Acting High Commissioner: Addressing the Legacies of Colonialism Can Contribute to Overcoming Inequalities Within and Among States and Sustainable Development Challenges of the Twenty-First Century

Human Rights Council Begins Interactive Dialogue with the Special Rapporteur on the Rights of Indigenous Peoples, Concludes Interactive Dialogue with the Expert Mechanism on the Rights of Indigenous Peoples

 

The Human Rights Council this afternoon held a panel discussion on the negative impact of the legacies of colonialism on the enjoyment of human rights, hearing the Acting High Commissioner for Human Rights, Nada Al-Nashif, say that addressing the legacies of colonialism can contribute to overcoming inequalities within and among States and sustainable development challenges of the twenty-first century. 

The Council also began an interactive dialogue with the Special Rapporteur on the rights of indigenous peoples and concluded its interactive dialogue with the Expert Mechanism on the Rights of Indigenous People.

Ms. Al-Nashif, in a key-note statement to the panel discussion, said that as recognised by States through the adoption of the Durban Declaration and Programme of Action in 2001, colonialism had led to racism, racial discrimination, xenophobia and related intolerance.  Individual States had also recognised that Africans and people of African descent, people of Asian descent, as well as indigenous peoples were victims of colonialism, and of its consequences.
No State had comprehensively accounted for the past or for the ongoing impacts of systemic racism.  Addressing the legacies of colonialism could contribute to overcoming inequalities within and among States and sustainable development challenges of the twenty-first century. 

Verene Shepherd, Chair of the Committee on the Elimination of Racial Discrimination, also in a key-note statement to the panel discussion, said political independence and decolonisation efforts had not meant the end of colonialism, and the extent to which former colonies had been able to enjoy socio-economic rights had been hampered by the lingering legacies of colonialism, especially the ideology of white supremacy.  It was time for former colonial powers to own up to the wrongs of the past and engage in a conversation with former colonies.

The moderator and the panellists in the panel discussion on the negative impact of the legacies of colonialism on the enjoyment of human rights were E. Tendayi Achiume, Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance; José Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples; Mihir Kanade, Chair of the Expert Mechanism on the Right to Development; and Fabian Salvioli, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition.

E. Tendayi Achiume, Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance, said that some of the most entrenched forms of systemic racism were the result of continuing legacies of slavery and colonialism.  There could be no real way out of the most pressing global crises without meaningfully addressing the legacies of colonialism.  There could be no climate justice without racial justice and without accounting for entrenched colonial legacies.

José Francisco Calí Tzay, Special Rapporteur on the rights of indigenous peoples, said to address the root causes of the negative impact of the legacies of colonialism on the enjoyment of the human rights of indigenous peoples, there was a need to recognise indigenous peoples’ right to self-determination.  The negative impact of colonialism had resulted in systemic racism, cyclical poverty, economic inequity, violence, loss of language and culture, and an enormous number of missing and murdered indigenous women and girls.

Mihir Kanade, Chair of the Expert Mechanism on the Right to Development, said the ideological and normative opposition to the very core principles of the right to development by many former colonial powers was a reflection of the continuing negative legacy of colonialism. The right to development was the answer to the continuing negative legacies of colonialism.

Fabian Salvioli, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition, said the colonial transfer of wealth and racist oppression had created a legacy of social, economic, and cultural exclusion whose effects had been felt for generations.  The duty to provide effective remedies to victims, ensure accountability, and to provide reparation to victims was incumbent on the former colonising power.

In the ensuing discussion, speakers said the weight of recent colonial enterprises was still being carried today, predominantly by the people of the Global South.  There was an intrinsic link between colonialism and racism, racial discrimination, xenophobia and related intolerance.  Colonialism was an unjustifiable evil that violated human rights and impeded their full enjoyment.  Combatting racism and racial discrimination meant acknowledging and addressing the legacy of past transgressions.  Many countries suffered from historical inequities that, decades and even centuries later, still cast long shadows over the present day.  All parties should commit to addressing the negative legacies of colonialism as a precondition to achieving sustainable development.  This was required to promote the enjoyment of human rights, including the right to development.

The Council also started an interactive dialogue with Mr. Calí Tzay, Special Rapporteur on the rights of indigenous peoples, who said he continued to receive reports regarding violations of indigenous peoples’ rights from around the world, including in the context of conservation measures and in relation to development projects, restrictions on the rights to freedom of expression and assembly, and attacks against indigenous human rights defenders. 

