3.3.3

Human Rights Laws for Ethnic and Indigenous Minority Groups

PREVIEW

What special rights might ethnic and indigenous minority groups need?

In addition to more general treaties and treaties that prohibit atrocity crimes, there are also treaties that relate to the rights of ethnic and indigenous minority groups. These treaties and some important articles are listed below.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965)

The ICERD was adopted by the UNGA in 1965 and it came into force in 1969. Myanmar has not signed, ratified or acceded to the ICERD. Therefore, this treaty is not legally binding in Myanmar. Some of the human rights relevant for ethnic and indigenous minority groups in this treaty include:

Article 3: Protection against segregation and apartheid

Article 4: Protection against propaganda, incitement and related violence

Article 5: Equal access to all categories of rights

ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO Convention 169, 1989)

ILO Convention 169 was adopted by the ILO in 1989. It replaces the 1957 Indigenous and Tribal Populations Convention by the ILO. Myanmar has not signed, ratified or acceded to ILO Convention 169. Therefore, this treaty is not legally binding in Myanmar. All of the rights in ILO Convention 169 are relevant for indigenous groups. Some of the human rights in this treaty include:

Article 7: Right to decide own priorities for development programmes and to participate in all steps of such programmes, which can only start after an impact assessment has been conducted

Articles 8 and 9: Rights to have their own traditional laws and legal systems recognised

Articles 13 - 19: Rights to ownership, use and management of lands and natural resources

Article 20: Right to safety and equality in work

Articles 21 and 22: Rights to access vocational and special training programmes

Article 23: Protection of local industries, including handicrafts, hunting and fishing

Article 25: Right to healthcare, especially promoting community-based and traditional healthcare and the employment of local healthcare workers

Article 27: Right to inclusive education and their own education systems

Article 28: Right to learn their indigenous language and the official language

Article 31: Right to a fair, accurate and informative portrayal in educational materials

Article 32: Right to cross-border relationships with members of the same group as well as with other groups

UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM, 1992)

The UNDM was adopted by the UNGA in 1992 through a resolution, without any voting. As a declaration, it is not legally binding in Myanmar. Some of the human rights relevant for ethnic and indigenous minority groups in this declaration include:

Article 1: Protection of ethnic, cultural, religious and linguistic identity

Article 2: Right for ethnic, religious and linguistic minority groups to enjoy their own culture, practise their own religion and use their own language; to participate in public life; to participate in decision-making in matters about their minority group and the area where they live; and freedom of association

Article 4: Equality before the law; right to learn in one’s mother-tongue; right to have adequate opportunities to learn about the experiences and perspectives of minority groups; right to participate in economic development

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007)

The UNDRIP was adopted by the UNGA in 2007. Myanmar voted to adopt this declaration, although it is not legally binding. All of the rights in the UNDRIP are relevant for indigenous groups. Some of the human rights in this declaration include:

Article 1: Right of indigenous people to be free from discrimination

Articles 3 and 4: Rights to self-determination and self-government for internal and local affairs

Articles 5, 18, 20, 23, 32, 33 and 34: Rights to develop their own institutions and participate in decision-making, including in development programmes and other matters that relate to their group

Article 7: Members of indigenous groups have individual rights to life, physical and mental integrity, liberty and security. They also have group rights to live in freedom, peace and security and be protected from genocide

Articles 8 and 10: Freedoms from forced assimilation and forced relocation

Articles 11, 12 and 13: Rights to practise, develop, teach and pass on cultural traditions and customs

Article 16: Right to have their own media in their own languages and to be accurately portrayed in state media

Article 24: Right to use traditional medicines and health practices

Articles 25 - 29: Rights to ownership, use and management of lands and natural resources

Article 30: Restrictions on military activities on lands of indigenous people

Article 31: Intellectual property rights to traditional knowledge

Article 36: Right to cross-border relationships with members of the same group as well as with other groups

REFLECTION/DISCUSSION

Indigenous minority groups may have more rights than ethnic minority groups that are not considered indigenous. What consequences could there be because of this?

Educator’s notes

It could be difficult to establish which groups might classify as ‘indigenous’ in a particular territory and which groups do not. This difficulty can lead to arbitrary classifications that have real consequences for groups only categorised as ‘ethnic’ but not ‘indigenous’. For example, they might not have as much protection and as many rights as groups classified as ‘indigenous’. They might not have rights related to political participation in the country or local area where they live, and they might even be at risk of being denied legal citizenship status. For example, see Kymlicka 2007, Ferguson 2015 and Cheesman 2017 for further discussion on possible consequences following the division between ‘indigenous’ and ‘ethnic’ groups.

FOCUS ON MYANMAR:

The Salween Peace Park

Indigenous Karen (Kayin) communities, the Salween Peace Park Committee, and the Karen Environmental and Social Action Network (KESAN) officially opened the Salween Peace Park in Mutraw (Hpapun) District, Karen (Kayin) State at the end of 2018.

The park is the result of decades of grassroots mobilisation, activism and campaigning. It encompasses 5,485 square kilometers of the Salween (Thanlwin) River Basin, which is one of the most biodiverse areas in the Asia-Pacific region. It covers more than 340 villages, 139 Kaw (traditional indigenous lands), 27 community forests, four forest reserves, and three wildlife sanctuaries. One aim of the park is to preserve ancestral lands and the local biodiversity, and to protect these from potential damages of war, extraction or other large-scale corporate projects.

According to KESAN, there are over 180 peace parks worldwide. Peace parks are different from national parks because they are more community-focused, and this leads to the protection of both local cultural heritage and fragile ecosystems.

“The Salween Peace Park initiative works for the purposes of bringing peace, freedom and security to the area,” Padoh Ten Der, chairman of Mutraw (Hpapun) District, said in a statement. “This is the land of Mutraw Indigenous Karen people. To preserve and protect our existing ancestral land, environment and culture, we established the Salween Peace Park initiative.”

In 2020, the Salween Peace Park won the Equator Prize from the United Nations Development Programme (UNDP). This prize recognises outstanding community efforts to reduce poverty through conservation and by sustainable use of biodiversity.