Leslie A. Gerson,
Deputy Assistant Secretary of State|
for Democracy, Human Rights, and Labor
Remarks, Federal Bar Association, Gallaudet University
Washington, DC, November 19, 1999
International Law and Indigenous RightsThank you. It's not often that the powers that be permit me to escape from my office at the State Department, so let me begin by saying what a pleasure it is to be here today, in a room with no (or few) fluorescent lights, and--I think--few bureaucrats.
Quite seriously, I'm honored to be here. There is no aspect of the work I do at the Department of State that I find more personally rewarding, and at the same time frustrating, than my work on indigenous rights. Frustrating, sometimes, because from a legal point of view, the issue of indigenous rights is a complex area, and at times fraught with disagreements. But it's also rewarding, because from a human point of view the importance of indigenous rights is direct and compelling. As you all know, I work in the Bureau of Democracy, Human Rights, and Labor of the Department of State, and I have always thought that "human rights" is a live, ever-evolving term, a term that is given its true content by the ideas, the dreams, and the activism of the many people who continue to struggle for dignity and recognition. For me, in a very deep sense, working on indigenous rights issues is having the opportunity to see "human rights in action."
But I know that for many people, thinking of indigenous rights as part of something called "international human rights" is a relatively novel approach. For most people in the United States, the struggle for indigenous rights has, for most of this century, been seen as an issue of domestic social justice, domestic civil and political rights-or, at some times and in some contexts, an issue of treaties and sovereignty. And it is all these things. But recently, as members of indigenous groups living within the United States have increasingly built coalitions with members of indigenous groups from as nearby as Canada and as far off as Australia and Russia, more and more of us have begun to think of "indigenous rights" as one aspect of international human rights.
Because this is, for many of us, a new way of thinking about these issues, it's hardly surprising that there is, sometimes, a great deal of confusion about what we mean when we speak of indigenous rights as human rights. There is confusion-indeed, real disagreement-about the categories we use, about the definition and meaning of terms. How, for instance, shall we define "indigenous"? Are the indigenous "just like" any other distinct minority groups within a larger society? Or is "indigenousness" a unique quality requiring special acknowledgment? Should we think of indigenous rights as residing in individual members of indigenous groups? Or do groups of indigenous people have rights as groups? If we favor one categorization or definition, what are the practical consequences?
I am not going to even try to answer those questions. Each question may have multiple answer, and as I'm not a lawyer, I would probably not do a very good job of addressing them. What I want to do instead is move backwards from those questions, and give you a brief overview of the path that international human rights has followed to get to the point we're at today. My goal here is to provide some context for the remarks of my fellow panelists, and also to give you a sense of where we State Department types are coming from when we talk about indigenous rights and human rights.
You could say that the idea of human rights has been with us for as long as there have been humans beings on this earth. Whether we look at the pre-Columbia societies of America, or at the ancient Persians, Babylonians, Egyptians, Greeks, or Chinese, we find philosophies expressing respect for human dignity, social justice and the rule of law. We find these principles in almost every culture the world has seen, at every moment in time, and we find them in stories, art, dance, music, and poems, as well as in specifically "philosophical" or "legal" works. True, there have been all too many moments in history when these principles about human dignity and justice have been more honored in the breach-but these principles have a truth and a universality that is unassailable, and so they have always been with us. They are not "western" principles, or "enlightenment" principles; instead, they are a deep part of our common human heritage.
But although these principles of human dignity, social justice and the rule of law have been around for millennia, for the most part, they were not codified into law. And when they were codified as law, they were generally codified only as the law of a particular society or nation-state-not as law that applied equally to all people walking the earth, regardless of language, territory, skin color, religion, and so on. This universalization through a set of international legal declarations and treaties came only in this century.
The modern era of international human rights law began with a few hiccuping false starts-the principles of the post-World War One League of Nations, for instance. But the true beginning of modern international human rights law was World War Two. In 1941--in response to authoritarianism and the march of the fascists states-- President Franklin Roosevelt and British Prime Minister Winston Churchill drafted the Atlantic Charter, which elaborated the principles the allied forces saw themselves as fighting for. In the Atlantic Charter, Roosevelt and Churchill declared that people everywhere have the right to "live out their lives in freedom from want and fear," and that people also have the right to "improved labor standards, economic advancement and social security" and the right "to choose their own form of government under which they will live."
