SUB-COMMISSION CONTINUES CONSIDERATION OF VIOLATIONS OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ANYWHERE IN THE WORLD

Sub-Commission on Promotion
and Protection of Human Rights
54th session
31 July 2002
Morning

Working Paper on Indigenous Peoples' Permanent
Sovereignty over Natural Resources Introduced


The Sub-Commission on the Promotion and Protection of Human Rights continued its consideration of human rights violations anywhere in the world this morning, with particular reference to colonial and other dependent countries and territories.
Erica-Irene Daes, former Sub-Commission Expert and former Chairperson-Rapporteur of the Working Group on indigenous populations, presented her working paper on indigenous peoples' permanent sovereignty over natural resources. Mrs. Daes said almost every State claimed for itself sovereignty over natural resources while denying this right - in whole or in part - to indigenous peoples. The principle of international law of permanent sovereignty over natural resources was a central principle of decolonization and self-determination and must be applied to the world's indigenous peoples.
In a subsequent question-and-answer session, Sub-Commission Expert Yozo Yokota pointed out that it might be useful to avoid the word "sovereignty", opting instead for "ownership of" and/or "property of". "Sovereignty" had certain meanings in international law that could lead to difficulties. Sub-Commission Experts Asbjorn Eide and Vladimir Kartashkin echoed this sentiment and elaborated on the difficulties that might be faced in the use of the word "sovereignty" with regard to indigenous peoples and their rights.
Another Sub-Commission Expert Jose Bengoa agreed that the question of sovereignty of natural resources was a complex issue. It was also an issue of some urgency, he said, telling the Sub-Commission about the current 100 local conflicts in Latin America affecting indigenous peoples and their natural resources; particularly concerning minerals, oil, timber and marine resources. If there was no regulation - indigenous peoples would be faced by a real plundering of their natural resources, he warned.
During the discussion on human rights violations anywhere in the world, Sub-Commission Experts David Weissbrodt, Abdel Sattar, Emmanual Decaux, Chen Shiqui, El Hadji Guisse, and Soli Jehangir Sorabjee addressed the Sub-Commission on issues such as trafficking of women and girls; the difficulties faced by the Sub-Commission in assessing human rights violations and the need for Experts to avoid politicization and impartiality; concerns about repressive and discriminatory anti-terrorism measures and unilateral manipulation of humanitarian law; arms trafficking; and the worrying situation of human rights situations in Africa and the Middle East.
The representatives of the following non-governmental organizations also spoke: the Afro-Asian Peoples Solidarity Organization, the Indian Movement "Tupaj Amaru", the Indigenous World Association, Medicins du Monde, and the International Institute for Peace. They alleged violations of human rights and fundamental freedoms in many countries and regions in the world.
The Sub-Commission's Working Group on Transnational Corporations will meet this afternoon at 3 p.m. The Sub-Commission will reconvene in plenary at 10 a.m. on Thursday, 1 August to conclude its debate on violations of human rights anywhere in the world and to possibly start its consideration of its agenda item on the administration of justice.
Presentation of report on Prevention of Discrimination
The Sub-Commission briefly opened this agenda item to allow the presentation of a working paper (E/CN.4/Sub.2/2002/23) on indigenous peoples' permanent sovereignty over resources, written by former Sub-Commission Expert Erica-Irene Daes. The report states, among other things, that it is apparent that this basic principle of permanent sovereignty applies to indigenous peoples because such peoples are colonized peoples in the economic, political and historical sense; because they suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples; because the principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements; because such peoples have a right to development; and because the natural resources concerned originally belonged to the peoples concerned and were not freely and fairly given up. The working paper also offers a proposed outline for a study on the topic, should the Sub-Commission approve the proposal.
Statements
. ERICA-IRENE DAES, former Sub-Commission Expert and former Chairperson-Rapporteur of the Working Group on indigenous populations, introduced her working paper on Indigenous Peoples' Permanent Sovereignty over Natural Resources. Mrs. Daes said that in the decades after the Second World War, the principle of international law of permanent sovereignty over natural resources had become a central principle of decolonization and an essential aspect of self-determination. This principle was one that must now be applied to the world's indigenous peoples. Today, almost every State claimed for itself sovereignty over natural resources while denying this right, in whole or in part, to indigenous peoples. Peoples and nations must have the authority to control and enjoy the benefits of the development and conservation of their natural resources. In all, the United Nations had adopted more than 80 resolutions relating to the principle of permanent sovereignty over natural resources and the substance of the principle had been incorporated in the draft United Nations Declaration on the Rights of Indigenous Peoples. Unfortunately, this principle had not yet been duly analysed and expressly considered, in particular in the context of the rights of indigenous peoples.
