INDIGENOUS PEOPLES’ RIGHTS UNDER THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Raoul Wallenberg Institute Human Rights Library

Volumn 20, Issue , 2005, Pages 3-15

  Scheinin, Martin ^a  

^a NONE

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EID: 85180000187     PISSN: 13883208     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789047407324_005     Document Type: Chapter

References (45)

1. 1 International Covenant on Civil and Political Rights (‘ICCPR’).
2. 2 However, see Article 30 of the International Convention of the Rights of the Child.
3. 3 HRC General Comment No. 23 (50), reproduced in UN doc. HRI/GEN/1/Rev.5, pp. 147–150.
4. 4 ICCPR, supra note 1, at paragraph 6.2.
5. 5 Ibid., paragraphs 5.1 and 5.2.
6. 6 Ibid., paragraph 5.2.
7. 7 Ibid., paragraphs 3.2 and 7.
8. 8 Sandra Lovelace v. Canada (Communication No. 24/1977), Views adopted 30 July 1981, Report of the Human Rights Committee, GAOR, Thirty-sixth session, Suppl. No. 40 (A/36/40), pp. 166–175.
9. 9 Ivan Kitok v. Sweden (Communication No. 197/1985), Views adopted 27 July 1988, Report of the Human Rights Committee, GAOR, Forty-third Session, Suppl. No. 40 (A/43/40), pp. 221–230.
10. 10 See paragraph 9.7 of the Committee’s Views.
11. 11 See paragraphs 4.3 and 9.2.
12. 12 Bernard Ominayak, Chief of the Lubicon Lake Band v. Canada (Communication 167/1984), Views adopted 26 March 1990, Report of the Human Rights Committee, GAOR, Thirty-eighth session, Suppl. No. 40 (A/38/40), pp. 1–30.
13. 13 See paragraph 33 of the Committee’s Views.
14. 14 Ilmari Länsman et al. v. Finland (‘Länsman No. 1’) (Communication 511/1992), Views adopted 26 October 1994, Report of the Human Rights Committee, Vol. II, GAOR, Fiftieth Session, Suppl. No. 40 (A/50/40), pp. 66–76.
15. 15 Paragraph 9.3 of the Committee’s Views: The right to enjoy one’s culture cannot be determined in abstracto but has to be placed in context. In this connection, the Committee observes that Article 27 does not only protect traditional means of livelihood of national minorities, as indicated in the State party’s submission. Therefore, that the authors may have adapted their methods of reindeer herding over the years and practice it with the help of modern technology does not prevent them from invoking Article 27 of the Covenant.
16. 16 See ibid., at paragraph 9.6 of the Committee’s Views.
17. 17 See ibid., at paragraph 9.8 of the Committee’s Views (‘With regard to the authors’ concerns about future activities, the Committee notes that economic activities must, in order to comply with Article 27, be carried out in a way that the authors continue to benefit from reindeer husbandry’.).
18. 18 Jouni E. Länsman et al. v. Finland (‘Länsman No. 2’) (Communication No. 671/1995), Views adopted 30 October 1996, Report of the Human Rights Committee, Vol. II, UN doc. A/52/40 (Vol. II), pp. 191–204. See, in particular, paragraphs 10.4 to 10.7.
19. 19 Apirana Mahuika et al. v. New Zealand (Communication No. 547/1993), Views adopted 27 October 2000, Report of the Human Rights Committee, Vol. II, UN doc. A/56/40 (Vol. II), pp. 11–29. See, in particular, paragraphs 9.4 to 9.9.
20. 20 Länsman No. 1, supra note 14, paragraph 9.4 (‘A State may understandably wish to encourage development or allow economic activity by enterprises. The scope of its freedom to do so is not to be assessed by reference to a margin of appreciation, but by reference to the obligations it has undertaken in article 27.’ This statement was reiterated in Mahuika, ibid., at paragraph 9.4.).
21. 21 Länsman No. 2, supra note 18, at paragraph 10.5.
22. 22 Anni Äärelä and Jouni Näkkäläjärvi v. Finland (Communication No. 779/1997), Views adopted 24 October 2001, Report of the Human Rights Committee, Vol. II, UN doc. A/57/40 (Vol. II), pp. 117–130.
23. 23 Ibid., paragraph 7.6.
24. 24 Ibid., paragraph 8.2.
25. 25 Mahuika, supra note 19, paragraph 9.2 (‘Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular article 27.’).
