Summary: Joint Session between Working Group on the Right of Peoples to Self-Determination and Working Group on Indigenous Peoples, Gender and Development

Land Rights and Access to natural resources

The third session of the day sought to look at an issue that had featured very prominently in the case studies of the previous two sessions. In those case studies arguably the main reason for the oppression of a people was the rich quantities of natural resources possessed by that people. In conjunction with this issue this session aimed to examine the similar issue of the nature of the land rights of a people under international law.

Joshua Cooper of the Hawaii Institute for Human Rights clearly expressed the importance of this latter issue with his expression that for indigenous peoples ‘land is life’.

Unlike the previous session this session was balanced by the presence of those actually responsible for applying international law and themselves part of the mechanism for self-determinism. It was further balanced by a panel from all parts of the globe: Africa, the Pacific, North and South America and Europe.

To explain the technicalities and legal position on land rights, Mr. L.Swepston of the ILO was present. Mr. Swepston expressed faith in the four current HR documents – the two ILO conventions (ILO107, ILO169) and the two draft Human Rights declarations being proposed (UN Draft Declaration and the OAS Declaration). This was a direct break from the opinions expressed earlier in the week to this working group. In particular the ILO conventions and the OAS declaration had been severely maligned by earlier speakers. Mr. Swepston on the other hand, although he admitted that international law was a slow process, thought that in these documents a significant body of international law had been ratified and would over time be increasingly accepted.

The four documents do not focus heavily on the question of land rights but all have common points. Indigenous peoples have some rights to land but this does not necessarily entail right to ownership. As in most Western law [the USA being the exception] it is the state that retains ownership of the land and natural resources and can in certain circumstances remove any person from the land. These documents aid those occupying the land, or formerly occupying the land, by ‘raising the bar’ in terms of the legality of removing peoples from a land said Mr. Swepston. In all circumstances indigenous peoples have the right to participate in discussion about land.

The documents also incorporate an ‘article of faith’ in international law by recognising a ‘spiritual relationship’ between a land and people. Consideration of land in international law fundamentally means ‘territory’ so that the environment, ice, water, etc are also included.

One historical problem that the two draft declarations seek to redress is the ‘inalienability’ of the land. This phrase aims to avoid the trickery that enables those with an understanding of law to ‘legally’ steal the land from the indigenous people, who may not understand international laws. Unfortunately such a statement is harder to express in absolute law terms and is therefore not as stringent in the ILO conventions said Mr. Swepston.

Furthermore a feature of all the documents claimed Mr. Swepston is a workable claims process for the restitution of lands to indigenous peoples. One of the biggest failings of international law is that as in the case of Western Sahara examined in session five, international law does not always translate into national law. There is no requirement for any country to accept an international law. 

Mr. M. Rwabakenyo of UNRISD attempted to draw a line between the issue of land rights in developed countries and land rights in Africa. Laws and processes that allow states with financial resources to create national parks did not apply in Africa where mass migrations of refugees resulted in complex land rights claims. In Africa, he said, indigenous people may be in conflict with other indigenous peoples or with governments or with farmers over land rights. The only solution was African dialogue said Mr. Rwanbakenyo.

Continuing her speech from the previous session Ms. Ohorella of the Moluccan people, speaking as a representative of all indigenous people, expressed the indigenous people’s view of the land. To the indigenous people ‘land is everything’; it dictates their life and constitutes their past, present and future. In Ms. Ohorella words the ‘people is the future but without land there is no people. Mr. Swepston had said that it was remarkable that so many indigenous people had retained their culture and land despite changes but Ms. Ohorella denied that it was ever possible for an indigenous people to survive without retaining its land. In her own situation the Indonesian Javanese had invaded her country because of the natural resources – Gold, spices, uranium and oil.

Surprising issues
Peruvian Mr. A. Bacal of the Centre for Peace described the Zapatero movement in a case again reminiscent of that of Western Sahara. In this instance a UN plan of sustainable human development in Mexico could not be implemented because the Mexican government are pursuing a neo-liberal policy and will not agree to the UN financing of the scheme 

Interesting questions
Not surprisingly much of the discussion focused on Mr. Swepston’s denial that land does not belong to the people but belongs to the state. Questions were asked about who made a state if not the people but this point had already been covered many times during previous sessions and Mr. Swepston’s answer that a state and people are not identical by any means was not therefore a new statement.

Further discussion centred on what indigenous people can do if they cannot make trips to conferences to Geneva, etc. This question was seconded by Ms. Ohorella and it again fell to Mr. Swepston to respond Mr. Swepston said that in actual fact the last fifteen years had seen mobilisation and very effective recognition of indigenous people on the world stage and this would and should continue.

A question was addressed to Mr. Swepston from a member of a Kenyan ethnic minority about what it was possible to do if a country had not ratified a convention, as in the case of Kenya and ILO 169. Mr. Swepston, echoing comments by Joshua Cooper earlier in the week, said that it was the responsibility of Kenyan’s themselves to apply pressure to the Kenyan government internally and only then for the international community to apply it externally.

Conclusions
Thus the third and final session of the day ended with a very sombre legal examination of land. The main unresolved issue of the day was over the ability of an oppressive state to ignore international law, but Mr. Swepston’s faith in the ability of international pressure, alleviated that concern to some degree.

Having thus examined the nature of self-determination and the mechanisms available and their operation the working group could then move into the final day’s discussion concerning what civil societies could actually do.

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