It was apparent that this basic principle of permanent sovereignty over natural resources applied to indigenous peoples for many reasons including: indigenous peoples were colonized peoples in the economic, political and historical sense; they suffered from unfair and unequal economic arrangements; the principle was necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements; they had a right to development and sovereignty over their natural resources was a prerequisite for this; and the natural resources originally belonged to the indigenous peoples concerned and were not freely and fairly given up.
The principle of permanent sovereignty over natural resources must be thoroughly studied in all its aspects as it applied to indigenous peoples and the States in which they lived. In this connection, the following preliminary work plan had been proposed for the consideration by the Sub-Commission for a study entitled "Indigenous Peoples' Permanent Sovereignty over Natural Resources".
U.S SHARMA, of the Afro-Asian People's Solidarity Organization, said that since 1989, over 40,000 people had been killed in Jammu and Kashmir. For decades, Pakistan had sported an increasingly tattered fig leaf of deniability about the violence in Kashmir; it was significant, for example, that none of the groups such as Jamiat ul Mujahideen, the Al Badr, or the Hezb ul Mujahideen, all based in Pakistan with the primary mission of continuing the mayhem in Kashmir, had been banned. The Sub-Commission had always held that democracy and elections were the best instrument for allowing peoples to decide their destiny, and Jammu and Kashmir were once again about to embark on an electoral exercise, yet Pakistan objected, saying the Kashmiris did not want to participate in elections. Almost every day another Kashmiri Muslim politician or political activist was killed, with Pakistan-based groups claiming responsibility.
The civilized ethos of plural, secular democracy was anathema to the jehadi groups bred in Pakistan's madrassas; it was ironic that a country ruled by a military dictator should speak about the concepts of freedom and self-determination. The Sub-Commission must persuade the international community to ensure that the people of Jammu and Kashmir were given a chance to participate freely in the forthcoming elections without fear of being made targets of the jehadis' guns.
YOZO YOKOTA, Sub-Commission Expert, said Mrs. Daes' working paper marked another step in her efforts of over two decades to help indigenous peoples. He hoped she would continue to work on this latest topic, as it was important for indigenous peoples to be able to live with nature in their traditional ways. The exploitation of natural resources hurt them deeply when it clashed with their cultures and traditions. At the same time, he had to point out that the subject of permanent sovereignty over natural resources was very, very difficult politically and economically. "Sovereignty" in an international sense related to the powers of the State; States were understandably sensitive about allocation of sovereignty to groups smaller than the State. The matter would have to be approached delicately. Also, many of these natural resources had been contracted out for exploitation by transnational corporations, and the economic concerns involved were great. He was certain Mrs. Daes would take a balanced, careful approach to the topic, taking into account all actors concerned, although she had rightly placed at the centre the most important group involved -- indigenous peoples.
It might help not to use the word "sovereignty" in the end, opting instead for "ownership of" and/or "property of". "Sovereignty" had certain meanings in international law that could lead to difficulties. He also hoped the proposed study would focus on the matter of such natural resources as they related to indigenous peoples' right to development.
ASBJORN EIDE, Sub-Commission Expert, echoed Mr. Yokota's views, saying it was necessary to be cautious and recognize the differences between the concepts of decolonization and that of the rights of indigenous peoples. Indigenous peoples lived contiguously with other parts of the populations, and in some parts there was co-habitation. It was therefore a need to accommodate both indigenous and non-indigenous peoples in a solution. It was necessary to take the contextual situation and the modalities into account. In the northernmost county of Norway, Samis were predominant, but others also lived there. In this situation there was a common management of the area between the Samis and the non-Samis in the region. Mr. Eide reiterated that the concept or wording "sovereignty" might lead to complications in the pursuit of the study.
VLADIMIR KARTASHKIN, Sub-Commission Expert, said he regretted that he had had almost no time to study this interesting document. The issues set forth were worthy of attention and support, and he agreed that some were complex and related to delicate matters of international law. Particularly, sovereignty was complex. A balanced approach was needed to meet the needs of the sovereign rights of indigenous peoples and the sovereign rights of States. He also wondered about the difference in application of the principle of sovereignty and self-determination to indigenous peoples and colonized peoples. For indigenous peoples it was necessary to talk of "internal" self-determination -- self-determination within the confines of the existing State. The working paper also did not mention ILO Convention 169, which had things to say about indigenous peoples' ownership of resources.
