Indigenous Peoples as Vulnerable Groups in the Process of Realising the Right to Food

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1 In international law today, there is no common agreement on defmition with regard to the concept of "indigenous peoples". For the purpose of this article one important, common feature of indigenous peoples is the use of traditional livelihoods. The author uses "traditional livelihoods" when referring to livelihoods such as hunting, fishing, trapping and gathering. In addition to having social and economic significance, these livelihoods constitute integral parts ofthe culture of indigenous peoples. This is recognised in the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries in, inter alia, Article 23. See ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, adopted on 27 June 1989, entered into force on 5 September 1991, 28 ILM 1382 (1989). Also, the Human Rights Committee has interpreted the concept of "culture" in a broad sense so that "a way of life which is closely associated with territory and the use of its resources" may be included in the protection of the right of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture under Article 27 of the International Covenant on Civil and Political Rights (ICCPR, 1966). See General Comment 23(50), Report ofthe Human Rights Committee, Vol. I, UN doc. A/49/40, pp. 107-110, para. 3.2. 2 See, e.g., Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights on 25 June 1993, UN doc. A/CONF.157/23; Copenhagen Declaration on Social Development, resolution adopted by the World Summit for Social Development on 12 March 1995, UN doc. A/CONF.166/9; Beijing Declaration, adopted by the Fourth World Conference on Women in September 1995, UN doc. A/CONF.177/20.

' Julia HBuserman, A Human Rights Based Approach to Development, A Discussion Paper Commissioned by The Department for International Development of the UK Government in preparation of the Government White Paper on International Development (London: Rights and Humanity, 1998), pp. 23-24 and 32. ' The right to development (as put forward in the Declaration on the Right to Development of 1986) is defined by the Independent Expert on the Right to Development, Arjun Sengupta, as a process in which all human rights and fundamental freedoms can be fully realised. See, e.g., Arjun Sengupta, The Right to Development, Report by the Independent Expert on the Right to Development, UN doc. E/CN.4/20OOfWG. 8/CRP.), para. 4. 5 Margot E. Salomon with Arjun Sengupta, The Right to Development: Obligations ofStates and the Rights ofMinorities and Indigenous Peoples (London: Minority Rights Group International, 2003), p. 7. 6 The Human Rights Committee has stated that the right to life, guaranteed in Article 6 of the ICCPR, should not be interpreted narrowly. The protection of this right requires positive action from behalf of the States Parties. In this context, the Committee notes that it would be desirable for states to adopt measures aimed at eliminating malnutrition and epidemics in order to reduce infant mortality and increase life expectancy. See General Comment 6(16), on the right to life, adopted 27 July 1982, Report of the Human Rights Committee, UN doc. A/37/40, pp. 93-94, paras. 1 and 5. 7 Henry Shue, Basic Rights: Subsistence, Effluence and U.S. Foreign Policy (Princeton: Princeton University Press, 1980), pp. 18 and 23.

8 Sara Scherr, "Background Paper of the Millennium Project Task Force 2 on Hunger: Halving Global Hunger", Millennium Project, Commissioned by the UN Secretary General and supported by the UN Development Group, 2003, p. 72. ' The Food and Agriculture Organisation of the United Nations (FAO) reported in 2003 that progress in decreasing the number of malnourished people in the world has come to a halt. From 1995-1997 to 1999-2001 the number of malnourished people increased by 18 million. In order to reach the UN Millennium Goal to half the number of undemourished by the year 2015, the annual reduction of the hungry must be 26 million. Of the 842 million hungry people in the world, 798 million live in developing countries. See FAO (Food and Agicultural Organisation), "The State of Food Insecurity in the World 2003", p. 6, available at: http://www.fao.org. '° Scherr, supra (note 8), p. 15. 11 Asbjørn Eide, The Realization of Economic, Social and Cultural Rights. The Right to adequate food and to be free from hunger: Updated study on the right to food, submitted by Mr Eide in accordance with Sub- Commission decision 1998/106, UN doc. E/CN.4/Sub.2/1999/12, para. 65. " See, e.g., IWGIA (International Work Group for Indigenous Affairs), "Indigenous Issues: Poverty in an Indigenous Context", available at: http://www.iwgia.org/sw697.asp.

