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Statements Special Procedures
18 September 2019
Geneva, 18 September 2019
Indigenous peoples’ representatives,
Ladies and gentlemen,
It is an honour for me to address the Human Rights Council today and present my reports. I would like to start by expressing my gratitude to the numerous States, indigenous peoples, and others, and in particular to the staff supporting my mandate in the Office of the High Commissioner for Human Rights, and also to my external assistants, for the support they have provided as I have carried out my mandate over the past five years.
In my statement, I would like to provide an update on my work as Special Rapporteur since I was here last year, with emphasis on the thematic report and the two country visit reports that I am presenting here today.
Throughout my mandate period, issues relating to indigenous peoples’ own systems of justice have recurrently been raised with me, including during country visits. It is important to underline that international human rights standards recognise the right of indigenous peoples to maintain and develop their own legal systems and institutions. Furthermore, strengthened support for indigenous justice systems is key to promote the rule of law, achieve justice for all and to promote effective, accountable and inclusive institutions in a manner consistent with human rights, as set out in the United Nations Sustainable Development Goal 16.
I have therefore decided to dedicate my thematic report to the Human Rights Council this year to an analysis of indigenous peoples’ access to justice, both through the ordinary justice system and through their own indigenous justice mechanisms. My report explores existing interaction and harmonisation between ordinary and indigenous justice systems and the opportunities offered by legal pluralism. I wish to thank all those States that responded to my questionnaire and the indigenous organisations that made submissions in response to my public call for inputs for this report.
Indigenous peoples’ right to develop and maintain their own juridical systems is essential for their right to self-determination and autonomy and in order to ensure that their collective and individual rights are realised. The United Nations Declaration on the Rights of Indigenous Peoples specifically asserts the right of indigenous peoples to maintain and strengthen their political, legal, economic, social and cultural institutions (Article 5) and to promote, develop and maintain their institutional structures, including their juridical systems or customs in accordance with international human rights standards (Article 34).
The Declaration furthermore affirms the right of indigenous peoples to ‘access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights’ which should give due consideration ‘to the customs, traditional, rules and legal systems of the indigenous peoples concerned and international human rights’ (Article 40).
The world’s manifold indigenous cultures each follow a unique set of customary and traditional rules which are embedded in countries with very different political and historical contexts. However, a number of recurring issues arise globally and continue to cause deep concern for indigenous peoples regarding their access to justice and the challenges they face in maintaining their own juridical systems.
Key concerns raised by indigenous peoples met by the Special Rapporteur include: the lack of effective recognition of their systems of justice by local, regional and national authorities, ongoing discriminatory and prejudicial attitudes against indigenous peoples in the ordinary justice system and against their distinct indigenous systems of justice; inadequate redress and reparation; and the lack of effective coordination between indigenous justice systems and State justice authorities. Indigenous and other actors also noted the need for observance of international human rights by indigenous justice systems, including in relation to the rights of women, children and persons with disabilities.
I would like to stress that effective access to justice for indigenous peoples implies access to both the State legal system and their own systems of justice Without accessible State courts or other legal mechanisms through which they can protect their rights, indigenous peoples become vulnerable to actions that threaten their lands, natural resources, cultures, sacred sites and livelihoods. At the same time, the recognition of indigenous peoples' own justice systems is essential to ensure their rights to maintain their autonomy, customs and traditions.
The unfortunate reality is that in most countries, the ordinary justice system frequently offers limited prospects for indigenous peoples to obtain redress for human rights violations, and indeed often pose an increased risk of directly or indirectly discriminating against indigenous peoples’ in their rights to access to justice, fair trial and physical integrity.
Indigenous peoples’ rights to enjoy their own culture and use their own language are more likely to be fulfilled in justice processes that are in harmony with their social and cultural practices. Indigenous justice mechanisms are closer geographically, less costly, and use languages understood by all in the communities they serve. They are generally perceived as more accessible, culturally appropriate and in most instances constitute the primary resort for dispute resolution for indigenous communities.
A general characteristic of indigenous justice systems that is fundamentally different from ordinary justice systems, is that their sources of law commonly do not derive from codified laws or tribunal decisions, but rather from indigenous peoples’ oral histories, spiritual and cultural values and traditions, family or clan relations and obligations, and their close relationship with their traditional lands. Customary practices are an integral part of everyday life and play a key role in resolving disputes between indigenous individuals and communities, such as land disputes, natural resource management and protection of the environment. Indigenous justice systems in general seek restoration of harmony within the community as an ultimate goal, and emphasise the reintegration of offenders rather than retribution. It is of essence that the offender provide reparation for the harm caused. The resolution of conflict is situated in a broader social context and considers future relationships and cohesion within the indigenous community.
