Indigenous Women's Rights 2011

Published as A Xanthaki, ‘The UN Declaration on theRights of Indigenous Peoples and Collective Rights:

What’s the Future for Indigenous Women?’ in Allen S andXanthaki A (eds.), Reflections on the UN Declaration on the Rights of

Indigenous Peoples (Oxford: Hart, 2011) 413- 433

(cited by the UN Expert Mechanism on Indigenous RightsStudy 2012 and UN Expert Mechanism on Indigenous Rights

Study 2013)

16

The Declaration on Indigenous Rights and Collective Rights: What’s the

future for indigenous women?

ALEXANDRA XANTHAKI

INTRODUCTION

The adoption of the Declaration on the Rights of

Indigenous Peoples has undoubtedly been a major event in

international law. Its importance lies I believe on three

reasons: first and most importantly, the instrument

provides indigenous peoples around the world with long-

LLB (Athens); LLM (Queen’s, Belfast); PhD (Keele);

Senior Lecturer in Law, Brunel Law School.





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awaited protection of their rights. Although ILO

Conventions Nos. 107 and No. 169 have recognised a range

of rights to indigenous peoples -and in some cases have

gone further than the Declaration-, their small number of

signatories has always limited the basis of their

protection and ultimately their effect. The Declaration

is able to have an impact on a wider scale. Secondly, the

process of adoption of the Declaration has been unique;

never before has the development and adoption of a human

rights instrument been driven so much and so successfully

by the interested party, in this case the transnational

indigenous movement. Finally, the third element that

substantiates the importance of this Declaration is the

impact it has on the standards of international human

rights law: it significantly contributes to the

clarification and evolution of standards in several areas

of international law. Although many of its provisions





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crystallise non-controversial rights for indigenous

peoples, several provisions recognise rights that, even

though in accordance with current norms of international

law, they have not been explicitly included in general

human rights instruments or have not been widely

accepted.

COLLECTIVE RIGHTS

There seems no better example of this effect of the

Declaration than the case of collective rights. A long-

standing claim of indigenous peoples, collective rights

have always been an important pillar of the Declaration.

After several state attempts to restrict their

recognition, the final version of the Declaration

maintained its emphasis on collective rights, albeit in a

more diluted version. The text recognises the rights of





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indigenous peoples to self-determination, to decide on

their membership, to the establishment of their own

separate systems and institutions and to wide

consultation and participation in matters that affect

them. It also includes a wide range of land rights,

including rights to traditional activities, to natural

resources and indigenous rights to the development and

management of indigenous land rights. Collective

intellectual property rights and a right to redress for

past injustices have also been included in the final

version of the text.

The inclusion of such strong collective rights

represents an evolution of international law standards.

During the deliberations of the text, several States

argued that collective rights were not even part of

current international law standards. Even though the

Chairperson of the Commission Drafting Group stated in





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2002 ‘that he had not heard any intervention that could

be interpreted as denying the existence of collective

rights as such’,1 a few States had indeed doubted their

existence in international law. For example, in 2003 ‘the

representatives of the United States, the United Kingdom

and France all (…) remained concerned about the possible

confusion between individual and collective rights’.2 More

clearly, the representative of Australia had stated that

‘the concept of a collective right was not recognized in

1 See ‘Report of the working group established in

accordance with Commission on Human Rights Resolution

1995/32’, UN Commission on Human Rights (2002) UN Doc.

E/CN.4/2002/98, para. 37.



1995/32’, UN Commission on Human Rights (2003), UN Doc.

E/CN.4/2003/92, para. 67.





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domestic or international legal systems at present’.3

France had also stated that ‘collective rights did not

exist in international human rights law, and therefore

[France] had reservations with regard to those articles

that aimed to establish collective rights’.4 After the

adoption of the Declaration, Japan and the UK also

proclaimed that they did not ‘accept the concept of

collective rights in international law’.5 The main problem

that states had with these articles was their collective

3 Ibid, para. 39.



1995/32’, UN Commission on Human Rights, UN Doc.

E/CN.4/1997/102, para. 108.

5 Statement made the United Kingdom, UN General Assembly,

Sixty-first session, 107th plenary meeting, UN Doc.

A/61/PV.107, p. 21; also see Statement made by Japan in

ibid, p. 20.





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nature and debates were difficult and controversial.

Other states recognised the existence of collective

rights, but feared that their inclusion would lead to the

weakening of the respective individual rights.6 One

‘solution’ repeatedly suggested by the USA was the

adoption of a language similar to the UN Declaration on the

Rights of Persons belonging to National or Ethnic, Religious and Linguistic

Minorities, whereby persons may enjoy human rights

individually, and these may be exercised individually or

in community with others.7 Such language would lower the

standards of international law on indigenous rights, as

both ILO Conventions No. 107 and No. 169 had already

recognized a wide range of indigenous collective rights.

Also, adoption of a language that would emphasize

individual rights would nullify the ‘reason d’étre’ of the

declaration.

6 See UN Doc. E/CN.4/1997/102, paras. 108-113.

7 Ibid, paras. 103-129; also see E/CN.4/1999/82, para. 49.





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The adoption of a Declaration with a substantially

collective element put arguments and doubts to rest. The

Declaration is an addition to the human rights foundation

system of standards and clearly reinforces the existence

of collective rights within this system. Of course,

contrary to States’ arguments, the Declaration did not

add collective rights to the human rights system; their

recognition was in line with the existing system. Earlier

texts such as the Genocide Convention, the UN Charter and the

(1970) ECOSOC Resolution 1503 on gross violations of human

rights8 all include collective elements without

recognising collective rights. In subsequent texts, the

collective element becomes more prominent. The 1969

International Convention on the Elimination of All Forms of Racial

8 Resolution 1503 (XLVIII) of the Economic and Social

Council on ‘Procedure for dealing with communications

relating to violations of human rights and fundamental

freedoms’.





