similarly affected can complain that their individual rights under Pt. III, Articles 6-27 of the ICCPR have been violated. The question whether the Lubicon Lake Band constituted a "people" was not an issue for the Committee to address under the First Optional Protocol: Communication No 167/1984; Human Rights Committee, Report of the Human Rights Committee, UN Doc A/45/40 (1990), vol 2, para. 32.1. See also AB v Italy, in which the Committee declined to consider whether the ethno-German population of Italian South Tirol constituted a "people" within art 1: Communication No 413/1990; Human Rights Committee, Report of the Human Rights Committee, UN Doc A/46/40 (1991), para. 3.2. See also EP v Colombia Communication No. 318/1988; Human Rights Committee, Report of the Human Rights Committee, UN Doc A/45/40 (1990), vol 2, para. 8.2.

[42] General Comment No 3, reproduced in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev 3 (1997) at 4.

[43] In Mikmaq Tribal Society v Canada, the Human Rights Committee found that the failure of Canada to invite representatives of the Mikmaq Tribal Society to constitutional conferences on aboriginal matters did not violate art 25. In the view of the Committee, participation and representation at the conferences had not been subjected to unreasonable restrictions: Communication No 205/1986, views adopted on 4 November 1991.

[44] Such an interpretation would be consistent with the advisory opinion of the Permanent Court of International Justice in the Minority Schools in Albania Case of 6 April 1935: PCIJ A/B 64.

[45] General Comment No 18, para. 10 reproduced in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev 3 (1997), at 26.

[46] The UN General Assembly adopted a Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities on 18 December 1992.

[47] For example J Crawford, "The rights of peoples: `peoples' or `governments'?" in J Crawford (Ed) The Rights of Peoples Clarendon Press, Oxford, 1988, pp. 60-61.

[48] General Comment No 23, para. 7; reproduced in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies UN Doc HRI/GEN/1/Rev 3 (1997) at 39.

[49] Paras. 6.1-6.2.9.

[50] For example R Coulter, The Evolution of International Human Rights Standards: Implications for Indian Populations of the Americas, Indian Law Resource Center, Washington DC, 1984 p. 64.

[51] For example I Brownlie, "The rights of peoples in international law", in J Crawford (Ed) The Rights of Peoples, Clarendon Press, Oxford, 1988, pp. 2-4; R Falk, "The rights of peoples (in particular indigenous peoples)", in Crawford, p. 31.

[52] F Capotorti, "Are minorities entitled to collective international rights?" (1990) 20 IsYBHR 351, at 353-54; J Crawford, "The rights of peoples: `peoples', or `governments?" in Crawford (Ed), op cit, 55 at 60; K Hailbronner, "The legal status of population groups in a multinational state under public international law" (1990) 20 IsYBHR 127 at 143; P Thornberry, International Law and the Rights of Minorities, Clarendon Press, Oxford, 1991 p. 173.

[53] General Comment No 23, para. 6.2. See generally E Evatt, "Individual communications under the Optional Protocol to the International Covenant on Civil and Political Rights" in S Pritchard (Ed), Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998 p. 113f.

[54] Article 40.

[55] Australia's reports under art 40 have been significantly overdue. Australia's third periodic report was due in 1991, and a fourth was due in 1996. As a result of the lateness of these reports, the Human Rights Committee formally named Australia as one of a handful of states with two or more overdue reports in its 1997 report to the UN General Assembly: Report of the Human Rights Committee, UN Doc, A/52/40 (1997), vol 1, para. 52. These reports were eventually submitted in September 1998.

[56] ICCPR Article 2. On 16 December 1966 the UN General Assembly adopted and opened for signature, ratification and accession the First Optional Protocol to the ICCPR. The Optional Protocol entered into force on 23 March 1976. Australia deposited an instrument of accession with the UN Secretary-General on 25 September 1991, and the Optional Protocol entered into force for Australia three months later. See generally E Evatt, "Individual Communications Under the Optional Protocol to the International Covenant on Civil and Political Rights" in S Pritchard (Ed), Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998 pp. 86-116; S Pritchard, N Sharp, Communicating with the Human Rights Committee: A Guide to the Optional Protocol to the International Covenant on Civil and Political Rights, Australian Human Rights Centre, University of New South Wales, Human Rights Booklet No 1, July 1996; see also S Pritchard, "The International Covenant on Civil and Political Rights and Indigenous Peoples" in Pritchard (Ed), ibid, pp. 184-203.