As with ordinary State justice systems, certain procedures and outcomes of indigenous customary justice systems can come into conflict with international law and standards on human rights and the rule of law. Many indigenous justice systems operate without written records of rules or rulings, which can increase the risk of arbitrary decisions. A collective approach to justice may be problematic for individual rights, particularly in relation to women victims of domestic or sexual violence or in cases involving children. Inconsistencies with international human rights norms can also be present in ordinary State justice systems, and in certain countries may even be more pronounced in the State system than in the indigenous system. So although consistency with international human rights is an important concern for both indigenous and non-indigenous justice systems, the existence of human rights concerns in indigenous justice systems does not in itself constitute a valid argument to reject their legitimacy.
Recognition of indigenous peoples’ justice systems and customary laws varies throughout the world, but remains generally limited. Among the positive developments is that numerous countries in Latin America have in recent decades embraced legal plurality and provided explicit legal recognition of indigenous justice systems. In Asia, a number of countries have granted constitutional or other legal recognition of customary and traditional justice systems. Most developed countries only recognise a single State justice system, but in some instances measures have been adopted to accommodate indigenous culture and traditions in judicial procedures. Few African countries provide legal recognition of the existence of indigenous peoples.
States should recognise the dynamic character of indigenous customary law and the ability of indigenous justice systems, like other justice systems, to adapt to contemporary situations and evolve. Change in traditions and customs of indigenous people towards greater harmonisation with international human rights should ideally come from within indigenous communities. Compliance with international human rights law can be strengthened by increasing knowledge of such issues among traditional Elders and customary chiefs. Supporting positive changes within local systems while maintaining their integrity is the most successful and sustainable approach.
Among my recommendations, I encourage States to explore the interaction and the need for harmonisation between ordinary and indigenous justice systems. As a starting point, States should explicitly recognise, in constitutional or other legal provisions, the right of indigenous peoples to maintain and operate their own legal system and institutions.
Consultations with indigenous leaders and communities should be undertaken in order to better understand their systems, and to subsequently design, jointly with indigenous representatives, engagement strategies.
States should include compulsory training on indigenous justice in the formal training programmes for judges, lawyers, prosecutors and law enforcement officials, which recognise the use of indigenous judicial systems as a right. States and indigenous justice systems should develop and institutionalise mechanisms and processes for exchanging information and mutual capacity-building with a view to create legal pluralism and provide effective redress. Stronger links between State and indigenous laws and institutions, based on mutual respect and understanding, such as integrated review bodies with representation of indigenous and non-indigenous system judges, could contribute to ensuring respect for human rights in both indigenous and State legal systems. The United Nations, its Member States, and other stakeholders should support indigenous peoples in their advocacy for the recognition of their justice systems, with a view to supporting the United Nations Sustainable Development Goal 16 of achieving justice for all.
I now wish to refer to the reports I am presenting today on my two most recent official country visits, to Ecuador in November last year and to Timor-Leste in April this year. I wish to thank the Governments of Ecuador and Timor-Leste for their invitations and for their cooperation during the missions and for allowing me to pursue the missions in an independent manner.
Between 19 and 29 November 2018, I conducted a country visit to Ecuador, where I had the honor to meet with President Lenin Moreno and several Government representatives, as well as members of the legislative and the judiciary. I want to thank the Government for their support during my mission. I also had the opportunity to meet several indigenous representatives and communities in the Sierra, the Amazon and the Coast. I want to express my heartfelt gratitude to all the indigenous and civil society organisations that helped coordinate and facilitate these meetings, in particular the CONAIE and Ecuarunari, and to the indigenous communities that welcomed me in their lands.
My visit took place in the tenth anniversary of the adoption of the 2008 Constitution. Therefore, I thought it would be timely to assess progress in the implementation of the Constitutional commitments regarding the building of a plurinational and intercultural State, and the implementation of the collective rights of indigenous peoples and nationalities in the light of Ecuador’s international human rights obligations. I also wanted to follow up the outstanding recommendations made by my predecessors in 2006 and 2009.
