Abstract the international institutions have provided with 3

Abstract

 

There is no universal
consensus on the identification of indigenous people, however, the element of
distinct cultural practice and languages is unanimously accepted as one. These
cultural and linguistic rights are enshrined under international instruments
such as ILO Convention No.169 and United Nations Declaration on the Rights of
Indigenous People(UNDRIP). Nepal and India being the party to ratify the
Convention in South Asia has incorporated those rights under its constitutional
framework by establishing Indigenous Nationalities Commissions. Despite such
constitutional and legal developments to adhere to its obligation the state has
not been able to have concrete impact on indigenous people’s rights in regard
to their right to self-determination “to freely determine their political
status and pursue their economic, cultural and development rights” This paper
will elucidate on how right to self-determination is the prerequisite to secure
the right to recognition of cultural and linguistic identity of indigenous
people for the achievement of social justice and security in the context of
Nepal. The paper limits itself to the right of self-determination of indigenous
people in access to their participation within the society and it also
elucidates the ethics groups which are spread around India and the paper will
also elucidate the rights of Scheduled Tribes.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Introduction

This
paper
argues the importance of right to self-determination -limited to internal
participation- for the enjoyment of indigenous people’s own cultural and
linguistic rights and also that the cultural rights can be effectively ensured if
exercised in conjunction with the right to self-determination. It also presents
brief conceptual understanding on the issue i.e. indigenous people, cultural
rights, and self-determination and interlink all these issue for the
achievement of social justice for indigenous people especially in context of
Nepal.

 

Conceptual understanding of the term indigenous people 

What constitutes as indigenous
peoples? This question resides in the ongoing development of “indigenous
peoples” as a significant concept in national, regional and international
practice not accompanied by any general agreement to its meaning nor even the
process through which such meaning could be established. Therefore, the
international institutions have provided with 3 different approaches to the
understanding of the concept of “indigenous people”.

The first, is the description provided
by the UN special Rapporteur 1
.

The
second, provided by the international labor organization (ILO) in its
convention no.169 ,contains a statement of coverage on elements of historical
continuity ,territorial connection and distinct social , economic , cultural
and political institution2.

The
third, based on the functional view, by the world bank on indigenous people
describes as “groups with a social and cultural identity distinct from the
dominant society that makes them vulnerable to being disadvantaged3.

Conceptual
framework in context of Nepal.

In
the context of Nepal, it remains difficult to describe the population under the
general sense of the term “indigenous people” commonly cited by the
international institution as the country’s population remains a composition of
complex history of original settlement and migration. However, the term “Adivasi Janajati” recognized and used by
both the government and the group themselves can be understood in relation to
the international notion of “indigenous people” as those distinct from the rest
of the population. The etymology term for “Adivasi”
in Sanskrit means the earliest or first settlers and “Janjati” means population groups that are outside the Hindu Varna
system, thus the term is referred to identify those distinct from the dominant
social and religious groups.  

Conceptual
understanding and legal framework on right to Self determination

Self-determination
is not only a basic human right to which all people are entitled as a basic
requirement of justice, but also a basic need to which all people claim as an
important “collective rights” for their ability to achieve all other entitled
rights. The common article 1 of ICCPR and ICESCR states the right to self-determination
as the right of all peoples to “freely determine their political status and
pursue their economic, social and cultural development”.

 

 Concept of justice

Nepal
on 13th September 2009, was one of the 144 state that voted for UN
declaration on the rights of indigenous peoples UNDRIP. Article 3 of this declaration
reinforces a clear unambiguous relation between rights of indigenous people on exercising
their cultural rights and the means of self-determination to achieve it. But
the issue remains how right to self-determination can be used as a means to
exercise the cultural rights for achievement of social justice and security. To
resolve this issue, it is therefore important to understand what the basic notion
of justice constitutes of and the means to achieve it.

Justice
refers to fairness and is commonly monopolized as a term referred in the courts
and through judges. But the idea of justice should not merely be relied on such
traditional notion rather a new conception of the interplay of “law and
development’ as an element of promoting a condition of social justice should be
contemplated. The idea of development, from the point of view of human security
and dignity categorized into “below threshold condition” and “above threshold
condition”. The advanced stage of threshold condition categorized as “materialistically
adequate development” whereas the below threshold condition refers to the “deprivation
of basic inalienable rights, absence of access to resources and opportunities
for positive transformation.” The cultural rights is an inalienable rights for
indigenous people, such rights is recognized as indivisible and interrelated
rights 4, The
deprivation of the culture would fundamentally severely affect the identity of
indigenous people.

The interrelation between
rights of indigenous peoples and right to self determination  

The concept of social justice demands a
negative obligation on the state, the duty not to interfere in the exercise of
right guaranteed by the present instrument. The exercising of cultural
practices defines the inherent right of indigenous peoples and so corresponds
to negative duty on the state not to interfere on the prevailing practices. But
in this globalized world and imposition of many excluding policy threatens the
ability to exercise such cultural practices, therefore the obligation of the
state not only limits itself to social justice but also social security that
demands a positive obligation on the state.