Speaking on his report, he said indigenous women were custodians of vital knowledge spanning across diverse realms, including food and agriculture, health and medicine, natural resource management, and spiritual practices.  Indigenous women’s knowledge was critical to maintaining cultural identity; managing the risks and impacts of climate change; protecting biodiversity; achieving sustainable development; and building resilience in the face of pandemics.  Indigenous languages were disappearing at a critical rate and indigenous women urgently called for indigenous language education programmes to be developed, to support intergenerational knowledge transmission. 

He spoke about his visit to Costa Rica.  Costa Rica spoke as a country concerned. 

The Council will hold the discussion with the Special Rapporteur on the rights of indigenous peoples on Thursday, 29 September, at 10 a.m.

At the beginning of the meeting, the Council concluded its interactive dialogue with the Expert Mechanism on the Rights of Indigenous Peoples.

Binota Moy Dhamai, Chair of the Expert Mechanism on the Rights of Indigenous Peoples, in concluding remarks, said the study on treaties and indigenous peoples recognised the rights of indigenous persons.  He thanked Member States and representatives for their dialogue and continued cooperation with the Expert Mechanism while it carried out its mandate.  Indigenous peoples had faced additional challenges during the last two years. 

Federico Villegas, President of the Human Rights Council, said he regretted having to raise before this Council an unacceptable situation involving a member of the Expert Mechanism on the Rights of Indigenous Peoples, namely Anexa Alfred Cuningham.  Ms. Alfred Cunningham, a Nicaraguan citizen, had travelled in July from Nicaragua to Geneva on her first official mission to participate in the fifteenth session of the Expert Mechanism.  Following the session, Ms. Alfred Cunningham was barred from boarding her return flight to Nicaragua as a result of the Government of Nicaragua’s stipulation that her entry into the country would be refused.  The President had requested clarification of the situation as well as the cooperation of the Government of Nicaragua in rectifying the matter numerous times, however, he had never received a response or the Government’s assurances that Ms. Alfred Cunningham would be able to return to Nicaragua.  To this day, Ms. Alfred Cunningham had not been able to return home. 

In the discussion with the Expert Mechanism on the Rights of Indigenous Peoples, speakers said there were many parts of the world where indigenous peoples suffered from discrimination, including with regard to their civil and political rights.  These countries were urged to speed up the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, among making other improvements to their infrastructures and administrations.  The Council should continue to facilitate, in consultation with indigenous peoples, their presence and participation in the work of its mechanisms, and throughout the work of the United Nations, as it was only when they had adequate presence and participation in public matters, both national and international, that the United Nations Charter would be fully implemented. 

Speaking on the panel discussion on the negative impact of the legacies of colonialism on the enjoyment of human rights were Barbados on behalf of a group of countries, Côte d’Ivoire on behalf of a group of African States, European Union, Palestine, Syria, Mauritius, China, Armenia, Ukraine, Venezuela, Switzerland, South Africa, Russia, Pakistan, Togo, Iran, Cuba, Ethiopia, United States, Bolivia, Malawi, Tunisia, Indonesia, and Malaysia.

Also speaking were International Lesbian and Gay Association, American Civil Liberties Union, Action Canada for Population and Development, Rencontre Africaine pour la defense des droits de l'homme, Penal Reform International, and Associazione Comunita Papa Giovanni XXIII.

Speaking in the interactive dialogue with the Expert Mechanism on the Rights of Indigenous Persons were Russia, China, Peru, United States, Bolivia, United Nations Educational, Scientific and Cultural Organization, Malawi, Philippines, Ukraine, and Iran.

Also speaking were Genève pour les droits de l’homme: formation internationale, Palestinian Initiative for the Promotion of Global Dialogue and Democracy, Non c'è pace senza giustizia, GIN SSOGIE NPC, Conselho Indigenista Missionário CIMI,  Associazione Comunita Papa Giovanni XXIII, Peace Brigades International, Conectas Direitos Humanos, Meezaan Center for Human Rights, and Prahar.

The webcast of the Human Rights Council meetings can be found here.  All meeting summaries can be found here.  Documents and reports related to the Human Rights Council’s fifty-first regular session can be found here.

The Council will next meet at 10 a.m. on Thursday, 29 September 2022, when it will conclude its interactive dialogue with the Special Rapporteur on the rights of indigenous peoples.  It will then hold an interactive dialogue with the Advisory Committee, followed by an interactive dialogue on the Secretary-General’s report on reprisals.