" Simon Charles, Gudo Mahiya and Gonga Petro, "The Hadzabe of Tanzania", Indigenous Affairs, No. 2 (1999), p. 30. See also Andrew Madsen, The Hadzabe of Tanzania, Land and Human Rights for a Hunter- Gatherer Community, IWGIA Document No. 98 (Copenhagen: IWGIA, 2000), p. 16. '" The concept of"indigenous peoples" is problematic in the African context. The African Commission on Human and Peoples' Rights has established a Working Group of Experts on Indigenous People/Communities in Africa, with, inter alia, the mandate ofexamining the concept of indigenous people and communities in Africa. See Resolution on the Rights of Indigenous People/Communities in Africa, African Commission on Human and Peoples' Rights, Twenty-eighth Ordinary Session in Cotonou, Benin (2000). See also Sixteenth Annual Activity Report of the African Commission on Human and Peoples' Rights 2002-2003, p. 12. It can, however, also be noted that non-governmental organisations working on indigenous issues make no distinction between African and other indigenous population groups. 15 Madsen, supra (note 13), pp. 8, 14 and 70. '6 The Indigenous World 2002-2003 (Copenhagen: IWGIA, 2003), pp. 373-374. " Several studies can confirm that reduction in, or loss of access to land, leads directly to reduced access to food. See, e.g., FAO (Food and Agriculture Organisation), "The State ofFood Insecurity in the World 2002", Chapter 7, p. 10. See also Alessandra Lundstrom, Ursprungsfolkens ratt till foda: Om ratten till tillfredsstdllande fdda och rdtten att livndra sig [The Right of Indigenous Peoples to Food] (Turku/�.bo: Meddelanden fran Ekonomisk-statsvetenskapliga fakulteten vid .$bo Akademi, Rattsvetenskapliga institutionen, Ser. A:536, 2003). 18 Marcel Viergever, "Indigenous Peoples, Human Rights and Development", in Patricia Morales (ed.), Indigenous Peoples, Human Rights and Global Interdependence (Tilburg: International Centre for Human and Public Affairs, 1994), pp. 149-154, at p. 150. '9 D. K. Ndagala, "The Need to Protect Traditional Livelihoods: The Case of Pastoralism and Foraging in Tanzania", in Frank Horn (ed.), Economic, Social and Cultural Rights of the Maasai (Rovaniemi: University of Lappland, 1998), pp. 94-106, at p. 96.

20 Christian Emi, "Indigenous Peoples, Environment and Development: Approaching the Issue", in Silvia BUchi, Christian Emi, Luzia Jurt and Christoph Riiegg (eds.), Indigenous Peoples, Environment and Development, IWGIA Document No. 85 (Copenhagen: IWGIA and Department of Social Anthropology, University of Zurich, 1997), pp. 19-38, at pp. 25-27. 21 Both the economic and the cultural dimension of the indigenous peoples' right to enjoy their own culture, as guaranteed in Article 27 of the ICCPR, have been taken into consideration by the Human Rights Committee, in individual complaints referred to the Committee. In I Ldnsman et al. v. Finland, the Human Rights Committee concluded "that economic activities must, in order to comply with Article 27, be carried out in a way that the authors continue to benefit from reindeer husbandry." 7. Ldnsman et al. v. Finland, Communication No. 511/1992, Views adopted 26 October 1994, Report ofthe Human Rights Committee, Vol. II, UN doc. A/50/40, pp. 66-76, para. 9.8. Ndagala,, supra (note 19), p. 101. 1. 23 Erni, supra (note 20), p. 28. See also Salomon and Sengupta, supra (note 5), p. 7.

24 Andrew Gray, "Development Practice and Indigenous Peoples", in Silvia Buehi, Christian Erni, Luzia Jurt and Christoph Rllegg (eds.), Indigenous Peoples, Environment and Development, IWGIA Document No. 85 (Copenhagen: IWGIA and Department of Social Anthropology, University of Zurich, 1997), pp. 287-305, at p. 295; Anja Lindroos, The Right to Development (Helsinki: The Erik Castrén Institute of International Law and Human Rights, Research Reports 2/1999), p. 60. 2S Viergever, supra (note 18), pp. 149-150. 26 In the European Council resolution on indigenous peoples within the framework of the development cooperation of the Community and the Member States, the vulnerability of indigenous peoples is recognised, and it is pointed out that there is a risk that development programmes may disadvantage them. Therefore, the approach taken in the resolution is "that indigenous peoples have the right to choose their own development paths, which includes the right to object to projects, in particular in their traditional areas". See Council Resolution of 30 November 1998, Indigenous peoples within the framework ofthe development cooperation ofthe Community and the Member States, para. 5, available at: http://europa.eu.int/comm/external relations/human-rights/ip/res98.pdf. 27 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3. Regardless of the fact that Article 11 of ICESCR makes a distinction between the "right to adequate food" and the "fundamental right of everyone to be free from hunger", the concept of "the right to food" covers both of these aspects. See Philip Alston, "International Law and the Right to Food", in A. Eide, W. B. Eide, S. Goonatilake, J. Gussow and Omawale (eds.), Food as a Human Right (Tokyo: The United Nations University, 1984), pp. 162-174, at p. 167.

