Stefan Disko (International Work Group for Indigenous Affairs), TILCEPA member
Helen Tugendhat ( Forest Peoples Programme)
The “Op-ed on Indigenous Issues at the World Heritage Committee Meeting in Paris , June 2011” in the previous issue of the CEESP Members Newsletter, by an unidentified author, contains a reflection on how to best approach human rights in the context of the World Heritage Convention. The author expresses the fear that integrating a firm indigenous rights discourse in the deliberations of the World Heritage Committee “could trigger a negative reaction and complete rejection of the issues by some Committee members” and suggests that “a less vocal and more ‘technical' approach may be more likely to open doors and pave the ground for constructive engagement”.
The author further considers that a “good strategy” for IUCN in dealing with concrete sites (e.g. in evaluating nominations or preparing State of Conservation reports), “seems to be to work from within the Convention, as applicable, with the instruments, rules and language the Convention provides... Such a discrete approach seems to achieve encouraging results in current Committee decisions, and, more importantly, lead to on-the-ground conservation benefits for indigenous peoples and local communities.” As an example for the encouraging results of this discrete approach, a decision on Lake Turkana in Kenya is presented, which was drafted by IUCN and adopted by the Committee in June 2011 without any amendments (as the Op-ed underlines).
However, the Op-ed does not mention another decision of the World Heritage Committee from the June 2011 session – also drafted by IUCN and adopted by the Committee without amendments – which clearly illustrates the inadequacy and downsides of IUCN's “discrete” and “less vocal” approach to indigenous rights: the decision by which the site “Kenya Lake System in the Great Rift Valley” was inscribed on the World Heritage List (Decision 35 COM 8B.6). The site consists of three protected areas in Kenya , one of which is Lake Bogoria National Reserve. This is significant, as the Lake Bogoria reserve was the subject of a recent landmark ruling of the African Commission on Human and Peoples' Rights in the Endorois case (for details on the ruling, see the article by Cynthia Morel in IUCN-CEESP Policy Matters 17 , 2010, p. 174 ff.). In the ruling, the African Commission condemned the forcible eviction of the Endorois from their ancestral lands surrounding Lake Bogoria for the purpose of creating a wildlife reserve and tourist facilities. The Commission found that the evictions and the failure to adequately involve the Endorois in the management and decision-making of the reserve had violated their human rights to property, natural resources, development, culture and religion ( Articles 1, 8, 14, 17, 21 and 22 of the African Charter on Human and Peoples' Rights ). It ordered Kenya to restore the Endorois to their traditional land and to compensate them for all the loss suffered. Underlying the case was the fundamental issue that the Endorois had been excluded from all decision-making regarding the treatment of their lands. The ruling explicitly states that “the African Commission is of the view that any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions” (para. 291).
It is shocking that little over a year after the ruling, the World Heritage Committee inscribed Lake Bogoria on the World Heritage List, despite the fact that the Endorois Welfare Council (the representative body of the Endorois) together with a large number of indigenous organizations and NGOs from around the world, had urged the Committee to defer the nomination because it had been prepared without meaningful involvement and consultation of the Endorois and without obtaining their free, prior and informed consent (see the “Joint Statement on Continuous violations of the principle of free, prior and informed consent in the context of UNESCO's World Heritage Convention”). The Committee's decision by which Lake Bogoria was inscribed – which was drafted by IUCN – does not even mention the Endorois, let alone the ruling by the African Commission.
The same is true for the State Party's nomination document and IUCN's Advisory Body Evaluation: the Endorois and their rights are not mentioned, it is as if the Endorois don't exist. IUCN also failed to consult the representatives of the Endorois community during the field inspection of the nominated site, as the Advisory Body Evaluation makes clear. What is worse, despite having received a copy of the mentioned “Joint Statement” well in advance of the World Heritage Committee's session, IUCN did not raise the concerns expressed in the statement during the discussion of the nomination by the World Heritage Committee.
The exclusion of the Endorois from the decision-making process, and IUCN's complicity and silence in this regard, is inconsistent with the obligations of UNESCO, the World Heritage Committee and IUCN under international law. It contravenes the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), which affirms that “Indigenous peoples have the right to participate in decision-making in matters which would affect their rights” (Art. 18) and requires States to consult and cooperate with indigenous peoples “in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources” (Art. 32). Article 41 requires intergovernmental organizations – and therefore also IUCN – to contribute to the full realization of the Declaration's provisions and to establish ways and means of ensuring participation of indigenous peoples on issues affecting them.
The role of IUCN in the designation of Lake Bogoria as a World Heritage site is also inconsistent with the resolutions of the IUCN World Conservation Congress, which at its 4th Session in 2008 resolved “to apply the requirements of the United Nations Declaration on the Rights of Indigenous Peoples to the whole of IUCN's Programme and operations” (Res. 4.048). In the same resolution, the WCC called on governments “to work with indigenous peoples' organizations to… ensure that protected areas which affect or may affect indigenous peoples' lands, territories, natural and cultural resources are not established without indigenous peoples' free, prior and informed consent and to ensure due recognition of the rights of indigenous peoples in existing protected areas.”
The case of the “Kenya Lake System” clearly shows that UNESCO's Operational Guidelines for the Implementation of the World Heritage Convention , as well as IUCN's internal procedures as an Advisory Body to the World Heritage Committee, are inadequate for fulfilling the requirements of UNDRIP and the resolutions of the WCC. The UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) has therefore recently called on UNESCO to establish “Robust procedures and mechanisms… to ensure indigenous peoples are adequately consulted and involved in the management and protection of World Heritage sites, and that their free, prior and informed consent is obtained when their territories are being nominated and inscribed as World Heritage sites” (Expert Mechanism advice No. 2, para. 38, UN Doc. A/HRC/18/42, 17 August 2011). It is obvious that the same kind of action is urgently needed from IUCN with regard to its internal procedures as an Advisory Body.
Working “from within the Convention… with the instruments, rules and language the Convention provides”, as the Op-ed suggests, cannot be enough when the inadequacy of the existing instruments, rules and language has consistently allowed violations to continue. Rather than taking a discrete, less vocal approach, IUCN should join institutions such as EMRIP and the Permanent Forum on Indigenous Issues in demanding improvements to the Operational Guidelines , so that the implementation of the World Heritage Convention is consistent with the UNDRIP. Additionally, IUCN should be outspoken when indigenous peoples' rights, or human rights generally, are violated in the implementation of the Convention. As an official Advisory Body IUCN is not only in a unique position to highlight these issues, but also has an obligation to do so.
- The Committee's decision on the “Kenya Lake System” and IUCN's Advisory Body Evaluation can be found here: http://whc.unesco.org/en/sessions/35COM/documents/
- The “Joint Statement on Continuous violations of the principle of free, prior and informed consent in the context of UNESCO's World Heritage Convention” can be found here: http://www.international-alliance.org/Joint%20Statement%20of%20Indigenous%20organizations%20UNESCO.pdf
- The African Commission's ruling in the Endorois case can be accessed here: www.minorityrights.org/download.php?id=748