Interactive Dialogue with the Expert Mechanism on the Rights of Indigenous Peoples

The interactive dialogue with the Expert Mechanism on the Rights of Indigenous Peoples started in the previous meeting and a summary can be found here.

Discussion

In the continuing discussion, some speakers said the report covered treaties and other agreements with indigenous peoples, including in the context of self-determination, and this was an internal right, allowing indigenous peoples to self-govern within the context of a State.  The report also focused on constructive arrangements in countries with indigenous populations.  It contained important conclusions.  Some speakers said indigenous languages played a central role, and they were in a critical situation - global efforts to shore them up needed to continue in order to provide an international framework for inclusion and multi-stakeholder investment.  This would ensure that all peoples had the right and freedom to use their chosen languages, as this was an essential element for the community and sustainable development, allowing to maintain peace and safeguard traditional knowledge, and supporting societies.

There were many parts of the world where indigenous peoples suffered from discrimination, including with regard to their civil and political rights, some speakers said, and countries were urged to speed up the implementation of the United Nations Declaration on the Rights of Indigenous Peoples, among making other improvements to their infrastructures and administrations.  The Council should continue to facilitate, in consultation with indigenous peoples, their presence and participation in the work of its mechanisms, and throughout the work of the United Nations, as it was only when they had adequate presence and participation in public matters, both nationally and internationally, that the United Nations Charter would be fully implemented.  The Human Rights Council should continue to listen to the voices of indigenous peoples, especially when the matter concerned them.

The Expert Mechanism on the Rights of Indigenous Peoples and the Board of Trustees of the United Nations Voluntary Fund for Indigenous Populations were encouraged to continue to collaborate with other mechanisms of the United Nations’ system, which would enhance all efforts in supporting the rights of indigenous peoples.  Constructive arrangements and constitutional recognition were essential in achieving the goals of the United Nations Declaration on the Rights of Indigenous Peoples.  The Expert Mechanism should pay close attention and react to violations, including in Ukraine, and continue to promote and protect the rights of indigenous peoples.  The United Nations should listen to the voices of indigenous children who experienced violence, and the practical actions of the United Nations should reach as far as those who experienced violence, including women and men.  Indigenous peoples were not a threat to economic development - all they wanted was to live in peace.  The Human Rights Council should also consider the diverse discriminations suffered by indigenous peoples of diverse sexual and gender orientation.

Concluding Remarks

BINOTA MOY DHAMAI, Chair of the Expert Mechanism on the Rights of Indigenous Peoples, said the study on treaties and indigenous peoples recognised the rights of indigenous persons.  The Expert Mechanism had followed with concern the situation of fellow expert Anexa Alfred Cunningham, who had been unable to return to her home country of Nicaragua.  All experts had been regularly briefed on her situation and would continue to take appropriate actions, as well as liaising with the Human Rights Council as needed.  Mr. Dhamai thanked Member States and representatives for their dialogue and continued cooperation with the Expert Mechanism while it carried out its mandate.  Indigenous peoples had faced additional challenges during the last two years.  The Expert Mechanism was a valuable tool, and the interactive dialogue provided a space for indigenous people and Member States to discuss the way forward.  It was hoped that all stakeholders would take advantage of the study to determine the practical tools which could be implemented on the ground. 

Statement by the President of the Human Rights Council

FEDERICO VILLEGAS, President of the Human Rights Council, said he regretted having to raise before this Council an unacceptable situation involving a member of the Expert Mechanism on the Rights of Indigenous Peoples, namely Anexa Alfred Cuningham.  Ms. Alfred Cunningham, a Nicaraguan citizen, was appointed by the Council as a member of the Expert Mechanism from Central and South America in April of this year.  In July, she travelled from Nicaragua to Geneva on her first official mission to participate in the fifteenth session of the Expert Mechanism.  Following the session, Ms. Alfred Cunningham was barred from boarding her return flight to Nicaragua as a result of the Government of Nicaragua’s stipulation that her entry into the country would be refused.