[57] Lovelace, a Maliseet Indian, lost upon her marriage to a non-Indian her Indian status and right to reside on the reserve on which she was raised. She complained that the relevant Canadian legislation violated her rights under Article 27. The Human Rights Committee observed: "Persons who are born and brought up on a reserve, who have kept ties with their community and wish to maintain these ties must normally be considered belonging to a minority within the meaning of the Covenant." To deny Lovelace the right to reside on the reserve was neither "reasonable" nor "necessary" to preserve the identity of the tribe: Communication No 24/1977. Selected Decisions of the Human Rights Committee under the Optional Protocol UN Doc CCPR/C/OP/1 (1988), 86-90.

[58] Kitok, a Saami, challenged Swedish legislation which restricted reindeer breeding to members of Saami communities. By pursuing other employment, Kitok had lost his breeding rights. The Saami community could have restored these rights but declined to do so. The Human Rights Committee affirmed that economic activities may fall within the scope of protection of the ICCPR where they are an essential element in the culture of an ethnic community. The "right to enjoy one's own culture in community" could not be determined in abstract, but had to be placed in context. On the facts, the Human Rights Committee found that restricting the number of reindeer breeders for economic and ecological reasons, and to secure the well-being of the Saami minority, was reasonable and consistent with Article 27. Accordingly, there was no violation of Kitok's rights under Article 27: Communication No 197/1985, UN Doc CCPR/C/33/D/197/1985 (1988), paras. 9.2, 9.3, 9.8.

[59] Chief Ominayak complained that the expropriation of the Lubicon Lake Band's territories for the purpose of granting leases for forestry and for oil and gas exploration violated their rights under the ICCPR. The Committee noted:

"Historical inequities, to which the state party refers, and certain more recent developments threaten the way of life and culture of the Lubicon Lake Band, and constitute a violation of Article 27 so long as they continue. The state party proposes to rectify the situation by a remedy that the Committee deems appropriate within the meaning of Article 2 of the Covenant." Communication No. 167/1984, Report of the Human Rights Committee UN Doc. A/45/40 (1990), para. 33. The decision in Ominayak's case was based upon rule 86 of the Rules of Procedure which allows the Committee, prior to forwarding its final views, to inform the state party as to the desirability of interim measures to avoid irreparable damage to the victim: Report of the Human Rights Committee UN Doc. A/44/40 (1989) at 179. See generally D McGoldrick, "Canadian Indians, Cultural Rights and the Human Rights Committee' (1991) 40 ICLQ 658.

[60] Lansmann, a Saami reindeer herder, challenged the decision of the Central Forestry Board of Finland to award a contract allowing quarrying of stone on the flank of the Etela-Ruitusvaara Mountain, a sacred place of the Saami religion. They contended that the quarrying and transport of stone would disturb their reindeer breeding activities and the complex system of reindeer fences determined by the natural environment. On the facts of the case the Committee did not consider the impact of quarrying to be so substantial that it effectively denied the authors their "right to enjoy their cultural rights in that region". In reaching this conclusion, the Committee noted that the interests of the Herdsmen's Committee were taken into account in the proceedings leading to the delivery of the quarrying permit, that they had been consulted during the proceedings, and that reindeer herding in the area did not appear to have been adversely affected by such quarrying as had occurred: Communication No. 511/1992, UN Doc. CCPR/C/52/D/511/1992 (8 November 1994) paras. 2.1, 3.1, 9.3, 9.7 and 9.3. Reproduced in (1996) 1(1) AILR 154.