The Atlantic Charter began the modern era of international human rights law--And I should note that people living in colonized countries took particular note of the right of people "to choose their own form of government under which they will live!" In 1942, during the height of the bloodshed, and with realization of the Holocaust beginning to dawn on the world, 46 countries signed the UN Declaration. This Declaration included a promise that the signatory states would "preserve human rights and justice in their own lands, as well as in other lands," and it also contained a global commitment to "decent life, liberty, independence and religious freedom."
As World War II drew to its close, all the world was forced to confront the horrors of war--and, even more powerfully, the horrors of genocide. The deaths of 6 million Jews and others in Nazi death camps was, of course, hardly the first genocide in human history, but it was on a particularly massive scale. Even more significantly, it occurred at a time when global media and communication systems were advanced enough so that people all over the world could read about and see photos of the starved faces of concentration camp inmates, and the still more terrible piles of corpses at Auschwitz and Dachau.
It was against this awful backdrop that international human rights law was born. The United Nations Charter made it illegal to wage aggressive war, and the Universal Declaration of Human Rights, adopted in 1948 by the UN General Assembly without a single dissenting vote, outlined the core human rights that remain today at the center of international human rights law. The Declaration began with the premise that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," and it went on to state that all human beings have the right to life, liberty and security of the person, the right to be free of torture or other cruel, inhuman or degrading treatment, the right to be free from discrimination and to be equal before the law, the right to freedom of thought, religion and conscience, the right to free expression and assembly, the right to a livelihood and to work, and so on.
Let me note one significant thing, here: at its core, the Universal Declaration is about the rights of individuals, not the rights of groups. All of these rights I just mentioned are viewed as derived from the fact that individuals are born free and equal in dignity. This does not, of course, mean that groups of people do not have rights: but in this traditional conception of human rights, groups have rights only because they are made up of individuals who have rights. A group is, in this sense, only the sum of its parts. The Universal Declaration does note, in Article 29, that "Everyone has duties to the community in which alone the free and full development of his personality is possible." But even here, the community is viewed as important only insofar as it is within the community that individuals most fully develop.
It was no accident that the focus of the Universal Declaration was on the rights of individuals. The Holocaust made people aware of the awful dangers of thinking of people as, first and foremost, part of a group, rather than as individuals first and foremost. The Nazis murdered 6 million Jews precisely because, to them, they were killing "Jews," not individuals like themselves. In the wake of the Holocaust, it seemed to many that the only way to prevent future genocides was to emphasize that each individual human had rights, and to avoid doing anything that would allow a person's individuality to be submerged into a group identity.
In some sense, of course, the United Nations Charter and the Universal Declaration were the product of compromises between different-and sometimes competing-conceptions of how human society should be organized. The UN Charter and the Universal Declaration were adopted by nations-not by individuals. And some of the nations that agreed to the Charter and Declaration were very far from being democracies-and very far from effectively guaranteeing to their own citizens the rights laid out in these international documents. Even many democracies were concerned that sovereign rights not be compromised. For these reasons, there is a real tension in the UN Charter and the Universal Declaration between the principles of human rights-premised on the rights of individuals-and the principle of national sovereignty. After all, the right to sovereignty-at least as traditionally understood in international law and practice-is a right that a government has, regardless of what is happening to the individual people living under that government. In this sense, sovereignty is itself a kind of "group right," enjoyed by a nation-not by individuals. This tension between sovereignty and individual rights has still not been resolved today.
In America and Western Europe, many political leaders were well aware of the potential dangers of an excessive emphasis on national sovereignty. Indeed, to many in the West, the emphasis on individual rights represented an important bulwark against the newly formed Communist bloc. In the discussion leading up to the adoption of the Universal Declaration, the Soviet Union argued that human rights could only be guaranteed through ensuring harmony between individuals and the collectivity of the government. The U.S. and other democratic states argued, instead, that individuals had to be protected from the government-and especially from governments apt to lump individuals together into undifferentiated groups. That had been the fundamental lesson of Nazi Germany. U.S. leaders feared that under communism, too, individual human beings would have their rights trampled upon, all in the name of the collective good.
Indeed, we know that this fear was not far off the mark. Throughout the last 50 years, we have seen frightful abuses of human rights committed by states under the protective cover of national sovereignty and the rights of the collectivity. Consider, for instance, Stalin's purges-or the Cultural Revolution in China. In the United States, our own history has taught us that although groups and communities are important, they cannot become excuses for repression of individuals. And the Cold War served only to sharpen this Western focus on individual rights.