The President had requested clarification of the situation as well as the cooperation of the Government of Nicaragua in rectifying the matter numerous times, however, he had never received a response or the Government’s assurances that Ms. Alfred Cunningham would be able to return to Nicaragua.  To this day, Ms. Alfred Cunningham had not been able to return home.  Nicaragua’s denial of Ms. Alfred Cunningham’s return to her country without explanation indicated an act of reprisal for her participation in the session of the Expert Mechanism and was completely unacceptable.  She was a member of a Council mechanism and was appointed to this position by the Council.  And now she was unable to go home because of her work carrying out a mandate that the Council gave to her.  The President called on Nicaragua to rectify this situation immediately, and reminded all members and observers of this Council of the importance of respecting the rights of the individuals that it appointed.

Interactive Dialogue with the Special Rapporteur on the Rights of Indigenous Peoples

Reports

The Council has before it the report (A/HRC/51/28) by the Special Rapporteur on the rights of indigenous peoples, José Francisco Cali Tzay, addressing indigenous women and the development, application, preservation and transmission of scientific knowledge, and on his visit to Costa Rica (A/HRC/51/28/Add.1).

Presentation of Reports

JOSÉ FRANCISCO CALÍ TZAY, Special Rapporteur on the rights of indigenous peoples, said indigenous women were custodians of vital knowledge spanning across diverse realms, including food and agriculture, health and medicine, natural resource management, and spiritual practices.  Indigenous women’s knowledge was critical to maintaining cultural identity; managing the risks and impacts of climate change; protecting biodiversity; achieving sustainable development; and building resilience in the face of pandemics.  Indigenous languages were disappearing at a critical rate and indigenous women urgently called for indigenous language education programmes to be developed, to support intergenerational knowledge transmission.  One of the main concerns shared by indigenous women related to the lack of legal protection and intellectual property rights over their knowledge.  In some cases, indigenous knowledge of plants had been misappropriated by pharmaceutical or agricultural companies without permission and with no remuneration for the indigenous knowledge owners. 

During the first official visit to Costa Rica in December 2021, the Special Rapporteur had observed significant discrimination and poverty suffered by indigenous peoples, which impacted their access to justice, education, health, and political participation.  Mr. Calí Tzay expressed concern about the attacks on indigenous leaders for defending their lands, and called on the Government of Costa Rica to ensure a constructive dialogue with indigenous peoples to resolve land rights concerns.  He welcomed that the Government had adopted a consultation mechanism that sought to conform to international human rights standards, and called on the legislation and judiciary to adopt their own mechanisms. 

During the past year, Mr. Calí Tzay said he had continued to receive reports regarding violations of indigenous peoples’ rights from around the world, including in the context of conservation measures and in relation to development projects, restrictions on the rights to freedom of expression and assembly, and attacks against indigenous human rights defenders.  Mr. Calí Tzay hoped to undertake visits to several countries during his mandate period, including Tanzania, Chad, Namibia, Canada, Thailand, and Argentina, and to conclude visits previously initiated to Denmark and Greenland.

Statement by Country Concerned

Costa Rica, speaking as a country concerned, said Costa Rica thanked the Special Rapporteur for his report and the official visit, and the valuable work done with national institutions, civil society, and indigenous institutions.  The report contained an analysis of the legal framework for the protection of indigenous peoples.  Costa Rica reaffirmed its unwavering commitment to the protection of all under its jurisdiction, and their exercise of their human rights, without discrimination.  Costa Rica worked to eliminate discrimination, and had accepted and analysed international recommendations, strengthening mechanisms for dialogue and interaction with indigenous peoples, leading to a better understanding of the impediments to their socio-economic development and exercise of their rights.  Their land rights should be respected, as one of the main causes of violence was the lack of certainty in the property system. 

The bedrock of the identity of indigenous peoples was nourished through their unique ties to their indigenous lands.  Costa Rica had made progress with respect to the recovery of indigenous lands, and had filed formal cases, undergoing due process and ensuring continuing recovery.  On the protection of indigenous human rights defenders, Costa Rica was committed to their protection, as their role was essential to building a democratic society, and they should be able to carry out their work freely and in full security.  Costa Rica was committed to the mechanisms of the Council as this was key to ensuring the full protection and promotion of all human rights for all people.

Panel Discussion on the Negative Impact of the Legacies of Colonialism on the Enjoyment of Human Rights 

Key-note Statements

NADA AL-NASHIF, Acting United Nations High Commissioner for Human Rights, said since the United Nations came into existence, more than 80 former colonies comprising some 750 million people had gained independence. Nonetheless, the process of decolonisation remained incomplete.  The right of self-determination was an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights.  As recognised by States through the adoption of the Durban Declaration and Programme of Action in 2001, colonialism had led to racism, racial discrimination, xenophobia and related intolerance.  Individual States had also recognised that Africans and people of African descent, people of Asian descent, as well as indigenous peoples were victims of colonialism, and of its consequences.

