The Indigenous World 2022: The work of the UN Treaty Bodies and Indigenous Peoples’ Rights
The human rights treaty bodies[1] are the committees of independent experts in charge of monitoring the implementation by state parties of the rights protected in international human rights treaties. There are nine core international human rights treaties that deal with civil and political rights; economic, social and cultural rights; racial discrimination; torture; discrimination against women; child rights; migrant workers’ rights; persons with disabilities; and enforced disappearances. The main functions of the treaty bodies are to examine periodic reports submitted by state parties, adopt concluding observations and consider individual complaints.[2] Concluding observations contain a review of both positive and negative aspects of a state’s implementation of the provisions of a treaty and recommendations for improvement.
Treaty bodies also adopt general comments or recommendations which are interpretations of the provisions of the treaties. A large number of these interpretative documents makes reference to Indigenous Peoples’ rights. So far, only the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Rights of the Child (CRC) have adopted general comments specifically addressing Indigenous Peoples’ rights.
This article contains a non-exhaustive overview of the reference made by the treaty bodies in their concluding observations, general comments, decisions, views and opinions to Indigenous Peoples or to groups who are otherwise self-identifying as Indigenous Peoples with a special focus on the rights of Indigenous women/girls.[3]
The treaty bodies and Indigenous Peoples’ rights
The COVID-19 pandemic continued to impact the activities of the treaty bodies in 2021. The committees reviewed a total of 61 State party reports, adopted 59 concluding observations, 72 follow-ups on concluding observations,[4] and 132 list of issues and decisions, views and opinions on 314 individual communications. Under its Early-Warning Measures and Urgent Procedures (EWUP), the CERD issued nine Indigenous rights-related letters.
The committees continued to highlight patterns of human rights violations and abuses faced by Indigenous Peoples, including Indigenous women and girls, and to remind state parties of their obligations to protect their rights to equality and non-discrimination, including their collective rights to lands, territories and natural resources, to consultation and Free, Prior and Informed Consent (FPIC). The committees notably called upon state parties to combat and end the multiple and intersecting forms of discrimination faced by Indigenous women/girls, recognize and protect their rights to access, use and own lands, to consultation and FPIC and to guarantee their access to education, employment and health services. State parties were also requested to take measures to protect Indigenous women/girls from racial and gender-based violence, harassment and threats and to adopt and implement special temporary measures to accelerate equality and the representation of Indigenous women in leadership and senior management positions, political and public life and decision-making bodies and in the formulation and implementation of policies and strategies. A draft general recommendation on the rights of Indigenous women/girls was prepared by the Committee on the Elimination of Discrimination against Women (CEDAW)[5] for adoption in 2022.
Summary of concluding observations addressed to the state parties under reviews
Rights of Indigenous women and girls
Under its mandate of considering the progress made in the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women, the CEDAW was particularly active in 2021 in addressing issues pertaining to the rights of Indigenous women/girls. Other committees also made specific reference to human rights violations faced by Indigenous women/girls. The CEDAW expressed concerns at the registration of Indigenous women/girls on the unified list of Indigenous Peoples recently established in the Russian Federation[6] and at the very low number of Masyarakat Hukum Adat (Customary Law Communities) recognized by Indonesia.[7] The Human Rights Committee, CCPR - International Covenant on Civil and Political Rights underlined the lack of measures taken to address the vulnerabilities of Indigenous women in Kenya.[8] The CEDAW noted the lack of legislation to protect the rights of Indigenous women/girls to their traditional lands (Sweden,[9] Indonesia, Ecuador[10]), the limited access of Indigenous women to their traditional lands and livelihoods in the Russian Federation and the impact of the removal of the requirement of environmental permits and impact assessments on Indigenous women’s access to land in Indonesia. The Committee also underlined violations related to the right to consultation and FPIC and lack of benefit-sharing (Sweden, Indonesia, Ecuador) and pointed out the environmental damage and disproportionate impacts of development projects (Indonesia, Ecuador) and climate change and natural disasters (Russian Federation) on Indigenous women/girls. The Committee highlighted the lack of consideration of the gender-specific impact of the climate crisis (Sweden, Russian Federation, Denmark,[11] Ecuador) and of participation in the formulation and implementation of policies and strategies on climate change and disaster risk reduction (Sweden, Ecuador).