In a sense, you could say that international human rights has gone through at least three distinct phases since World War Two. First, in the late forties and early fifties, in the immediate wake of the Holocaust, the main focus of the emerging human rights community was on genocide, and an emphasis on the inalienable dignity and rights of individuals was seen as the best way to prevent destructive stereotyping, discrimination, and ethnically or religiously based slaughter.
In the second phase, the international human rights paradigm shifted to reflect Cold War realities. Global concern shifted from genocide to a focus on political dissidents and prisoners of conscience- and again, of course, the focus was on the rights of individuals against repressive states. It was in this second phase that we began to see the dramatic growth of nongovernmental organizations.
A third phase began roughly with the end of the Cold War in the late 80s. In addition to ideologically-based repression of individuals, we again began to see ethnic and religious struggles, as clashes between groups led to a horrific renewal of genocide in places such as Rwanda, and ethnic cleansing in Bosnia and elsewhere.
In many ways, the recent apparent resurgence of ethnic and religious conflict has led many in the United States and elsewhere to insist with more vigor than ever on the importance of individual rights over collective rights. After all, our century has seen so much repression and slaughter in the name of groups. Consider the recent Hutu slaughter of Tutsis in Rwanda, in part on the grounds that Hutus, rather than Tutsis, had been the first group in Rwanda, and were therefore entitled to run the country-even if killing the Tutsis was what it took to do so.
So where are we today? The concept of national sovereignty is under attack as never before, since we have seen it used, over and over, as a cloak to cover massive human rights abuses by repressive or genocidal regimes. More and more, the international community has come to recognize that nothing-not sovereignty, not the "collective good," nothing-can justify the repression or murder of individuals.
No one has yet uttered the final word on the appropriate balance between sovereignty, the collective good, and individual human rights. We're at a moment when international opinion, law, and practice are rapidly evolving. And it is in this context-against this history-that the discussion of indigenous rights, with its emphasis on the collectivity, has occurred within the international human rights community, and within the foreign affairs branches of the U.S. Government.
In numerous ways, the indigenous rights movement has challenged some of the basic premises of the international human rights community. As I have said, the international human rights community has traditionally been extremely wary of "collective rights," and the U.S. Government's foreign policy community as been especially concerned about this concept.
But to many indigenous people, the notion of collective rights-groups rights-is a critical notion, an important way to protect smaller, weaker groups from the predatory actions of larger groups. In the domestic context, American law recognizes this idea, and our legislation protects the unique and collective rights of Native Americans. Similarly, the U.S. is a party to various international human rights instruments that recognize the importance of communities and collective action. And at the urging of many indigenous activists, the draft declaration on Indigenous Rights currently before the UN recognizes the existence of collective rights-at least in the context of the rights of the indigenous.
To many, this is as it should be. After all, we all draw our identities-the very fabric and meaning of our lives-from our relations with others: our families, our friends, our colleagues-and, for many, the ethnic and cultural groups into which we were born. For this reason, many indigenous rights advocates have asked what it can mean to protect the "rights of the individual," if we do not also protect the community that nurtures the individual? For centuries, occupying powers have trampled on the lives, property, and cultural heritage of indigenous groups. Today, how can we ensure that the indigenous do not simply vanish into the chaos of the global economy, losing forever their unique identities? On the other hand-and this is the question many in the U.S. Government worry about-- how can we ensure that the protection of groups doesn't come at the expense of individuals?
I see that I have now worked my way around to the very questions that I started off by saying I wasn't going to try to answer. Well-- as James Thurber once said, "It is better to know some of the questions than all of the answers." Frankly, I don't have the answers. These issues are difficult, and the tensions aren't illusory-they are real, and I think it will be a long time before we get this all figured out.
My goal in these introductory remarks is really to set the stage a bit for my fellow panelists, and allow you all to see why the discussion of collective rights, and related questions of self-determination, in the context of the indigenous, has been so difficult and filled with tension for many of us who come to issues of indigenous rights from the perspective of the international human rights law community. But as I also said when I began my remarks, in some ways it is those very tensions that make questions of indigenous rights so exciting, for our conceptions of human dignity and human rights will, and must, continue to evolve, becoming more comprehensive and also more nuanced.
All of us here today are continuing the great project of developing the human rights discourse. Maybe we won't figure out all the answers today-but that's okay, because at least, I hope, we'll be asking some of the right questions.
Thank you. [end of document]