[61] UN Doc. CCPR/C/60/D/549/1993 (29 July 1997); reproduced (1998) 3(1) AILR 144.

[62] Ibid, para. 10.3.

[63] Ibid.

[64] 993 UNTS 3; [1976] ATS 5.

[65] Article 16.

[66] Economic and Social Council resolution 1985/17 of 28 May 1985.

[67] For example, Committee on Economic, Social and Cultural Rights, Report on the Seventh Session (23 November-11 December 1992) UN Doc. E/1993/22, paras. 233-234 and Ann. IV.

[68] Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies UN Doc. HRI/GEN/1/Rev.3 (1997) at 55-100.

[69] [1983] ATS 9.

[70] General Recommendation No 19, para. 6; reproduced in Compilation of General Comments and General Recommendations Adopted by the Human Rights Treaty Bodies UN Doc. HRI/GEN/1/Rev. 3 (1997) at 128-134.

[71] The Committee's General Recommendation was reinforced by the adoption in 1993 of the UN Declaration on the Elimination of Violence Against Women: (1994) 33 ILM 1050.

[72] Article 2, (a)-(g).

[73] Article 17.

[74] See E Evatt, "Periodic Reporting: the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women" in S Pritchard (Ed) Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998 pp. 135-151.

[75] [1989] ATS 21.

[76] Article 2(2), (3).

[77] Article 4(1).

[78] Articles 5-7.

[79] Article 13.

[80] Australia made a declaration recognising the competence of the Committee to receive such communications on

28 January 1993. See generally M O'Flaherty, "Individual Communications: the Convention Against Torture and the Convention on the Elimination of All Forms of Racial Discrimination" in S Pritchard (Ed) Indigenous Peoples, the United Nations and Human Rights, Federation Press, Sydney, 1998, pp.116-128.

[81] Article 29(1).

[82] Article 20.

[83] [1991] ATS 4; 28 ILM 1448.

[84] See generally D McGoldrick, "The United Nations Convention on the Rights of the Child" (1991) 5 International Journal of Law and the Family 132.

[85] Article 5.

[86] Article 2.

[87] Article 3(1).

[88] Article 5.

[89] In relation to Australia see B Butler, "An Aboriginal view on the Convention', in P Alston/G Brennan, The UN Children's Convention and Australia, Human Rights and Equal Opportunity Commission/Australian National University Centre for International and Public Law/Australian Council of Social Service, 1991, 50 at 51; also B Burdekin, "Transforming the Convention into Australian law and practice", ibid at 6; R Bailey-Harris, "Aboriginal children", ibid, at 67.

[90] See for example "Australia's children stand and wait..." (1993) 1 Rights Now (August 1993), at 1.

[91] Articles 6, 19, 24, 27, 28-9, 40.

[92] In October 1997 the Committee considered Australia's first report under CROC. The Committee expressed its "deep concern" over the low level of the minimum age of criminal responsibility (7 to 10 years in some States) and the poor standards of education and health status of Aboriginal and Torres Strait Islander children, legislation allowing police to remove children from public places, and the disproportionately high percentage of Aboriginal children in the juvenile justice system. It was particularly concerned by the enactment of legislation in Western Australia and the Northern Territory, where a high percentage of Aboriginal people live, providing for mandatory punishment and punitive measures against juveniles: see UN Doc. CRC/C/15/Add. 79 paras. 28-36.

[93] Article 44.

[94] P Sands, Principles of International Environmental Law I: Frameworks, Standards and Implementation, Manchester University Press, 1995 pp.126-37.

[95] Ibid, pp. 183-237.

[96] This principle can be found, inter alia, in the Report of the United Nations Conference on the Human Environment, UN Doc A/Conf. 48/l14/Rev. 1 and Corr. 1 (1972), reprinted (1972) 11 ILM 1416 [hereinafter Stockholm Declaration], Principle 21; Rio Declaration on Environment and Development, UN Doc. A/Conf. 151/5/Rev. 1 (1992), reprinted (1992) 31 ILM 874 [hereinafter Rio Declaration], Principle 2.