28 General CommentNo. 12 ( 1999), on the right to adequate food, Report ofthe Committee on Economic, Social and Cultural Rights, UN doc. E/2000/22, pp. 102-110, para. 6. 29 Ibid, para. 7. 30 Matthew Craven, The International Covenant on Economic, Social and Cultural Rights (Oxford: Clarendon Press, 1995), p. 308. " Amartya Sen has argued that the right to be free from hunger is a "metaright". Such a "metaright" can be defined as "the right to have policies p(x) that genuinely pursue the objective of making the right to x realisable." For example, in many countries where hunger is widespread, it might not be feasible to guarantee the right to be free from hunger for everybody in the near future, but policies that would rapidly realise freedom from hunger, do exist. See Amartya Sen, "The Right Not to Be Hungry", in P. Alston and K. TomaSevski (eds.), The Right to Food (s.l.: Institute of Human Rights (SIM) and Martinus Nijhoff Publishers, 1984), pp. 69-81, at pp. 70-71. 1 - 'z Craven, supra (note 30), pp. 316-317. " The terms "land reform" and "agrarian reform" should not be used as synonyms, even though they have much in common. The former term refers to a redistribution of land ownership to achieve a more equitable access to resources, while an agrarian reform also includes supporting measures designed to make the reformed sector more productive. See Cristina Liamzon, "Agrarian Reform: A Continuing Imperative or an Anachronism?", in Deborah Eade (ed.), Development and Rights (Oxford: Oxfam GB, 1998), pp. 101-113, at p. 103.

34 Craven, supra, (note 30), p. 322. 35 See General Comment No. 12, supra (note 28), paras. 21-22. 31 Ibid, para. 15. " Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/1991/23, pp. 88-110. 'e Committee on Economic, Social and Cultural Rights, Concluding observations on Paraguay (1996), UN doc. E/C.12/1/Add.l, para. 9; Guatemala (1996), LJN doc. E/C.12/l/Add.3, paras. 10 and 24; Peru (1997), UN doc. E/C.12/1/Add.l4, para. 12; Brazil (2003), UN doc. E/C.12/l/Add.87, paras. 31, 40 and 61. In these concluding observations the Committee makes reference to the situation of indigenous peoples, landless peasants or, in general, the rural population. In its concluding observations on the report of the Philippines, the Committee notes that the government has failed to meet its own targets in relation to the implementation of an agrarian reform. Also, the Committee states that: "The inadequacy of the agrarian reform progamme appears to have had a negative impact upon the full realization of the right to food as enshrined in Article 11 of the Covenant". Concluding observations on the Philippines (1995), UN doc. E/C.12/1995/7, para. 19. 39 see, e.g., FAO, supra (note 17), Chapter 7, p. 12. 10 Jean Ziegler, The Right to Food, Report of Special Rapporteur of the Commission on Human Rights on the Right to Food to the General Assembly, Fifty-seventh session, 2002, UN doc. A/57/356, paras. 22-24 and 30.

°' Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen: Intersentia, 2003), p. 311; 1 ; Asbjem Eide, "Economic, Social and Cultural Rights as Human Rights", in Asbjem Eide, Catarina Krause and Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook, 2nd rev. ed. (Dordrecht: Martinus Nijhoff Publishers, 2001), pp. 9-28, at p. 10. 42 general Comment No. 3 (1990), on the nature of States Parties' obligations, Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/1991/23, pp. 83-87, para. 9. See also General Comment No. 12, supra (note 28), para. 14. general Comment No. 3, supra (note 42), para. 2. lbid, para. 1. 4S General Comment No. 12, supra (note 28), para. 18.