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Discrimination recognises the rights of groups to have

special measures for the advancement of ‘ethnic groups’

and establishes obligations of states and public

institutions not to racially discriminate against ‘groups

of persons’. The United Nations Declaration on Rights Belonging

to National or Ethnic, Religious or Linguistic Minorities aims at

protecting the identity and existence of minorities.9 More

recently, the Rio Declaration recognises the role ‘of

indigenous people and their communities and other local

communities’ in environmental management and development

and the obligation on states to recognise and support

their ‘identity, culture and interests’. The monitoring

mechanisms and other supporting bodies of all the above

texts have over the years greatly advanced the idea of

collective rights.10 Still, clear recognition of

collective rights can be found in the African Charter on Human

9 Article1 of the UN Declaration on the Rights of

Indigenous Peoples.





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and Peoples’ Rights11 and in both ILO conventions on indigenous

rights. Finally, very few will nowadays doubt the

incorporation of the ‘third generation rights’ in the

human rights system; these rights, including the right to

self-determination, the right to development, the right

to peace, the right to co-ownership of the common

heritage of the mankind, the right to a healthy

environment and the right to the culture of humankind,

are all fundamentally collective rights.

States have not been the only ones opposing

collective rights; some authors have also doubted the

10 H Ketley, ‘Exclusion by Definition: Access to

International Tribunals for the Enforcement of the

Collective Rights of Indigenous peoples’ (2001) 8

International Journal on Minority and Group Rights 331.

11 Articles 20, 22 and 24 for collective rights and

Article29 for the duties of the individual towards her

group.





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desirability of these rights.12 One of the arguments

against the recognition of collective rights has focused

on the moral standing of the group; according to this

view, groups cannot be right holders because they have no

morally significant interests. The indigenous paradigm

has proved this to be a weak argument. The Declaration, a

statement of States’ values and beliefs, is full of

references that recognise the value of indigenous groups.

Paragraph 31 of the preamble notes that ‘indigenous

peoples possess collective rights which are indispensable

12 A Kuper, The Reinvention of Primitive Society, Transformations of a Myth

(London, Routledge, 2005); Y Tamil, ‘Against Collective

Rights’ in C Joppke and S Lukes (eds), Multicultural Questions

(Oxford, Oxford University Press, 1999) 158; also see

Seymour’s discussion in M Seymour, ‘Rethinking political

recognition’ in A Gagnon et al. (eds.), The conditions of diversity

in multinational democracies (Montreal: The Institute for

Research of Public Policy, 2003), 59.





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for their existence, well-being and integral development

as peoples’. Paragraph 10 of the Preamble recognises the

political, economic and social structures of indigenous

groups, while paragraph 12 welcomes ‘the fact that

indigenous peoples are organising themselves for

political, economic, social and cultural enhancement’.

Therefore, the Declaration seems to back up Jones’

statement that ‘it is simple nonsense –nonsense upon

stilts- to suppose that, if we treat individual persons

as the ultimate units of moral concern, that must prevent

us from taking full account of the communal dimensions of

their lives’.13

Another traditional argument against collective

rights has been that their recognition is not needed, as

individual rights enable the development and flourishing

13 P Jones, ‘Individuals, Communities and Human Rights’

(2000) 26 Review of International Studies 199, 215.





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of minority groups.14 It has been suggested that most

collective rights are essentially reducible to individual

rights of the members of the group; the same result can

be achieved through individual rights,15 for example

through the individual right to association.16 Again, the

indigenous peoples’ debate reduces the value of this

argument. During the two decades of deliberations of the

Declaration, it became clear that providing indigenous

peoples with a system of individual rights would fail to

protect them from the main violations of their human

rights, because these include violations of a collective

14 A Buchanan, ‘Assessing the Communitarian Critique of

Liberalism’ (1989) 99 Ethics 852, 862.

15 J Donnelly, ‘Human Rights’ in J Dryzek, B Honig and A

Phillips (eds), Oxford Handbook of Political Theory (Oxford,

Oxford University Press, 2006), 601.

16 C Kukathas, ‘Are there any cultural rights?’ (1992) 20

Political Theory 5.





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nature, towards indigenous communities as a group. Land

rights for example do not have the same value as

individual rights as they do as collective ones. If

rights to indigenous lands are recognised as individual

rights, then indigenous individuals can sell parcels of

what is the homeland of the indigenous community.17 One

could argue that it is the free choice of any individual

to sell his land; however, those rights belong to are

recognised to the individual because of his membership to

the indigenous group and would not have been recognised

as such otherwise. Ultimately, an individual system of

protection would fail to redress the disrespect

indigenous communities have experienced of their

identities. Such a system would put the maintenance and

coherence of a liberal, individualistically perceived

17 For example, see S Hutt, ‘If Geronimo was Jewish: Equal

Protection and the Cultural Property Rights of Native

Americans’ (2003) 24 Northern Illinois University Law Review 527.





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system of human rights above the needs of indigenous

peoples around the world. Koskenniemi has recently warned

against attempts to focus on the possible incoherence of

international law, as it ‘seems to assume that

international law is an intellectual discipline that

would (or should) pay much regard to logical problems’.18

Indeed, insisting on an individualistic system of

protection for indigenous peoples merely on the basis

that collective rights do not fit with a prescribed

version of liberalism would ignore the needs of these

communities all over the world for the sake of

intellectual coherence. It would mean submitting human

rights to the oppression of a western jurisprudential

viewpoint; and ultimately, this would not serve the quest

for global justice.

18 M Koskenniemi, ‘The politics of international law- 20

years later’ (2009) 20 European Journal of International Law 7,

8.





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The recognition of collective rights in the

Declaration is important for indigenous peoples, but can

also prove of paramount importance to other sub-national

groups. If the recognition of collective rights is seen

as a natural progression of standards of international

law, then the Declaration paves the way for the

recognition of collective rights to minority groups.