The CERD, CEDAW and Committee on Economic, Social and Cultural Rights (CESCR) underlined the multiple and intersecting forms of discrimination faced by Indigenous women/girls (Russian Federation, Ecuador, Chile,[12] Thailand[13]), and their limited access to education, employment and health (Ecuador, Chile, Thailand) in particular sexual and reproductive health services (Sweden, Ecuador, Bolivia[14]). The CEDAW further underlined the lack of representation of Indigenous women/girls in decision-making processes, political and public life and in leadership positions (Sweden, Indonesia, Ecuador). Lastly, the CEDAW highlighted gender-based violence (Indonesia, Ecuador) and hate crimes and discrimination (Sweden, Ecuador) targeting Indigenous women/girls, along with harassment, threats and violence targeting Indigenous and women human rights defenders (Indonesia, Russian Federation), while the Committee Against Torture (CAT) expressed concern at racial violence, attacks, threats and ill-treatment targeting Indigenous women in Bolivia.[15]
A large number of recommendations were made to state parties to promote and protect the rights of Indigenous women/girls. The Russian Federation was invited to facilitate the registration process for Indigenous women/girls on the unified list of Indigenous Peoples while Indonesia was advised to expand the scope of Masyarakat Hukum Adat. Kenya was advised to put in place measures to promote and protect the rights of Indigenous women. The CEDAW recommended protecting Indigenous women’s collective rights to their traditional land and resources (Indonesia, Russian Federation, Ecuador), including by amending legislation and eliminating customary practices undermining Indigenous women’s rights to use and own land in Indonesia and by adopting a specific legislation in Ecuador. Indonesia was invited to conduct a gender assessment in the context of all environmental impact assessments. The CEDAW also recommended that Indonesia and Ecuador require the FPIC of Indigenous women and ensure benefit-sharing in relation to development projects and that Sweden adopt specific legislation requiring the FPIC of and consultations and benefit-sharing with Indigenous women/girls. In line with CEDAW General Recommendation No. 37 (2018) on the gender-related dimensions of disaster risk reduction in the context of climate change, a number of state parties were invited to take into account the needs of Indigenous women/girls and include their participation in the formulation and implementation of climate change and disaster risk reduction policies and strategies (Sweden, Russian Federation, Denmark, Ecuador).
The CERD, CEDAW and CESCR called upon state parties to combat and end the multiple intersectional discrimination faced by Indigenous women (Chile and Thailand), and guarantee access to education and health care (Denmark, Indonesia, Sweden, Ecuador, Chile, Russian Federation), in particular to sexual and reproductive health services (Denmark, Indonesia, Bolivia). The CEDAW recommended the adoption and implementation of measures, including temporary special measures, to accelerate equality and the representation of Indigenous women in leadership positions, in academia and in senior management positions (Sweden, Russian Federation, Denmark, Ecuador), as well as in political and public life and decision-making bodies (Sweden, Russian Federation, Indonesia). Both the CEDAW and the CAT recommended combatting hate crimes and discrimination (Sweden, Ecuador, Bolivia) and gender-based violence (Indonesia, Ecuador) targeting Indigenous women/girls, adopting effective measures for the protection of Indigenous women human rights defenders (Indonesia, Russian Federation) and investigating, prosecuting and punishing perpetrators of hate crime, harassment, threats and violence (Indonesia, Bolivia).
A number of recommendations related to the protection of Indigenous women/girls in the face of the COVID-19 pandemic were made, notably calling upon state parties to implement measures to redress pre-existing gender inequalities by placing women and girls at the center of recovery strategies, paying particular attention to Indigenous women (Sweden, Denmark, Indonesia, Ecuador) and ensuring that measures taken to contain the pandemic do not limit their access to justice, protect them from gender-based violence, and guarantee education, employment and health care (Denmark, Indonesia).
After a day of general discussion, the CEDAW developed draft General Recommendation No. 39 (2021) on the rights of Indigenous women/girls, which addresses equality, non-discrimination and intersecting forms of discrimination;[16] access to justice and plural legal systems and the rights of Indigenous women/girls to: effective participation in political and public life, nationality, education, work, health, equality in marriage and family relations, culture, social protection and economic resources; food, water and seeds; land, territories and natural resources;[17] a safe, clean, healthy, and sustainable environment and protection from the effects of the COVID-19 pandemic.
Rights to self-identification and self-determination
The CCPR and the CERD underlined the absence of legislation to protect Indigenous Peoples in Kenya and the lack of recognition of the status and rights of Indigenous Peoples in Thailand. The CESCR acknowledged the enshrinement of four types of Indigenous autonomous entity in the Bolivian Constitution but regretted that Indigenous communities face obstacles to obtaining autonomous status. The CCPR expressed concerns that the Views adopted by the Committee in 2018[18] concerning the right to self-determination of the Sami people in Finland had not been implemented and that the Sami Parliament Act has not yet been amended in a way that guarantees the Sami people’s right to self-determination. Kenya was advised to develop a legislation to expand the specific protection for Indigenous Peoples while Thailand was advised to affirm the status and the rights of Indigenous Peoples in its legislation, in line with the UNDRIP. The CESCR called upon Bolivia to adopt measures to facilitate the attainment of autonomous status for Indigenous communities. Finland was urged by the CESCR to strengthen the legal recognition of the Sami as Indigenous Peoples and by the CCRP to comply with all the Views adopted by the CCPR with respect of the Sami people and to speed up the process of revising the Sami Parliament Act with a view to respecting the Sami people’s right to self-determination.