[97] Sands, op cit, at 186-220.

[98] Ibid, at 1417.

[99] Principle 2.

[100] Principle 3.

[101] Principle 4.

[102] Principle 5.

[103] Principle 6.

[104] Principle 7.

[105] Principle 8, ibid, at 1418.

[106] Ibid, at 1419. In theory, Principle 15 should be applied in the demarcation of indigenous territories. However, governments in many countries have disregarded it. In Brazil, for instance, the Trans-Amazon road development project resulted in the deaths of many indigenous persons, because irresponsible government planning generated direct conflicts between the new settlers and the indigenous inhabitants of the Amazon region. See J P Kastrup, "The Internationalization of Indigenous Rights from the Environmental and Human Rights Perspective" (1997) 32 Texas International Law Journal 97, at 112.

[107] Stockholm Declaration at 1420.

[108] Convention for the Protection of the World Cultural and Natural Heritage, 1972, 1037 UNTS 151 [hereinafter World Heritage Convention].

[109] Preamble.

[110] Ibid.

[111] Articles 6(1) and 7.

[112] Article 4.

[113] Article 1.

[114] Article 2.

[115] Article 3.

[116] Sands, op cit, pp. 449-50.

[117] Declaration Reaffirming the Self Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area, website: http.//www.web.net/~csc/text/Julayinb.htm, at 2-3.

[118] Ibid, at 2.

[119] L P Breckenridge, "Protection of Biological and Cultural Diversity: Emerging Recognition of Local Community Rights in Ecosystems Under International Environmental Law" (1992) 59 Tennessee Law Review 735, at 735.

120. Agenda 21, Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF. 151/26/Rev. 1 (1992). Of particular significance is section II, "Conservation and Management of Resources for Development", which outlines an agenda for the conservation and management of resources for development. Other sections of Agenda 21 include: Social and Economic Dimensions (section I); Strengthening the Role of Major Groups (section III), including indigenous groups (ch 26, Recognizing and Strengthening the Role of Indigenous People and Their Communities); and Means of Implementation (section IV).

[121] Rio Declaration, Principle 1.

[122] Principle 2.

[123] Principle 7.

[124] Principle 3.

[125] Principle 5.

[126] Principle 7.

[127] Principle 11.

[128] Principle 10.

[129] Principle 22.

[130] See M Tehan, "Indigenous Peoples, Access to Land and Negotiated Agreements: Experiences and Post-Mabo Possibilities for Environmental Management" (1997) 14 Environmental and Planning Law Journal 114 at 119-21; and World Wide Fund for Nature, "Principles for partnership between WWF and Indigenous peoples' organisations in conserving biodiversity within Indigenous peoples' land and territories, and in promoting sustainable use of natural resources", 1996; reproduced in (1996) 1(4) AILR 740. For example Principle 1 and 6; but see R J Rychlak, "People as Part of Nature: Reviewing The Law of the Mother" (1994) 13 Stanford Environmental Law Journal 451.

[131] Rio Declaration, principles 23 and 25.

[132] Kari-Oca Declaration, website: http://www.hookele.com/netwarriors/96/kariocadec.htlm. See also website: http://hookele.com/netwarriors/96/karioca.htlm for Sharon Venne's report.

[133] Aboriginal and Torres Strait Islander Social Justice Commissioner, "International Issues" in Fourth Report 1996, AGPS Canberra 1996 at 168.

[134] United Nations Conference on Environment and Development, Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests, UN Doc. A/Conf. 151/6/Rev. 1 (1992), reprinted (1992) 31 ILM 881 [hereinafter Statement of Forest Principles].

[135] Principle 5(a).

[136] Principle 8(f).

[137] Principle 12(d).

[138] Preamble.

[139] For the purposes of the CBD `biological diversity' or `biodiversity' means the variability among living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems: Article 2.

[140] Article 3, Preamble.

[141] Article 7(a)-(d).

[142] Article 8(d), (f).

[143] Article 8(k).

[144] Article 8(j).

