Saturday, May 30, 2009

Balancing indigenous and human rights


Balancing indigenous and human rights
Originally printed at http://www.indiancountrytoday.com/global/undeclaration/46462162.html

The recent acceptance of the Declaration on the Right of Indigenous Peoples is a major step forward in human rights discussion and thought. Human rights are extended to groups and now are more than personal rights. Many indigenous leaders and activists worked for several decades trying to develop language acceptable to the nation states of the United Nations, and along the way many compromises were made. The Declaration represents a welcome extension and elaboration of human rights that many indigenous peoples, nationalist and ethnic groups will find helpful.

The present form of the Declaration extends human rights theory within the framework of nation states, but does not recognize indigenous rights perspectives and does not recognize the nonconsensual character of the inclusion of indigenous peoples within nation states as either captive nations or captive citizens. Contemporary democratic nation states are premised on the understanding that governments are organized by the people and for the people, and therefore citizens agree to the principles of government and general culture of the nation states.

While many indigenous peoples are loyal to their nation states, they at the same time want recognition of their political, cultural and territorial traditions.
One of the difficulties in the negotiation of the Declaration was that many Central and South American nation states argued that indigenous peoples within their borders already were granted the rights of full citizenship and therefore did not need a declaration of indigenous rights since they already had all the rights of national citizens.

Furthermore, it was argued, indigenous peoples were seeking special rights that other national citizens did not have, and which was contrary to the equal rights principles of most contemporary democratic nation states. Therefore, the nation states did not wish to acknowledge indigenous rights, but after long debate were willing to extend and acknowledge group rights within the language of the Declaration, but only within the legal, political and cultural frameworks of existing nation states and their governments.

The critical point here is that nation states assume their citizens accept the government and the political and cultural rules of social and political process. This, however, is a main point of contention between nation states and indigenous peoples, who have their own cultures, forms of government, economies and communities. Indigenous peoples live in communities or nations that are organized differently than nation states and many indigenous peoples do not recognize the authority or power of nation states, although they are often compelled to abide by their rules.

Indigenous peoples are often not, if ever, consensual citizens within the nation states that have assumed power and territory surrounding indigenous communities. Immigrants are asked to become naturalized and take an oath of allegiance to the nation state. Indigenous peoples, however, have been legislated into citizenship, and have not voluntarily taken oaths of loyalty or willingness to uphold or recognize the constitutions of nation states. Indigenous peoples generally are not parties to, did not consent to, and often did not participate in the constitution formation of nation states. While many indigenous peoples are loyal to their nation states, they at the same time want recognition of their political, cultural and territorial traditions.

The Declaration represents a welcome extension and elaboration of human rights that many indigenous peoples, nationalist and ethnic groups will find helpful.
The Declaration and the nation states that supported the present language of the Declaration assume that legislating citizenship for indigenous peoples is equivalent to establishing a consenting citizenry. Nation states consequently do not recognize the practical and long standing traditions of political organization and loyalty to own indigenous cultures and institutions, and impose nation-state political and legal order over numerous indigenous communities. The lack of consent by indigenous peoples is at the root of nation-state and indigenous contentions, and the Declaration does not recognize these issues when it prescribes nation-state institutions as the political process for the remedy of indigenous issues and loss of rights.

A human rights agenda must have inter-group consent at the core of its doctrine otherwise it is another form of coercion over groups who may have different values or institutional relations.

Indigenous peoples need to negotiate their positions with the international human rights movement and its doctrines, but indigenous peoples also need recognition of their cultural and political rights and consensual relations within the laws and political processes of nation-states. The future of world human rights will depend on our ability to agree to mutually consensual rights and relations.


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