JOSE BENGOA, Sub-Commission Expert, said it was a topical and important issue that had been presented by Mrs. Daes. In a study carried out last year on the indigenous conflict in Latin America, there were more than 100 conflicts about natural resources, particularly concerning minerals, oil, timber and marine resources. For Latin America, as well as other regions of the world, the study was essential. There were several complex and unresolved issues. If there was no regulation - a real plundering of natural resources would occur. In Latin America, indigenous peoples could see their natural lands being extracted and exploited without their permission or without any benefits for them. It was a fundamental issue for discussion and the study must be undertaken. Concerning the approach, Mr. Bengoa said that there were two processes of decolonialization, one being the classic decolonization process after the Second World War, and the other being the current situation with indigenous people. The distinction was necessary to address the situation in a constructive manner. Again, the choice of the word "sovereignty" might lead to difficulties unforeseen.
LAZARO PARY, of the Indian Movement "Tupaj Amaru", said permanent sovereignty over natural resources was being discussed at a crucial time. Today, entire communities and peoples were being evicted from their lands and deprived of their natural resources. For indigenous peoples, land was sacred; the "de-colonization process" had to take this into account. Political independence for indigenous peoples was not sufficient; there had to be economic independence. The predation by transnational corporations of indigenous peoples' resources had to be looked into -- economic globalization was going on unchecked, and privatization and neo-liberalism were costing indigenous peoples their sovereignty and their assets. The Russian Government, for example, was handing over to outside interests the natural resources of indigenous groups in northern Siberia.
RONALD BARNES, of the Indigenous World Association, said that it was important to distinguish between decolonization and indigenous peoples, however it needed to go further than that. Had there been any consent process in respective countries' Constitutions, he asked. He questioned whether the United States' actions towards the indigenous peoples of Alaska to do with title and dominion were justifiable. The study of Mrs. Daes needed to focus on the question of title and dominion, particularly in cases such as Alaska.
ERICA-IRENE DAES, former Sub-Commission Expert and former Chairperson-Rapporteur of the Working Group on indigenous populations, responding to the comments on her working paper, said she was grateful for the encouragement and suggestions that had been offered. She agreed with Mr. Yokota that the topic was complicated and difficult. It was therefore a fitting subject for the Sub-Commission; the Sub-Commission had made its reputation taking on difficult, sensitive, and important topics. Good work on the matter might help to defuse or avoid conflicts in various parts of the world. In elaborating her study, she assured the Sub-Commission that she would take into account relevant General Assembly resolutions, other UN activities, and relevant international instruments, including ILO Convention 169. The distinction between "internal" and "external" self-determination was vital, of course, and she would deal with the distinction in detail in her report, but in general indigenous peoples, in her experience, were interested in internal self-determination. They loved their countries, but they also wanted control over their lands and their lives. She hoped to avoid details involving particular countries in this study; she wanted to avoid political matters and to give the subject an impartial, balanced consideration based on accepted legal standards.
ALEXANDRE KAMAROTOS, of Medecins du Monde, said the last session of the Commission on Human Rights in April had failed to adopt the draft resolution on Chechnya. The human rights and humanitarian situation had not improved there, and new massive and systematic violations of human rights and of humanitarian international law had been reported. Medicins du Monde remained extremely worried by scenes of daily violence. It was the serious violations of human rights which stifled any attempt to break the vicious circle of impunity. The direct result of this continuing violence was that a large number of civilians had crossed the border into the neighbouring republic of Ingushetia where some 150,000 Chechen refugees were still living in camps or with host families. The Russian authorities together with the Ingush and Chechen administrations had established a 20-point plan for the resettlement of the displaced living in Ingushetia. This plan, which was to take place from September, had claimed it would take place on a voluntary basis. However, alerting information from the field seemed to put into question the voluntary basis of the return. Medicins du Monde drew the attention of the Sub-Commission to the plight of the internally displaced people in the region and requested that human rights violations must stop before any resettlement of internally displaced people was envisaged.
DAVID WEISSBRODT, Sub-Commission Expert, said conservative estimates indicated that 700,000 to 2 million people were trafficked each year against their will. He was addressing this issue under item 2 of the agenda because it had not been given enough attention for what it was: a gross violation of human rights and fundamental freedoms. Girls as young as 7 years of age were being coerced into prostitution because of the demand for young girls by male customers who feared they would be infected with HIV/AIDS by older prostitutes. Some 5,000 to 10,000 girls and women were trafficked from Nepal into India each year, primarily for sex work but also for domestic servitude. Advocates for the victims reported that vulnerability to trafficking was rooted in structural, social and economic inequalities. NGOs reported that authorities in India and Nepal were taking steps to bring criminal proceedings against traffickers and to repatriate and support the social re-integration of the victims. He hoped the two Governments would continue to report to the Sub-Commission on their progress in combatting trafficking.