°6 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador), adopted 17 November 1988, entered into force 16 November 1999, OAS Treaty Series No. 69. 47 lbid °' Article 26 reads: "The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter ofthe Organization ofAmerican States as amended by the Protocol of Buenos Aires." American Convention on Human Rights, adopted 22 November 1969, entered into force 7 August 1978, OAS Treaty Series No. 36. °9 lnter-American Yearbook on Human Rights 1993, Vol. 1 (The Hague: Martinus Nijhoff Publishers, 1996), p. 868. '° Third Report on the Human Rights Situation in Colombia, 1999, OAS doc. OEA/Ser.L/V/II.102, Chapter III, para. 7. In this report the Inter-American Commission makes clear that the state's obligation to develop economic, social and cultural rights "is not necessarily being fully met".

" In the Preamble ofthe African Charter on Human and Peoples' Rights the principle of interdependence is made clear: "Convinced that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be disconnected from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights". African Charter on Human and Peoples' Rights, adopted 27 July 1981, 1, entered into force 21 October 1986, 21 ILM 59 (1982). See also Fons Coomans, "The Ogoni Case Before the African Commission on Human and Peoples' Rights", International and Comparative Law Quarterly, Vol. 52 (2003), pp. 749-760, at pp. 750-51. Sz Chidi Anselm Odinkalu, "Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples' Rights", in Malcom Evans and Rachel Murray (eds.), The African Charter on Human and Peoples' Rights: The Syslem in Practice, 1986-2000 (Cambridge: Cambridge University Press, 2002), pp. 178-218, at p. 196. See also Nana K. A. Busia Jr and Bibiane G. Mbaye, "Filing Communications on Economic and Social Rights under the African Charter on Human and Peoples' Rights (The Banjul Charter)", East Africans Journal of Peace & Human Rights, Vol. 3, No. 2 (1996), pp. 188-199, at p. 192. " The mandate of the African Commission is established in Article 45 of the African Charter on Human and Peoples' Rights. sa pd�alu, supra (note 52), pp. 196-198. See also Coomans, supra (note 51), pp. 758-759.

" Chidi Anselm Odinkalu, "Analysis of Paralysis or Paralysis by Analysis? Implementing Economic, Social, and Cultural Rights Under the African Charter on Human and Peoples' Rights", Human Rights Quarterly, Vol. 23 (2001), pp. 327-369, at p. 351. 16 See, e.g., J. Oloka-Onyangio, "Beyond the Rhetoric: Reinvigorating the Struggle for Economic and Social Rights in Africa", California Western International Law Journal, Vol. 26, No. 1 (1995), pp. 1-23, at p. 15. " See Coomans, supra (note 51), p. 751; Odinkalu, supra (note 55), p. 341 and 364. In Communications 54/91, 61/91, 98/93, 167/97 and 210/98 v. Mauritania, the African Commission found that lack ofsufficient food, blankets and adequate hygiene in detention centres constitutes a violation ofArticle 16 ofthe African Charter. See Compilation of Decisions on Communications of the African Commission on Human and Peoples' Rights: Extracted from the Commission's Activity Report 1994-2001 (The Gambia: Institute for Human Rights and Development in Africa, 2002), p. 186. See also Communication 100/93 v. Zaire in which the Commission held that "[t]he failure of the Government to provide basic services such as safe drinking water and electricity and the shortage ofmedicine ... constitutes a violation of Article 16."Idem., p. 366. In Communication 155/96 v. Nigeria, the African Commission is ofthe view that tight to adequate food is implicitly protected by other rights guaranteed in the Charter. See below, section "The African Commission on Human and Peoples' Rights and the Case of the Ogoni People". 58 Coomans, supra (note 51), p. 751. 1. s' Odinkalu, supra (note 55), p. 366.

�° Sepulveda, supra (note 41), pp. 360-361. 61 Committee on Economic, Social and Cultural Rights, General Comment No. I (1989), on reporting by States Parties, Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/1989/22, pp. 87-89, paras. 4 and 7; General Comment No. 3, supra (note 42), para. 11; General Comment No. 12, supra (note 28), para. 31. See also Sep6lveda, supra (note 41), p. 361. 1. sz General Comment No. I, supra (note 61), para. 3. 6' Inter-American Yearbook on Human Rights 1993, supra (note 49), p. 888. sa Eide, supra (note 11), para. 62.

