Human Rights Council
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HUMAN RIGHTS COUNCIL DEBATES PROTECTION OF RIGHTS IN FIGHT AGAINST TERRORISM AND HUMAN RIGHTS OF INDIGENOUS PEOPLES
|Human Rights Council |
AFTERNOON 12 December 2007
The Human Rights Council this afternoon held an interactive discussion on reports presented by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolpho Stavenhagen, and by the Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism, Martin Scheinin.
Rodolpho Stavenhagen, Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, noted that this year he had devoted his thematic work to indigenous development. The recent adoption of the United Nations Declaration on the Rights of Indigenous Peoples provided a specific framework for the implementation and evaluation of public policies on indigenous issues. In particular, the right to prior, free and informed consent, one of the pillars of the Declaration, set an indispensable threshold for any development activities directed towards indigenous peoples. He also discussed findings from an official visit to Bolivia, and of a general study on the rights of indigenous people in Asia.
Martin Scheinin, Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism, gave an account of the three missions he undertook in 2007, to South Africa, the United States and Israel. On South Africa, he identified some aspects of new South African counter-terrorism legislation as examples of good practice, but other elements, including the fact that Foreigners could be detained for security-related reasons without trial or effective review, were cause for concern. As for the United States, which as a world leader had a special responsibility in the protection of human rights while countering terrorism, the Special Rapporteur expressed grave concern over the situation of detainees at Guantánamo Bay and other locations, and the lack of judicial guarantees and fair trial procedures for those suspected of terrorist activities. As for Israel, the report welcomed Israel’s invitation to comment on new counter-terrorism legislation. However, there were serious incompatibilities between this and its obligations pertaining to human rights and fundamental freedoms.
In the ensuing interactive dialogue, a number of speakers echoed the sentiment expressed by one that abuses committed in the name of the war on terror by some nations had strengthened the appeal of extremism. Several delegations criticized the Special Rapporteur on indigenous people's approach, in particular in his report on indigenous peoples in Asia. Notably, the report was not balanced, as it did not contain the views of the States concerned, and was thus not in accordance with the provisions of the Code of Conduct for Special Procedures. Many Speakers also wondered why the Special Rapporteur decided to commence this regional focus on Asia, as a large number of Asian countries did not have indigenous peoples, considering their entire populations to be indigenous. Speakers on the issue of human rights while countering terrorism noted that a fine balance between human rights and the need combating terrorism had to be struck, and asked where the limits should be drawn in this regard.
Speaking this afternoon as concerned countries were the representatives of Bolivia, South Africa, the United States of America, Israel and Palestine.
Also speaking were the representatives of Portugal, on behalf of the European Union, Pakistan, on behalf of the Organization of the Islamic Conference, India, Cuba, Mexico, China, on behalf of the Asian Group, Canada, Egypt, Malaysia, Indonesia, the Russian Federation, Bangladesh, Brazil, Philippines, the Republic of Korea, Peru, Sri Lanka, Nicaragua, Algeria, Cambodia, Viet Nam, Venezuela and Norway.
Speaking in rights of reply were Israel and Palestine.
The next meeting of the Council will be tomorrow morning, at 9 a.m, when it will conclude its interactive debate on the reports on the human rights of indigenous peoples and the situation of human rights in the context of countering terrorism. When it concludes that debate, the Council will continue without interruption until 6 p.m., taking up the review, rationalization and improvement of mandates begun in the first part of its sixth session, notably looking at the mandates of the Representative of the Secretary-General for the rights of internally displaced persons; the Special Rapporteur on the right to adequate housing; the Special Rapporteur on the human rights situation in the Sudan; the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and the independent expert on the situation of human rights in Liberia.
The Council has before it the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen (A/HRC/6/15 and Add.1-3), which summarizes the main activities undertaken by the Special Rapporteur since his second report to the Council. In its thematic section, the report focuses on the implications for indigenous peoples of a human rights-based approach to development. Indigenous peoples, according to that approach, are identified as human rights holders and the realization of their rights is posited as the main objective of development. In conclusions, the Special Rapporteur highlights that, although over the past 50 years extensive efforts and resources have been devoted to overcoming the poverty and marginalization from which most indigenous communities suffer, the economic, social and human development levels of these communities generally remain very low. Key to understanding the limited impact of development policies is that they have not attacked the structural causes underlying the marginalization of indigenous peoples, causes that are directly linked to the failure to recognize, protect and guarantee observance of their individual and collective human rights. The recently adopted United Nations Declaration on the Rights of Indigenous Peoples is promoted as a clear normative framework for development policies and actions on behalf of indigenous peoples, based on self-determination; free, prior and informed consent; effective participation, autonomy and self-management; territorial control; and non-discrimination. The report concludes with a number of recommendations focused on ensuring a human rights-based approach to indigenous development.