Jones supports the recognition of collective rights in

the following two cases: first, when the title to a good

has a collective form that cannot be divided into a

number of rights held individually by the members of the

group; and second, when the claim of the individual is

not adequate to substantiate a right.19 Jones gives as an

example the right of minorities not to have their sacred

sites desecrated; this cannot be perceived as an

individual right, as the sacred site is a special

property of the group and the desecration violates a

19 Jones, above n 13, 211-214.





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right possessed by this group. The right of minorities to

use their own language, he claims, can also not be seen

as an individual right, as it involves the right to use

their language, an individual’s claim to have official

documents in the minority language, including

administrative documents, court proceedings, tax forms

and road signs. The cost for the realization of such

right would exceed the benefit of the individual, but the

group’s claim to such right can be substantiated, as the

benefits for the group would justify the cost for the

realization of the right.20 Unfortunately, international

standards have not yet accepted a collective right to

language; the UN Declaration on the Rights of Minorities

still recognises rights to ‘members of minorities’. As

Thornberry suggests, the limited collective dimension of

the Declaration on Minorities ‘represents a via media

between the rights of individuals and full collective

20 Ibid.





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rights’.21 In this respect, the recognition of the

collective rights in the Declaration can act as a force

to push for the recognition of minority rights as

collective rights.

An obstacle to this may be the approach that

indigenous rights are a ‘special case’, therefore ‘an

emerging exception’ to the otherwise individual focus of

human rights.22 Several States have pushed for the

adoption of this approach in an attempt to stop any

future ‘spillage’ of rights recognised to indigenous

peoples to other sub-national groups. For example, in

explaining its position on the adoption of the

21 P Thornberry, ‘The UN Declaration on the Rights of

Persons Belonging to National or Ethnic, Religious and

Linguistic Minorities: Background, Analysis, Observations

and an Update’ in A Philips and A Rosas (eds), Universal

Minority Rights (the Hague, Martinus Nijhoff, 1995), 13, 54.

22 Donnelly, above n 15.





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Declaration, the United Kingdom made the point that the

right to indigenous self-determination is ‘to be separate

and different from the existing right of all peoples to

self-determination in international law’,23 making a

distinction between the indigenous right and the right

for all others. More genuine seem the reasons why some

commentators have also pushed for viewing indigenous

rights as a special case: they believe that current

international law cannot accommodate indigenous rights

and restore their inherent rights. Charters argues that

‘confining indigenous peoples’ rights to extended

interpretations of existing hard law instruments’ rather

than viewing these rights as ‘emergent sui generis type

norms, presents, ultimately, conceptual problems for the

development of fairer indigenous peoples’ rights norms

23 Statement made the United Kingdom, UN General Assembly,

sixty-first session, 107th plenary meeting, Un Doc.

A/61/PV.107, p. 21.





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into the future’.24 She is convinced that current

international law cannot accommodate indigenous rights;

instead of trying to fit ‘a square peg in a round hole’,25

she urges us to look at these issues more ‘critically’

and treat indigenous rights as a sui generis case.

It remains to be seen whether approaching indigenous

peoples as a ‘special case’ would help their rights. On

the contrary, it seems to me that it would deprive them

from their being part of the whole human rights

construction, with the values, principles and guarantees

this would carry. I am also not sure this would be

consistent with their repeated insistence that their

rights do not create new standards, hence their rights

fall within the existing current international law. In

24 C Charters, Book review of ‘Alexandra Xanthaki,

Indigenous Rights and UN Standards: Self-determination, Culture and Land’

(2009) 9 Human Rights Law Review 509, 516.

25 Ibid, 517.





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essence, indigenous peoples want to be recognised as

equal partners in the evolution of the state, the

evolution of the society and -why not?- the evolution of

international law. Rather than being outside or in the

periphery, they have managed to actually be part of the

wheels that push forward international law. I am not sure

why indigenous peoples would want to change direction.

CONFLICTS BETWEEN COLLECTIVE AND INDIVIDUAL RIGHTS:

THE CASE OF INDIGENOUS WOMEN’S RIGHTS

Another important argument against collective rights

relates to the conflicts that arise between collective

and individual rights. During the deliberations of the

Declaration, several states expressed fears that the

recognition of indigenous collective rights may restrict

individual rights. For example, the USA noted:





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(…) characterising a right as belonging to a

community, or collective, rather than an individual,

can be and often is construed to limit the exercise

of that right (since only a group can invoke it),

and thus may open the door to the denial of the

right to the individual. This approach is consistent

with the general view of the United States, as

developed by its domestic experience, that the

rights of all people are best assured when the

rights of each person are effectively protected.26

26 See USA Delegation comments on section 1 of the draft

declaration in the 1995 working group on indigenous

peoples (on file with the author). Similar comments are

included in ‘Consideration of a Draft United Nations

Declaration on the Rights of Indigenous peoples,

Information received from Governments’, United States of

America, UN Commission on Human Rights, UN Doc.





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Some authors have also noted that collective rights may

lead to the oppression of indigenous individuals by their

groups.27 So far, international literature and activism

has not looked at the rights of indigenous women from

this perspective in any depth. The challenges that

indigenous women face outside their communities have been

E/CN.4/1995/WG.15/2/Add.1, paras 10-12. Similar views

were expressed in the 1998 working group on indigenous

peoples, see ‘Draft report of the working group

established in accordance with Commission on Human Rights

Resolution 1995/32’, Commission on Human Rights, UN Doc.

E/CN.4/1998/WG.15/CPR.1, para. 40. In the same meeting,

Japan and Sweden were also very negative concerning the

establishment of collective rights.

27 Kukathas, above n. 16, 113; also J Donnelly, ‘Cultural

Relativism and Universal Human Rights’ (1984) 6 Human

Rights Quarterly 400, 410- 413.