ss General Comment No. 12, supra (note 28), para. 21. 1. 66 Ibid., paras. 25-26 and 29. 67 In the early 1990s, 32 million Brazilians were food insecure. In order to fight this, the government created a National Food Security Council (CONSEA) in 1992. Under strong pressure from a civil society movement, Citizenship Action Against Hunger, Poverty and for Life, CONSEA has defined a broad programme of food distribution utilising existing public food stocks; and promoting food security through agrarian reform, income and job generation, professional education and monetary stabilisation. See Flavio Luiz Schieck Valente, "Food for Development and the Human Right to Food and Nutrition: The Brazilian Experience", in Malini Mehra (ed.), Human Rights and Economic Globalisation: Directions,r'or the WTO (Uppsala: Global Publications Foundation in cooperation with International NGO Committee on Human Rights in Trade and Investment (INCHRITI) and International Coalition for Development Action (ICDA), 1999), pp. 104-112, at pp. l OCr108. se Jean Ziegler, The Right to Food, third annual report to the General Assembly by the Commission on Human Rights Special Rapporteur on the Right to Food, 2003, UN doc. A/58/330, pp. 17-18.

" Ziegler, supra (note 68), pp. 17-18. '° When reviewing the initial report of Brazil, the Committee on Economic, Social and Cultural Rights "welcomes the program `Fome Zero' undertaken by the State party aimed at eradicating hunger which affects a substantial portion of the population". Concluding observations on Brazil, supra (note 38).

" Revised Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties, supra (note 37). 72 General Comment No. 12, supra (note 28), para. 13. " Rolf Ktlnnemann, "The Right to Adequate Food: Violations Related to Its Minimum Core Content", in Audrey Chapman and Sage Russell (eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerpen: Intersentia, 2002), pp. 161-183, at p. 169. '° This is also recognised in human rights treaties for the protection of specific groups. In the Convention on the Elimination on All Forms ofDiscrimination against Women (adopted 18 December 1979, entered into force 3 September 1981, 1249 UNTS 13), in Article 12, "States Parties shall ensure to women ... adequate nutrition during pregnancy". In the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990, 28 ILM 1456 (1989)), in Article 24, "States Parties recognize the right of the child to the enjoyment ofthe highest attainable standard of health". In the implementation of this right, States Parties shall take appropriate measures "to combat disease and malnutrition". In the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, the right to food is not specifically protected, but according to Article 2(b), states shall take measures for "promoting the full realisation of the social, economic and cultural rights of these peoples". It is important here that the same article mentions that this must take place "with respect for their social and cultural identity, their customs and traditions and their institutions". " General Comment No. 12, supra (note 28), para. 13. Also in the general comment on the right to health, the Committee on Economic, Social and Cultural Rights is expressing its concern that activities leading to the displacement of indigenous peoples against their will from their traditional territories, "denying them their sources of nutrition and breaking their symbiotic relationship with their lands", has a deleterious effect on the health of these peoples. General Comment No. 14 (2000), on the highest attainable standard of health, Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/2001/22, pp. 128-148, para. 27.

'6 Craven, supra (note 30), p. 316; Eide, supra (note 11), para. 59. "See, e.g., the concluding observations on Armenia in which the Committee "regrets the lack ofstatistics with regard to the implementation of the rights to food, housing, health and education, as a result of which they could not be evaluated sufficiently by the Committee". Concluding observations on Armenia (1999), iJN doc. E/C.12/1/Add.39, para. 13. elide, supra (note 11), para. 73. "Committee on Economic, Social and Cultural Rights, Concluding observations on Guatemala (1996), LTN doc. E/C.12/1/Add.3, para. 15; Peru (1997), IJN doc. E/C.12/1/Add.l4, para. 12; Honduras (2001), UN doc. E/C.12/1/Add.57, para. 14; Bolivia (2001), UN doc. E/C.12/l/Add.60, paras. 14 and 30. eo The Committee does not use the concept of "indigenous" when referring to the Baka Pygmies. However, as the Baka Pygmies gain their livelihood as a hunter gather community, they fall within the scope of this article. They are heavily dependent both on the rainforest's animals and its fruits, berries and other flora for food. See FIAN Parallel Report, "The Right to Adequate Food in Cameroon", Submitted at the occasion of the twenty-first session of the Committee on Economic, Social and Cultural Rights, 1999, p. 12; Alison Graham, "Destruction of the Cameroon Baka People's Natural Resources for Modern World Consumerism", FIAN Magazine, Hungry for what is right, No. 20 (October 2000), p. 6; The Indigenous World 2002-2003 (Copenhagen: IWGIA, 2003), pp. 393-394.