A first addendum contains information on the communications sent to Governments from 1 January to 2 September 2007 and the responses received until 19 October 2007. The information received shows that an implementation gap continues to affect indigenous peoples’ enjoyment of all their human rights, civil, political, economic, social and cultural. This gap continues to widen in the socio-economic realm, where there is a growing distance between the objectives of government policies and indigenous peoples’ actual conditions of life. Special concern continues to be raised about the unremitting loss of indigenous peoples’ traditional lands, territories and natural resources.
A second addendum sets out preliminary findings of the Special Rapporteur following his mission to Bolivia, undertaken from 25 November to 7 December 2007. The Special Rapporteur notes that, in 2005, an indigenous President was elected for the first time, setting out the clear intention to promote major social and economic policy changes aimed at benefiting the situation of indigenous peoples in the country and remedying the historical injustices to which they had been subjected. It documents numerous achievements of President Morales to that end, including the appointment of a number of indigenous Ministers and Vice Ministers to his cabinet, the incorporation of the United Nations Declaration on the Rights of Indigenous Peoples as part of domestic law, and the inclusion of numerous provisions relative to the collective rights of indigenous peoples. However, it also highlights a number of serious, and ongoing, issues of concern, in particular, persisting racism and discrimination against indigenous peoples, in particular indigenous women, which extends even to the actions of Government agents on the national and local levels and to the activities of political parties; continuing, illegal exclusion of indigenous peoples from their ancestral lands; the conditions of servitude to which the Guarani people are subjected to in their daily life; and contamination of indigenous environmental resources, owing to mining concessions.
A third addendum to the report gives a general overview of the situation of the rights of indigenous peoples in Asia, based on the information gathered by the Special Rapporteur during recent activities in the region. Drawing from specific examples, the report focuses on issues of particular concern in the region, including the steady loss of indigenous lands, territories and natural resources; situations of internal conflict, violence and repression faced by these peoples; the implementation of peace accords and autonomy regimes; and the special abuses faced by indigenous women. The Special Rapporteur concludes that indigenous peoples in Asian countries face similar patterns of discrimination and human rights violations as in other parts of the world.
The Council has before it the report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin (A/HRC/6/17 and Add.1-4), which contains a summary of the Special Rapporteur's activities from 1 January to 31 October 2007, and in its subsequent chapters highlights and addresses his concern that economic, social and cultural rights have been neglected or underdeveloped in efforts towards the promotion and protection of human rights in the fight against terrorism. In conclusion, the report contains a series of specific recommendations, based on his country visits, as well as a set of general recommendations. Among the latter, the Special Rapporteur encourages States and intergovernmental organizations to utilize fully the potential of promoting economic, social and cultural rights as an inherent feature of long-term sustainable strategies to prevent terrorism; recommends that more attention be paid to the right to education as a key right in the enjoyment of several other human rights and as a cornerstone in sustainable long-term strategies for the prevention of terrorism; and urges States not to apply their counter-terrorism laws and measures to social movements or protest by indigenous peoples or minority communities who claim recognition and full protection for their economic, social and cultural rights.
A first addendum to the report contains communications transmitted to Governments between 1 January and 15 September 2007, as well as replies received up to 1 November 2007. In addition, the report also covers press releases issued in 2007.
A second addendum contains a report of the Special Rapporteur's visit to South Africa, carried out from 16 to 26 April 2007. Among his conclusions, the Special Rapporteur says that, in its counter-terrorism policies and legislation, South Africa has sought an overall framework for addressing security concerns related to terrorism without undermining the protections of the Constitution. Nevertheless, as part of a preventive approach to counter-terrorism, firmer action is needed to address violence and other expressions of xenophobia towards immigrants, both from private individuals and any government actors.
Addendum three contains the report of the Special Rapporteur's mission to the United States, from 16 to 25 May 2007. The report considers a number of issues, including the Guantánamo Bay detainees and their categorization as “unlawful enemy combatants”; the use of military commissions to try terrorist suspects; interrogation techniques; definitions of terrorism under U.S. law; alleged targeted killings of terrorist suspects by U.S. agents; and profiling. Among its recommendations are that the categorization of persons as “unlawful enemy combatants” be abandoned, and that the United States release or put on trial those persons detained under that categorization; and that legislative amendments be made to remove the denial of habeas corpus rights under the Military Commissions Act 2006 and the restrictions upon the ability of Guantánamo Bay detainees to seek full judicial review of their combatant status. Gravely concerned at the enhanced interrogation techniques reportedly used by the CIA, the Special Rapporteur urges the United States to ensure that all its officials and agencies comply with international standards, including the International Covenant on Civil and Political Rights, the Convention against Torture and the Geneva Conventions. He recommends that the Army Field Manual be revised to expressly state that only enumerated techniques are permissible. The Special Rapporteur further urges the Government to take transparent steps to ensure that the CIA practice of “extraordinary rendition” is completely discontinued and is not conducted in the future, and that CIA interrogation techniques are regulated in line with the position expressed above in respect of the Army Field Manual.
