publications

Rights of Communities or Groups including Indigenous Peoples

Police detain a demonstrator during a protest in downtown Santiago against a project to build a hydroelectric plant on land in southern Chile owned by Mapuche Indians. © 2002 Santiago Llanquin/AP Photo

This category addresses the rights that members of certain groups hold jointly, by virtue of their shared membership in a community. Human rights principles, as noted previously, can provide special protections for those who may be particularly vulnerable due to their social, economic, or cultural marginalization. Whereas in some cases these rights are exercised by individuals in their capacity as members of a group—such as is the case for migrants or children, for example—in other cases the rights are by their nature collective rights enjoyed by a community as a whole. This category is concerned with the latter set of rights and in particular addresses the rights of groups such as indigenous peoples.88

The rights of indigenous peoples include the right to recognition of traditional ownership, occupation and use of land, and the right to cultural identity.89 Measures to protect other groups at particular risk, such as minorities, are embedded not only in general human rights provisions regarding non-discrimination and equality but also in specific instruments for minorities’ rights covering, for example, the rights to practice their language, religion and culture, and to participate in the decisions that affect them.90

The activities of businesses often have a disproportionate effect on the communal rights of minorities and indigenous groups. Several reports offer illustrations regarding these often-disadvantaged groups:

  • In Indonesia private and military-owned businesses have benefited from the relocation of indigenous communities from traditional land without their free and informed consent or due process protections. Given that that these indigenous communities ascribe great cultural value to forests, business projects that destroy or block access to traditional land also affect their cultural rights.91
  • Businesses have routinely refused to hire members of Roma communities in Maced0nia, compounding the effect of high unemployment and forcing them to seek work in the “black economy.”92
  • In ethnically Tibetan areas in China, authorities have forcibly relocated Tibetan herders to make way for mining, infrastructure projects, or urban development without their free and informed consent or due process protections.93
  • Businesses in a number of countries—often acting in collusion with state security forces—have forcibly evicted indigenous farmers and vulnerable communities from their land, depriving them of access to essential resources and threatening their subsistence.94

Undue Process: Terrorism Trials, Military Courts, and the Mapuche in Southern Chile95

A 2004 Human Rights Watch report describes violations of due process in trials of members of Chile’s largest indigenous group, the Mapuche, for crimes committed during land conflicts in the Araucanía region. Business activities served as a spark for the conflicts.

The Mapuche were profoundly affected by the expansion of investment in forestry, hydroelectric projects, and road construction into their traditional lands during the 1990s. Mapuche community members complained that the massive commercial plantations that encircled their communities harmed the ecosystems on which their traditional life depended, including by depriving them of forest plants used for medicinal and ritual needs. Tensions also rose in relation to a hydroelectric project built by the national electricity company over the objections of the local indigenous community. The Mapuche viewed these developments as a threat to their way of life, and they fiercely opposed what they considered encroachment in ancestral Mapuche land.

Despite efforts to address the underlying problems, in many areas the relationship between the communities, on the one side, and the forestry companies and government, on the other, continued to deteriorate. Protests by the Mapuche grew more violent at the end of the 1990s, with clashes between groups occupying disputed land and the police, as well as widespread attacks by Mapuche militants on the private property of timber companies and landowners, sometimes costing millions of dollars. All such crimes committed were already serious offenses under the criminal code, but the government—under pressure from southern landowners, the forestry companies, and the political opposition to act with a firmer hand against Mapuche protesters—instead prosecuted Mapuche under a counterterrorism statute lacking due process protections. In cases involving violence against police, authorities tried them in military courts not meeting the basic requirements of independence and impartiality.

Malaysia: An Unholy Alliance of Politics and Logging96

A joint report on the environment and human rights issued by Human Rights Watch and the National Resources Defense Council described how timber companies and government officials, acting together to dispossess indigenous communities for their own gain, endangered the survival of indigenous communities in Malaysia’s once-vast Borneo rainforest.

In the state of Sarawak, Malaysia, indigenous people constituted nearly 50 percent of the population at the time the time the report was researched in 1992. By that year, voracious logging of the rainforest by timber companies had already destroyed much of the rainforest that these communities depended on for their survival.

The indigenous people of Malaysia had a recognized legal right to their native land under federal Malaysian law. In practice, however, the Malaysian government made it difficult and prohibitively expensive for these communities to assert native land claims. Other rules made it easy for state governments to overturn indigenous land rights. Using this authority, state officials took over millions of hectares of communal land and divided most of it into logging concessions. Most of the profit from logging went to state officials, which gave them a direct financial incentive to redistribute indigenous land. They would frequently distribute the concessions to their close associates and in some cases to companies they owned themselves.