[145] The International Alliance of the Indigenous Peoples of the Tropical Forests, "The Biodiversity Convention: The Concerns of Indigenous Peoples" (1995), reproduced (1996) 1(4) AILR 731 at 733.

[146] Ibid at 733-4.

[147] Article 15(1).

[148] International Alliance of the Indigenous Peoples of the Tropical Forests, op cit, at 733.

[149] International Alliance of the Indigenous Peoples of the Tropical Forests, op cit, at 734.

[150] Ibid.

[151] M J Huft, "Indigenous Peoples and Drug Discovery Research: A Question of Intellectual Property Rights" (1995) 89 Northwestern University Law Review 1678, at 1686-92. See also J Sutherland, "Representations of Indigenous Peoples' Knowledge and Practice in Modern International Law and Politics" [1995] AUJlHRights 3; (1995) 2 Australian Journal of Human Rights 39, at 53.

[152] The term "ethnobiological knowledge" refers to the knowledge of indigenous peoples about the utility, diversity and chemical characteristics of biological resources in their environment: see L I Yano, "Protection of the Ethnobiological Knowledge of Indigenous Peoples" (1993) 41 UCLA Law Review 443.

[153] Declaration of Belm (Winter 1992) International Traditional Medicine Newsletter 1.

[154] Kunming Action Plan (Winter 1992) International Traditional Medicine Newsletter 2.

[155] Ibid.

[156] Discrimination Against Indigenous Peoples: Report of the United Nations Technical Conference on Practical Experience in the Realization of Sustainable and Environmentally Sound Self-Development of Indigenous Peoples (Santiago, Chile, 18-22 May 1992), UN Doc. E/CN. 4/Sub. 2/1992/31.

[157] Manila Declaration, website: http://users.ox.ac.uk/~wegtrr/asomps.htm.

[158] Huft, op cit, at 1692-3.

[159] Kari-Oca Declaration, website: http://www.hookele.com/netwarriors/96/kariocadec.htlm. See also website: http://hookele.com/netwarriors/96/karioca.htlm for Sharon Venne's report.

[160] Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, website: http://users.ox.ac.uk/~wgtrr/mataatua.htm. See also UN Doc. E/CN. 4/Sub. 2/AC 4/1993/CRP 5.

[161] Julayinbul Statement on Indigenous Intellectual Property Rights and the Declaration Reaffirming the Self Determination and Intellectual Property Rights of the Indigenous Nations and Peoples of the Wet Tropics Rainforest Area, website: http://www.web.net/~csc/text/Julayinb.htm.

[162] See L C Thompson/W J Thompson, "The ISO 9000 Quality Standards: Will They Constitute a Technical Barrier to Free Trade Under the NAFTA and the WTO" (1997) 14(1) Arizona Journal of International and Comparative Law 155, at 157; S M Stephenson, "Standards, the Environment and Trade Facilitation in the Western Hemisphere" (1997) 31(6) Journal of World Trade 137, at 141.

[163] See Stephenson, op cit, especially at 141-6.

[164] See C J Cheng (Ed), Basic Documents on International Trade Law, Martinus Nijhoff Dordrecht, 2nd Ed, 1990.

[165] For example see J Vargas, "NAFTA, the Chiapas Rebellion, and the Emergence of Mexican Ethnic Law" (1994)

25 California Western International Law Journal 1.

[166] S Charnovitz, "The World Trade Organization and Social Issues" (1994) 28 Journal of World Trade 17. Competition policy is another, but is not discussed here. See for example E Graham, Competition Policy and the New Trade Agenda, Institute for International Economics, June 1994.

[167] General Agreement on Tariffs and Trade (30 October 1947) 55 UNTS 187 [hereinafter GATT 1947]. The GATT, adopted in 1947, established tariff and general trade obligations intended to operate under the umbrella of the International Trade Organization (ITO). The ITO was expected to complement the two Bretton Woods institutions already established - the International Monetary Fund and the World Bank - in facilitating global economic recovery following World War II. However, the ITO never came into existence. The GATT 1947, intended as an interim agreement pending the coming into force of the ITO Charter, emerged by default as the primary instrument for international commercial policy regulation. See J H Jackson, World Trade and the Law of the GATT, Bobbs-Merrill Book Company New York, 1969.

