The twentieth-century change in perspective of the individual under international law has led to an increase in the rights of the individual, particularly fundamental human rights. Belief in the existence of human rights replaced the legal positivism (1) that had taken hold for the past few centuries. (2) The horrors of the twentieth century's wars and the gradual admission of the existence of colonialism only increased this awareness. The United Nations (U.N.), born in the ashes of World War II, sought to create peace and develop international relations. (3) Over the second half of the previous century, governments and governmental organizations realized that a specific group of people, indigenous people, had spent centuries suffering from those who arrived and claimed title to their lands. (4) Many lost culture and freedom, and governments felt that assimilation, extermination, or forced labor were the proper way to deal with their new country's first inhabitants. (5) Slowly, policy has changed; international organizations, governments, and governmental organizations have developed new ways to honor the rights of indigenous people. (6) Policy conflicts and differences in interests easily arise in this politically-fraught international arena. Most importantly, it has taken time for politicians and world leaders to realize that it is impossible to group all issues relating to indigenous people into one subsection neatly titled "indigenous people." Indigenous women face different issues from indigenous men or children, and country conditions and governments affect the lives and rights of this subgroup. (7) While books could be written on the subject of indigenous rights under international law, this Comment is limited to analyzing the current political and social situation of Latin American indigenous women, individual countries' compliance with international law principles, and actions that could be taken both domestically and internationally to create a more just system where the civil and human rights of these people are not infringed. (8)
The first few important steps toward international recognition of indigenous rights occurred with the United Nations Educational, Scientific, and Cultural Organization's (UNESCO) Declaration on Race and Racial Prejudice in 1978. (9) The declaration asserted that all people are equal, and that people have the right to be different without being subjected to racism and discrimination. (10) In 1989, the International Labor Organization (ILO) followed with ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries." Unlike declarations, which are not binding under international law, the convention has legal treaty power in all of the ratifying nations--as of January 25, 2018, twenty-two nations have ratified ILO Convention 169. (12)
Importantly, ILO Convention 169 defines indigenous people, something that UNESCO's declaration and later U.N. declarations have never done. (13) The definition of indigenous people under ILO Convention 169 is a two-prong definition where people can self-identify as tribal or aboriginal (pre-colonial). (14) The tribal definition focuses on those whose "social, cultural and economic conditions distinguish them from other sections of the national community." (15) Their status is regulated "wholly or partially by their own customs or traditions or by special laws or regulations." (16) This stands in contrast to aboriginal status, which is based on "descent from populations, who inhabited the country or geographical region at the time of conquest, colonisation or establishment of present state boundaries." (17) This group "retain[s] some or all of their own social, economic, cultural and political institutions, irrespective of their legal status." (18) The ILO thought to allow a more inclusive framework based on criteria because it gave specific factors to be addressed, but also gave the same rights to both tribal and aboriginal groups. (19) Using both "tribal" and "aboriginal" accounted for the terms that the groups of people called themselves, while also accounting for minority populations living in a specific area within a separate culture, but who do not consider themselves originally from the region. (20)
The ILO Convention also set apart specific rights for indigenous people, including equal footing under national laws, consultation in governmental matters that could affect them specifically, and the right to control over customs and beliefs. (21) Each national government was obligated to ensure that its system provided for all the rights detailed in this international treaty. (22) The convention has been especially successful in Latin America, becoming the basis for increased human rights treaty ratifications (23) and recognition that these countries consist of "multicultural" societies. (24)
More recently, the U.N. has adopted two important non-binding aspirational declarations, the U.N. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (25) in 2005 and the U.N. Declaration on the Rights of Indigenous People (26) in 2007. In an interesting contrast, the U.N. declarations are more individualistic when it comes to determining indigenous rights. The 2005 declaration explains how "a person" has the right to his or her own culture and that "persons belonging to minorities" have social, cultural, and religious rights, and the right to establish associations, enjoy the rights, etc. (27) The 2007 declaration employs similar language with Article 2 detailing that "[I]ndigenous 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." (28) Further articles of the declaration are full of references to all of the rights that the "indigenous individual" has, such as the right to nationality, security, membership in an indigenous community, state education, etc. (29)
The ILO Convention's group rights protections do not go into the individualized level of the U.N. declarations. However, further guidance on the legal basis of indigenous rights in Latin America (whether rights are considered to be group or individual rights), comes from the Organization of American States' (OAS) independent body, the Inter-American Commission on Human Rights. (30) In 1969 the Commission adopted the American Convention on Human Rights, (31) which the Inter-American Court has interpreted to guarantee human rights to indigenous people, including group rights as far as the right of groups to preserve their culture, to exercise their religion, to use their language, to demarcate their territory, and to recognize their property rights with respect to their traditional homeland. (32) The convention has been widely ratified with the United States, Canada, Belize, and Guyana as notable exceptions. (33) Additionally, the OAS provides recourse through the Inter-American Court to people in the Americas who have suffered violations of their human rights and who have been unable to find justice in their own country. (34)
When the subject matter turns to indigenous women, the U.N. Declaration on the Rights of Indigenous People refers specifically to women in Article 22, detailing that "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." (35) The U.N. has also addressed women's rights with a 1979 General Assembly declaration, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (36) Ratifying states commit to measures to end discrimination against women in all forms, and there are currently 189 parties to the convention (as of December 5, 2017). (37)
While many laud these declarations and treaties granting rights to often-overlooked people, others have concern that the emphasis on international group rights can negatively affect individual rights. (38) This issue is especially concerning when balancing issues of indigenous women specifically compared to indigenous rights as a whole. (39) Viewing human rights through the lens of either group rights or individual rights helps frame the questions of what rights are missing and how to move forward.
INDIGENOUS WOMEN & HUMAN RIGHTS
While all members of indigenous communities may face discrimination and human rights violations, indigenous women in Latin America often face issues in two forms. First, they face specific issues of victimization through violent crime, extreme poverty, and gender discrimination, and these issues can arise from within their own culture. (40) Additionally, indigenous women face questioning about their efforts to have their specific human rights recognized (individual rights) as indigenous women when viewed as interfering or being in conflict with the interests of the indigenous community as a whole (group rights). (41)
The right to self-determination is integral to a discussion about indigenous women's rights. As international law has recognized human rights, questions have arisen about self-determination and how far that concept travels. Self-determination to indigenous people centers around concepts like sovereignty, the right to traditional lands, consultation, and degrees of autonomy over internal affairs. (42) Indigenous people maintain that this right to self-determination is necessary for all other rights to be honored. (43) However, addressing the issues that indigenous women face requires recognition that indigenous women face human rights violations from within their own communities as well as from the majority population. (44) To combat these issues, especially violence and discrimination, solutions must account for the...
INDIGENOUS WOMEN IN LATIN AMERICA: AN EFFORT FOR HUMAN RIGHTS.
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