Social security refers to the positive
obligation of the state to provide special opportunities and benefits for their
protection, upliftment, empowerment and development. In regards to this
obligations the state have introduced itself or with cooperation with other
international and regional institution policies and programs. But the various programs
like western uplands poverty alleviation project and such introduced remains
concentrated on the means of living in contrast to the actual opportunities of
living.

 

 Therefore,
in context of the indigenous people and their right to cultural and linguistic
rights that define their existence, justice can be rendered when the focus
shifts on the actual opportunities of living. So how does the right to self-determination
fill this gap, there are many different ways to define self-determination in
the form of participation, autonomy, free and prior consent and in this
context, the most useful remains in terms of human capabilities. Human
capabilities refer to the capacity “to participate actively in choices that
govern one’s life” though the concept of human capabilities is readily
understood as individual capability, but in regards to the indigenous people
the focus should be on its significance as a collective capability i.e “whose nature
requires that it sought in common.5”

 

Defined in these terms, self-determination
of indigenous people, is a capability that can only be realized in common by
the members of distinct political community, working together within shared
political institutions to determine the laws and policies that will shape their
individual and collective futures6.
The collective capability encompasses the freedom to determine the character
and boundaries of the political community, freedom to establish institutional;
mechanisms of collective deliberation and decision making that reflect one’s
own identity, language and cultural norms, and most importantly those freedom
to make decisions that best reflect the values and priorities of the members of
one’s community in the absence of external interference or domination7.
The pragmatic approach to achieve this right to self-determination would be to
enforce the existing principle of free and prior consent on activities  There remains a necessary interdependence
between freedom as capability for individual self-determination and freedom as
the capability for collective self –determination , for it is simply illusory
to understand that the possession of meaningful control over political
decisions that govern the lives of indigenous people within a political system
imposed , by and largely, under the control of the dominant group that have in
the first place have excluded them .

Examples in context, the land reform
act 1964, nationalized land and terminated traditional collective land and
tenure system for instance kipat8.
Forest act 1993 that displaced indigenous peoples from their traditional
forests and transferred primarily to non-indigenous community forest user
groups9;
the pasture land nationalization act 1975 nationalized pasture lands of
indigenous peoples10;
the national parks and wildlife conservation act 1973 provides no recognition
of indigenous peoples’ right to consultation or to access their traditional
lands and resources, while giving quasi – judicial powers to the park chief
wardens11
  

But this is precisely the situation
faced by most indigenous group, such loss have proved to be a common source of
intense frustration, anger , resentment, insecurity and despair for indigenous
people.  

 

Conceptual framework in
context of India

 

In
India, 705 ethnic groups are notified as Scheduled Tribes (STs) spread across
all over 29 States and 7 Union Territories. These are considered to be India’s
indigenous people as per 2011 census, with a population of 104.3 million, they
comprise 8.6% of the total population of India – almost 90% of them living in
rural area. There are, however, many more ethnic groups qualifying for
Scheduled Tribe status, but which are not officially recognized. The largest
concentrations of indigenous peoples are found in the seven northeastern states
India, and the so-called “central tribal belt” stretch from Rajasthan to West
Bengal, Therefore, the STs are usually referred to as Adivasis, which literally
means indigenous peoples. India has several laws and constitutional provisions,
such as the Fifth Schedule for mainland India and the Sixth Schedule for
certain areas of north-east India which recognize indigenous peoples’ rights to
land and self-governance. The laws aimed at protecting indigenous peoples have
numerous number shortcomings and their implementation is satisfactory. The
Indian government was in favor of the UN Declaration on
the Rights of Indigenous Peoples (UNDRIP). However, it does not consider
the concept of “indigenous peoples”, and thus the UNDRIP, applicable to India.
India ratify ILO Convention No. 169 (C169) concerning Indigenous and Tribal
Peoples in Independent Countries.  In a
report in May 2012, India’s National Commission for Scheduled Tribes informed
of perspectives of various government agencies on the Convention. As per the
report, the Ministries of External Affairs, Home Affairs and the Tribal Affairs
objected to the need for ratification of the Convention, saying that the
concept of ‘indigenous peoples’ is not relevant to India and that the
Convention violates State ownership of sub-surface resources in existing laws
of the country that provides fair compensation for lands and that there was no
need for external cooperation or evaluation, including from the UN, for tribal
development programs in India.” . India ratified IL as ILO Convention No. 107
concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries. In its review of India’s
application of the Convention and Recommendations in 2010. India supported is
to put in place appropriate monitoring mechanisms to ensure that the intended
objectives of the progressive policy initiatives and measures for the promotion
and protection of the welfare and the rights of the vulnerable, including
scheduled tribes, are well achieved. This is related to the recommendations
noted by India to monitor and verify the effectiveness and ensure that laws are
fully and consistently enforced to provide adequate protections for members of
adivasi groups, among others. India has partially implemented those
recommendations but there have also been actions against them. In 2013, India’s
government constituted a committee headed by Virginius Xaxa to examine the
socio-economic, health and educational status of STs and suggest policy
initiatives as well as effective oriented measures to improve development
indicators and strengthen public service delivery to STs”. The committee made
several major recommendations in its report in 2014.  At the same time, there have been reports
that huge amounts of Tribal Sub-Plan (TSP) funds, under India’s five
year-plans, have either been diverted and misused or remained unspent since
2011. Xaxa committee recommended that India’s Parliament and State laws should
be applied in the Fifth Schedule Areas (tribal areas in mainland India) only
after decision by the Governor with the advice of the Tribes Advisory Council,
the mandatory advisory bodies on “tribal welfare and advancement” in states
with such areas (as is the case in Sixth Schedule areas). Extending the model
of autonomous councils and local bodies at district levels with limited
autonomy in Sixth Schedule areas to the Fifth Schedule areas (as provided in
the Provisions of Panchayat (Extension to Scheduled Areas) (PESA) Act, 1996)
and broadening the mandate of the Council to include protection and development
functions are other major recommendations of the committee. Meanwhile, there
are numerous villages in the ten states where the PESA Act is applied.