A fourth addendum presents the report of the Special Rapporteur's mission to Israel, from 3 to 10 July 2007, and his visit to the Occupied Palestinian Territory. Among subjects treated are the state of emergency declared by Israel; legal implications regarding the classification of suspected terrorists as “unlawful combatants”; investigation and prosecution of terrorist suspects, including the legal definition of terrorism, interrogation methods, detention procedures and the use of military courts; the construction of a security barrier in the West Bank; the situation in Gaza; and Israel Defense Force Operations, including the use of “human shields”, the demolition of houses, targeted killings and the killing of civilians. In the final section, the Special Rapporteur provides a brief conclusion and recommendations, drawing the Government’s attention to the fact that the high emotional toll of counter-terrorism or security measures easily leads to counterproductive effects. The Special Rapporteur recommends the withdrawal of all Jewish settlements in the Occupied Palestinian Territory and the replacement of the still unfinished barrier with a security infrastructure that, for its geographical position, respects the Green Line or is otherwise accepted by the Palestinians.
Presentation of Report by Special Rapporteur on Human Rights and Fundamental Freedoms of Indigenous People
RODOLPHO STAVENHAGEN, Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, said the report covered the period from January 2007 up to his recent visit to Bolivia, and he was presenting a brief preliminary note on that. This year he had devoted his thematic work to indigenous development. The recent adoption of the Declaration on the Rights of Indigenous Peoples provided a specific framework for the implementation and evaluation of public policies on indigenous issues. The report provided documentation on a number of good practices which had been implemented to encourage endogenous and sustainable development, and these processes could be described as a process of empowerment under which indigenous peoples enjoyed their rights. Successful examples of this type of approach had been seen in education and health in countries such as Brazil and Peru, where the indigenous people had taken control of these issues, incorporating their own priorities and needs. A significant portion of the human rights-based approach experiences in the indigenous context had to do with recognition of the rights of the indigenous over their land and natural resources.
Important experiences had been achieved with regards to preservation of indigenous territories. The right to prior, free and informed consent, one of the pillars of the Declaration set an indispensable threshold for any development activities directed towards indigenous peoples. In this way, there had to be effective participation of communities in designing, implementing and evaluating development activities. It was essential to identify the holders of rights, paying particular attention to vulnerable groups, including indigenous women. These were good practices in human rights, particularly with regards to the rights-based approach to development.
Mr. Stavenhagen said he had carried out an official visit to Bolivia in September 2007. An indigenous President had been elected there for the first time, and he had announced plans to implement policies that would rectify injustices undergone by indigenous people. The Government had made the United Nations Declaration on the Rights of Indigenous Peoples an internal law in terms of status - and the new Constitution of the State incorporated many provisions on the collective rights of indigenous peoples. One of the main subjects that had struck Mr. Stavenhagen on his trip to Bolivia was the continuing phenomenon of racism against indigenous people, especially women, expressed through certain actions of the officials of the Government, and through incitement to violence against people of indigenous origins. Particular concern was aroused by the situation of bondage in which the Guarani were living in certain areas, due to the historic plundering of their lands, and the pollution caused by mining. There had been major progress in the recognition of the rights of the indigenous, and in their role in national economic and political life.
Mr. Stavenhagen said he had also attended a follow-up meeting in the Philippines during the last year. He was concerned about the accelerated loss of forests, as these were important for many for survival. There was an increase in the number of extrajudicial killings, torture, and other human rights violations, committed by the armed forces and police, in particular targeting human rights defenders, community activists and other leaders, and these had particular negative effects on the international perception of the Philippines. He had also carried out a mission to Mexico, along with Miloon Kothari, the Special Rapporteur on the right to adequate housing. A general study on the rights of indigenous people in Asia was also being submitted - indigenous people in Asia were particularly subject to discrimination, excluded from decision-making processes, and victimised by systematic violations of their human rights, sparked by the loss of their lands and ancestral territories. Many of these peoples were at risk of disappearing. Indigenous rights were human rights, and the Declaration was already part of the international normative framework that was required to promote human rights throughout the world. Mr. Stavenhagen hoped his work over the last few years had contributed to achieving the goal of equal rights for all indigenous people.
Presentation of Report by Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism
MARTIN SCHEININ, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, hoped that the period of transition from the Commission on Human Rights was now completed and that the Council would be able to act on the reports presented to it by the Special Procedures, including his own mandate. Three missions were completed in 2007 and a visit to Spain was planned for 2008. The Philippines had not been able to confirm dates but said a visit would be welcomed. Visit requests were outstanding with Algeria, Egypt, Malaysia, Pakistan and Tunisia. The report focussed on the negative impact of counter-terrorism measures on economic, social and cultural rights, and the role of promoting these rights in order to prevent terrorism. South Africa, the United States and Israel were thanked for their cooperation during missions in 2007, and the Palestinian Authority was thanked for the opportunity to meet relevant interlocutors.
Mr. Scheinin said the report identified some aspects of the South African protection of Constitutional democracy against terrorist and related activities act (2005) as examples of good practice, but other elements caused concern. Foreigners could be detained for security-related reasons without trial or effective review, although racial, ethnic or religious profiling was excluded from counter-terrorism measures. It was regretted that, while full access was given to prison facilities, this was not the case for ad hoc visits to police detention facilities.