Right to land, territory and natural resources
The CCPR underlined difficulties related to obtaining official recognition and registration of Indigenous lands in Kenya and to enjoyment of Indigenous Peoples’ rights to lands and natural resources in Botswana,[19] in particular for the former residents of the Central Kalahari Game Reserve who are required to obtain entry permits to enter the reserve. The CESCR underlined the absence of full protection of Indigenous and aboriginal jurisdiction in Bolivia and of a mechanism guaranteeing the rights of Indigenous Peoples to own and use their lands and resources in Nicaragua.[20] The CERD pointed out the lack of protection of the collective property of Indigenous Peoples in Thailand and issues related to land restitution (Chile, Thailand) and land titling (Nicaragua, Thailand). The CESCR highlighted the erosion of the rights of the Sami to maintain their way of life and traditional livelihoods while the CCPR expressed concerns at the use of vague criteria when assessing the impact of development projects on Sami culture and traditional livelihoods and their limited effectiveness in upholding the rights of the Sami. The CERD pointed out the desecration of Indigenous sacred sites and the negative impact of waste disposal sites on the environment, health, and traditional ways of life of Indigenous communities in Chile while the CESCR underlined the irreversible damage caused by natural resource exploitation and its impact on Indigenous Peoples’ rights to health and adequate standard of living in Nicaragua. Lastly, Committees underlined conflicts and violence caused by the occupation and exploitation of Indigenous lands by third parties (Nicaragua, Thailand, Chile) and land grabbing and forced evictions (Thailand, Kenya).
The CCPR recommended that Kenya ensure the official recognition and registration of Indigenous lands and that Botswana protect and recognize in law and in practice the rights of Indigenous Peoples to their lands and natural resources. Botswana was further requested to lift restrictions imposed on the former residents of the Central Kalahari Game Reserve preventing their return to and permanence in the reserve. The CESCR called upon Bolivia to ensure legal certainty for Indigenous Peoples over lands and natural resources and Nicaragua to establish a mechanism guaranteeing Indigenous Peoples’ rights to own, use and control their lands and natural resources. The CERD further called upon Chile and Thailand to protect Indigenous Peoples’ rights to own, use and control their lands and natural resources. Chile, in particular, was invited to implement dedicated legislation and expedite the restitution of Indigenous lands.
Nicaragua was requested to elaborate regulations for social and environmental impact assessments, paying special attention to Indigenous Peoples’ territories, while Chile was requested to undertake environmental impact assessments on a systematic basis. The CESCR called upon Finland to act upon instances of infringement of the rights of the Sami to maintain their way of life and traditional livelihoods and Nicaragua to investigate cases of land grabbing. Thailand was requested to prevent business entities from engaging in activities which adversely affect Indigenous rights, and prevent illegal occupation and forced evictions. The CCPR recommended that Kenya step up safeguards against forced evictions of Indigenous Peoples, and comply with the decision of the African Court on Human and Peoples’ Rights in respect of the rights of the Ogiek community of Mau.
Right to consultation and Free, Prior and Informed Consent
The CECSR pointed out delays in the adoption of a law protecting Indigenous Peoples’ rights to FPIC in Bolivia, the lack of a legal obligation to obtain the FPIC of the Sami in Finland and the absence of a mechanism to guarantee Indigenous Peoples’ right to be consulted and the creation of parallel bodies supplanting the legitimately constituted representation of Indigenous communities in Nicaragua. The CESCR, CCPR and the CEDAW underlined the failure of Bolivia, Nicaragua, Finland and Sweden to engage in consultations to obtain FPIC of Indigenous Peoples prior to the approval of large-scale infrastructure projects and decisions affecting their lands and rights. The CCPR underlined the lack of Indigenous participation in projects that affect sustainable development and resilience to climate change in Kenya.
The CESCR recommended that Bolivia strengthen its legislation on the right to consultation and FPIC and update regulations on mining and hydrocarbons accordingly. Similarly, Finland was requested by both CCPR and CESCR to strengthen the legal and procedural guarantees for obtaining the FPIC of the Sami, review its legislation and policies regulating development projects and extractive industries to ensure consultation and FPIC, and expedite the ratification of ILO Convention 169. The CEDAW recommended that Sweden revise its legislation, including the Minerals Act, to ensure that exploration permits are granted in consultation with the Sami parliament. Nicaragua was requested to adopt and implement a procedure guaranteeing the right to consultation and FPIC and ensure that legitimate Indigenous authoritative bodies are not supplanted by parallel decision-making institutions. The CESCR and CERD recommended ensuring the right to consultation in order to obtain the FPIC of Indigenous Peoples prior to any projects, legislative or administrative measures affecting their rights and lands (Bolivia, Thailand, Chile, Nicaragua) while the CCPR recommended ensuring the consistent application of the principle of FPIC before any developmental or other activity takes place on lands used or occupied by Indigenous communities (Botswana and Kenya).
Civil and political rights
The CCPR and CERD expressed concern at reports of hate speech and hate crimes targeting Crimean Tatars in Ukraine and Indigenous rights activists in Thailand. The CESCR and the CAT underlined political repression and police clampdowns on Indigenous demonstrators and the security conditions in which human rights defenders defending the right to territory operate in Bolivia.[21] The CERD expressed concern at the excessive use of force by police, the disproportionate application of the Counter Terrorism Act to members of the Mapuche communities and the militarization of the conflict, which has led to the death and bodily harm of Mapuche people. The CED expressed concerns about killings, threats and reprisals faced by Indigenous Peoples and at the lack of progress in investigating disappearances related to the forced recruitment of Indigenous children by organized armed groups in Colombia[22] while the CESCR underlined violence related to land rights in Nicaragua. The CERD also underlined the mistreatment of Mapuche people and violations of their rights to due process and to practice their traditions, customs and rituals while in detention in Chile and the CAT raised the issue of the specific needs of Indigenous Peoples deprived of liberty in Bolivia.