Systemic racism against Africans and people of African descent persisted in large part due to misconceptions that the abolition of slavery, the end of the transatlantic trade in enslaved Africans and colonialism, and measures taken by States to date, had removed the racially discriminatory structures built by those practices and created equal societies.  In fact, no State had comprehensively accounted for the past or for the ongoing impacts of systemic racism.  Addressing the legacies of colonialism could contribute to overcoming inequalities within and among States and sustainable development challenges of the twenty-first century.  Existing recommendations by United Nations and regional human rights mechanisms, as well as political commitments contained in the Durban Declaration and Programme of Action, along with legal obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, could help address the negative impact of such legacies on human rights and reparatory justice.

VERENE SHEPHERD, Chair of the Committee on the Elimination of Racial Discrimination, said that the Convention on the Elimination of Racial Discrimination condemned colonialism and all practices of segregation and discrimination associated with them.  In resolution 48/7, the Council recalled the Declaration on the Granting of Independence to Colonial Countries and Peoples and acknowledged that the period 2021-2030 was the Fourth International Decade for the Eradication of Colonialism designated by the General Assembly.  Before and since 1960, many former colonies had achieved independence, leaving only the 17 covered by the Convention and those called overseas departments or overseas territories. 

However, political independence and decolonisation efforts had not meant the end of colonialism.  Decolonisation gave ex-colonies freedom of action, but seldom the opportunity to exploit it to full advantage.  Economic decolonisation did not necessarily accompany political decolonisation, especially in the Global South.  Therefore, the extent to which former colonies had been able to enjoy socio-economic rights had been hampered by the lingering legacies of colonialism, especially the ideology of white supremacy.  Today the effects of colonialism had manifested in environmental degradation which had led to climate change.  Economic underdevelopment and racial discrimination were expressed in racial profiling.  There was systemic racism and poor social infrastructure, which had manifested in unequal access to healthcare, education, and justice.  These contemporary socio-economic problems were not unconnected to the past; the legacies of colonialism ran deep and were rooted in historical injustices. 

Ms. Shepherd said the Durban Declaration and Programme of Action was a profound milestone in articulating the harms of colonialism, and emphasised the structural forms of racism and racial discrimination which required urgent attention, especially for people of African descent, people of Asian descent and indigenous peoples who were victims of colonialism and continued to be victims of its consequences.  It was time for former colonial powers to own up to the wrongs of the past and engage in a conversation with former colonies. 

Statements by the Moderator and the Panellists

E. TENDAYI ACHIUME, Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance and moderator of the panel discussion, said the negative impact of the legacies of colonialism on the enjoyment of human rights today was utterly breath taking.  Some of the most entrenched forms of systemic racism were the result of continuing legacies of slavery and colonialism.  At least one legacy of colonialism was a world where race and ethnicity, for many, determined whether or not they enjoyed fundamental human rights.  The global order was confronted today by crises of many kinds: the COVID-19 pandemic was not over; economic and financial crises were, at best, on the horizon; and at a fundamental level, human existence on this planet was profoundly threatened by the ecological crisis. 

There could be no question that the outlook was grim.  There could be no real way out of the most pressing global crises without meaningfully addressing the legacies of colonialism.  It really was that simple.  The climate and broader ecological crises being confronted illustrated this point.  There could be no climate justice without racial justice.  And indeed, there could be no resolution to the climate emergency that did not account for entrenched colonial legacies.  The issues that would be under discussion today required urgent action.  Failure to address colonial legacies, especially by former and contemporary colonial powers, was an important part of the global crises.  The responsibility lay with all, especially those who represented nations that in the past and the present benefitted astronomically from colonialism, to take the action required for a just future.

JOSÉ FRANCISCO CALÍ TZAY, Special Rapporteur on the rights of indigenous peoples, said that indigenous peoples enjoyed a special status that uniquely entitled them to a vast range of collective rights, such as the right to self-determination, land, territory, resources, and consent.  Recognising these rights required the need to redress past wrongdoing due to colonial history and to accommodate indigenous political, cultural, and social specificities within democratic societies.  These rights were enshrined in several international instruments.  To address the root causes of the negative impact of the legacies of colonialism on the enjoyment of the human rights of indigenous peoples, there was a need to recognise indigenous peoples’ right to self-determination, which did not pose a danger to the unity and integrity of the State.  On the contrary, the right to self-determination was a central element for collective redress for the historical and systematic violations of the human rights of indigenous peoples; it needed to be understood as the basis for dialogue for the construction of a new relationship between indigenous peoples and States. 

