María del Ángel Iglesias Vázquez, Professor of International Law
The professor and researcher María del Ángel Iglesias Vázquez, lecturer in the XXXVII Encuentro Africa, organized last February by News Now Nigeria, reflects on the situation of indigenous peoples in Africa and the social, political, cultural, cultural and environmental challenges they face.
One of the first challenges when addressing the issue of indigenous peoples is their definition. Is there any consensus about her?
There is no definition that serves the different realities of these peoples. There are indigenous communities in 90 states distributed on all continents and each country has its own peculiarities. It is not the same vision that has been from anthropology as from law. So the United Nations Organization (UN) has chosen to establish identifying elements: time priority with respect to ancestral lands, self -identification as indigenous and the willingness to perpetuate their culture, including language, clothing, the way of living, etc.
Since when does international law pay attention to the rights of indigenous peoples?
From the Nations Society, but especially with the UN. With the first, the International Labor Organization (ILO) is created, and in 1936 an agreement on the recruitment of indigenous workers was approved. Later, in 1939, an agreement on the work contracts of indigenous workers was signed. The great general text is Convention 169 of the ILO, which is prepared in 1989. Another important step is the UN declaration on the rights of indigenous peoples, in 2007.
Where does the importance of these instruments of international law reside?
These are documents that collect the aspirations and rights of these peoples. In particular, the right to the property of the ancestral lands, not to be separated from them, to the participation in the benefits that can be obtained from them, the right to maintain and strengthen their cultures. It is important to note that the earth is not only the place that provides them with the subject they need to live, but has an inseparable spiritual component of the previous one and that it is fundamental. That worldview is precisely one of the particularities of its way of understanding life and the world. In addition, the self -determination of these peoples enshrines, but without this meaning the segregation of the State. It is also important to mention that the declaration enshrines the principle of prior, free and informed consent on the activities that may be carried out in their lands. They are texts that are not broad, they are easy to read and that I think we should all know.
Where does the importance of these instruments of international law reside?
These are documents that collect the aspirations and rights of these peoples. In particular, the right to the property of the ancestral lands, not to be separated from them, to the participation in the benefits that can be obtained from them, the right to maintain and strengthen their cultures. It is important to note that the earth is not only the place that provides them with the subject they need to live, but has an inseparable spiritual component of the previous one and that it is fundamental. That worldview is precisely one of the particularities of its way of understanding life and the world. In addition, the self -determination of these peoples enshrines, but without this meaning the segregation of the State. It is also important to mention that the declaration enshrines the principle of prior, free and informed consent on the activities that may be carried out in their lands. They are texts that are not broad, they are easy to read and that I think we should all know.
How is an agreement from a statement different?
The agreement is a treaty, has a binding force and forces states since they sign it and ratify it. However, the 2007 declaration approved at the UN does not have a binding value. There is the big difference. Another thing is that, over time, this statement has been reaffirmed in its value or, rather, it has done so through the judgments of the courts. There we have the Inter -American Court and the African Court, which invoke the statement, so I think we can be talking about having a higher value.
What are the greatest challenges of indigenous peoples in Africa?
Especially the recognition of all those rights, collective and individual, contained both in the agreement and in the declaration. It is necessary that the states reflect the commitment they have acquired in their constitutions. This implementation is where we find one of the big problems: in the recognition of its right to self -government, to the indigenous jurisdiction, to the indigenous jurisdiction, that is, to the right they have to form their own government institutions. In addition, there are all environmental threats directly connected to their lands, since states that have ratified the agreement and have been shown in favor of the declaration continue to carry out unwanted deforestation and extractivisms that have greatly changed the geographical panorama and that affect the earth very negatively that, as I say, is subject and spirit for these peoples.
What importance have regional organizations had on this issue?
They have a fundamental role, because they try to achieve a better understanding between states in the African regional framework that also enjoys such diversity. They serve as a unique collaboration and cooperation forum where states identify problems that are common to which they can also face a joint form. The African Union, in 2005, showed as an official position the declaration of the rights of indigenous peoples, and has declared its support for initiatives favorable to these peoples within the framework of the so -called Action on Human Rights in Africa. Through the African Union, the actors of the continent have had that forum to be able to advocate for social and environmental justice, let’s not forget, in relation to indigenous peoples.