In this way, local indigenous communities in the rainforest found themselves pitted against Malaysian timber companies and their government backers. The Penan ethnic group, a hunter-gatherer society in Sarawak, and most other indigenous communities in the area were entirely dependant on the rainforest for food, medicine, and shelter, as well as to maintain their customs and way of life. As timber companies arrived to clear trees from their traditional lands, they staged non-violent protests, primarily in the form of human blockades to obstruct logging roads. The timber companies responded by dispatching hired vigilantes to terrorize the protesters with menacing behavior and threats. When that did not work, state security forces arrived to arrest the indigenous blockade participants on criminal charges of obstructing logging activities, confining them in miserable conditions of detention. The timber companies were then free to continue logging seven days a week, 24 hours a day. The resulting land erosion, water contamination, and extinction of wildlife and plant species further threatened the precarious existence of the indigenous communities and the extinction of their ancient cultures.




88 While there is no strict definition of indigenous peoples for the purpose of international law (see the UN Declaration on the Rights of Indigenous Peoples, September 7, 2007, G.A. Res. 61/295, U.N. Doc. A/RES/47/1 (2007)), a working definition would include cultural groups (and their descendants) who have an historical continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region and who have maintained at least in part their distinct linguistic, cultural, and social/organizational characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the state.

89 For example, the Human Rights Committee interprets article 27 of the ICCPR to protect “traditional land tenure” of indigenous peoples “as an aspect of the enjoyment of culture;” ILO Convention No. 169 protects rights of ownership and possession of indigenous peoples over the lands which they traditionally occupy; and cultural identity is addressed in ILO Convention No. 169 (“[p]romoting the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions”). See ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, adopted June 27, 1989, 28 ILM 1382, entered into force September 5, 1991, art. 2(2b).

90 See, for example, indigenous land rights in ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples; rights to practice culture and religion, and to participate in the cultural life of the community at UDHR, art. 27(1), ICESCR, art. 15, ICCPR, art. 27, CRC, arts. 30, 31, CMW, art. 31(1), and in ILO Convention No. 169; and right to participate in the cultural life of the community at UDHR, art. 27(1), ICESCR, art. 15(1a), and CRC, art. 31(2). See also the UN Declaration on the Rights of all Persons Belonging to National or Ethnic, Religious or Linguistic Minorities.

91 Human Rights Watch, Without Remedy, pp. 3-5, 9-10, 13-14, 18-21, 33-39, 44, 53-58; Human Rights Watch, Too High A Price: The Human Rights Cost of the Indonesian Military’s Economic Activities, vol. 18, no. 5(C), June 2006, http://www.hrw.org/reports/2006/indonesia0606/, pp. 13, 38-44.

92 Human Rights Watch, Out of Limbo? Addressing the Plight of Kosovo Roma Refugees in Macedonia, December 10, 2003, http://www.hrw.org/backgrounder/eca/macedonia1203/index.htm, pp. 15, 21-22.

93 Human Rights Watch, "No One Has the Liberty to Refuse": Tibetan Herders Forcibly Relocated in Gansu, Qinghai, Sichuan, and the Tibet Autonomous Region, vol. 19, no. 8(C), June 2007, http://hrw.org/reports/2007/tibet0607/tibet0607web.pdf, pp. 3-4, 26-38, 46-48.

94 See, for example, Human Rights Watch, Indivisible Human Rights: The Relationship of Political and Civil Rights to Survival, Subsistence, and Poverty (New York: Human Rights Watch, 1992), see especially, “Land Alienation for Logging and Commercial Agriculture,” pp. 37-39.

95 Human Rights Watch, Undue Process: Terrorism Trials, Military Courts, and the Mapuche in Southern Chile, vol. 16, no. 5(B), October 2004, http://hrw.org/reports/2004/chile1004/chile1004.pdf, see especially, pp. 1-3, 7, 14-16, 25-26, 50-51; “Chile: Mapuche Acquitted of Terrorism Charges,” Human Rights Watch news release, November 4, 2004, http://hrw.org/english/docs/2004/11/04/chile9608.htm; Human Rights Watch, “Chile,” in World Report 2007 (New York: Human Rights Watch, 2007), http://www.hrw.org/wr2k7/wr2007master.pdf, pp. 190-194.

96 Human Rights Watch and the National Resources Defense Council (NRDC), Defending the Earth: Abuses of Human Rights and the Environment (New York: Human Rights Watch and NRDC, 1992), pp. 49-70.