It was paramount that States implemented the rights established in the United Nations Declaration on the Rights of Indigenous Peoples, including indigenous peoples’ right to maintain their distinct political, legal, economic, social, and cultural institutions while retaining their right to participate fully in the life of the State.  The negative impact of colonialism had resulted in systemic racism, cyclical poverty, economic inequity, violence, loss of language and culture, and an enormous number of missing and murdered indigenous women and girls.  It was crucial to take concrete steps to address the negative legacies of colonialism.  States could do so by creating effective means of redress for indigenous peoples, and by eliminating violence and discrimination against indigenous women and girls.  Working together, the negative legacies of colonialism could be addressed so that indigenous peoples’ rights were secured for generations to come. 

MIHIR KANADE, Chair of the Expert Mechanism on the Right to Development, said the right to development emerged as an attempt by the Global South to fill the gaping holes in the international human rights framework that focused mostly on the need for an enabling national environment but not also on an enabling international environment.  Despite the reaffirmation of the right to development unanimously by States in over 25 international resolutions and declarations, as well as in the binding Paris Climate Agreement, its non-operationalisation for over 35 years was also the direct result of the continuing legacies of colonialism.  The ideological and normative opposition to the very core principles of the right to development by many former colonial powers was a reflection of the continuing negative legacy of colonialism.

The right to development was one of the most important human rights emerging from the Global South that was firmly based on the lived experiences of those that continued to face obstacles to the realisation of their self-determined development. Moving forward, it was clear that operationalising the right to development was one important way to address the negative impacts of the legacies of colonialism.  A legally binding instrument would go a long way in operationalising this right.  The right to development was the answer to the continuing negative legacies of colonialism and not only must the right be affirmed, but the international community must also take the steps which would enable this right to become a reality, and build a new system, based not only on the theoretical affirmation but on the actual enjoyment of these rights in addressing the negative impacts of the legacies of colonialism.

FABIAN SALVIOLI, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition, said the colonial transfer of wealth and racist oppression had created a legacy of social, economic, and cultural exclusion whose effects had been felt for generations.  To address the deeper causes of colonial violence, structural violence and systemic exclusion in the economic, political and social spheres, mechanisms that were typical of a transitional justice process could be used, such as: truth commissions, reparations programmes and, public apologies, to name a few.  The legacy of human rights violations arising from colonialism could be examined in the context of settler States, and in situations where former colonies were now independent States.  In the first example, settlers who came and settled in new territories appropriated the land and resources of the indigenous peoples, displacing and dispossessing them.  In both cases the violations had clear consequences.  When the transition processes adopted in these contexts did not seek to reverse the situation of domination that colonised peoples still suffered, they failed.  However, the components of transitional justice could offer important contributions in this regard, such as acknowledgment of responsibility and public apologies; individual and collective reparation; and the memorialisation and restoration of the dignity of the victims. 

The second category brought together the contexts in which the colonial empire retreated, but the power structures and the marginalisation of certain ethnic groups continued.  The transitional justice measures established in this context required a conversation between the former colonising power and the former colony.  In both cases, as two States were involved, there were obligations and expectations to respond to past or ongoing violations of rights that meant a commitment for both parties.  The duty to provide effective remedies to victims, ensure accountability, and to provide reparation to victims was incumbent on the former colonising power.  It was essential that a cultural change be generated from the recognition and holistic approach to human rights violations committed during the colonial past; this would be a key tool to prevent and adequately address contemporary discrimination and racism.

E. TENDAYI ACHIUME, Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance and moderator of the panel discussion, said the speakers had drawn the attention of all to the fact that violations of the right to self-determination were clearly legacies of colonialism.  A debt was owed that must be repaid - and transitional justice could play a role in addressing reparations in post-colonial societies.  There could be no excuses on the parts of Member States as to what actions were required.