The United States, as a world leader, had a special responsibility in the protection of human rights while countering terrorism. The report expressed grave concern over the situation of detainees at Guantánamo Bay and other locations, and the lack of judicial guarantees and fair trial procedures for those suspected of terrorist activities. It was hoped that unmonitored interviews with detainees would be possible in the future, despite the Government’s current objections.
The report welcomed Israel’s invitation to comment on new counter-terrorism legislation. However, there were serious incompatibilities between this and its obligations pertaining to human rights and fundamental freedoms. Given the illegality of Jewish settlements in the occupied Palestinian territory, all such settlements should be withdrawn and the barrier replaced with a security infrastructure.
Social and economic marginalization of and discrimination against vulnerable groups often amounted to violation of their human rights, and this could provide fertile soil for recruitment to organizations that might support terrorism. Mr. Scheinin recommended that the Counter-Terrorism Committee of the Security Council address the potential of promoting economic, social and cultural rights in strategies to prevent terrorism.
Statements by Concerned Countries
ANGELICA NAVARRO LLANOS (Bolivia), speaking as a concerned country, thanked the Special Rapporteur for his visit to Bolivia. The election of President Morales had opened the way for the indigenous peoples not only to be represented but also to be elected. Bolivia was implementing a national plan of development aimed at the “well-being” of all its citizens, in search of an equilibrium or balance. Indigenous ideas could well be used in multilateral debates. The Constitution of Bolivia specifically referred to the indispensability of cultural plurality which helped create the history of Bolivia. Bolivia was surprised by the mention of racist and anti-indigenous feelings in the report of Mr. Stavenhagen.
GLAUDINE MTSHALI, (South Africa), speaking as a concerned country, said in national consultative meetings with all the national stakeholders to reflect on the report of the Special Rapporteur, a few factual inaccuracies were observed. South Africa was, on the whole, grateful for the opportunity to interact with Mr. Scheinin on his sensitive mandate. His interaction with all the stakeholders was insightful. The recommendations of the Special Rapporteur to the Government were sound, and South Africa was in the process of integrating them into national policies.
South Africa hoped that it would have further opportunities to engage with the Special Rapporteur on some of his recommendations as and when necessary. It had also taken note of the Special Rapporteur’s observation that the applicable pieces of legislation in South Africa tended to place a high premium on counter-terrorism measures with the potential consequence of a negative impact on human rights. South Africa would continue to work on these issues to ensure that it struck an appropriate balance between implementing the required counter-terrorism measures whilst promoting and protecting human rights.
MELANIE J. KHANNA (United States), speaking as a concerned country, said the United States appreciated the Special Rapporteur’s observation that the military judge was doing his utmost to ensure fair and orderly proceedings. Given the complexity of military commission cases, it was not surprising that there were logistical challenges which could occur in any domestic criminal system in any country. The United States was disappointed that the Special Rapporteur declined an offer to tour the detention facility. Such a tour would have enabled him to offer a valuable perspective. Mr. Scheinin’s oral presentation about his Guantanamo visit was in part misleading about the facts of the process and repeated previous, ill-informed criticisms of military commissions.
The report did acknowledge United States leadership in the international fight against terrorism, but missed a number of opportunities to deepen the ongoing international discussion of how democracies might best deal with current terrorist threats. A large part of the report repeated unfair and oversimplified criticisms. While the extension of this mandate was supported, it was hoped that in future the work of the Special Rapporteur would proceed differently and focus on more practical solutions to common problems faced by the international community.
ITZHAK LEVANON (Israel), speaking as a concerned country, said that Israel recognized the value and merit of engaging in a constructive dialogue with all human rights mechanisms whose mandates were equitable, fair and balanced. In recognition of the constant daily threats of terrorism facing Israel, the Special Rapporteur had rightly called attention to the fact that among the devastating consequences of terrorism were also traumatic psychological consequences. In considering Israel’s conduct, it was crucial to examine the situation in its proper context. Israel was striking a delicate balance between competing human rights considerations and security concerns. It was because of such constant and imminent threats that Israel was compelled to remain under a state of emergency.
Israel disagreed with the Special Rapporteur’s assertion that this state of emergency was incompatible with Israel’s strong democratic legacy. Some of the Special Rapporteur’s conclusions were challenged. The security fence was not a political one but a security one and could be dismantled as had been done before. Israel was also open to suggestions as to how to improve the humanitarian situation of Palestinians in Gaza while it remained vigilant about the reality on the ground and against terrorist attacks.
MOHAMMED ABU-KOASH, (Palestine), speaking as a concerned country, thanked the Special Rapporteur for his valuable report which asked Israel to abide by international law in its policies and practices towards the Palestinian people in the occupied Palestinian territory. Bombarding Palestinian residential quarters, using Palestinian children as human shields, torturing detainees, hindering pregnant women from reaching hospitals, the Apartheid Wall, the colonial settlements and the very continuation of the occupation of Palestine and Syrian and Lebanese Territories constituted flagrant violations of international law. Israeli creeping geography had been countered by the Palestinian crawling demography, as the victims of Aryan purity had been transformed into the proponents of Jewish purity.
