Monday, October 19, 2009

Gaining Ground on Legal Assistance

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Good news - we're gaining some ground on finding US lawyers who work in international indigenous human rights that are willing to support the Xukuru’s struggle to gain their human rights. The lawyers will assist in the current appeals to reverse the sentence of 10 years and 4 months levied against Cacique Marcos Xukuru , and various other sentences given to 31 Xukuru tribal members and village leaders. This is exciting news, brought to me by Joseph Mandala (my research assistant). Thanks to Joseph's hard work, we hope to have several US lawyers working with international human rights documents to identify specific areas where the Brazilian legal system is non-compliant as signatories. Will keep you posted on the ways in which such documents can be very useful, and hopefully, successful.

Here are links to the 2007 United Nations Declaration on the Rights of Indigenous Peoples:

http://www2.ohchr.org/english/issues/indigenous/declaration.htm

* The UN Declaration was adopted by a majority of 143 states in favor, 4 votes against (Australia, Canada, New Zealand and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine).

* The Declaration establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world's indigenous peoples. The Declaration addresses both individual and collective rights; cultural rights and identity; rights to education, health, employment, language, and others. It outlaws discrimination against indigenous peoples and promotes their full and effective participation in all matters that concern them. It also ensures their right to remain distinct and to pursue their own priorities in economic, social and cultural development. The Declaration explicitly encourages harmonious and cooperative relations between States and indigenous peoples.

http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement

*English version of United Nations Declaration on the Rights of Indigenous Peoples

http://www.hreoc.gov.au/social_justice/declaration/declaration_QA_2009.html

*This is an interesting read - it's a web page from the Australian Human Rights Commission that offers a "Q&A" on the UN Declaration on the Rights of Indigenous Peoples. As one of the four countries (Australia, Canada, New Zealand, & the US) opposed to the adoption of the UN Declaration on the Rights of Indigenous Peoples, this page offers a discussion on the issues that continue to produce miss-information about indigenous peoples and their rights.

Questions:

• Which human rights abuses experienced by the Xukuru can you identify in the General Assembly’s Resolutions? In the 46 Articles of the UN Declaration on the Rights of Indigenous Peoples?

• How would you discuss the issues and present them is such a way as to demonstrate how the Brazilian Nation-State has abused the basic human rights of the Xukuru as outlined in this document?

These are two of the questions we must answer in ways that convince the Regional Federal Tribunal of the 5th region (Pernambuco, Brazil) which is reviewing current appeals to reverse the Federal Courts’ decision to sentence Cacique Marcos Xukuru to 10 years and 4 months in prison (see discussions in earlier blogs about the attempted assassination of Cacique Marcos Xukuru and other abuses). Your suggestions could add to our success.

6 comments:

  1. I went through the UN Declaration on the Rights of Indigenous Peoples, and copied the more obvious abuses. Many of the points in the General Assembly, along with most of the articles, stood out as rights that have been abused, although I admit I am not sure to what extent for some of them; I don’t know if the Xukuru have problems with labor laws, the extent of problems with gender discrimination, problems with education and healthcare, and the position of the child, among multiple other issues. Therefore, there are probably more rights that have been abused than I included.

    -Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

    -Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin, racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

    -Reaffirming also that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind,

    -Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

    -Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

    -Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring an end to all forms of discrimination and oppression wherever they occur,

    -Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

    -Recognizing also that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment,

    -Recognizing and reaffirming that indigenous individuals are entitled without discrimination to all human rights recognized in international law, and that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples,

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  2. Article 1
    Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

    Article 2
    Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity.

    Article 3
    Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
    Article 7
    1. Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.
    2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.

    Article 8
    1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture.
    Article 9
    Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

    Article 10
    Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

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  3. Article 11
    1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.
    2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

    Article 12
    2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

    Article 15
    1. Indigenous peoples have the right to the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information.
    2. States shall take effective measures, in consultation and cooperation with the indigenous peoples concerned, to combat prejudice and eliminate discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all other segments of society.

    Article 22
    2. States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination.

    Article 23
    Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions.
    (I’m not sure how far this extends…Suzanne Williams, in her article “Land Rights and the Manipulation of Identity: Official Indian Policy in Brazil,” discusses FUNAI and its problems, although I don’t know the degree of involvement FUNAI has had with the Xukuru.)

    Article 25
    Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

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  4. Article 26
    1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
    2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
    3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

    Article 28
    1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, of a just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.
    2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

    Article 31
    1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
    2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

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  5. Article 32
    1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.
    2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
    3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

    Article 33
    1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
    2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures.

    Article 34
    Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

    Article 40
    Indigenous peoples have the right to have access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with States or other parties, as well as to effective remedies for all infringements of their individual and collective rights. Such a decision shall give due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned and international human rights.


    In demonstrating these abuses, I think Marcos' situation covers a lot of them, along with the tourist attraction associated with the land containing Xicao's remains.

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  6. Hi Madi - great work. Now, can you think of ways to hold the nation-state (in this case Brazil) to their commitment as signatory to the UDHR and the OAS? What other ways can activists be effective other than letter writing? Would for example, calling the Brazilian embassy and asking to talk with the US Ambassador from Brazil be effective? Perhaps ask this question of the class today, and have them post their thoughts and suggestions, and their questions. Dr. Mikulak

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