81 The state has the right to distribute the rights of access to all natural resources to third parties, both local populations and companies. Large scale logging in the area has been commenced. The government of Cameroon also maintains title to the territories in which the Baka Pygmies live and only leases the land to the communities for a total of 15 years. See FIAN Parallel Report on Cameroon, supra (note 80), pp. 12-13. 82 Committee on Economic, Social and Cultural Rights, Concluding observations on Cameroon (1999), LJN doc. E/C.12/1/Add.40, paras. 21 and 23. " Ibid, para. 39. According to information from the non-governmental organisation FIAN, indigenous peoples are one of the most vulnerable groups in Russian society. Their life expectancy is between 10 and 20 years below the national average, the unemployment rate is one of the highest in the country, and they face the greatest difficulties in ensuring sufficient nutrition for themselves. Both village dwellers and traditional reindeer breeders have difficulties in gaining their livelihood. Reindeer breeders' means of subsistence are threatened by massive destruction of forests and pasture lands through the exploitation of oil and natural gas. See FIAN Parallel Report, "The Right to Adequate Food (Art. 11 ) and Violations of this Right in the Russian Federation", 1997, p. 7. " Committee on Economic, Social and Cultural Rights, Concluding observations on the Russian Federation (1997), UN doc. E/C.12/1/Add.l3, para. 14. It is rare that there are agreements between a company exploiting the natural resources and the indigenous people living in the area. If the agreement does exist, it is often signed under illegal circumstances. The economic "compensation" (often consisting of necessities such as generators, sacks of flour, sugar, tea and round batteries) offered to a group never ensures long-term food security. See FIAN Parallel Report on the Russian Federation, supra (note 84), p. 14.

ab Concluding observations on the Russian Federation, supra (note 85), para. 30. In the concluding observations on the fourth periodic report by the Russian Federation, the Committee does not take note ofthe right to food of indigenous peoples. Instead, it expresses its concern at "the precarious situation of indigenous communities in the State party, affecting their right to self-determination under Article 1 of the Covenant". In this connection, the Committee notes that the national law which guarantees demarcation of indigenous territories has not been implemented. See Committee on Economic, Social and Cultural Rights, Concluding comment on the Russian Federation (2003), UN doc. E/C.12/1/Add.94, para. 11. I. a' Concluding Observations on Paraguay, supra (note 38), para. 8. 89 Ley 904/81, Estatuto de las comunidades indigenas, adopted 10 December 1981, see in particular Articles 14, 15 and 18; Ley No 43/89, Por el cual modifican disposiciones de la Ley No 1372/88 "Que estalecce un regimen para la recularizacion de los asentamientos de las comunidades indigenas", see in particular Article 3. e' Constituci6n de la Republica de Paraguay, 1992, capitulo V de los pueblos indfgenas. 90 In general, the indigenous communities in the Chaco live in small overpopulated areas. These peoples claim approximately three percent of their traditional territory, but in spite of the clear legal framework for the restitution of lands to indigenous peoples, Paraguay has made no progress in this regard over the last few years. On the contrary, the allocation of funds for the purchase of territories claimed by indigenous peoples have been constantly reduced, leaving in the year 2001 a sum of approximately US$ 400,000. This amount would resolve only about one percent of the territorial claims. The Indigenous World 2000-2001 (Copenhagen: IWGIA, 2001 ) p. 149. See also The Indigenous World 2001-2002 (Copenhagen: IWGIA, 2002), pp.161-162; Stephen W. Kidd, "Paraguay: Total Disregard for the Indigenous Peoples", Indigenous Affairs, No. 4 (1996), pp. 36-40; Stephen W. Kidd, "Paraguay: The Indigenous Peoples of the Chaco and the Denial of their Land Rights", Indigenous Affairs, No. 1 (1995), pp. 46-51. 1. " Concluding Observations on Paraguay, supra (note 38), para. 9.