26. 26 ICCPR, supra note 1, at Art. 1.
27. 27 For example: 20. The Committee notes with concern that the Congolese people have been unable, owing to the postponement of general elections, to exercise their right to self-determination in accordance with article 1 of the Covenant and that Congolese citizens have been deprived of the opportunity to take part in the conduct of public affairs in accordance with article 25 of the Covenant. Concluding Observations on the Republic of the Congo (2000), UN doc. CCPR/C/ 79/Add.118.
28. 28 Reference re: Secession of Quebec, [1998] 2 S.C.R. 217, paragraph 128.
29. 29 For instance, section 6 of the Sami Parliament Act of Finland (Act No. 974 of 1995) recognizes this external form of self-determination to the Sami, to be exercised by the elected Sami Parliament.
30. 30 See M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N. P. Engel, Kehl am Rhein, 1993) p. 23.
31. 31 HRC General Comment No. 12 (21), reproduced in UN doc. HRI/GEN/1/Rev.5, pp. 121–122.
32. 32 See ICCPR, supra note 1, at Art. 1, paragraph 2.
33. 33 Concluding Observations on Canada, UN doc. CCPR/C/79/Add.105 (1999), paragraph 8.
34. 34 Reference re: Secession of Quebec, supra note 28, at paragraph 124. In paragraph 139 of the opinion, the Court refers to the importance of the rights and concerns of aboriginal peoples in the event of a unilateral secession by the province of Quebec, with an explicit reference to the issue of ‘defining the boundaries of a seceding Quebec with particular regard to the northern lands occupied largely by aboriginal peoples.’ However, as the Court came to the conclusion that the hypothetical right of self-determination of Quebec could not carry as far as to unilateral secession, it was ‘unnecessary to explore further the concerns of the aboriginal peoples’.
35. 35 Concluding Observations on Mexico, UN doc. CCPR/C/79/Add.109 (1999).
36. 36 Concluding Observations on Norway, UN doc. CCPR/C/79/Add.112 (1999).
37. 37 Concluding Observations on Australia, UN doc. CCPR/CO/69/AUS (2000).
38. 38 Concluding Observations on Denmark, UN doc. CCPR/CO/70/DNK (2000).
39. 39 Concluding Observations on Sweden, UN doc. CCPR/CO/74/SWE (2002).
40. 40 Lubicon Lake Band v. Canada, supra note 12.
41. 41 Ibid., paragraph 32.2 of the Committee’s Views.
42. 42 Kitok v. Swede, supra note 9, at paragraph 6.3: With regard to the State party’s submission that the communication should be declared inadmissible as incompatible with article 3 of the Optional Protocol or as ‘manifestly ill-founded’, the Committee observed that the author, as an individual, could not claim to be the victim of a violation of the right of self-determination enshrined in article 1 of the Covenant. Whereas the Optional Protocol provides a recourse procedure for individuals claiming that their rights have been violated, article 1 of the Covenant deals with rights conferred upon peoples, as such. However, with regard to article 27 of the Covenant, the Committee observed that the author had made a reasonable effort to substantiate his allegations that he was the victim of a violation of his right to enjoy the same rights enjoyed by other members of the Sami community. Therefore, it decided that the issues before it, in particular the scope of article 27, should be examined with the merits of the case.
43. 43 ‘Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected by the Covenant, in particular articles 25, 26 and 27.’ J.G.A. Diergaardt et al. v. Namibia (Communication No. 760/1997), Views adopted 25 July 2000, Report of the Human Rights Committee, Vol. II, GAOR, Fifty-fifth Session, Suppl. No. 40 (A/55/40), pp. 140–160, paragraph 10.3.
44. 44 Marie-Hélène Gillot et al. v. France (Communication No. 932/2000), Views adopted 15 July 2002, Report of the Human Rights Committee, Vol. II, GAOR, Fifty-seventh Session, Suppl. No. 40 (A/57/40), pp. 270–293.
45. 45 See, in particular, paragraphs 8.3, 8.9 and 8.31 of the Committee’s Views.