A flower enjoyed its own natural turf, and yielded its fragrance in its own environment. Likewise, Palestinians had the right to enjoy their olive trees, carnations, and the ancient narrow passages leading to the holy sites of the Dome of the Rock and the Holy Sepulchre that stood out as grand testimonies negating the Israeli town to the holy town of Jerusalem. Noah’s Ark had no tyrants, it had those who found grace in the eyes of God.
General Debate on Reports on Indigenous Peoples and Counter-Terrorism
DORA RAMOS (Portugal), speaking on behalf of the European Union, welcomed the discussion of indicators to measure the impact of development projects affecting the rights of indigenous peoples. It was also noted that environmental degradation was becoming a new form of eviction, further impacting on the rights of indigenous peoples. Could the Special Rapporteur elaborate on how development cooperation strategies should be developed to improve that situation?
The European Union thanked the Special Rapporteur for the interesting details on his recent visits, including to Guantánamo Bay. All States should fully cooperate with Special Rapporteurs and respect pledges made when seeking election to the Council. Regarding outstanding requests for visits, were more details on discussions conducted with those countries and timetables available? Regarding commenting upon Israeli draft legislation, were there any other opportunities for this type of activity, or any other actors that might be involved, such as the Office of the High Commissioner for Human Rights? Economic, social and cultural rights had been highlighted in the report, but it had stopped short of any clear causal link with terrorism. Had the Special Rapporteur been in contact with the Committee on Economic, Social and Cultural Rights and other groups on this issue?
MASOOD KHAN (Pakistan), speaking on behalf of the Organization of the Islamic Conference, said that the fight against terrorism had to remain a priority, but within the context of respect for international law. Abuses committed in the name of the war on terror by some nations had strengthened the appeal of extremism. The Organization of the Islamic Conference was concerned about the terrorist abuses committed by certain occupying Powers to achieve their ends, and the existence of Islamophobia under the guise of counter-terrorism in some societies.
It was hoped that the Human Rights Council would call for a withdrawal of Israel from all Palestinian territories. Checkpoints and other measures should not constitute disproportionate harm and hamper the Palestinian people from enjoying their social and cultural rights. The Organization of the Islamic Conference supported the Special Rapporteur’s recommendation that more attention be paid to education for the prevention of terrorism.
SWASHPAWAN SINGH (India), referring to the report on the situation of indigenous peoples in Asia, said that India regretted the fact that the Special Rapporteur’s approach in preparation of the report was not in accordance with the provisions of the Code of Conduct for Special Procedures. In order to carry out an objective analysis of the issues, it was imperative that the mandate holders gave due consideration to the views of the States concerned.
The report on Asia contained several references to the situation of Adivasis, or a tribal population in India, and termed them "indigenous peoples". In India's understanding, the issue of indigenous rights pertained to peoples in independent countries who were regarded as indigenous on account of their descent from the populations which inhabited the country at the time of conquest or colonization or the establishment of present State boundaries, and who, irrespective of their legal status, retained some or all of their own social, economic, cultural and political institutions. India regarded the entire population of India at independence, and their successors, to be indigenous, consistent with that definition. Accordingly, the identification of only a part of the population by the Special Rapporteur as indigenous peoples was unacceptable.
YURI ARIEL GALA LOPEZ (Cuba) welcomed the focus on a human rights–based approach to indigenous development contained in the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. Much still remained to be done regarding the rights of indigenous peoples after 500 years of colonization, and the issue should be kept high on national and international agendas. Cuba could be counted on to support all efforts to formally guarantee and implement all rights of all indigenous peoples.
On the reports by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the wall being built in Israel was having an enormous adverse impact on the human rights of the people living in the region. The report was right to deal with the spread of terrorism in the world today and equally right to highlight problems with North American law on military commissions. The Special Rapporteur had not been allowed to visit North American facilities as requested, and had been concerned by intensive interrogation techniques used by the security agencies of the Government. It was hoped that a future report would address violations of the human rights of Cuban and North American citizens by anti-Cuban terrorist groups operating with clear impunity in Florida, and the violation of the human rights of Cuban anti-terrorists held in detention.
LUIS ALFONSO DE ALBA (Mexico) welcomed the important recommendations contained in the report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people to improve the living conditions of indigenous people. The Mexican Government also thanked the Special Rapporteur for the work undertaken in the course of his visit to Mexico, which had contributed to enhancing the current consultation process in the country.
BO QIAN (China), speaking on behalf of the Asian Group, said the Asian Group was concerned about the approach adopted by the Special Rapporteur in preparation of the report on indigenous peoples in Asia. The report was based on information gathered primarily from non-governmental sources, and did not take into account the views of States. Thus, the approach of the Special Rapporteur had been in clear disregard of the provisions of the Code of Conduct for Special Procedures. The Asian Group also found it difficult to understand why the Special Rapporteur decided to commence a regional focus series with Asia, as a large number of Asian countries did not have indigenous peoples as vulnerable groups among their populations – as their entire populations were indigenous.