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discussed by the UN Special Rapporteur on Indigenous

Issues and indigenous women’s rights vis-à-vis the state

has been discussed in the Permanent Forum on Indigenous

Issues. The Forum has

expressed its concern about the multiple forms of

discrimination experienced by indigenous women,

based on gender and race/ethnicity, and the complex

problems stemming from this discrimination. In

addition, globalization presents new challenges and

problems for indigenous women in many parts of the

world. Indigenous women’s roles have eroded due to

the compounding factors of loss of natural resources

and depletion of the ecosystems, their

transformation into cash economies, changes in





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local, social and decision-making structures, and

their lack of political status within States.28

However, little discussion has taken place on the

particular challenges that indigenous women face within their

communities. Stereotypes, pre-determined roles for women

and harmful practices negatively affect indigenous as

well as non-indigenous women around the world. In his

2007 annual report, Professor Yakin Ertürk, Special

Rapporteur on Violence Against Women, noted:

[I]dentity politics and cultural relativist

paradigms are increasingly employed to constrain in

particular the rights of women. Essentialized

interpretations of culture are used either to

justify violation of women’s rights in the name of

28 ‘Report of the 3d Session of the Permanent Forum on

Indigenous Issues’, UN Doc. E/C.19/2004/23, para. 3.





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culture or to categorically condemn cultures ‘out

there’ as being inherently primitive and violent

towards women. Both variants of cultural

essentialism ignore the universal dimensions of

patriarchal culture that subordinates, albeit

differently, women in all societies and fails to

recognize women’s active agency in resisting and

negotiating culture to improve their terms of

existence.29

It is fair to say that the negative impact of some

indigenous practices and stereotypes on indigenous women

has been seen as a taboo by some indigenous activists and

29 ‘Intersections Between Culture and Violence Against

Women’, Report of the Special Rapporteur on Violence

Against Women, Its Causes and Consequences, Yakin Ertürk,

UN GAOR, Human Rights Council, 4th Session, UN Doc.

A/HRC/4/34 (2007), para. 68.





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scholars; as Radcliffe confirms, ‘gender issues remain

secondary to the cultural politics of the indigenous

movements, where the persistence of a complimentary dual

model of gender underpins a traditional and symbolic role

for indigenous women.’30 Although viewing the experiences

of indigenous women as a unified whole would be

erroneous,31 often they, as women in many other

communities, are seen as carrying the honour of the

community and as such, they are encouraged to suffer in

silence and put the ‘wider rights of the community’ above

their own rights. For example, the Aboriginal Justice

Inquiry of Manitoba identified bias in favour of the male

30 S Radcliffe, ‘Indigenous Women, Rights and the Nation-

State in the Andes’ in N Craske and M Molinaux (eds),

Gender and the Politics of Rights in Latin America (Palgrave, New York,

2002), 149, 16.

31 D Vinding, Indigenous Women: The Right to a Voices

IWGIA Document No. 88, (Copenhagen, IWGIA, 1999).





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partner in indigenous domestic abuse situations and

criticized chiefs and councils for being unwilling to

address the plight of women suffering abuse at the hands

of husbands.32 Communities are reluctant to discuss issues

of abuse and illiberal practices affecting women beyond

their boundaries.

An issue that complicates matters further is the

fact that States have indeed used indigenous women’s

rights as an argument to restrict or deny control of

indigenous communities over their affairs. During the

process of the adoption of the Declaration, the relevant

fora often heard States focusing on the possible

violations that individuals could suffer from group

power. Therefore, it is not without reason that

indigenous activists have been reluctant to discuss the

32 ‘Report of the Aboriginal Justice Inquiry of Manitoba’,

Volume 1: The Justice System and Aboriginal People

(1991), Chp 13, 482-485.





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challenges that indigenous women face within their

communities. In addition to the reluctance of activists

to become engaged in these issues, some indigenous

scholars have also been shunning away from these issues,

as they see the feminist language as ‘inauthentic, un-

indigenous and in other ways deeply problematic for

indigenous peoples’.33 It is argued that often Native

feminists do not only have to challenge ‘patriarchy

within native communities, but also white supremacy and

colonialism within mainstream white feminism’.34 There

have on occasions been differences in the agendas of

feminist movements and indigenous women’s movements; for

example, the 1995 Fourth World Conference of Women in

33 J Green, ‘Indigenous Feminism’ in Making Space for Indigenous

Feminism (Canada, Zed Books, 2007), 14, 15.

34 A Smith, ‘Indigenous Feminism without Apology’ 58

(2006) New Socialist in

http://www.newsocialist.org/newsite/index.php?id=1013.

http://www.newsocialist.org/newsite/index.php?id=1013





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Beijing saw a ‘contradictory and often conflictual

relationship between feminist organisations and female

indigenous representatives’,35 as indigenous women were

pushing for a different agenda to that of feminists.

Moreover, some Native scholars see the issue of

oppression of women from within their cultures as

irrelevant to indigenous societies, as they have argued

that sex-based oppression does not relate to tribal

cultures, but derives from Western colonial influences36

and stems from the hierarchical nature of Western society

and its valuing of all opposites as good or bad. Indeed,

35 S Radcliffe, ‘Indigenous Women, Rights and the Nation-

State in the Andes’ in N Craske and M Molinaux (eds),

Gender and the Politics of Rights in Latin America (Palgrave, New York,

2002), 149, 164.

36 M Sunder, ‘Piercing the Veil’, (2003) 112 Yale Law Journal

1399, 1430; also A Smith, Conquest: sexual violence and American

Indian Genocide (New York, South End Press, 2005) 18, 139.





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since time immemorial some indigenous communities placed

a high value on women in their communities and women

enjoyed more respect and more power than non-indigenous

in their communities.

The history of the Declaration on the Rights of

Indigenous Peoples reflects the reluctance to touch upon

issues related to women’s rights.37 Article 44 (initially

Article 43) reads that ‘all the rights and freedoms

herein are equally guaranteed to male and female

indigenous individuals’; however, this Article was never

really discussed in depth during the elaboration of the

Declaration and was the focus of very little attention.