[168] See General Agreement on Tariffs and Trade: Dispute Settlement Panel Report on United States Restrictions on Imports of Tuna, reprinted in (1991) 30 ILM 1594. In this case, Mexico challenged the United States Marine Mammal Protection Act at the GATT after the US banned the sale of Mexican tuna caught with net technology resulting in dolphin deaths of a number in excess of the statutory limit. Ibid, at 1602. Mexico claimed that its right to sell tuna in the US had been violated by this legislation. Ibid. A GATT panel agreed, and declared the legislation GATT-illegal. Ibid. A particularly controversial aspect of the Panel's decision was the finding that GATT's Article III national treatment requirements do not allow trade measures to be based on production methods (in the Tuna Dolphin case, the type of net used), but only on the products themselves. Controversially, the Panel also found that the US could only invoke a GATT Article XX exception for the conservation of natural resources if the resources are located in US territory: Ibid, at 1616-23.

[169] S Dillon, "Trade and the Environment: A Challenge to the GATT/WTO Principle of `Ever-Freer Trade'" (1996) 11 St. John's Journal of Legal Commentary 351.

[170] See S Charnovitz, "Worker Adjustment: The Missing Ingredient in Trade Policy" California Management Review,

Winter 1986, 156.

[171] See M Braun, L Parker, "Trade in Culture: Consumable Product or Cherished Articulation of a Nation's Soul?" (1993) Denver Journal of International Law & Policy 155.

[172] J Naisbitt, Global Paradox: The Bigger the World Economy, the More Powerful Its Smallest Players, Allen & Unwin Sydney, 1994 p. 10 (emphasis in original).

[173] UNCTAD Division on Transnational Corporations and Investment, World Investment Report 1993: Transnational Corporations and Integrated Production, United Nations New York, 1993 at 19, 21 [hereinafter WIR 1993].

[174] T Donaldson, The Ethics of International Business, Oxford University Press, New York, 1992 p. 31.

[175] WIR 1993, op cit at I.4.

[176] Ibid, at 1.

[177] Ibid, at 19-22.

[178] Ibid, at 21.

[179] See J Dobson, "TNCs and the Corruption of GATT: Free Trade Versus Fair Trade" (1993) 12 Journal of Business Ethics 573, at 574; D C Poff, "Reconciling the Irreconcilable: The Global Economy and the Environment" (1994) 13 Journal of Business Ethics 439, at 442.

[180] Donaldson, op cit, at 30.

[181] H E Daly/J B Cobb, For the Common Good: Redirecting the Economy Toward Community, the Environment and a Sustainable Future, Beacon Press, Boston, 1994 (2nd Ed) p. 215.

[182] Donaldson, op cit, at 3; S Amba-Rao, "Multinational Corporate Social Responsibility, Ethics, Intentions and Third World Governments: An Agenda for the 1990s" (1993) 12 Journal of Business Ethics 553.

[183] WIR 1993, op cit, at 33-4.

[184] Ibid, at 25. Examples include the adoption by the World Bank of Guidelines on the Treatment of Foreign Direct Investment, ibid, and discussion within the Organization for Economic Cooperation and Development (OECD) of a "Wider Investment Instrument" that would incorporate investment liberalisation codes, ibid, at 34. What is referred to here is presumably the embryo of the Multilateral Agreement on Investment (MAI), negotiated in secrecy within the OECD since 1995. A draft of the MAI, dated 9 January 1997, was leaked to critics of unrestricted foreign investment in Canada.

[185] WIR 1993, op cit, at 35.

[186] See UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report on Discrimination Against Indigenous Peoples, Transnational Investments and Operations on the Lands of Indigenous Peoples, UN Doc. E/CN. 4/Sub. 2/1991/49 (1991) [hereinafter Transnational Operations on Lands of Indigenous Peoples].