The CCPR recommended that Ukraine review its legislation in order to prohibit hate crimes and combat intolerance, stereotypes and discrimination towards Crimean Tatars[23] while the CERD called upon Thailand to combat racist hate speech and incitement to racist violence against Indigenous Peoples. The CESCR recommended that Bolivia prevent attacks against Indigenous Peoples and adopt a policy to protect human rights defenders while the CAT recommended that Bolivia provide training to law enforcement officers to prevent torture, ill-treatment and excessive use of force. Chile was urged to ensure that law enforcement officials refrain from using violence, to design policies promoting intercultural dialogue and fostering peace in conflict zones and to ensure that the Counter Terrorism Act is not applied to members of the Mapuche community for acts related to the expression of their social needs. The CED called upon Colombia to prevent violence, threats and reprisals and to investigate all acts of enforced disappearance, prosecute and punish perpetrators. while the CESCR called upon Nicaragua to investigate all acts of violence targeting members of Indigenous Peoples. Chile finally recommended ensuring Indigenous Peoples’ rights to due process and to practice their culture in detention and to train law enforcement and prison officers on Indigenous rights, customs, rituals and traditions.
Other general activities of the treaty bodies relevant to the rights of Indigenous Peoples
Early-Warning Measures and Urgent Procedures (EWUP)
Under its EWUP,[24] the CERD considered Indigenous rights-related cases in Australia,[25] Brazil,[26] Canada,[27] India,[28] Indonesia,[29] Peru,[30] and the United States of America.[31]
General Comments
In addition to the draft General Recommendation on the rights of Indigenous women/girls prepared by CEDAW, the CESCR developed draft General Comment No. 36 (2021) on land and economic, social and cultural rights in which the committee recognizes Indigenous Peoples as being particularly at risk of discrimination in the governance of land tenure. A number of issues pertaining to land-related Indigenous rights are highlighted, including: the link between access to land and other rights, the role of special measures, the standard of FPIC, the need for protection of traditional and communal dimensions of land tenure and ensuring access to natural resources, the right of Indigenous Peoples over the lands and territories that they have traditionally occupied, extraterritorial obligations, the link between armed conflicts and forced displacements, land grabbing and land dispossession, climate change mitigation and adaptation measures.[32]
The Committee on the Rights of Persons with Disabilities (CRPD) developed a draft General Comment No. 8 on Article 27 on the right of persons with disabilities to work and employment in which the committee identifies Indigenous identity as one of the grounds for intersectional discrimination affecting persons with disabilities.[33]
The CRC adopted General Comment No. 25 (2021) on the digital environment, which notably requires state parties to take measures to: prevent discrimination faced by Indigenous children in accessing the digital environment; enhance the provision of diverse, accessible and beneficial content for Indigenous children and support educational and cultural institutions to make diverse digital and interactive learning resources available, including Indigenous resources.[34]
The CERD published a document addressing frequently asked questions about its General Recommendation No. 36 (2020) on preventing and combatting racial profiling by law enforcement officials in which the committee identifies Indigenous Peoples as one of eight specific groups most affected by racial profiling in law enforcement.[35]
The CESCR and CRC also worked on the development of general comments of particular interest.[36]
Individual complaints
Under Articles 2,17 and 27 of its Convention, the CCPR adopted a landmark decision[37] on a complaint[38] filed by an Indigenous community leader and school teacher on behalf of the 201 Ava Guarani people of the Campo Agua’e Indigenous community against Paraguay.[39] The CAT also adopted a decision[40] on a complaint[41] submitted by an Indigenous teacher and human rights defender member of the Indigenous Ayuujk People of Santa María Tlahuitoltepec against Mexico.[42] The CRC adopted a decision of non-admissibility[43] of a complaint[44] introduced by 16 children, including three Indigenous children from Alaska, the Marshall Islands and Sweden against Brazil and Germany.
Mélanie Clerc (This email address is being protected from spambots. You need JavaScript enabled to view it.) is a Human Rights Officer at the OHCHR. She is the focal point on Indigenous Peoples and minorities in the Human Rights Treaties Branch.
Justine Berezintsev has previously worked for the Indigenous Peoples and minorities section of the OHCHR. She now works in the field of Indigenous education and also acts as an independent consultant with the Indigenous Peoples Law and Policy (IPLP) Program at the University of Arizona.
Disclaimer: The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations.
This article is part of the 36th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. Find The Indigenous World 2022 in full here
Notes and references
[1] For more information on the treaty bodies: United Nations. OHCHR. “Monitoring the core international human rights treaties.” https://www.ohchr.org/EN/HRBodies/Pages/Overview.aspx
[2] For more information on the activities of the treaty bodies: United Nations. OHCHR. “Monitoring the core international human rights treaties.” https://www.ohchr.org/EN/HRBodies/Pages/WhatTBDo.aspx
[3] This article primarily focuses on the activities of the Committee on the Elimination of Racial Discrimination (CERD), the Committee on Economic, Social and Cultural Rights (CESCR), the Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC). Some relevant concluding observations and views from the Committee against Torture (CAT), and the Committee on Enforced Disappearances (CED) as well as draft general comments of the Committee on the Rights of Persons with Disabilities (CRPD) are also included. The activities of the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT) and of the Committee on Migrant Workers (CMW) as well as the list of issues and follow-up on concluding observations are not included.