Another situation that had received significant attention was the trafficking of Nigerian women and girls into European countries, especially Italy. NGOs estimated that more than 30,000 Nigerian women and girls were prostitutes in Italy. The Nigerian and Italian Governments had recently taken several steps to address this deadly trafficking pattern, and one concern was that the network of criminal activities was widening as a result to neighbouring countries in West Africa. Nigeria was encouraged to take regional leadership on this issue.
Since the Cold War, Mr. Weissbrodt said, Central and Eastern Europe also had become major crossroads for commercial sex trafficking. Trafficking had even taken place in the areas where the United Nations was charged with civilian policing. A US company called DynCorp which was under contract to provide support services to SFOR in Bosnia had been found to have aided in the trafficking of women.
In the Middle East, children as young as four years old were being trafficked into the Gulf States and forced to be jockeys for camel racing, an extremely dangerous activity; young boys were strapped onto the backs of the camels, and many slipped off and were trampled or dragged behind, causing severe injuries and even death.
Many efforts had been made to combat trafficking, but despite this activity, problems of policy and enforcement remained. The principles and guidelines of the High Commissioner for Human Rights on combatting trafficking should be consulted and acted on by Governments and NGOs.
ABDEL SATTAR, Sub-Commission Expert, said the innovative ideas of the Sub-Commission during the last few years had earned it high tribute in the human rights environment, including with the High Commissioner for Human Rights. Human rights organizations had informed the Sub-Commission members about several areas where police officials were repressing people under their control. Armed soldiers were often subjecting local people to intimidation and harassment. Everyone had seen on the news the bodies of innocent civilians having been shot or bombed. This practice was often referred to as "collateral damage" - a perverse propagandistic twist on reality. Self-determination was recognized as a fundamental right, and the term "separatist" was an unacceptable word to describe those who fought for a land whose future was still undetermined. In this context, desperate acts of suicide-attacks were condemned. However, such acts must not allow a state to engage in disproportionate reprisals harming and violating the human rights of civilians. The Sub-Commission was reminded of the saying "One man's freedom-fighter is another man's terrorist". Mr. Sattar said that the police and military forces must not be used to violate human rights. Even though the Sub-Commission was not authorized to pass resolutions on specific country situations, it was important to make the Sub-Commission more than an audience to human rights violations. The Sub-Commission must be strengthened to discourage specific countries from engaging in systematic human rights violations.
EMMANUEL DECAUX, Sub-Commission Expert, said the Sub-Commission's task was to protect human rights -- all human rights. Its competence was broad, which amounted to a constant challenge. The Sub-Commission had been asked not to adopt resolutions on specific country situations or even to introduce specific references to countries into its thematic resolutions. This was a shame. Other subsidiary bodies could take up specific cases. The Commission on Human Rights also had asked the Sub-Commission to pay particular attention to input from NGOs. In various ways, the group must remain a watchdog on human rights, and its Experts must, when it was vital, call attention to specific situations. There was a hunger strike being waged in Tunis for more than 35 days by the lawyer Radhia Nasraoui, for example. A gesture of clemency by the authorities would greatly enhance their image in the eyes of all friends of Tunisia.
There had been a decline in the human rights situation over the past year, Mr. Decaux said; the 11 September terrorist attacks, for example, had caused immense damage. The response had to be vigorous and effective, but legal and human rights standards had to be respected. It was vital that a new "McCarthyism" not appear in the United States. It was possible to combat terrorism while fully respecting rights and freedoms, as had been demonstrated by the European legal apparatus. Rather than attacking the fragile edifice of international human rights law, the war against terrorism should bolster it. Among other things there should be greater support for the newly founded International Criminal Court. Unfortunately, the United States was attempting to weaken the Court. There also was a great danger that in the shock following 11 September, the war against terrorism would become the sole priority of the diplomatic agenda. An anti-terrorist coalition that placed geopolitical matters above the rights of individuals and peoples could justify the obsession of some authoritarian regimes with security and brutal repression. The true work of the world remained that of helping each State to promote democracy, development, and human rights.