[187] See UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN. 4/Sub. 2/1983/21/Add. 4 (1983) (Jose R Martinez Cobo, Special Rapporteur) [hereinafter Final Cobo Report]; Transnational Corporations on Lands of Indigenous Peoples, op cit, at 17-8.

[188] J Kelsey, "The OECD Multilateral Investment Agreement", 1997, at 1. This briefing paper on the implications of the MAI for New Zealand is obtainable from GATT Watchdog, Christchurch, New Zealand, e-mail: gattwd@corso.ch.planet.gen.nz. On file with the authors.

[189] Ibid.

[190] M Daly, "Investment Incentives and the Multilateral Agreement on Investment" (1998) 32 Journal of World Trade 5, at 5.

[191] Ibid.

[192] Kelsey, op cit, at 6-7.

[193] J Phillips/A Firth, Introduction of Intellectual Property Law, Butterworths, London, 1990 (2nd Ed) p. 3.

[194] Paris Convention for the Protection of Industrial Property, March 1883, as last revised July 1967, 828 UNTS 305.

[195] Berne Convention for the Protection of Literary and Artistic Works, September 1886, as last revised July 1971, 828 UNTS 221.

[196] Most international agreements relating to intellectual property protection are administered by the World Intellectual Property Organization (WIPO) created by the Convention Establishing the World Intellectual Property Organization, signed in Stockholm on 14 July 1967; (1967) 6 ILM 782.

[197] See, supra sections IV.B.3 and 5.

[198] Article 8(j).

[199] Huft, op cit, at 1684.

[200] Ibid.

[201] Ibid, at 1695-1703.

202. The Uruguay Round Final Act and the Agreement Establishing the World Trade Organization, concluded by 125 countries on 15 April 1994 in Marrakech, embody the results of the eight-year Uruguay Round of multilateral trade negotiations. These represent the most comprehensive international trade agreement ever. Whilst the operative document of GATT 1947 is the General Agreement on Tariffs and Trade, the operative document of GATT 1994 is the Agreement Establishing the World Trade Organization: General Agreement on Tariffs and Trade: Multilateral Trade Negotiations Embodying the Results of the Uruguay Round of Trade Negotiations, reprinted in (1994) 33 ILM 1125 [hereinafter GATT 1994]. Instruments resulting from the negotiations include the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) 33 ILM at 1143; and the Agreement Establishing the World Trade Organization (1994) 33 ILM at 1144 [hereinafter WTO Agreement]. Annexed as integral parts of the WTO Agreement are: the Multilateral Agreement on Trade in Goods and Associated Agreements; the General Agreement on Trade in Services; the Agreement on Trade-Related Aspects of Intellectual Property Rights; the Understanding on Rules and Procedures Governing the Settlement of Disputes; the Trade Policy Review Mechanism; four Plurilateral Trade Agreements; twenty-three Ministerial Decisions and Declarations; and the Understanding on Commitments in Financial Services.

[203] GATT, Multilateral Trade Negotiations (The Uruguay Round): Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, (1994) 33 ILM 1197 [hereinafter TRIPs Agreement].

[204] M Ritchie et al, "Intellectual Property Rights and Biodiversity: The Industrialization of Natural Resources and Traditional Knowledge" (1996) 11 St. John's Journal of Legal Commentary 431.

[205] TRIPs Agreement, Preamble.

[206] C Edgar, "Patenting Nature: GATT on a Hot Tin Roof" (1994) 34 Washburn Law Journal 76.

[207] Huft, op cit, at 1695-1701; Yano, op cit, at 448-9.

[208] See eg, J O Odek, "Bio-Piracy: Creating Proprietary Rights in Plant Genetic Resources" (1994) 2 Journal of Intellectual Property 141.

[209] Atkinson, op cit, at 12; see generally, S Kadidal, Note, "Plants, Poverty and Pharmaceutical Patents" (1993) 103 Yale Law Journal 223 at 224-5; and Huft, op cit, at 1679-87.

[210] Atkinson, op cit, at 12; Yano, op cit at 444-5.