In my report, I highlight the dialogue that the new Government had initiated with indigenous peoples and its encouraging results, particularly with regards to intercultural, bilingual education. I observe that an inclusive intercultural dialogue provides the best way to overcome existing concerns and realise the Constitutional and international human rights obligations of the country. Progress is needed in the adoption of concrete measures to address the key challenges affecting indigenous peoples’ fundamental rights, particularly regarding their lands and resources, the respect for their own authorities, including indigenous justice systems, or the implementation of consultation and free prior and informed consent.
During my visit, I could observe that extractive activities within indigenous peoples’ lands and territories undertaken without adequate consultation or consent are the main source of serious violations of their human rights, including violence, criminalisation and forced displacement. In my report, I express my concern over the activation of former mining and oil concessions, as well as the granting of new ones, and offer several recommendations to address this situation. I also provide recommendations related to the specific situation indigenous peoples in the Northern border, indigenous peoples in isolation and initial contact and those with small populations, and indigenous women. I sincerely hope the Government of Ecuador will consider their implementation, in cooperation with indigenous peoples.
My second country visit report which I am presenting today is based on my country visit to Timor-Leste between 8 and 16 April this year. It addresses a range of issues including customary and formal justice systems, lands and territories, conservation, climate change, education, poverty and malnutrition.
I am impressed by the pride that the Timorese take in their cultural heritage and how indigenous practices have translated into important gains in environmental protection and biodiversity. These can serve as inspiring examples for other countries. For most Timorese, customary practices are an integral part of everyday life and play a central role in resolving disputes between individuals and communities, such as land disputes, conflict between communities and natural resources management. These practices focus on maintaining community and environmental harmony, in contrast to the formal justice system, which is perpetrator focused. Ensuring justice for all is a key objective of Sustainable Development Goal 16 and Timor-Leste could provide important lessons for other countries.
There are however some customary justice practices that need to be amended to comply with human rights standards, such as physical punishments and public communal hearings which are unsuitable for crimes relating to vulnerable victims of domestic violence and child abuse. As already mentioned, the United Nations Declaration on the Rights of Indigenous Peoples affirms the right to maintain and strengthen indigenous legal institutions and juridical systems, with the caveat that these should be in accordance with international human rights standards.
Customary justice practices by indigenous peoples evolve and in my experience, indigenous communities are generally open to incorporating human rights guarantees in their practices. This change needs to come from within indigenous communities, but can be encouraged by increased awareness raising through culturally appropriate dialogue. In this regard, I note the willingness in Timor-Leste to reflect on how both systems can address their shortcomings and increase knowledge of procedures and best practices in the respective systems. I am pleased to learn that since my visit, consultations have started at the local level to discuss the interaction between the formal and the customary justice system.
Another concern raised during my visit the high rate of chronic malnutrition, which is the highest in South East Asia and among the highest in the world. Statistics indicate that nearly half of all children under 5 years of age suffer from chronic malnutrition. I urge the Government to strengthen the awareness of nutritious foods and assign adequate resources to increase the production of indigenous crops to address the incidence of malnutrition, as well as invest in sanitation, in particular in rural areas.
Education is intrinsically linked to achieving developments related to poverty reduction and health. In this regard, I call on the Government to take further measures to revitalise and promote the more than 30 indigenous languages in Timor-Leste and to expand education in mother tongue in order to improve educational results.
My next official country visit will be to Congo-Brazzaville in October this year. I am pleased that I have also been invited to visit Namibia, Denmark /Greenland and Vanuatu. Unfortunately, I will only be able to undertake one more official country visit before my mandate expires next year.
In addition to my country visits, as part of my mandate, I continue to share information to Governments and other actors in relation to allegations of violations of indigenous peoples’ rights across the world. Since I last reported to the Human Rights Council, I have increased the number of situations acted upon and issued over 100 communications, including on allegations in the following countries: Brazil, Cambodia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, India, Indonesia, Kenya, Mexico, Myanmar, Nepal, New Zealand, Nicaragua, Paraguay, Peru, the Philippines, the Russian Federation, Rwanda, Thailand, the United States of America and Venezuela. An increasing number of communications are also being sent directly to private enterprises involved in alleged human rights abuses and to the countries where such companies are registered. I wish to thank those Governments and entities that have engaged and responded to the alleged human rights violations and encourage those that have not yet responded to do so.
Before concluding, I would like to reiterate the importance of ensuring that the mandate continues to engage in relevant international dialogue and policy forums related to achieving the Paris Agreement of the UNFCCC and the 2030 Agenda for Sustainable Development.
I will now conclude my statement. I thank you all for your kind attention and I look forward to our interactive dialogue.