CHEN SHIQIU, Sub-Commission Expert, said he had listened attentively to the statements by different Experts who had spoken before him on this item. Reviewing the history of the United Nations human rights body's examination of country situations, one could see that different approaches would result in different consequences. During the Cold War political confrontations and conflicts between different interest groups had had a negative impact on United Nation human rights activities. Finger-pointing attacks had poisoned the atmosphere of cooperation between countries. Under those circumstances, activities of the United Nations human rights mechanisms including the Sub-Commission had been disturbed and distorted. The Cold War concept of the past was losing ground. Meanwhile, the Sub-Commission was still holding discussions on country situations and expressing views on the human rights issues of specific countries. It was vital that these views be expressed in conformity with the principle of justice, objectivity, and sticking to reality while avoiding subjectivity and prejudice. Besides country situations, there were also agenda items like administration of justice; economic, social and cultural rights; and prevention of discrimination. How to assess a country's human rights situation was a sensitive and complex issue. It depended on the full understanding of all nations' specific history and reality. Mr. Chen shared the view that the Sub-Commission must be prudent in the examination of country situations.
EL HADJI GUISSE, Sub-Commission Expert, said that in places where conflicts were occurring, even in covert form, human rights violations were rife. There had been massacres, deprivation, torture, and other scourges that had spared no one. Such tensions had to be defused in the interests of all. The attacks of 11 September, the violent clashes between Israel and Palestine, between Indian and Pakistan, in Latin America and in Africa were vivid examples of the costs of conflict. Following 11 September, all should review their policies and politics in this disturbed world.
Numerous conflicts had broken out in Africa. The conflicts in the general area of the Congo and in Sudan had claimed 2 million lives each. There must be a way to defuse such time bombs, wherever they existed in Africa. In Rwanda, the United Nations had been aware of the potential genocide, and on the eve of the atrocity it had withdrawn its forces and had allowed Africans to slaughter each other. That only reminded everyone how fragile the UN was when it came to managing this notion all aspired to -- peace. One wondered whether the United Nations would have acted in a similar way on another continent? Would it have withdrawn its forces if white people had been involved, if white people had been on the verge of killing each other? Did not the United Nations have an attitude tinged with racism when looking at the Rwandan conflict? He left his query there, and left all to do some soul-searching on the matter.
He also was concerned with arms trafficking to Africa from countries in the north, Mr. Guisse said. Someone had to answer for arms trafficking and illicit arms sales. Somehow, blame never got attached, justice never was served. Today, someone whose name he would not reveal had invoked immunity before the European Parliament in order not to discuss arms trafficking to Angola that had been responsible for the deaths of thousands of women and children. He did not think immunity was appropriate in such cases. Nor should mercenaries be immune to consequences for their acts, nor should Presidents of countries who sought or claimed immunity be given it. Recently, the rising power of the private sector and of transnational corporations had created extreme tensions in Africa. Private firms had achieved the virtual force of States without the attendant responsibilities. Companies, too should be held responsible for human rights abuses, and there should be a mandatory code of conduct for such enterprises.
SOLI JEHANGIR SORABJEE, Sub-Commission Expert, said Mr. Weissbrodt's statement portrayed a chilling image of human kind. Mr. Sorabjee told the Sub-Commission that the root case for trafficking was poverty and the lack of law enforcement. The lack of law enforcement was due to vested interests and corruption. All those even slightly implicated in trafficking must be punished. In this context, prostitution must not be legalized. How could one talk about the terrible act of trafficking of women and girls and at the same time advocate the legalization of prostitution, he asked.
Terrorism could not be justified and the end did not justify the means. This also included actions of States in combatting terrorism. No one must be subjected to cruel and degrading treatment, not even captured terrorists. It was a question of proportionality and balance. The role of the Sub-Commission was that of an advisory body on general human rights principles, without being judgmental or being involved in name-calling.
PANKAJ BHAN, of the International Institute for Peace, said successive military regimes had not only prevented democracy from taking root in Pakistan but had manipulated the country's institutions so that military power was perpetuated. The cities and streets of the country swarmed with armed groups professing an ideology of armed destruction, and they thrived because their agenda coincided with that of the rulers of Pakistan. Pakistan continued to award the death sentence to Christians and others under its blasphemy law. The Ahmidiyas of Pakistan had long been treated as non-citizens, in fact as non-human beings. The Pakistani Army's rationale was that the myriad armed groups mushrooming in Pakistan would one day allow it to wrest Jammu and Kashmir away from India. But while pretending to champion the rights of Kashmiris, the leadership of Pakistan denied the basic democratic rights of the people of its northern areas.
The danger from the manner in which Pakistan was evolving did not threaten only Pakistanis -- as investigations after 11 September had shown, perpetrators of violence in different countries were at one time present in the religious seminaries and terrorist training camps of Pakistan. The international community must insist that assistance to Pakistan be conditional on dismantling such structures of violence.


* *** *