The Asian Group was also concerned about the misuse of the concepts of indigenous peoples and ethnic minorities in the report. Further, while the report stated in the introduction that it did not attempt to provide a full picture of the situation in the region, yet it jumped to conclusions and made sweeping recommendations for countries in the region, which was indicative of the unbalanced nature of the report.
Turning to the report on counter-terrorism, and speaking now in a national capacity, China categorically rejected the allegation in Mr. Scheinin's report that there had been human rights violations in China. Repressing terrorist activities was part of the international fight against terrorism. China, like all States, was against terrorism, and in its fight against it, China had always respected international human rights and international humanitarian law. To let terrorist groups act was to violate the human rights of others.
WAYNE LORD (Canada) felt that the right to development in relation to indigenous peoples was one that required a multidimensional approach that could be addressed through many modalities. Canada had launched an action plan in November 2007 to address the legal duty of federal departments and agencies to properly consult with First Nation, Métis and Inuit groups when Crown conduct might adversely impact their rights. The plan aimed to assist consultation and accommodation of aboriginal and treaty rights; create sustainable approaches in relation to consultation; provide more predictability, certainty and transparency on consultation and accommodation of Treaty rights; and promote reconciliation of aboriginal and treaty rights with other societal interests.
Canada noted that there had been increased focus on urban indigenous issues at the international level, and in that connection asked the Special Rapporteur for his views on the human rights-based approach to development as it applied to indigenous people living in urban settings.
OMAR SHALABY (Egypt) said that one of the negative impacts that counter-terrorism measures could have was in preventing people from enjoying their cultural rights. That should be addressed. The fight against terrorism should not go against human rights. All human rights mechanisms and bodies should play a significant role in addressing the violations in the Palestinian occupied territories. Pressure exerted by the international community could show Israel that there was no place for such violations.
On the new draft Egyptian anti-terrorism legislation, the Egyptian Government was keen to include all parties in the debate. A fine balance between human rights and combating terrorism had to be ensured in all such cases.
IDHAM MUSA MOKTAR (Malaysia) said, with regard to the approach taken by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, the preparation of the report had not been in accordance with the mandate entrusted to the Special Rapporteur. Moreover, by taking a regionally based approach to highlighting the so-called problems faced by the indigenous peoples in various Asian countries, the Special Rapporteur had been led to make a series of generalizations of such problems in his report. That had, in turn, led to a serious deficit in a really good understanding and appreciation of each of the situations cited in the report. Generalization was certainly not helpful to the constructive dialogue pertaining to the common efforts to protect and promote the human rights and fundamental freedoms of indigenous peoples worldwide.
The indigenous people in Malaysia who had been referred to in the report were in fact an integral part of over 64 different groups of the indigenous population – the majority in the country. Today, indigenous people had fair and equal opportunity in Malaysia’s political and development process, and occupied Government and senior public positions at the local, state, and federal levels.
GUSTI AGUNG WESAKA PUJA (Indonesia), referring to the report on the situation of indigenous peoples in Asia, wanted to know why other continents had not been included? It should also be pointed out that Achenese people were Indonesian and most Indonesians were indigenous people, contrary to the assertions in the report. Politically, the Aceh region enjoyed far more than “limited autonomy” and the current governor was a former Free Aceh Movement member. The Papuan people also enjoyed a similar autonomy, and Indonesia was a multi-ethnic society with more than 1,000 ethnic and sub-ethnic groups. The sweeping conclusions that the rights of indigenous people were totally cut-off from the national legislations and constitutions of Asian countries were of concern. It would have been hoped that the Special Rapporteur would have actively sought to receive and exchange information from all relevant sources in order to ensure a more balanced report.
On the report of the of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Indonesia supported the report's recommendation urging Israel to withdraw Jewish settlements from the occupied Palestinian territories. Indonesia also agreed that the construction of barrier walls was having a severe negative impact on the enjoyment of all human rights of the Palestinian people and that they should be abolished.
ROMAN KASHAEV (Russian Federation) noted with satisfaction the cooperation between the United Nations Forum on Indigenous People and the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. Regarding the recent adoption of the Declaration on the Rights of Indigenous People, and the new tasks it placed before the Rapporteur, it was clear that to solve the problem of indigenous peoples a constructive dialogue with governments had to take place.
On counter-terrorism, the Russian Federation highlighted that terrorism was not only violating human rights, but was geared towards destroying them. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had been justified when he had touched upon the effects of the enjoyment of cultural and social rights while combating terrorism. Counter-terrorism measures should not hamper the enjoyment of freedoms, but what where should the limits be drawn? Charity work was often used as a cover to conduct terrorist activities. Russia hoped that the activities of both Rapporteurs would continue, in accordance with the Code of Conduct for Special Procedures.