 

 

 

 

Conclusion

 

Culture and language reflects the
distinctness and aspiration of indigenous peoples and the preservation of such
rights hold prime importance for them. Therefore, for the purpose protection
and preservation of these cultural and linguistic rights the means of meaningful
participation and consultation as enshrined in the international instruments
should be practiced, the issue of indigenous people remains one of those
prevailing issue on all the eight SAARC nation. the other regional organization
like organization of American states (OAS), Association of south east Asian
nation(ASEAN) , African union(AU) and European union (EU) have adopted policies
to address the issue of indigenous people , for example AU have initiated a
working group to address the concept of the term in context of the region in
relation with other rights This model can be also be applied in context of
SAARC to understand the actual issues of the region plus with the understanding
of the importance of self-determination in one of its many manifested form to
effectively exercise the right to the indigenous culture and language. Hence it
is concluded that the there are several committees been made to provide the indigenous
people there rights which must be given to them and with the help of the Xaxa
committee we can help the indigenous peoples by following there ways And also
Follow the guidelines made by the UN Declaration on
the Rights of Indigenous Peoples (UNDRIP) and only with the help of those
organizations and NGOs we can provide Justice to the Indigenous people.

1 Jose Martinez Cobo, Study of the problem of discrimination
against indigenous populations, UN Doc E/CN.4/Sub.2/1986/7/Add.4, (1986),
at ¶379,380.

‘Indigenous
communities, peoples and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the societies
now prevailing in those territories, or parts of them. They form at present
non-dominant sectors of society and are determined to preserve, develop and
transmit to future generations their ancestral territories, and their ethnic
identity, as the basis of their continued existence as peoples, in accordance
with their own cultural patterns, social institutions and legal system” The historical
continuity are based on one or more of the following factors such as occupation
of ancestral lands , or at least part of them, common ancestry, culture in
general or specific manifestation, language, residence in certain parts of the
country or regions of the world.’

 

2 International
Labour Organization (ILO), Indigenous and
tribal Peoples Convention,art. 1, June 27, 1989, 1650 U.N.T.S 28383.

‘contains a
statement of coverage rather than a definition, indicating that the Convention
applies to:”a) tribal peoples in independent countries whose social, cultural
and economic conditions distinguish them from other sections of the national
community and whose status is regulated wholly or partially by their own
customs or traditions or by special laws or regulations;”b) peoples in
independent countries who are regarded as indigenous on account of their
descent from the populations which inhabited the country, or a geographical
region to which the country belongs, at the time of conquest or colonization or
the establishment of present state boundaries and who irrespective of their
legal status, retain some or all of their own social, economic, cultural and
political institutions.’

 

3 World Bank. 2003. Implementation of Operational
Directive 4.20 on indigenous peoples : an evaluation of the results.
Washington, DC: World Bank

 

4United Nation Human
Rights Council, A/HRC/23/2.

 

5 Taylor Charles
, Multiculturism Examining The Politics Of Recognition, Princeton :Princeton university
press, 1994 p59.

 

6 Michael Murphy, Self Determinations A Collective
Capability: The Case Of Indigenous Peoples, Journal of Human Development
And Capabilities, volume 15,2014,  issue
4.

 

7Id.

 

8 Land Reform Act 2021 s3A (Nepal).

 

9 Forest act 1993 s2 (Nepal).’the act defines only about national forest
, government forest ,protected forest , community forest , leasehold forest ,
religious forest and private forest.’

 

10 The Pasture Land Nationalization Act
1975 s 3 (Nepal).

 

11 The National Parks And Wildlife
Conservation Act 1973 s 3 (Nepal).