'z Concluding Observations on Paraguay, supra (note 38), para. 21. 1. 93 Committee on Economic, Social and Cultural Rights, Concluding observations on Mexico (1993), LTN doc. E/C.12/1993/16, para. 8. 94 Committee on Economic, Social and Cultural Rights, Concluding observations on Mexico (1999), LJN doc. E/C.I2/IIAdd.4I, para. 18. Emphasis added. 's In predominantly indigenous communities 73 percent of all indigenous youth between the ages of zero to 16 suffer from malnutrition. See Camilo Perez-Bustillo, "Human Rights, Poverty and Indigenous Peoples' Struggles in the Americas", in Willem van Genugten and Camilo Perez-Bustillo (eds.), The Poverry frights: Human Rights and the Eradication of Poverty (London and New York: Zed Books, CROP International Series on Poverty, 2001), pp. 87-114, at p. 99; Alicia Carriquiriborde, "The Poorest among the Poor: Economic Rights of the Indigenous People in Mexico", FIAN-Magazine, Hungry for what is right, No. 20 (October 2000), p. 9. 9. Concluding observations on Mexico, supra (note 94), paras. 28 and 42. 9' Concluding observation on Paraguay, supra (note 38), para. 21. 1.

'e Concluding observations on Cameroon, supra (note 82), para. 39. " Concluding observations on Mexico, supra (note 94), para. 42. ioo Concluding observations on the Russian Federation, supra (note 85), paras. 14 and 30. 101 In case of violations of Articles 8(a) or 13 (trade union rights and the right to education) of the Protocol of San Salvador, the application of the system of individual petitions governed by the ACHR may be used. See Article 19(6). See also Tara Melish, Protecting Economic, Social and Cultural Rights in the Inter- American Human Rights System: A Manual for Presenting Claims (Quito: Centro de Derechos Econ6micos y Sociales and Center for International Human Rights, 2002), pp. 26-27.

102 American Declaration on the Rights and Duties of Man, approved by the ninth International Conference ofAmerican States, Bogota, Colombia, 1948. Even though the American Declaration is a non-binding declaration, it has been interpreted by the Inter-American Court of Human Rights as being indirectly binding on all Member States of the Organisation of American States (OAS) as it sets out the human rights obligations for the OAS Member States. See Inter-American Court ofHuman Rights, Advisory Opinion OC 10/89,14 July 1989, Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, paras. 33-34 and 46. See also Melish, supra (note 101 p. 10. 103 Melish, supra (note 101), p. 44. 104 Under Article 42 of the ACHR, states are required to submit reports annually to the Executive Committees of the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture as well as send copies of these reports to the Inter-American Commission on Human Rights. 105 Protocol of San Salvador, Article 19(I)-{7). 106 see Article 41 of the ACHR. 107 The Human Rights Situation of Indigenous Peoples in the Americas, 2000, OAS doc. OEA/SER.L/ V/11.108, doc. 62, pp. 2-3; Annual Report of the Inter-American Commission on Human Rights 2001, OAS doc. OEA/Ser./LN/11. 14, doc. 5 rev., paras. 9-11. 1 .

zone Brazil ratified the ACHR in 1992 and the Protocol of San Salvador in 1996. '°' The study has been produced by the Institute of Socioeconomic Studies, the National Museum in Bahia and the Bank of the Northeast, and is entitled "Map of Hunger Among the Indigenous Peoples". 1 Report on the Situation of Human Rights in Brazil, 1997, OAS doc. OEA/Ser.IW/11.97, Chapter VI, paras. 21-22. III Ibid, para. 82(a) and (b). "2 Peru has ratified the ACHR in 1978 and the Protocol of San Salvador in 1995. "' Second Report on the Situation of Human Rights in Peru, 2000, OAS doc. OEA/Ser.LN/II. 106, Chapter X, paras. 2-3.

"' Second Report on the Situation of Human Rights in Peru, supra (note 113), paras. 34 and 38. 115 Ibid, para. 39. Peru ratified ILO Convention No. 169 in 1994. 116 "Draft Follow-Up Report on the Compliance by the Peruvian State with the recommendations made by the IACHR in the IACHR's Report on the Situation of Human Rights in Peru", 2000, in Annual Report of the Inter-American Commission on Human Rights 2001, OAS doc. OEA/Ser./LN/11. 14, paras. 139-142 and 146. "' Paraguay ratified the ACHR in 1989 and the Protocol of San Salvador in 1997. 118 Third Report on the Situation of Human Rights in Paraguay, 2001, OAS doc. OEA/Ser.LN/IL 10, Chapter IX, paras. 1, 4 and 29.

