Governments must conduct an impact assessment, consult fully with affected groups (see Free, Prior, and Informed Consent), provide victims with access to effective remedies, and allow reference to an independent body and an appeal to the highest judicial authority. The U.N.’s High Commissioner for Human Rights is obliged to seek full compliance with the Guidelines by all possible means, a provision that suggests that a complaint to that office could be recognized.
Communities threatened with displacement by resource development projects can seek help from the Special Rapporteur on Adequate Housing, as was done in 2007 by communities facing eviction in the northern Sudan as a result of the Merowe Dam. In that case, the Special Rapporteur urged the government of the Sudan to respect the human rights of the affected communities, and urged the companies working on the dam to halt their work pending a full investigation. Lawyers recruited by EDLC have been assisting the Sudanese communities as well.
Declaration on the Rights of Indigenous Peoples
The Declaration on the Rights of Indigenous Peoples was adopted by the U.N. General Assembly in 2007. This broad declaration contains guarantees of equality, self-determination, and the right to redress for any action that might deprive indigenous peoples of use of their lands or resources. Because these rights are contained in a declaration rather than an international treaty, there is no enforcement mechanism, but violations of rights contained in a declaration are frequently cited in complaints to courts and other decision-making bodies.
The Inter-American Human Rights System
The American Convention on Human Rights is the leading human rights treaty in the Americas. It contains the same types of human rights protections as are found in the International Covenant on Civil and Political Rights, but at a regional rather than an international level. A 1999 protocol guarantees additional economic, social, and cultural rights, including the right to a healthy environment and the right to health.
The Convention also created the Inter-American Commission on Human Rights, which receives complaints (petitions) from individuals and organizations alleging violations by countries of the rights contained in the American Convention. The Commission can issue “precautionary measures” that direct a government to take certain immediate actions, especially in advance of the full consideration of a complaint. The Commission sometimes resolves complaints through the “friendly settlement” mechanism, or ultimately issues a report advising certain government action.
Should the country fail to adequately respond to the report, the Commission can take the case to the Inter-American Court of Human Rights. Most of the countries in the Americas have consented to the jurisdiction of the Court, thereby agreeing to be bound by its judgments. The Court has issued a number of important judgments in regard to the rights of indigenous peoples over their land and natural resources. The most recent of these is the 2007 case of the Saramaka People v. Suriname.
The International Labour Organization
The International Labour Organization’s Convention concerning Indigenous and Tribal Peoples in Independent Countries (or “ILO169″) has come to be regarded as a seminal source of the rights of indigenous peoples. The Convention been ratified by the majority of countries in Central America and Latin America. ILO 169 guarantees indigenous people the rights of participation and consultation in matters that affect their land and welfare. The ILO has prepared a manual that provides a non-authoritative interpretation of the Convention’s provisions.
ILO 169 addresses the need for governments to consult indigenous peoples in regard to development projects “with the objective of achieving agreement or consent to the proposed measures.” Further, protected peoples have the right to decide their own priorities of development as it affects their lives and lands.
ILO 169 also created the Committee of Experts, whose work includes the investigation of complaints. For example, the Committee found in its 2008 report that the government of Guatemala had failed to assure prior consultation with indigenous Mayans before awarding a mining license to explore in their territory.
- Declaration on the Rights of Indigenous Peoples,
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