MUSTAFIZUR RAHMAN (Bangladesh) said Bangladesh supported all efforts for the protection and promotion of the human rights of indigenous people, and, as such, supported the work of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people that aimed at improving their situation. Bangladesh was, however, disappointed that the Special Rapporteur had devoted so much effort to produce a report on the situation of indigenous people in Asia, where the issue had marginal relevance. The indigenous/non-indigenous dichotomy did not apply at all in characterizing the population of Bangladesh. Designating sub-groups as indigenous could divert the discussion, and thereby dilute the focus on the plight of the true indigenous people living elsewhere. Despite strong reservations on the relevance here, Bangladesh shared that the legitimate concerns of the tribal people should get as much of the due attention of the Government as others.
With regard to the statement of Special Rapporteur Scheinin, Bangladesh supported the ongoing global fight against terrorism in all its forms and manifestations, and was satisfied that the issue continued to draw the priority attention of the international community. The Special Rapporteur had rightly said that prolonged unresolved conflicts, ethnic and other forms of discrimination, political exclusion, and socio-economic marginalization were conditions, among others, that fomented terrorism. Unless efforts were made to improve the situation, to address those causal factors, counter-terrorism measures could yield no enduring result.
SERGIO ABREU E LIMA FLORENCIO (Brazil) supported the importance of identifying indigenous people as human rights holders and the new trend in development that respected the indigenous segments of society, which were otherwise excluded from participation in the framing of policies relative to areas in which they traditionally lived. The National Foundation for the Indian had been working in Brazil to prevent future development policies that did not take into proper account the status of indigenous people as full stakeholders in all questions related to human rights.
The denial of human rights undermined society. Governments had a responsibility to investigate human rights violations and prosecute perpetrators. Counter-terrorism legislation should be developed within a framework that did not infringe on fundamental freedoms, such as ethnic profiling.
ERLINDA F. BASILIO (Philippines) said that, in the renewal of the mandate of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, the Human Rights Council should recall that the Special Rapporteur had to develop a regular cooperative dialogue with relevant actors, including Governments, in the exercise of his mandate. The addendum report on the situation of indigenous peoples in Asia had not been prepared in dialogue with States, thus it could not adequately represent the complete picture of the situation. Furthermore, the Special Rapporteur’s follow-up visit to the Philippines this year had not been conducted as an official visit, which was part of the standard procedures of the Council.
On terrorism, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism’s desire to conduct a visit to the Philippines was actively being considered.
LEE SUK-TAE (Republic of Korea) said the Republic of Korea was concerned that counter-terrorism measures could be a source of severe human rights abuses when taken on a permanent or long-term basis, in an unbalanced manner. The spirit and substance of international human rights norms and humanitarian law should be fully respected in efforts to counter terrorism. It was Member States that had the primary obligation to prevent any violations of human rights and to provide remedy for victims. It was evident that respect for human rights was the first step in eliminating terrorist groups and fostering an environment of sustainable peace and human security.
The international community, including the United Nations and treaty bodies, should continue to study methods to better guarantee compliance with human rights. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had a valuable role to play in that task, and the Republic of Korea therefore supported his mandate.
ALEJANDRO NEYRA SANCHEZ (Peru) said that it was particularly important to mention participation and empowerment in a discussion of indigenous peoples. Through a process of decentralization, congressmen from Andean regions in the interior of Peru were now able to convey their needs and concerns at the highest level. The Universal Declaration on the Rights of Indigenous People was now in place, and the Human Rights Council needed to ensure that is was implemented in a practical way.
How could greater participation and empowerment of indigenous peoples be brought about, Peru asked? Did the Special Rapporteur know of any cases where legislative implementation of the rights of indigenous people had helped the cause of indigenous people?
RAJIVA WIJESINGHE (Sri Lanka) said that the recent terrorist attacks in Lebanon, Algeria and Iraq showed how important the current dialogue was. There was a need for certain measures to be implemented to respect human rights in the fight against terrorism. Better coordination might be appropriate while dealing with the side effects of the fight against terrorism on human rights. Education was important in that regard.
The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism had mentioned the importance of restricting funding to terrorist groups in his report. It was ironic to find in an official document a reference to an old document of 2005 about the financing of the Tamil Tigers. The Special Rapporteur should have done a more thorough research. In fact, the Sri Lankan Government had a zero tolerance policy for the funding of terrorist groups and was very grateful for countries that had helped them in that regard.
ALICIA MARTIN GALLEGOS (Nicaragua) said Nicaragua welcomed the approach taken by the Special Rapporteur on the human rights of indigenous peoples in his report, based on what was today an axiom – that there should be interdependence between development and human rights. It was the indigenous peoples that continued to live in the lowest levels of economic, social and human development. There was a unique opportunity to bridge that gap. The United Nations Declaration on the Rights of Indigenous Peoples gave a clear framework for action in designing development policies in the context of self-determination, allowing those peoples full participation and autonomy. The rights of indigenous peoples were an integral part of Nicaragua’s society.
The recommendations put forth by the Special Rapporteur should be food for thought for Governments in designing inclusive policies in order to attain true sustainable development. Living in dignity and with justice should be a reality for all. The new Declaration should contribute to improving the situation of the indigenous peoples, and should be fully implemented. Nicaragua was confident the Council could create an appropriate mechanism to gather the thematic experience required and would thus meet the need of indigenous peoples.