119 Third Report on the Situation of Human Rights in Paraguay, supra (note 118), paras. 36 and 50 (1) and (6). mo "Follow-Up Report on Compliance with the Recommendations of the IACHR in the Third Report on the Situation of Human Rights in Paraguay", in Annual Report of the Inter-American Commission on Human Rights 2001, OAS doc. OEA/Ser./L/V/II.l 114, paras. 167 and 169. 121 Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OAS doc. OEA/Ser.L./V.II.62, doc. 10 rev. 3 (1983), part three. izz Resolution 12/85, Case 7615 (Brazil), 5 March 1985, Inter-American Commission on Human Rights, in Inter-American Yearbook on Human Rights 1985 (Dordrecht: Martinus NijhoffPublishers, 1987), pp. 264-280, at p. 264.

�2' Resolution 12/85, supra (note 122), p. 276. See also Fergus MacKay, A Guide to Indigenous Peoples' Rights in the Inter-American Human Rights System, IWGIA Handbook (Copenhagen: IWGIA, 2002), pp. 60-61; 1; Brigit C. A. Toebes, The Right to Health as a Human Right in International Law, School of Human Rights Research Series, Vol. 1 (Antwerpen: Intersentia-Hart, 1999), p. 185. '2' See, e.g., Erica-Irene Daes, "Mission to Brazil regarding the situation of human rights of indigenous populations in particular the Yanomami People, Sub-Commission on Prevention ofDiscrimination and Protection of Minorities", 1991. '25 Resolution 12/85, supra (note 122), p. 278.

126 Communication 155/96, The Social and Economic Rights Action Center and the Center for Economic andSocial Rights v. Nigeria, African Commission on Human and Peoples' Rights, 30th Ordinary Session, October 2001, paras. 1, 2 and 4. '2' Ibid., para. 67. The African Commission conducted a mission to Nigeria during one week in March 1997 and thus witnessed the environmental degradation and how this affected the situation in the Ogoni land. See also Batom A. T. Mitee, "The Socio-Cultural Impact of Oil Exploitation on an Indigenous People: The Ogoni Case", in Frank Horn (ed.), Economic, Social and Cultural Rights of the Ogoni (Rovaniemi: University of Lappland, 1999), pp. 1-29, at p. 5. '28 Communication 155/96, supra (note 126), para. 9. '2' In General Comment No. 3, on State Parties obligations under the ICESCR, the Committee on Economic, Social and Cultural Rights makes clear that "a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, ... is prima facie, failing to discharge its obligations under the Covenant". See General Comment No. 3, supra (note 42), para. 10. "° Coomans, supra (note 51 p. 756.

13. Communication 155/96, supra (note 126), paras. 64-65. 132 Ibid,., para. 69. Article 2 (prohibition of discrimination), Article 4 (right to life), Article 14 (right to property), Article 16 (right to health), Article 18( 1) (protection ofthe family), Article 21 (right ofpeoples to freely dispose of their wealth and natural resources), Article 24 (right to a satisfactory environment) of the African Charter on Human and Peoples' Rights. "' Article 21(1) of the African Charter states that: "All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it." Article 24 reads: "All peoples shall have the right to a general satisfactory environment favourable to their development." Emphasis added. 134 Communication 155/96, supra (note 126), paras. 55 and 58. m Ibid., paras. 53-54.

"6 Communication 155/96, supra (note 126), para. 69, at p. 14. 137 Coomans, supra (note 51), pp. 757-758.

138 The concluding observations on Mexico can be seen as exceptions in this regard. In this respect, the Committee does not take inadequate access to traditional land the indigenous population is suffering from into consideration. Interestingly, the Human Rights Committee has made clear that the Mexican government must respect the traditional patterns of living of the indigenous peoples, "enabling them to enjoy the usufruct of their lands and natural resources". Human Rights Committee, Concluding comment on Mexico (1999), UN doc. CCPR/CI79/Add.109, para. 19. �'9 Committee on Economic, Social and Cultural Rights, Concluding observations on Argentina (1999), UN doc. E/C.12/1/Add.38, para. I Finland (2000), UN doc. E/C.12/1/Add.52, para. 25; Honduras (2001), ), supra (note 79), para. 14; Panama (2001), UN doc. E/C.12/1/Add.64, para. 12; and Brazil (2003), supra (note 38), paras. 35 and 58.

zero Third Report on the Situation of Human rights in Paraguay, supra (note 118), Chapter IX, para. 36.

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