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Why legally enforceable rights standards matter to indigenous peoples

5 March 2013


Carla Clarke meets the Maasai villagers of Mondorosi.

During my last visit to Tanzania, as I sat listening to men and women from Maasai communities on the edge of the Serengeti, listening to their descriptions of violent attacks on their friends and families, I reflected on the meaning of human rights – not just the standards, but rather the importance of ensuring that people know that they have rights and that governments uphold them.

Do legally enforceable human rights standards matter? If that question is possibly too ambitious, let's narrow it down to one specific example. Does it matter that the right of indigenous peoples to their traditionally occupied lands, and related natural resources, is protected under the American Convention on Human Rights and the African Charter on Human and Peoples Rights (both instruments which are legally binding on those states which have voluntarily signed up to them), rather than simply being contained in the UN Declaration on the Rights of Indigenous Peoples, a non-binding instrument?

Presumably it matters to those who are the beneficiaries of this right. To know that your community's rights to its traditional lands and resources are legally protected presumably means more than them being the subject of merely aspirational statements.

Yet what if the very subjects of those legally enforceable human rights are not aware of them? Take, for example, the Maasai community I visited who raise livestock in Northern Tanzania, an area to which tourists from North America and Europe flock in their thousands for the safari experience of a lifetime.

Given that the closest lawyer is ten hours away by vehicle, with most of that journey bone-shakingly off-road, Maasai might be forgiven for not having heard of the African Charter on Human and Peoples' Rights, or for being unaware that under the Charter the right to property includes the right of indigenous peoples, such as Maasai, to lands traditionally occupied by them, even in the absence of a property title. This right can only be encroached upon in very specific circumstances, and consent must be obtained from the community.

Nevertheless, even if indigenous communities are not aware of the legally enforceable human rights standards protecting them, such standards presumably still matter to them because the state is under a legal obligation not to violate those rights.

Unfortunately, as discussed on The Guardian's Global Development site, states do not always abide by their legal obligations. They often fail to respect indigenous peoples' property rights by granting logging, oil exploration, and mining or tourism concessions on their land, without adequate consultation or guarantees that the community will benefit from development.

However, all is not lost. The fact that human rights are legally enforceable means that governments can be held accountable for their violations in judicial courts, rather than simply the court of public opinion. But this requires a number of significant steps.

Firstly, it either presumes that the indigenous community is now aware of its rights or, at least, another organisation is aware of the violation and willing to assist the community in bringing a case before the courts. This in turn presumes that there is sufficient funding available to bring the case and that a lawyer can be found who is prepared to travel, sometimes for days, to remote areas, to visit the affected community, inform them of their options and gather evidence. It also presumes that there is a legal basis on which a case can be brought in the local courts, and that the judiciary has some knowledge of indigenous peoples' rights, is impartial and independent, and willing to uphold the rights of a group that are often discriminated against by the very society from which the judges emanate.

Tanzania Maasai

Maasai women of Sukenya village
MRG/Carla Clarke

If that wasn't enough, it additionally presumes that the government and interested third parties will not seek to pressurise the community into dropping any legal action. In the case of the Tanzanian Maasai, herders who attempt to access the disputed lands they have used for generations for grazing and accessing water are arrested for trespassing and then, as I saw for myself during my visit, are subjected to a long and drawn-out court process with each court appearance meaning precious time away from their cattle and the use of scant financial resources.

The Maya of Southern Belize are an example of an indigenous people who successfully navigated all these steps to obtain, not just one, but two domestic court decisions in their favour, recognising their collective and individual rights over their customary lands and resources. And yet, five years on from that first judgment, the Belize government is in the process of granting the green light to an American oil company to carry out exploratory drilling in the area in direct violation of the court order.

The Maya of Belize are not alone. A similar "implementation gap" is being experienced by the Endorois of Kenya and the Saramaka of Suriname, and it appears to matter little whether the decision in their favour is from a domestic court or a regional tribunal.

In the face of such blatant disregard for judicial and quasi-judicial decisions, it can be tempting to say that it is of no importance whether human rights are legally enforceable or not. That is not the intention of this piece. Rather it is to reiterate the need for pragmatism.

Just because a right is contained in a legally binding document, it is not an automatic panacea. Instead, ensuring respect for human rights requires the use of a variety of tools, of which litigation is but one, alongside media advocacy, public campaigns, quiet diplomacy and awareness-raising.

Carla Clarke works with Minority Rights Group International's (MRG) legal cases team. She is a qualified lawyer, with a focus on non-discrimination and the rights of indigenous peoples, and authored the chapter Strategies of Resistance: testing the limits of the law, in MRG's 2012 State of the World's Minorities and Indigenous Peoples