Trade Trumps Basic Human Rights?: Why the United States Should Endorse the UN Declaration on the Rights of Indigenous Peoples
Suffolk University Law School
November 30, 2009
The recent uprising in the Peruvian Amazon highlights why the time is right for the United States to endorse the UN Declaration on the Rights of Indigenous Peoples. One might wonder how the endorsement of this Declaration by the United States could affect a crisis thousands of miles away in the Peruvian Amazon.
The latest crisis results from investment concessions made by Peru to various extractive industries without any consultation or consent from the Indigenous Peoples of the area. The Chair of the United Nations Permanent Forum on Indigenous Issues recently issued two emergency statements expressing her “deep concern” on “the reports of atrocities committed... against indigenous peoples in the Amazon region.” The Chair noted in particular the Peruvian Government’s obligations under international human rights law to consult and respect indigenous peoples’ rights to their lands and resources. As reported by the New York Times on June 12th, Peruvian officials attributed their recent concessions without consultation as a necessary step to bringing “Peru’s rules for investment... into line with the [U.S.-Peru] trade agreement.”
Whether the 2007 United States-Peru Trade Promotion Agreement (PTPA) requires such action is a questionable point. The agreement gained House and Senate approval after the Bush administration agreed to insert provisions relating to workers’ rights and the environment. At the time, scholars and indigenous groups voiced concerns over the lack of express protections on matters impacting Indigenous Peoples’ lands and culture (such as the potential for illegal trading of timber and wood products that Indigenous Peoples rely on for their livelihood and survival, or the failure to adequately protect the traditional knowledge of indigenous communities in areas such as medicines and seeds, to name a few). Of course there is nothing in the agreement that allows a State to ignore its basic human rights obligations, including those at issue in the current crisis, from rights of consultation and consent to the rights of life and security.
Two themes central to the UN Declaration on the Rights of Indigenous Peoples are the rights of consultation and prior and informed consent. For instance, under Article 32, States have an obligation to “consult and cooperate in good faith with the indigenous Peoples concerned... in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources... ” These basic rights of consultation and consent are woven through many aspects of international human rights law and are particularly important for Indigenous Peoples given the history of unilateral land and resource deprivation. Of course the question remains how the U.S. endorsement of this Declaration would help to prevent or resolve this type of crisis. There is a host of reasons, some legal some ethical, as to why the U.S. should endorse a Declaration that was adopted by the General Assembly by a huge margin, some 144 affirmative votes. Only four countries - the U.S., Canada, Australia and New Zealand - voted against the declaration, with 11 more abstaining. However, just this past March, Australia officially endorsed the Declaration as a step toward “re-setting” its relationship with the Indigenous Peoples of Australia.
The U.N. Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly in 2007 after years of negotiation. It followed on the heels of a host of U.N reports, most notably the Cobo report, documenting a long history of forced assimilation, discrimination, and oppression against Indigenous Peoples. According to one United Nations official, the rights recognized in the Declaration “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” While the Declaration is a non-binding text, in U.N. practice it is considered a formal and solemn instrument, with which maximum compliance is expected. It contains many rights that are already part of international conventional and customary law, such as the right to culture and language, economic and social development, and collective protection of lands and resources.
If the U.S. were to join Australia in its recent endorsement of the Declaration, it would be an important step forward in strengthening its government to government relationship with its own Indigenous Peoples. On a broader note, an endorsement by the United States of the Declaration would send a clear message to the world that respecting and supporting the rights of Indigenous Peoples to live as distinct communities is the appropriate framework from which to view agreements such as the PTPA. As Professor Mick Dodson of Australia recently noted, governments should not be concerned with the contents of this human rights declaration: “Human rights do not dispossess people. Human rights do not marginalize people... Human rights do not cause poverty... It is the denial of rights that is the largest contributor to these things.”
working papers series
Date posted: December 1, 2009
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