[4] For more information on the follow-up procedure: United Nations. OHCHR. “Follow-Up to Concluding Observations.” https://www.ohchr.org/EN/HRBodies/Pages/FollowUpProcedure.aspx
[5] United Nations. OHCHR. “The Committee on the Elimination of Discrimination against Women (CEDAW) General Recommendation No. 39 on the rights of indigenous women and girls – DRAFT.” https://www.ohchr.org/Documents/HRBodies/CEDAW/Draft-GR-rights-indigenous-women-and-girls/Draft-GR-indigenous-EN.DOCX
[6] United Nations. “CEDAW/C/RUS/CO/9. Convention on the Elimination of All Forms of Discrimination against Women. 8 January 2020. Committee on the Elimination of Discrimination against Women. Ninth periodic report submitted by the Russian Federation under article 18 of the Convention, due in 2019.” https://undocs.org/en/CEDAW/C/RUS/9
[7] United Nations. “CEDAW/C/IDN/CO/8. Convention on the Elimination of All Forms of Discrimination against Women. 24 November 2021. Committee on the Elimination of Discrimination against Women. Concluding observations on the eighth periodic report of Indonesia.” https://undocs.org/CEDAW/C/IDN/CO/8
[8] OHCHR. UN Treaty Body Database. “CCPR/C/KEN/CO/4. International Covenant on Civil and Political Rights. 11 May 2021. Human Rights Committee. Concluding observations on the fourth periodic report of Kenya.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fKEN%2fCO%2f4&Lang=en
[9] OHCHR. UN Treaty Body Database. “United Nations. CEDAW/C/SWE/CO/10. Convention on the Elimination of All Forms of Discrimination against Women. 24 November 2021. Committee on the Elimination of Discrimination against Women. Concluding observations on the tenth periodic report of Sweden.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FSWE%2FCO%2F10&Lang=en
[10] OHCHR. UN Treaty Body Database. “United Nations. CEDAW/C/ECU/CO/10. Convention on the Elimination of All Forms of Discrimination against Women. 24 November 2021. Committee on the Elimination of Discrimination against Women. Concluding observations on the tenth periodic report of Ecuador.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fECU%2fCO%2f10&Lang=en
[11] United Nations Digital Library. “United Nations. CEDAW/C/DNK/CO/9. Convention on the Elimination of All Forms of Discrimination against Women. 9 March 2021. Committee on the Elimination of Discrimination against Women. Concluding observations on the ninth periodic report of Denmark.” https://digitallibrary.un.org/record/3906928
[12] OHCHR. “United Nations. CERD/C/CHL/CO/22-23. International Convention on the Elimination of All Forms of Racial Discrimination. Committee on the Elimination of Racial Discrimination. 100th session. 25 November–13 December 2019. Item 4 of the provisional agenda. Consideration of reports, comments and information submitted by States parties under article 9 of the Convention. List of themes in relation to the combined twenty-second and twenty-third periodic reports of Chile.” https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhslsns7vAyg8M3uDZ7rn5ZZM3UjKBKTJCMsdXyZOf4Q2nhnsjCsOqK5B9glr4Asbbnnl5Z3cVFTo%2B6laZz9sQ9OcncrsfHnYCnEEGXpM6wFEt
[13] OHCHR. UN Treaty Body Database. “United Nations. CERD/C/THA/CO/4-8. International Convention on the Elimination of All Forms of Racial Discrimination. 10 February 2022. Committee on the Elimination of Racial Discrimination. Concluding observations on the combined fourth to eighth reports of Thailand.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CERD%2fC%2fTHA%2fCO%2f4-8&Lang=en
[14] OHCHR. UN Treaty Body Database. “United Nations. E/C.12/BOL/CO/3. Economic and Social Council. 5 November 2021. Committee on Economic, Social and Cultural Rights. Concluding observations on the third periodic report of the Plurinational State of Bolivia.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FBOL%2FCO%2F3&Lang=en
[15] OHCHR. UN Treaty Body Database. “United Nations. CAT/C/BOL/CO/3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 29 December 2021. Committee against Torture. Concluding observations on the third periodic report of the Plurinational State of Bolivia.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2FC%2FBOL%2FCO%2F3&Lang=en
[16] Para 28 notably recommends that states parties: (a) Develop comprehensive policies to eliminate discrimination against indigenous women and girls, guided by consultations with Indigenous women and girls (..); (c) Repeal and amend laws, policies, regulations, programmes, administrative procedures, institutional structures (..) which directly or indirectly discriminate against Indigenous women and girls; (d) Recognize and address intersecting forms of discrimination against Indigenous women and girls, and their compounded negative impact; (f) Adopt legislation to ensure Indigenous women and girls’ rights to land, water, and other natural resources on an equal basis with men, including their right to a clean, healthy, and sustainable environment (..). States should ensure that Indigenous women in rural areas have equal access as men to ownership and possession of and control over land, water, forests, fisheries, aquaculture and other resources that they have traditionally owned, occupied, or otherwise used or acquired, including by protecting them against discrimination and dispossession; (h) Protect Indigenous women and girls from discrimination by both state and non-state actors in and outside of their territories, especially in the areas of education, employment, health, social protection, and justice: OHCHR. “The Committee on the Elimination of Discrimination against Women (CEDAW) General Recommendation No. 39 on the rights of indigenous women and girls – DRAFT.” https://www.ohchr.org/Documents/HRBodies/CEDAW/Draft-GR-rights-indigenous-women-and-girls/Draft-GR-indigenous-EN.DOCX