Indigenous female representatives repeatedly said, when

asked informally, that this was not the forum to discuss

37 M Davies, ‘The globalization of international human

rights law, aboriginal women and the practice of

aboriginal customary law’ in M Cain and A Howe (eds.),

Women, Crime and Social Harm (Oxford, Hart, 2007), 137.





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this issue. In addition to Article 44, Article 22 of the

final text asks for particular attention to the rights

and special needs of women and for special measures to

ensure that indigenous women enjoy protection against all

forms of violence and discrimination. This was a

welcoming addition to the final text.

On occasions, other United Nations’ bodies have tried to

touch on these issues. For example, in the 2006

concluding observations on Canada, the Human Rights

Committee (HRC) expressed its concern about the

discriminatory effects of the Indian Act against

Aboriginal women and their children in matters of reserve

membership and matrimonial property on reserve lands and

urged the state to seek solutions with the informed

consent of the indigenous people. The HRC also stressed

‘that balancing collective and individual interests on

reserves to the sole detriment of women is not compatible





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with the Covenant.’38 Also, the Permanent Forum on

Indigenous Issues has repeated that ‘the natural gender

balance must be reinstated in culturally appropriate

ways, within indigenous societies and beyond’.39

Article9 of the Declaration recognises the right of

indigenous individuals ‘to belong to an indigenous

community or nation, in accordance with the traditions

and customs of the community or nation concerned’, but

specifies that ‘no discrimination of any kind may arise

from the exercise of such a right’. The historical

discrimination that women of minority and majority groups

alike have suffered has been highlighted in the UN

Declaration on the Elimination of Violence against Women: in its

38 ‘Concluding Observations of the Human Rights Committee:

Canada’, Human Rights Committee (2006), UN Doc.

CCPR/C/CAN/CO/5, para. 22.

39 Report of the 3d Session of the PFIP, above n. 29,

para. 3.





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preamble, the Declaration states that ‘violence against

women is a manifestation of historically unequal power

relations between men and women, which has led to

domination over and discrimination of men against women.’

Discrimination against women, both direct and indirect,

is also prohibited by Article 1 of the Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW).

Article 2 (f) CEDAW urges States to take all necessary

measures, ‘to modify and abolish existing laws,

regulations, customs and practices which constitute

discrimination against women’.

Many such practices and roles that affect indigenous

women do not derive from indigenous cultures as such, but

from colonialism40 or are just attitudes that have

40 For the link between colonialism and current violations

of indigenous women’s rights, see DA Mihesuah,

‘Colonialism and Disempowerment’ in Indigenous American

Women, Decolonization, Empowerment, Activism (Lincoln, University





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developed among indigenous -and non-indigenous - persons.

Violence against indigenous women; sexual assaults; and

stereotypical roles of women seem to fall in this

category. These practices are easy to criticise and to

expect to be eliminated (in indigenous as in non-

indigenous communities). One though must not forget the

role of the States to act in these situations. Article 5

CEDAW urges states ‘to modify the social and cultural

practices of conduct of men and women, with a view to

achieving the elimination of prejudice and customary and

all other practices which are based on the idea of the

inferiority or the superiority of either of the sexes or

on stereotyped roles for men and women’. The states have

to look at the causes and take measures to help the

community eliminate such acts and perceptions. These

measures certainly include socio-economic measures that

would improve the situation of these communities or

of Nebraska Press, 2003), 41.





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measures to reverse feelings of non-worth developed over

generations of colonialism. The apology of Canada for the

residential schools and Australia for the Stolen

Generations were viewed by some as measures of the latter

category. Of course, in deciding the measures that would

eliminate such practices, the indigenous groups and more

specifically the indigenous women affected by this must

have an important role. The Declaration is clear that

indigenous peoples must have control over the matters

that affect them.

Unfortunately sometimes though, such acts and

perceptions derive from cultures. Any revisions of

cultural practices or decisions on how to react to

violations of indigenous women must first come from the

indigenous group itself. Even more so, the future of any

practice that affects indigenous women must primarily lie

with the indigenous women of the group, and this choice





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must be real. Richards has noted that ‘even when

indigenous women are physically present at debates about

human rights, their unique positions are frequently

marginalised by those who set the terms of discussion’.41

Some signs about the women’s involvement in such

cases are hopeful; the process of the Declaration and the

successful transnational indigenous movement have

contributed to the emergence or the surfacing to the

international arena of strong indigenous women who are

assertive about the changes that may need to take place

in their own cultures. For example, Indigenous Asian

Women has noted in the Baguio Declaration of the second

Asian Indigenous Women’s Conference:

41 P Richards, ‘The Politics of Gender, Human Rights, and

Being Indigenous in Chile’ (2005) 19 Gender and Society 199,

202.





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We accept the challenge and responsibility to

address cultural renewal and revitalization to

promote gender-sensitive values and structures

within our communities. We note with concern that

some modern changes in our traditional social,

cultural and political institutions and practices

have led to a loss of values and codes of

behaviour which uphold gender-sensitive structures

and roles, while accepting our responsibility to

change other customary laws and practices which

oppress indigenous women. We will speak up against

abusive treatment of indigenous women in the name

of custom and tradition.42

Change of all discriminatory acts and perceptions against

42 Baguio Declaration of the 2d Indigenous Asian Women’s

Conference submitted in the 3d session of the PFIP, above

n. 29.





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indigenous women has to occur through dialog primarily

within the group. Who represents whom in this process of

dialogue and change is fundamental. Ensuring full

participation and real representation is a difficult

task, and possibly one where general rules do not always

apply. Kukathas has pointed out the differences and

conflicts of interests that could exist within any group.

He notes that when elites are confronted with

modernization, they often develop distinct interests from

the masses and in some cases they abuse the masses for

personal ends.43 Ensuring the multiplicity of voices,

through political bodies, pressure groups, consultative

bodies, party political influence, accepting the

unstructured nature of this process, and encouraging the

voices of the vulnerable members of communities, in this

case women, can only create hope that the dialogue will

43 Kukathas, above n. 16.





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be inclusive.44

It is important that the indigenous women of the

group reach their decisions about the future of a

practice without inappropriate interference.