Discussion

In the ensuing discussion, speakers said that the weight of recent colonial enterprises was still carried today, predominantly by the people of the Global South.  Historical legacies of colonialism, and the trade and trafficking in enslaved Africans, continued to drive the systemic racism that defined critical aspects of the modern global economy and daily dictated many aspects of their life, including systematic racism, economic exploitation, and negative relationships between States.  The impact of these phenomena on the implementation of human rights should be recognised.  There was an intrinsic link between colonialism and racism, racial discrimination, xenophobia and related intolerance.  Colonialism was an unjustifiable evil that violated human rights and impeded their full enjoyment.

The enduring impact of colonialism was captured in the phrase “persistent poverty”. Combatting racism and racial discrimination meant acknowledging and addressing the legacy of past transgressions.  Many countries suffered from historical inequities that, decades and even centuries later, still cast long shadows over the present day.   Slavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity.  Conversations about the past could open doors and help find ways to grasp with these past injustices.  They could provide opportunities to pay tribute and to reflect on the sacrifices and the loss.  The legacies of colonialism continued to impact indigenous peoples, expressed in increased poverty, systemic marginalisation and inhibited access to justice.

At the international level, the legacies of colonialism had also negatively impacted transnational economic opportunities for individuals, organizations and States.  A realistic approach to reparations should be adopted, with States shouldering their historical responsibilities, addressing reparations, and at least apologising to those peoples whom they had colonised and exploited.  Overcoming the practices of colonialism was certainly one of the undeniable achievements of the last century. Today, most of the world had definitively agreed on leaving behind those times when territorial conquest was the norm, when strong nations could impose their will on the weak ones, when individuals could be oppressed on the basis of belonging to particular communities.  All parties should commit to addressing the negative legacies of colonialism as a precondition to achieving sustainable development.  This was required to promote the enjoyment of human rights, including the right to development.

Concluding Remarks

E. TENDAYI ACHIUME, Special Rapporteur on contemporary forms of racism, racial discrimination and related intolerance and moderator of the panel discussion, thanked the participants in the dialogue for their comments and questions.  In response to questions on addressing systemic racism, beginning 2020, there had been a shift and a different sort of conversation, which included deeper engagement with topics like colonialism.  This important shift had been uncomfortable in some corners, and there had been a backlash against those pushing hard to bring an end to colonial legacies.  Member States were oppressing and marginalising those who were trying to bring about change.  It was important for States to reaffirm their commitment to addressing the consequences of colonialism, and also to put an end to the hypocrisy of saying things in public statements in the United Nations and then doing different things on the ground. 

KOEN DE FEYTER, Member of the Expert Mechanism on the Right to Development, said there was a lot of scepticism that remained regarding the role that international and human rights law could play, which was a challenge.  How could human rights law be made as inclusive and relevant as possible?  As pointed out by many panellists, the past needed to be dealt with directly, through issues of transitional justice and with the contemporary situation and the consequences of the past.  At the global level, this meant reflecting within the human rights system on rights holders affected historically by marginalisation, including communities that had experienced racial discrimination.

JOSÉ FRANCISCO CALÍ TZAY, Special Rapporteur on the rights of indigenous peoples, said with regard to the impact on indigenous women and girls, they were confronted by inequality that undermined their economic and scientific knowledge.  Community structures of indigenous peoples had been impacted.  Discrimination in the education system had led to a loss of indigenous knowledge, with a loss of a rich oral tradition of indigenous scientific knowledge. 

FABIAN SALVIOLI, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-repetition, said there were a raft of questions, including what the Human Rights Council could do; what it could do was to take seriously the recommendations held in the reports of the Special Procedure mandate holders.  There should be a serious discussion as international human rights law was developed.  There had been a report on memory as the fifth pillar of transitional justice, which was important.  Public apologies were important, but they should be delivered with the consent and input of the victim who was being addressed.  Any reparational remedy should be comprehensive and holistic as it had to be a recognition of the harm done.  The ex-colonial powers should take seriously the possibility of ending debts owed.  The international community had to be careful as it moved forward; to hoist the flag of human rights, there needed to be a recognition of the violations of the past.

FEDERICO VILLELEGAS, President of the Human Rights Council, said all the topics dealt with by the Human Rights Council were important, but some referred to new social contracts, and if they were honoured, they would bring the world forward in redressing historical injustices.  Each and every one, in a spirit of mutual understanding, should be ready to lend a listening ear, even if they had differing views.  All mandate holders should be listened to, in mutual respect, and those States actively involved in the process of colonialism should take the opportunity to reflect and be present at future discussions so that all sides of the issue could be heard.

 

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2022/09/afternoon-acting-high-commissioner-addressing-legacies

 

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