[17] Para 71 notably calls upon states parties to (a) recognize the rights of Indigenous women to collective ownership and control over land and customary land tenure, and develop policies to properly reflect this recognition in the local and national economies; (b) recognize legally the existence and rights of indigenous peoples to their lands, territories, and natural resources in treaties, constitutions, and laws at the national level and (c) require the free, prior and informed consent of indigenous peoples, including women, before authorizing economic and development projects on their lands, territories, and using their natural resources. OHCHR. “The Committee on the Elimination of Discrimination against Women (CEDAW) General Recommendation No. 39 on the rights of indigenous women and girls – DRAFT.” https://www.ohchr.org/Documents/HRBodies/CEDAW/Draft-GR-rights-indigenous-women-and-girls/Draft-GR-indigenous-EN.DOCX
[18] Sanila-Aikio v. Finland: OHCHR. UN Treaty Body Database. “United Nations. CCPR/C/124/D/2668/2015. International Covenant on Civil and Political Rights. Advance unedited version. 1 February 2019. Human Rights Committee. Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2668/2015.” https://tbinternet.ohchr.org/Treaties/CCPR/Shared%20Documents/FIN/CCPR_C_124_D_2668_2015_28169_E.pdf and Käkkäläjärvi et al. v. Finland : OHCHR. UN Treaty Body Database. “United Nations. CCPR/C/124/D/2950/2017. International Covenant on Civil and Political Rights. 18 December 2019. Human Rights Committee. Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2950/2017. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2F124%2FD%2F2950%2F2017&Lang=en
[19] OHCHR. UN Treaty Body Database. “United Nations. CCPR/C/BWA/CO/2. International Covenant on
Civil and Political Rights. 24 November 2021. Human Rights Committee. Concluding observations on the second periodic report of Botswana.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2FC%2FBWA%2FCO%2F2&Lang=en
[20] OHCHR. UN Treaty Body Database. “United Nations. E/C.12/NIC/CO/5. Economic and Social Council. 11 November 2021. Committee on Economic, Social and Cultural Rights. Concluding observations on the fifth periodic report of Nicaragua.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=E%2FC.12%2FNIC%2FCO%2F5&Lang=en
[21] OHCHR. UN Treaty Body Database. “United Nations. CAT/C/BOL/CO/3. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 29 December 2021. Committee against Torture. Concluding observations on the third periodic report of the Plurinational State of Bolivia.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2FC%2FBOL%2FCO%2F3&Lang=en
[22] OHCHR. UN Treaty Body Database. “United Nations. CED/C/COL/OAI/1. International Convention for the Protection of All Persons from Enforced Disappearance. 2 June 2021. Committee on Enforced Disappearances.Concluding observations on the additional information submitted by Colombia under article 29 (4) of the Convention.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CED%2FC%2FCOL%2FOAI%2F1&Lang=en
[23] Undogs.org. “United Nations. CCPR/C/UKR/CO/8. International Covenant on Civil and Political Rights. 30 January 2019. Human Rights Committee. Eighth periodic report submitted by Ukraine under article 40 of the Covenant, due in 2018.” https://undocs.org/CCPR/C/UKR/8
[24] In 1994, the CERD decided to establish early warning and urgent procedures as part of its regular agenda. Early warning measures are to be directed at preventing existing problems from escalating into conflicts and urgent procedures to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.
[25] Regarding the Western Australian Government’s draft Aboriginal Cultural Heritage Bill (2020 Draft Bill) and its impact on Aboriginal peoples: “United Nations. OHCHR. Reference: CERD/EWUAP/105th session/2021/CS/ks. 3 December 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/AUS/INT_CERD_ALE_AUS_9504_E.pdf.
[26] Regarding the situation of COVID-19 in Brazil and its dramatic impact on Indigenous Peoples, particularly in the State of Amazonas: United Nations. OHCHR. Reference: CERD/EWUAP/104th Session/2021/CS/ks. 25 August 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/BRA/INT_CERD_ALE_BRA_9445_E.pdf; and regarding the impact of infrastructure projects in the State of Mato Grosso on Xavante and other Indigenous Peoples’ rights: ”United Nations. OHCHR. Reference: CERD/EWUAP/104th session/2021/CS/ks. 25 August 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/BRA/INT_CERD_ALE_BRA_9446_E.pdf
[27] Regarding allegations of acts of racist violence against Mi’kmaw Indigenous Peoples in the Province of Nova Scotia: “United Nations. OHCHR. Reference: CERD/EWUAP/103rd Session/2021/MJ/CS/ks. 30 April 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_ALE_CAN_9398_E.pdf.
