UN: Growth of World Law.
       

The Protection of Indigenous and Tribal Peoples

While both humanization and dehumanization are real alternatives, only the first is man's vocation. This vocation is constantly negated. It is thewarted by injustice, exploitation, oppression, and the violence of the oppressors; it is affirmed by the yearning of the oppressed for freedom and justice, and by their struggle to recover their lost humanity. Paulo Freire

The United Nations General Assembly has set 9 August as the International Day of Indigenous People. However, the term 'indigenous' is ambiguous since at some point nearly every group came from somewhere else at an earlier time. Thus when the first UN effort was undertaken in the International Labour Organisation in 1957, the ILO Convention (N°107) was called the "Indigenous and Tribal Populations Convention". It is not always possible to say who is 'indigenous' but it is usually easy enough to know if a group has a tribal structure.

For many years, indigenous and tribal peoples were the forgotten stepchildren of the intergovernmental organizations dealing with human rights. Yet they needed protection at least as much as those on whom the political limelight had focused.

The world community is filled with many different types of collective actors: clans, tribes, castes, ethnic groups, cities, races, social classes, religious organizations, nation-states, multi-state alliances for military or economic goals, transnational corporations and associations. Each is the creation of individuals who have grouped together - or have been grouped together - to achieve goals considered common to the group's members. All such collective groups have techniques to socialize new members to share the common values, to accept the ideology and beliefs of the tribe, the nation-state or the association. This socialization process goes so deeply that a person's sense of identity becomes associated with these collective identities. The family passes on a sense of belonging to a collective identity, the school, the army, the church, the political process and institutions - each propose a sense of group purpose.

Yet none of these groups is static and unchanging. Even clans and tribes whose members often consider that they have a common ancestor do in fact change. Tribes merge and divide; new identities are formed: new ancestors are created to justify the new grouping.

Some types of collective belonging are more easily left than others. One can move relatively easily from a city and take on the character, the values and the goals of a new city. Social mobility can produce changes in social class, and even caste lines become blurred. Persons change nationality or acquire new nationalities as frontiers are modified. Race is less easily changed but definitions of what constitutes a race do change. Ethnic identity is often associated with birth, but parents can belong to different ethnic communities, although the child is usually raised as belonging to the more dominant group. However the socialization process of group identity goes to the level of sub-conscious behaviour and is not easily set aside.

Today, the nation-state claims to be the dominant collective association - setting the boundaries of loyalty and identity. The state claims the right to set out the major collective goals and values. Through laws, the state claims the right to set out the rules by which other collective entities may pursue their goals; through taxation the state draws the resources to further the goals it has set, and the state claims to have the only legitimate use of violence to punish those who break the laws and rules it has set.

There have always been tensions between these collective groups for their spheres of goal-setting and value-setting have overlapped. Thus there have been tensions between religious organizations and the state as to who should set what goals and the means to achieve these goals. There have also been tensions between classes and the state when it was felt that the state was dominated by another economic class who used its power within state institutions not for the good of all but only to advance class interests. The same is true of other collective units - races or ethnic groups - excluded from power within state institutions.

Today in many parts of the world those most excluded from power within state institutions are people living in alternative structures of authority, goal-setting and rule-making: persons living in tribal societies. Tribal societies predated most of today's nation-states. A tribal society usually has all the same functions as the nation-state: it sets out membership, loyalties, common goals and rules of behaviour. It has sanctions against those breaking the laws of the tribe and has - or had- the monopoly of the legitimacy of using violence against those breaking the laws. Tribes are, in fact, more realistically "nation-states"
If one defines nation as a common language, a common history and a common will to act together.

Thus because the tribal society is the closest in function to that of the nation-state, it is also the most feared. Tribes are institutions with whom it is difficult to compromise because they have the same presumptions as the state. It is relatively easy for a government to offer higher wages to the industrial worker or higher prices to the farmer as social classes do not claim to carry out in an alternative way the functions of the state. It is more of a challenge to the state's image of its role to allow tribal societies to set out a land policy or fishing rights or trans-frontier trading rights because these activities conflict directly with the functions that the government has set for itself.

Thus, there has been a long history of the state destroying alternative institutions of governance on its territory. The nation-states of Europe were built upon the ruins of feudal institutions as much of Asia was built on the destruction of local rulers. We see the pattern today as we watch traditional chiefs in Africa loose their authority to the heads of state and the military. In the Americas, many of the indigenous tribal societies were destroyed. Others were pushed into areas that those who controlled the government did not want - the "reservations" - of Canada and the USA. In Latin America and Asia, there is still active struggle going on between those trying to preserve their tribal institutions and homelands and the state which claims complete authority over all its territory and who often wish to put new settlers on tribal lands.

The amount of violence and suffering is considerable. Slowly the fate of tribal societies has come to the attention of the United Nations. The UN was set up to facilitate relations between nations-states. However, because wide-spread violations of individual rights had been the consequences of the Second World War, a Universal Declaration of Human Rights was drafted and proclaimed by the UN General Assembly in December 1948. The aim of the Declaration is to stress the rights of the individual - a natural consequence of the philosophy of the drafters. The rights of collective bodies with which the drafters were familiar: trade unions, churches, professional associations are also protected. However, tribal societies were not particularly thought of as one sees by reading the drafting negotiations leading to the 1948 Universal Declaration. Thus, the Universal Declaration protects the rights of all individuals - including, of course, individuals living in tribal societies - but there is no direct recognition of the functions of tribal societies.

It was not until the first World Conference to Combat Racism and Racial Discrimination, held at the UN in Geneva in August 1978, that certain aspects of discrimination against indigenous populations were included in the Programme of Action. In 1983, the UN Working Group on Indigenous Populations started meeting in Geneva which led to the growing attention being given to indigenous and tribal peoples. There is still much work to be done as the process of humanization of those now oppressed and marginalized will come about only through radical changes in the outlook of those now holding power and authority.