Unfortunately, as mentioned earlier, women who have the

courage to criticise their communities are sometimes seen

as betraying the indigenous cause and their authenticity

as indigenous is questioned.45 Similarly, it is important

to respect their final decision, even if this goes

against the ‘feminist ideal’, rather than label them as

victims of culturally generated false consciousness in

44 JT Levy, ‘Sexual Orientation, Exit and Refuge’ in A

Eisenberg and J Spinner-Halev (eds.), Minorities within

Minorities: Equality, Rights and Diversity (Cambridge University

Press, Cambridge, 2005), 172.

45 S MacIvor et al, ‘Women of Action’ in J Greene (ed.),

Making Space for Indigenous Feminism (Canada, Zed Books, 2007),

241.





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need of liberation.46 Friedman sets a three step test to

determine whether individuals within groups have made

their decision freely. First, they must ‘be able to

choose among a significant and morally acceptable array

of alternatives.’ Second, they must ‘be able to make

their own choices relatively free of coercion,

manipulation, and deception.’ And third, they must ‘have

been able to develop, earlier in life, the capacities

needed to reflect on their situations and make decisions

about them.’47

To this end, the vision of the Declaration that

accepts the multiplicity of cultural frameworks that the

46 B Parekh, ‘A Varied Moral World’ in SM Okin and J

Cohen, M Howard and MC Nussbaum (eds), Is Multiculturalism Bad

for Women? (Princeton, Princeton University Press, 1999)

69.

47 M Friedman, Autonomy, Gender, Politics, (Oxford, Oxford

University Press, 2003) 188.





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indigenous individual enjoys is important: the

declaration views the indigenous individual as an

individual and a member of the indigenous group; but also

member of the state, other cultures and categories (for

example women) and of course, the world community; these

loyalties are not seen as antagonistic, but as

complimentary.48 Hence, preambular paragraph 3 views all

cultures as part of the common heritage of humankind.

Article5 recognises the right of indigenous individuals

both to the indigenous systems and the state system; and

Article 33 specifies that indigenous peoples have the

right to determine their own membership without this

acting as an obstacle to obtaining state citizenship.

Article 14 recognises the right of indigenous individuals

both to the indigenous educational system and language as

48 For more on this model, see A Xanthaki,

‘Multiculturalism and International Law: Discussing

Universal Standards’ (2010) 32 Human Rights Quarterly 21, 40.





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well as the national educational system. In addition,

Articles 21 and 22 recognise other specific categories of

indigenous individuals, including elders, women, youth,

children and persons with disabilities.

This model emphasises the common characteristics,

rather than the possible conflicts that may occur. If

these characteristics are not seen as antagonistic, but

as complimentary of each other within the same society

that respects and celebrates the differences and if

interaction among the various cultures is encouraged,

then changes are easier to be instigated. If the

indigenous group is open to influences by several other

frameworks, then conflicts can be resolved through the

process of re-evaluation of the cultural practices by the

group itself. The declaration does not view indigenous

cultures are stilted, but as evolving elements that

influence and are influenced by other cultures. Being





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open to influences from her group as well as other groups

allows the indigenous woman to reach an informed

decision.

At the same time, indigenous women must have the

choice to exit the indigenous group, should they feel

restricted by its cultural values and practices. Kukathas

places a lot of weight on the individual’s right to exit,

provided that the individual has an open market society

to enter.49 It is interesting that although Article9 of

the Declaration recognises the individual right to belong

to an indigenous group, it does not explicitly also

recognise the right of an individual not to belong to a

group. Still, general instruments are clear on this: CERD

Recommendation VIII (1990) notes that identification as a

member of a particular group will depend on self-

identification; this was repeated most recently in CERD

Recommendation 32 (2009). The Human Rights Committee has

49 Kukathas, above n. 16, 133-34.





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also ruled that the individual can be considered a member

of an indigenous group irrespective of whether the state

sets other criteria for such state recognition.50 Also,

Recommendation 1201 (1993) of the Parliamentary Assembly

of the Council of Europe proclaims that ‘membership of a

national minority is a matter of free personal choice’,

while Article 3 of the Framework Convention on National

Minorities recognises that the ‘every person belonging to

a minority shall have the right to chose to be treated or

not to be treated as such and no disadvantage shall

result from this choice’. Even though Article 9 does not

repeat such a guarantee, the indigenous individual can

protect himself from the group through Article 1 of the

Declaration which protects rights and freedoms gained

‘under international human rights law’. In addition, all

provisions recognising the need for prohibition of

50 Lovelace v. Canada, UN Human Rights Committee,

Communication No R.6/24 (1981), para. 14.





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discrimination on the basis of race and ethnicity also

ensure that the individual will not feel under pressure

to cover his or her ethnic identity and membership.

Unfortunately, the right to exit is not always

adequate for the protection of indigenous women against

oppressive methods of groups, as the basic conditions

that would ensure such a right, also included in

Friedman’s three-step test, are not present. If an

indigenous woman has been denied education, literacy, and

the right to learn about the world outside the group, she

does not really have ‘a substantial freedom to leave

because she lacks the preconditions’ (knowledge and

experience) to make ‘a meaningful choice’.51 Equally

importantly, the right to exit puts the onus on the

indigenous woman. It is the woman who has to leave and

51 W Kymlicka, ‘The Rights of Minority Cultures: Reply to

Kukathas’ (1992) 20 Political Theory 140, 143.





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abandon her membership and group.52 Ultimately, such a

solution seems to sidetrack the problem as it maintains

‘a systematic and structural problem’53 within the

indigenous group. For these reasons Spinner-Halev sets

some minimal standards, similar to the Friedman test,

that are needed to ensure that exit is really an option.

According to him, ‘these standards include freedom from

physical abuse, decent health care and nutrition, the

ability to socialize with others, a minimal education . .