[28] Regarding the Draft Lakshadweep Development Authority Regulation 2021 and the potential harm it may cause to the Scheduled Tribes of Lakshadweep.” United Nations. OHCHR. Reference: CERD/EWUAP/104th session/2021/CS/ks. 25 August 2021.”
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/Ind/INT_CERD_ALE_Ind_9447_E.pdf.
[29] Regarding the insufficient levels of official state recognition of Indigenous Peoples in Indonesia: ”United Nations. OHCHR. Reference: CERD/EWUAP/103rd session/2021/MJ/CS/ks. 30 April 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/IDN/INT_CERD_ALE_IDN_9400_E.pdf.
[30] Regarding allegations that a newly adopted regulation by the Regional Government of Ucayali (Ordinance no. 010-2018-GRU-CR) would negatively affect the Santa Clara de Uchnya Indigenous community and was adopted without adequate consultation and free, prior and informed consent: ”United Nations. OHCHR. Reference: CERD/EWUAP/103rd session/2021/Peru/MJ/CS/ks. 30 April 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/PER/INT_CERD_ALE_PER_9399_E.pdf.
[31] Regarding allegations that the expansion of a tar sands pipeline in the State of Minnesota was approved without adequate consultation and without obtaining the free, prior and informed consent of the Anishinaabe Indigenous Peoples and may cause significant harm: United Nations. OHCHR. Reference: CERD/EWUAP/104th session/2021/CS/ks. 25 August 2021.” https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_ALE_USA_9448_E.pdf; and regarding the impact of a planned oil and gas development in the Coastal Plain of the Artic National Wildlife Refuge in Alaska on the Gwich’in Peoples:”United Nations. OHCHR. Reference: CERD/EWUAP/105th session/2021/CS/ks. 3 December 2021.”
https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INT_CERD_ALE_USA_9503_E.pdf.
[32] Para 17 focuses on the additional barriers faced by women in accessing land and calls for enhancing Indigenous tenure arrangements, including the documentation and codification of informal land rights regimes, where appropriate. Para 18 recognizes the international legal standard of free, prior and informed consent as it pertains to Indigenous Peoples and land governance. Para 20 calls upon state parties to recognize and protect communal dimensions of tenure, particularly in relation to Indigenous Peoples, highlighting their material and spiritual relationship to traditional lands as well as their collective rights to, use of and control over lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. Para 23 addresses in detail the recognition of the right of Indigenous Peoples over the lands and territories that they have traditionally occupied within international law. Para 38 calls for attention to extraterritorial obligations relating to the negative impact of international investment negotiations, agreements and practices on Indigenous Peoples’ access to their lands. (E/C.12/69/R.2): OHCHR. “Committee on Economic, Social and Cultural Rights. CESCR calls for written contributions to the draft general comment on Land and Economic, Social and Cultural Rights.” https://www.ohchr.org/Documents/HRBodies/CESCR/Contributions/E_C%2012_69_R_2_ODS_E.docx.
[33] Para 24, on intersectional discrimination: (CRPD/C/GC/8): OHCHR. “Committee on the rights of persons with disabilities. Call for submissions: Draft General Comment on article 27 on the right of persons with disabilities to work and employment.” https://www.ohchr.org/EN/HRBodies/CRPD/Pages/CallCommentsDraftGeneralComments.aspx
[34] Para 11, on the right to non-discrimination; Para 52, on the right to access to information; Para 100, on the right to education: OHCHR. UN Treaty Body Database. “United Nations. CRC/C/GC/25. Convention on the Rights of the Child. 2 March 2021. Committee on the Rights of the Child. General comment No. 25 (2021) on children’s rights in relation to the digital environment.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f25&Lang=en
[35] The response to question 7 on page 1 states the following: “Racial profiling affects specific individuals and groups, such as indigenous peoples, people of African descent, national and ethnic minorities, Roma, migrants, refugees and asylum-seekers most.” OHCHR. UN Treaty Body Database. “Preventing and Combatting Racial Profiling by Law Enforcement Officials. General Recommendation No. 36. Frequently Asked Questions. January 2021.” https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CERD/GEC/9463&Lang=en
[36] The CESRC is working on a General Comment on Sustainable Development which will include “Indigenous Peoples, Peasants and Other People Working in Rural Areas” as one of the 10 key themes. OHCHR. Committee on Economic, Social and Cultural Rights. “2) Preparations for the development of the General Comment on Sustainable Development and the International Covenant on Economic, Social and Cultural Rights.” https://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCR-GC-Sustainable-Development.aspx.