Within this context, what are the paradigmatic cases?
I have special preference for the first of the African Commission, which is the case of the Endorois (Kenya), and for the only case so far before the African Court, which is that of the Ogiek (Kenya). The Endorois had been expelled because a national park is created in the area where they lived, around Lake Bogoria. And the case of the Ogiek becomes more of the same. The expulsion of land where they had lived since time immemorial because they have to carry out certain activities and these people have to be removed and, in fact, they are remote. An important problem that was asked to the Ogiek is how to prove that those were their ancestral lands. On that there is a very beautiful work made by a Brazilian judge, Cançado Trindade, about what he called “the diabolical test”, the demand for documentation, a deed of property to these peoples.
How could the lack of implementation of agreements and sentences be improved?
That is a very complex issue because we talk about policies, governments. Government policies vary and internal justice is not agile in itself. On the other hand, I find the education of society fundamental in respect for the identity of the other. If you start from the first moment, educating the other, we will have reached much more. But it is very complex because, in relation to the land, many have already been sold to third parties and the return to their legitimate owners is impossible. Even so, I am one of those who think that justice must be trusted and that, at least, you have to always try.
How does the context of growing global militarization affect the rights of indigenous peoples?
A lot and very intensely. This scenario directly affects their lands because they are displaced and then the return is impossible. In some regions, war scenarios take place in the lands of indigenous peoples. One of the important issues is that sometimes they are used as a combat weapon, as soldiers, cheating them with false promises, something that almost worries me more than the fact that they are evicted.
Does the fight against climate change and extractive companies also influence the defense of the rights of these peoples?
The fight against climate change and against the actions carried out by extractive companies is deeply linked to the defense of the rights of these peoples. In fact, they have historically been considered as the guardians of ecosystems. Climate change disproportionately affects these peoples and communities, and an important part of the areas considered of greater environmental wealth in the world are territories of indigenous peoples. In the last summits after the Paris Agreement there has already been participation of indigenous peoples. The fact that they have participated and listens to me seems important to me, because they are directly affected.
Why have most of the cases that have been taken to the International Criminal Court (TPI) be Africans?
The TPI is created by the Rome Statute and, in general, the response of African states with respect to the Rome Statute was quite positive. However, there are other states that have not signed or ratified the statute, such as the US, Russia or China. In Africa there are still places where there are conflicts and that are being totally forgotten by the media, so when the court begins to work what they are finding are African scenarios. I believe that the previous prosecutor, Fatou Bensouda (see mn 616, pp. 18-23), and also the current one, Karim Khan, have shown that there is no preference for the African states, but at a certain time they feel that discomfort. In this sense there was a thrust by Al Bashir, former president of Sudan, who wanted African states to leave the Rome Statute. The so -called Malabo protocol was developed, which meant the withdrawal of African states making a separate section within the African Court of Human Rights, but only dedicated to the four major international crimes and transnational crime. Fortunately this did not have the expected acceptance, although it is still there. This is negative for the TPI and for the whole of the international community, because the fruit of the work of all these years can come down for these issues.
What importance would the entry of African actors as permanent members of the UN Security Council?
Here the answer has to be very direct: it is impossible to reform the Security Council. There are five permanent members who are the victors of World War II (USA, the former USSR, United Kingdom, France and China) and there is no longer the one who modifies it. There was talk, for example, the possibility that Germany was part, but it is a totally impossible issue, because who imagines these states renouncing the veto that confers the permanent member of the Security Council? We are talking about something that is utopian, it is not viable.
What are the positive notes on the defense of the rights of indigenous peoples and about the role of African actors in the international scene?
In the African context, the defense of the rights of indigenous peoples has had important advances, despite the challenges that persist. In general, the participation and visibility of African indigenous peoples in international forums increases. Another important aspect is the progress in the visibility of the fight against extractivism, as evidenced by Esther Kiobel’s case. Her husband was a human rights defender of indigenous peoples and was fighting the Shell oil company. They murdered her husband and she sued the company in the US, in the United Kingdom and in the Netherlands. After a hopeful sentence, the last one has been negative again, but there they continue. We must continue on that path of continuing to fight, because Esther Kiobel can be one of the referents in that fight. This is for everyone’s benefit, since from the African continent a benefit is provided to the whole of humanity.