. and a mainstream liberal society.’54 Unfortunately,

these conditions are far from being fulfilled in many

52 SM Okin, ‘Mistresses of Their Own Destiny’: Group

Rights, Gender, and Realistic Rights of Exit’ (2002) 112

Ethics 205.

53 M Malik, ‘The Branch on Which We Sit: Multiculturalism,

Minority Women and Family Law’ in A Diduck and K

O’Donovan (eds.) Feminist Perspectives on Family Law (Abingtdon,

Routledge, 2006) 211, 215-216.





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indigenous communities. As mentioned by the Permanent

Forum, indigenous women ‘often lack access to education,

health care and ancestral lands, face disproportionately

high rates of poverty and are subjected to violence, such

as domestic violence and sexual abuse, including in the

contexts of trafficking and armed conflict.’55 The

implementation of the Declaration pushes for the

realisation of these conditions and in this way

contributes to the improvement of the situation of

indigenous women around the world. If these are improved,

then indigenous women will have the guarantees not to

become victims of persistent discrimination from within

the group. In other words, contrary to their statements

54 J Spinner-Havel, ‘Autonomy, Association and Pluralism’

in Eisenberg and Spinner- Havel, n 44, 160.

55 ‘Indigenous Women: Analysis prepared by the Secretariat

of the Permanent Forum on Indigenous Issues’ UN Doc.

E/C.19/2009/8 (2009), para. 1.





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during the elaboration of the Declaration, the crucial

role for States seems not to prevent any recognition of

collective rights; but to contribute in the elimination

of the conditions that perpetuate the violation of

indigenous women’s rights.

Difficult dilemmas arise for the international human

rights system when the group is not open to other

influences or for whatever reason has taken the decision

to continue the practice that affects women’s rights.

Challenging is also the situation when the indigenous

women consent to a group practice that deprives them from

any rights. Can this consent validate the practice?

Should the international community intervene and violate

the indigenous group’s control over the matters that

affect them? Or should it stand by and continue to accept

violations of human rights because the individual or the

group in question refuses to acknowledge them?





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Coomaraswamy has noted that ‘fighting prejudice against

underprivileged groups while struggling for women’s

empowerment goes to the heart of the modern dilemma

between the universalism of human rights and the

particularity of cultural experience.’56

James Anaya believes that any assessment about a

cultural practice must allow a certain deference for the

group’s ‘own interpretive and decision-making processes

in the application of universal human rights norms, just

as states are accorded such deference.’57 This would

confirm the respect that the international community has

56 R Coomaraswamy, ‘Identity Within: Cultural Relativism,

Minority Rights and the Empowerment of Women’ (2002) 34

George Washington International Law Review 483, 484.

57 SJ Anaya, ‘International Human Rights and Indigenous

Peoples: The Move Towards the Multicultural State’,

(2004) 21 Arizona Journal of International and Comparative Law 13,

26.





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to the indigenous group and its belief on the groups’

ability to solve any issue that occurs. However, most

commentators disagree with this view and believe that in

these cases individual rights must prevail over

collective rights.58 Madhavi Sunder urges the state’s or

international community’s interference; she notes that

many ‘women argue that their governments—and the

international human rights community—have improperly

deferred to traditionalists and so-called cultural

leaders’ interpretations of private laws without taking

58 See for example R Alexy, ‘Individual Rights and

Collective Goods’ in C Nino (ed.) The Ethics of Human Rights

(Oxford University Press, Oxford, 1991), 163. Also, MC

Nussbaum, Sex and Social Justice (Oxford, Oxford University

Press, 1999), who is in favour of individual rights, if a

choice has to be made. Also see SM Okin, ‘Feminism and

Multiculturalsim: Some Tensions’ (1998) 108 Ethics 661.





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proper account of modernizing views.’59

Even though UN bodies are not often faced by these

dilemmas, particularly as the monitoring mechanisms focus

on states rather than groups, in general, some references

appear to support the triumph of individual rights over

collective rights in such cases. Also, the Universal

Declaration on Cultural Diversity reads: ‘No one may invoke

cultural diversity to infringe upon human rights

guaranteed by international law, nor to limit their

scope.’ This seems to imply a pre-determined hierarchy

whereby individual rights always prevail over group

rights. In 2001 the Commission on the Status of Women

also emphasized that multicultural approaches could

reinforce ‘existing power relations [between men and

women] in marginalized communities,’ implying that in

this case women’s rights must prevail.60

Recent ‘contextual justice theories’ put forward by

59 Sunder, above n 36.





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Parekh and Joseph Carens have discussed this dilemma.61

Such theories aim to reconcile universal egalitarian

principles of justice with claims based on identities and

collectivities. Although framed within liberalism,

contextual justice theories do not view universal

principles—such as personal autonomy—as overriding

60 ‘Gender Perspective Needed in Development of Policies

To Counter Racial Discrimination, Commission on Status of

Women Told’, Press Release, Commission on the Status of

Women (2001), UN Doc. WOM/1278.

61 B Parekh, Rethinking Multiculturalism: Cultural Diversity and Political

Theory, 2d edn, (London, Palgrave, 2005); JH Carens,

Culture, Citizenship and Community: A Contextual Exploration of Justice as

Evenhandedness (Oxford, Oxford University Press, 1999). See

also AM Robinson, ‘Would International Adjudication

Enhance Contextual Theories of Justice? Reflections on

the UN Human Rights Committee, Lovelace, Ballantyre and

Waldman’ (2006) 39 Canadian Journal of Political Science 271.