IDRISS JAZAÏRY (Algeria) noted that the reports of the Special Rapporteurs had been presented to the General Assembly in advance of their being presented to the Human Rights Council. Clarification was requested on this erosion of the mandate of the Human Rights Council in that regard.
Algeria noted comments in the report by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism regarding the negative effects of the fight against terrorism on the economic, social and cultural rights. Algeria agreed that local terrorism was often linked to unresolved local economic, social, and cultural problems. An international convention on the prevention of and fight against terrorism was called for, with a clearly defined scope in order to prevent any blurring of the lines between terrorism and legitimate action by local people against foreign occupation.
VUN CHHEANG (Cambodia) said that, with regard to consideration for ethnic minorities, Cambodia was more advanced than others in its region. Laws served to protect minority communities. Community land ownership was also inscribed in Cambodian law. That work was at the heart of the Cambodian Government. The report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people contained untrue affirmations about the situation in Cambodia. Cambodia requested the Special Rapporteur to draft a report that reflected the actual situation.
PHAM QUOC TRU (Viet Nam) said the Vietnamese State attached special importance to the policy of ensuring the equal rights of all ethnic groups, and considered it a decisive factor for the country’s sustainable development. Protection of the fundamental rights of ethnic people was guaranteed by a variety of Vietnamese legislation, particularly as it was stated in the Constitution that the State pursued the policy of equality, unity, and mutual support among all peoples, and the strict prohibition of all acts of ethnic discrimination and division. In reality, the international community had increasingly recognized the tremendous achievements and efforts made by Viet Nam in respecting and guaranteeing human rights.
It was Viet Nam’s view that the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people was ill-informed on the real situation in Viet Nam. In fact, the information contained in the report was sheer fabrication from unreliable sources that aimed at smearing the State, causing instability, dividing the Central Highlands ethnic minorities and undermining the great national unity bloc and integrity. The Government of Viet Nam was committed to being constructively engaged with the United Nations mechanisms, human rights mechanisms and the international community as a whole to ensure the protection of human rights and freedoms. As far as the Special Rapporteur was concerned, Viet Nam had serious concerns about the relevance of the working methods he had used, which damage his credibility in the future.
ENZO BITETTO GAVILANES (Venezuela) said that Venezuela's constitution recognized the rights of indigenous people, who were able to fully enjoy their individual and collective rights. The Government had guaranteed that any extraction of natural resources in indigenous areas would not affect the economic, social or cultural rights of the people.
It was important to continue to monitor infringements of human rights and international humanitarian law, and Venezuela acknowledged the impact counter-terrorism measures could have on the economic, social and cultural rights. In that respect, the construction of the barrier in Israel was having a great detrimental effect on the socio-economic conditions in the occupied Palestinian territory and prevented the Palestinian people from realizing their economic, social and cultural rights.
VEBJORN HEINES (Norway) said that the report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people was a substantive and important contribution to Norway's own national process on those issues. Norway had reiterated on several occasions that the United Nations Declaration on the Rights of Indigenous Peoples, as adopted by the General Assembly, represented a framework for improved partnership.
On the issue of terrorism and the listing of individuals and entities as terrorists, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism was asked to elaborate on concrete measures in that regard.
Rights of Reply
ITZHAK LEVANON (Israel), speaking in an right to reply, said Israel was touched by the interest expressed by Cuba, Egypt and Algeria, among others, and hoped that those countries would respond favourably to the request by Mr. Scheinin to visit their countries. The observer of Palestine had revealed his true nature in his statement – his words were words of hatred, and his comments an utter disrespect to Holocaust survivors and cheap demagoguery. His words were evocative of George Orwell’s in 1984 – that the past had been erased.
MOHAMMED ABU-KOASH, (Palestine), speaking in an right to reply, said Palestine wished to remind the distinguished representative of Israel that his problem was not with a delegation, it was that Israel was the occupier of Palestinian, Syrian, and Lebanese territories. The speaker’s statement had been very clear, and he wished to remind the representative of Israel, that if he liked poetry, Israel had made subjugation and occupation its motto. Palestinians, like their brethren in South Africa, would overcome, like those in Soweto. Those who suffered in Europe, those who came from concentration camps, from the ghettos, should not act as Palestine’s masters – they should know the meaning of suffering. They should draw lessons from the peaceful solution, the compromise based on the withdrawal of Israel from all Occupied Arab Territories. Only then would Israel be treating the Palestinians as equal.
ITZHAK LEVANON (Israel), speaking in a second right to reply, said this was cheap demagoguery, and Israel would not lower itself to the level of responding to it.
MOHAMMED ABU-KOASH, (Palestine), speaking in a second right to reply, said the Special Rapporteur, Mr. Scheinin, had asked Israel to abide by international law. If that was cheap talk, it was up to the delegation of Israel to consider.
For use of the information media; not an official record