The CRC is working on a draft General Comment No. 26 on children’s rights and the environment with a special focus on climate change in which the committee underlines that the negative effects of climate change are especially acute for Indigenous Peoples. The CRC published a relevant concept note: OHCHR. Committee on the Rights of the Child. “General comment on children's rights and the environment with a special focus on climate change. Concept note.” https://www.ohchr.org/EN/HRBodies/CRC/Pages/CRC_GC26_concept_note.aspx
[37] OHCHR. UN Treaty Body Database. “CCPR/C/132/D/2552/2015.Versión avanzada sin editar. 12 de octubre de 2021. Comité de Derechos Humanos. Dictamen aprobado por el Comité a tenor del artículo 5, párrafo 4, del Protocolo Facultativo, respecto de la comunicación núm. 2552/2015.” https://tbinternet.ohchr.org/Treaties/CCPR/Shared Documents/PRY/CCPR_C_132_D_2552_2015_33032_S.pdf
[38] OHCHR. UN Treaty Body Database. “CCPR/C/132/D/2552/2015. Versión avanzada sin editar. 12 de octubre de 2021. Comité de Derechos Humanos. Dictamen aprobado por el Comité a tenor del artículo 5, párrafo 4, del Protocolo Facultativo, respecto de la comunicación núm. 2552/2015.” https://tbinternet.ohchr.org/Treaties/CCPR/Shared Documents/PRY/CCPR_C_132_D_2552_2015_33032_S.pdf
[39] Adopted on 12 October 2021 concerning a communication submitted on 30 September by Benito Oliveira Pereira and Lucio Guillermo Sosa Benega, on behalf of the Campo Agua’ẽ Indigenous community of the Ava Guaraní people. The complainants claimed violations of their rights in relation to Articles 2, 17 y 27 of the ICCPR. The Campo Agua’e Indigenous community lives in an area closely surrounded by large commercial farms that use fumigation. The fumigation, including the use of banned agrochemicals continuously for more than ten years in the area, had affected subsistence crops and fruit trees, impacted hunting, fishing and foraging resources, contaminated the waterways and harmed people’s health. The Committee found a violation of the complainers’ rights under Articles 2, 17, 27 of the Convention. The CCPR found that Paraguay’s failure to prevent and control the toxic contamination of traditional lands, due to the intensive use of pesticides by nearby commercial farms, was violating the Indigenous community’s rights and sense of “home”. This is the Committee’s first decision to affirm that, in the case of Indigenous people, the notion of “home” should be understood within the context of the special relationship between them and their territories, including their livestock, crops and their way of life such as hunting, foraging and fishing. The Committee further found that Paraguay did not adequately monitor the fumigation and failed to prevent contamination and recommended that Paraguay complete criminal and administrative proceedings against all the parties responsible and make full reparation to the victims.
[40] “Naciones Unidas. CAT/C/72/D/992/2020. Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes. Versión provisoria sin editar. 8 de diciembre de 2021. Comité contra la Tortura. Decisión adoptada por el Comité en virtud del artículo 22 de la Convención, respecto de la comunicación núm. 992/2020.”
https://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/MEX/CAT_C_72_D_992_2020_33417_S.docx
[41] OHCHR. UN Treaty Body Database. “Naciones Unidas. CAT/C/72/D/992/2020. Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes. 7 de febrero de 2022. Comité contra la Tortura. Decisión adoptada por el Comité en virtud del artículo 22 de la Convención, respecto de la comunicación núm. 992/2020.”
https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2f72%2fD%2f992%2f2020&Lang=en
[42] Adopted on 8 December 2021 concerning a communication submitted on 17 May 2019 by Damián Gallardo Martínez and his family. The complainant claimed a violation of his rights under Articles 1, 2, 11, 12, 13, 14 y 15 of the Convention as he was arbitrarily arrested, tortured, forced to sign an alleged confession of involvement in criminal acts, accused of organized crime and child abduction, and detained in a maximum-security prison for five years and seven months. The Committee found a violation of the complainant’s rights under Articles 2, 12, 13, 14 and 15 of the Convention. Acknowledging that the criminal proceedings brought against the complainant were part of a pattern of criminalization of the social protest, the Committee notably recommended that Mexico initiate an impartial and independent investigation into the acts of torture; prosecute, judge and punish perpetrators; grant reparation and the most complete rehabilitation possible to the victim; make a public apology and adopt measures to favor guarantees of non-repetition, including a guarantee of the systematic examination of the detention and interrogation procedures, and a cessation in the criminalization of the defense of the rights of the Indigenous villages.
[43] United Nations. CRC/C/88/D/105/2019. Convention on the Rights of the Child - unedited version. 8 October 2021. Committee on the Rights of the Child. Decision adopted by the Committee on the Rights of the Child under the Optional Protocol to the Convention on the Rights of the Child on a communications procedure in respect of Communication No. 105/2019.” https://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/BRA/CRC_C_88_D_105_2019_33021_E.pdf
[44] Adopted on 22 September 2021 by the CRC concerning the communication submitted on 23 September 2019 by 16 children represented by counsel, Scott Gilmore et al., of Hausfeld L.L.P., and Ramin Pejan et al., of Earthjustice against Argentina, Brazil, France, Germany and Turkey. The 16 complainants claimed that, by causing and perpetuating climate change, the State party had failed to take the necessary preventive and precautionary measures to respect, protect and fulfil the authors’ rights to life, health and culture. The Committee found the communication inadmissible for failure to exhaust domestic remedies.
Tags: Global governance