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principles that have to be accepted as they are, but

suggest that adjustments may be needed to these

principles in order to accommodate collective identity

claims. Adjustments must be tailored to the particular

circumstances of each context. Some feminist authors have

also agreed that to move away from universal claims on

equality and to focus on a particular, ‘western’

understanding of equality would be detrimental to

feminism; these foundations must be critically accepted.62

Human rights law seems to endorse approaches that

work towards the accommodation of conflicting human

rights: One has to keep in mind that there is not

hierarchy among human rights, apart from the non-

derogable rights. Any conflicts between rights,

62 S Benhabib, ‘Subjectivity, Historiography, and

Politics’ in S Benhabib, J Butler, D Cornell, N Fraser, L

Nicholson (eds), Feminist Contentions: A Philosophical Exchange (new

York, Routledge, 1995) 107, 118.





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principles, and norms are generally solved on an ad hoc

basis, after taking into account various considerations.

Indeed, a pre-determined triumph of individual rights

over collective rights would seem a rather simplistic

solution, one that creates more problems than it solves.

A system that recognizes indigenous collectivities in the

public sphere up to the point where these cultures are

inconsistent with the dominant culture does not seem

appropriate. A pre-determined hierarchy would ignore the

indigenous voices pushing for collective rights, because

of the perceived inconsistency of collective rights with

western liberal theories. Such a direction would only

harm the faith that indigenous peoples have put on

international law for the protection of their rights.63

The major challenge for the human rights system is to

implement a fair way of preserving the core values of

63 P Thornberry, Indigenous Peoples and Human Rights (Manchester

University Press, Manchester, 2002), 63.





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both individual autonomy and collective control.64

The Declaration confirms the more ad hoc method of

solving such conflicts by insisting that indigenous

rights are firmly within the wider human rights system

and as such, subject to the same restrictions as other

human rights. Preambular paragraph 1 links the

Declaration with the ‘purposes and principles of the

Charter of the United Nations’, while Article1 links the

text with the Charter, the UN Declaration on Human Rights

and international human rights law. Article46 notes that

in exercising the rights contained within the

Declaration, ‘human rights and fundamental freedoms of

all shall be respected. The exercise of the rights set

forth in this Declaration shall be subject only to such

limitations as are determined by law, and in accordance

64 A Eisenberg, ‘Context, Cultural Difference, Sex and

Social Justice’ (2002) 35 Canadian Journal of Political Science

613, 624.





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with international human rights obligations’. In making

these decisions, the UN bodies have insisted on specific

principles. In Lovelace,65 Kitok66 and Länsman,67 the Human

Rights Committee asked for the existence of a reasonable

and objective justification for the prevalence of one

right over the other; consistency with human rights

instruments; the necessity of the restriction; and

proportionality. It is argued that the complete neglect

of one right –be it collective or individual- for the

safe realisation of the conflicting right would in most

cases violate the principle of necessity.68

Finally, the Declaration urges conflicts of rights

65 Communication No. 24/1977; Views in UN Doc. A/36/40

(1981).


(1988).


(1995).





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to be ‘interpreted in accordance with the principles of

justice, democracy, respect for human rights, equality,

non-discrimination, good governance and good faith’.69

Hence, the Declaration highlights the existence of ‘a

wider circle’, common values that are more or less common

for the whole humanity; called by Erin Kelly

‘international public reason’.70 International public

reason stems from the belief that the international

community operates ‘as a society of societies, with its

own public culture and conception of public reason’71 and

is expressed in the international decisions, including

treaties, customary law, general principles, and soft

68 For more discussion on these cases, see Thornberry,

above n 63, 154–160.

69 Article46 of the Declaration.

70 E Kelly, ‘Justice and Communitarian Identity Politics’

(2001) 35 The Journal of Value Enquiry 71.

71 Ibid. at 90.





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law. They include the principle of non-derogation of some

rights, such as the right to life and prohibition of

torture; and also include the core of human rights, the

essence of each human right. No cultural practices and

beliefs can violate these values and no real adjustment

can be initiated to these rights. This is clearly the

position that the UN bodies have taken. Hence, ‘family

violence and abuse, [including] forced marriage, dowry

deaths, [and] acid attacks’ have been identified as

unacceptable, irrespective of their being cultural

practices.72 These practices must be eliminated, even if

seen as expressions of some cultures. Other practices can

be accommodated in view of the women’s consent or the

group’s cultural rights.

72 ‘Violence Against Women’, General Recommendation No. 19,UN Commission on the Elimination of DiscriminationAgainst Women (1992), UN Doc. A/47/38, para. 11. See alsoDeclaration on the Elimination of Violence Against Women (1993), U.N.Doc. A/RES/48/104.





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CONCLUSIONS

The Declaration on the Rights of Indigenous Peoples

confirms the existence of collective rights in

international law and hopefully puts an end to

perceptions that the current international human rights

system includes only individual rights. Apart from

indigenous peoples, this recognition can also benefit

other sub-national groups, if the case of indigenous

peoples is not singled out as a special case. Arguments

against the implementation of indigenous collective

rights have focused on the possible conflicts arising

with individual rights, and in particular women’s rights.

Several of the provisions of the text give important

directions concerning these conflicts. It is recognized

that the collective rights recognised are part of the

human rights system; hence, notwithstanding their





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importance, when these rights violate women’s rights, the

indigenous group - with the active participation of the

women of the group - will have to re-consider and re-

evaluate such practices and stereotypes. As long as the

latter do not attack non-derogable rights or the core of

women’s rights, indigenous control over the group’s

values must be respected. At the same time, the

Declaration emphasizes the need for interaction and

mutual influence of indigenous and non-indigenous

societies and evolution of cultures. The Declaration has

given a vision of indigenous societies where control over

matters that affect them co-exists with dialog both

within and outside the community. It is up to indigenous

peoples themselves and the States to follow and implement

this vision in a way consistent with human rights.

States’ particular responsibility is to improve the pre-

conditions necessary to allow indigenous women and





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indigenous groups more generally to decide which such

practices and perceptions will change and have the

adequate tools to change them. Measures for the

improvement of indigenous socio-economic conditions,

reversal of the effects of colonialism and respect for

indigenous cultures are important to support such re-

evaluations within the groups.

Indigenous Women's Rights 2011

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