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Minority and Indigenous Peoples’ Rights on the 70th Anniversary of the Universal Declaration of Human Rights

10 December 2018

Today, as we celebrate the 70th anniversary of the adoption of the Universal Declaration of Human Rights (UDHR), Legal Intern Victoria Adelmant reflects on MRG’s ongoing legal work to protect minorities and indigenous peoples in the light of a selection of the rights enshrined in the UDHR.

As the first document to encompass the rights and freedoms to which every human being is equally and inalienably entitled, the UDHR has shaped the international legal landscape. 70 years on, the substantial body of human rights law which has built upon this influential initial document lies at the heart of our Legal Department’s work to protect the rights of minorities and indigenous peoples. In the work that I have observed here at MRG, I have seen that we have achieved some important successes, yet there is also much work still to be done.

Article 4, ‘No one shall be held in slavery or servitude’

The prohibition against slavery and servitude has acquired the status of jus cogens – a norm of international law so fundamental that nothing can justify such a practice.

Nevertheless, descent-based slavery persists in Mauritania, where thousands of children and adults of the Haratine ethnic group are born slaves and are held in slavery throughout their lives. They are treated as property and loaned, rented out or offered as gifts, and slaves are frequently sexually and physically abused by their masters and are required to work for free, with no breaks. [1]

Since we started working with our local partner SOS-Esclaves in 2010, there have been some significant positive developments in Mauritania. Two laws banning slavery have been passed, slavery has been declared a crime against humanity within this legislation, and a specialist anti-slavery court system has been set up.[2] Following condemnation at the regional and international level, and several successful regional and domestic cases, slave masters are now being prosecuted in Mauritania and former slaves have been awarded compensation. These advances toward the eradication of descent-based slavery would not have been possible without the human rights norms enshrined in the UDHR.

In the time that I have been here, however, I have observed that Mauritania’s promising legislation is neither consistently nor frequently used to prosecute slave masters. In the most recent finding of the anti-slavery court in Néma,[3] prosecutions against slave masters accused of holding young women in slavery from childhood were unsuccessful, with one defendant being acquitted and the other hearing being postponed. We are therefore continuing to provide vital support to SOS-Esclaves to hold slave masters accountable, in order to make the legal system effective and move towards the eradication of this most serious human rights abuse.

Article 7, ‘All are entitled to equal protection against any discrimination … and against any incitement to such discrimination.’

Non-discrimination is the fundamental basis of the UDHR. It underlies every human right, as each of the rights enshrined in the UDHR must be afforded ‘without distinction of any kind.’[4]

Yet our work consistently shows that discrimination persists in all parts of the world against ethnic, religious and linguistic minorities and indigenous peoples, with intersecting grounds such as gender, age and disability compounding this further. As a group which has faced historical social exclusion, and the most vulnerable minority in Europe, our work with the Roma people highlights this continuing marginalisation.

Alongside our local partner, the Roma Democratic Development Association (SONCE), we work to build the capacity of local Roma communities and organisations. In addition, our 12 mediators visit Roma communities each week to map human rights violations and identify discrimination cases, collecting crucial evidence on the discrimination and social prejudice facing the Roma in Macedonia. The results of their findings on inequalities in education, housing and health were published in November. [5] I also assisted with our intervention in the case of Memedov v FYROM in the European Court of Human Rights, seeking to establish that institutional discrimination against the Roma people exists within the Macedonian police. As there is very little jurisprudence on institutional discrimination, I hope that a positive judgment from this court will serve to authoritatively condemn abuses and to catalyse change in the treatment of the Roma and other minorities.

In the past, however, the European Court of Human Rights has missed opportunities to comment on the widespread nature of the discrimination faced by the Roma community. In Bagdonavicius v Russia (2016), in which we intervened, the court declined to find any discrimination against a Roma family who had been evicted. Despite significant legal efforts, the Roma in Europe continue to experience evictions, attacks, segregated schooling, are prevented from crossing borders, and lack access to housing, employment and education. [6]

Article 17(2) ‘No one shall be arbitrarily deprived of [their] property’

The UDHR does not protect a right to access land, though it does safeguard a right to property. The right to access land is, however, vital for the minorities and indigenous peoples we work with, as their livelihoods, cultural and religious practices are tied up with their land.

In the landmark case at the African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v Republic of Kenya (2017), the Court handed down a groundbreaking judgment. Kenya’s eviction of the Ogiek people from their ancestral lands was held not only to amount to a persistent denial of Ogiek land rights, but also to breach a plethora of their fundamental rights. MRG, our local partner the Ogiek Peoples’ Development Program (OPDP) and CEMIRIDE were the three original complainants in the case. The Court found the Kenyan government to have deprived the Ogiek people of their right to economic, social and cultural development, their ‘right to enjoy and freely dispose of the abundance of food produced by their ancestral lands,’ and their religious and cultural rights through depriving them of their ‘distinct way of life’ based around hunter-gatherer practices through ‘continued subjugation, and … persistent marginalisation’.[7] This sends a clear message to African governments that indigenous peoples’ land rights must be respected. I believe this landmark judgment demonstrates the power of the legal tools developed in the 70 years since the adoption of the UDHR, in particular the International Covenant on Economic, Social and Cultural Rights  and the Banjul Charter, in providing much-needed condemnation and accountability for the marginalisation and abuse of indigenous peoples. [8]

We are now in the implementation phase, working with the Kenyan government, the Task Force which has been set up by the Kenyan government, and our partner, OPDP, to translate this legal judgment into real change on the ground for the Ogiek people. In the meantime, however, I have observed continued evictions of the Ogiek people, and minorities and indigenous peoples continue to be forcibly evicted and deprived of access to land throughout all the regions in which we work.

On this 70th anniversary of the UDHR, my impressions are therefore that there is still work to be done. The UDHR, and the international legal instruments which have followed, have been crucial tools in our work to protect the rights of minorities and indigenous peoples. But these legal tools in themselves are not enough: we continue to work on implementation, advocacy and capacity-building alongside our litigation so that we can translate positive judgments into real change.

Notes: For more information on MRG’s Legal Department’s work, see the Law and Legal Cases section of our website.

[1] The practice of slavery in this way breaches many of the rights enshrined in the UDHR, for example the right to family life (Article 12), the right to just and favourable conditions of employment and remuneration (Article 23), the right to rest and leisure (Article 24), the right to an adequate standard of living including access to health and social services (Article 25), and the right to education (Article 26) among others still. Also see Report on Mauritania’s Continued Failure to Eradicate Slavery.

[2] Government of Mauritania, Loi no 2015-031 portant incrimination de l’esclavage et reprimand les pratiques esclavagistes, approved 10 September 2015. See also Enforcing Mauritania’s Anti-Slavery Legislation.

[3] See decisions of the Nema anti-slavery court, 30th November 2018.

[4] UDHR, Article 2.

[5] Roma in the Republic of Macedonia: Challenges and Inequalities in Housing, Education and Health. This is provided under our programme in Macedonia.

[6] Bagdonavicius v Russia, 2016. Also see Ethnic Profiling at the Border, Roma Minority Profile, Violence Against the Roma in Ukraine, Housing and Education in Turkey

[7] African Commission on Human and Peoples’ Rights v Republic of Kenya, App. No 006/2012, see especially paragraphs 111 and 182

[8] International Covenant on Economic, Social and Political Rights; African Charter on Human and Peoples’ Rights (‘Banjul Charter’)

Photo: Ogiek woman smiling in Nessuit County in Nakuru, Kenya.