[211] TRIPs Agreement, Preamble.

[212] Decision on Trade and Environment (1994) 33 ILM at 1265.

[213] See S Charnovitz, "A Critical Guide to the WTO's Report on Trade and Environment" (1997) 14 Arizona Journal of International & Comparative Law 314.

[214] Decision on Trade and Environment (1994) 33 ILM at 1268.

[215] Ibid, at 1269.

[216] Article 8(j).

[217] Dillon, op cit; C Moore Dickerson, "GATT 1994: Fool's Goal?" (1996) 11 St. Johns's Journal of Legal Commentary 259.

[218] Daly/Cobb, op cit, at 145.

[219] Kadidal, op cit, at 225.

[220] Article 15(1).

[221] Food and Agriculture Organization of the United Nations, Report of the Conference of the FAO, 22d Sess, p 285, UN Doc. C83/lRep. (1983) (adopting International Undertaking on Plant Genetic Resources).

[222] Ritchie et al, op cit, at 450.

[223] See for example, The International Alliance of the Indigenous Peoples of the Tropical Forests, op cit, at 732.

[224] Article 15(1), (4), (5).

[225] Article 16(1).

[226] Article 16(2).

[227] Article 8(j).

[228] Kadidal, op cit, at 225; Yano, op cit, at 446-7; E da Costa e Silva, "The Protection of Intellectual Property for Local and Indigenous Communities" (1995) 17 European Intellectual Property Review 546 at 546.

[229] Yano, op cit, at 447, 478.

[230] C Wold, "An Earth Parliament for Indigenous Peoples: Investigating Alternative World Governance" (1993) 4 Colorado Journal of International Environmental Law and Policy 197, at 200-1.

[231] B M Rich, "The Multilateral Development Banks, Environmental Policy, and the United States" (1985) 12 Ecology Law Quarterly 681; also D Suagee, "Self-Determination for Indigenous Peoples at the Dawn of the Solar Age" (1992)

25 University of Michigan Journal of Law Reform 671, at 718-21.

[232] World Bank, Tribal Peoples and Economic Development: Human Ecological Considerations (1982) [hereinafter Guidelines].

233. Ibid.

[234] Ibid, at 6.

[235] Ibid, at 19.

[236] Ibid. This affirmation is curious because one debate is whether indigenous groups, as such, have any rights under the Universal Declaration of Human Rights. See R Torres, "The Rights of Indigenous Populations: The Emerging International Norm" (1991) 16 Yale Journal of International Law 127, at 150; A Lawrey, "Contemporary Efforts to Guarantee Indigenous Rights Under International Law" (1990) 23 Vanderbilt Journal of Transnational Law 703, at 707-8; and more generally on collective rights, R Kapeshesit/M Klippenstein, "Aboriginal Group Rights" (1991) 36 McGill Law Journal 925; R N Clinton, "The Rights of Indigenous Peoples as Collective Group Rights" (1990) 32 Arizona Law Review 739; D Sambo, "Indigenous Peoples and International Standard-Setting Processes: Are State Governments Listening?" (1993) 3 Transnational Law & Contemporary Problems 13, at 21-3.

[237] Guidelines, op cit, at 1.

[238] See E Dallam, "The Growing Voice of Indigenous Peoples: Their Use of Storytelling and Rights Discourse to Transform Multilateral Development Bank Policies" (1991) 8 Arizona Journal of International & Comparative Law 117, at 130-2.

[239] World Bank, Operational Directive 4.20: Indigenous People, in World Bank Operational Manual (1991) [hereinafter Operational Directive].

[240] Ibid, at 1.

[241] Ibid, at 2.

[242] Ibid, at 5.

[243] Ibid, at 2. See generally Dallam, op cit, at 130-2; R K Hitchcock, "International Human Rights, the Environment, and Indigenous Peoples" (1994) 5 Colorado Journal of International Environmental Law & Policy 1, at 12-3.

[244] Operational Directive, op cit, at 3.

[245] See Dallam, op cit, at 129-30.

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