Are Indigenous human rights merely an aspiration or a moderator of social behaviour?
Indigenous people are recognized as being vulnerable, marginalized, and disadvantaged among the worlds population. These people are spread across the world and number to about 370 million in about 90 countries (Schimmel 2007). They constitute about five percent of the world’s population, fifteen percent of the world’s poor and about a third of the world extremely poor. Human rights have been instituted and spelled more for the indigenous communities. Human rights are merely an aspiration and not for moderating social behaviour and this essay will establish how human rights for the indigenous communities are merely an aspiration.
Indigenous communities are characterised by unique and distinctive languages, legal systems, culture and histories. Most of the members of an indigenous community are strongly connected to the environment and their traditional lands and territories. More often, these people share common legacies among them removal from their traditional territories and land, subjugation, discrimination, destruction of their culture, and widespread violation of their basic human rights (Daes 2000). Through time, indigenous people have suffered from non-recognition of their own cultural and political institutions and have had numerous instances where their culture integrity has been undermined. In addition, indigenous people are always negatively impacted by development processes and these pose grave threat to their continued existence.
More often, the culture and traditions for the indigenous people determine and characterise what they consider superior. As a result, the laws in place, under the cultural setup for the indigenous community will differ from the mainstream legal framework, in which the human rights of an individual are enshrined (Taylor 2007). Given the fact that indigenous communities are part of a nation and therefore don’t exercise their laws in seclusion. More often, and especially in the undeveloped economies, there is a collision between the national constitution and the cultural laws. One of the issues were conflict is experienced often is on female genital mutilation in African and Asian indigenous communities. In the majority of countries where this dehumanizing practice is propagated it is almost impossible for the legal framework to eliminate it mostly because the indigenous people embrace it and ‘admire’ practicing it due to the cultural values attached to practicing and undergoing it.
In Australia, the aboriginal and Torres Strait Islander communities are particularly vulnerable to breaches of their rights. In comparison to the other general Australian population, these indigenous communities continue to enjoy a substantially lower quality of life in terms of education, health, land, and housing and they have a higher engagement with the criminal justice system (Hinton, 1997). Other aspects of decreased quality of life include welfare and child protection systems. According to Daes (2000) and Schimmel (2007), Australians do care about their fundamental human rights and their opinion is that these should be better protected. Given the strong traditions of liberal democracy in Australia, an independent judicially, and a robust media, the protection of the fundamental human rights has been sufficient most of the times. However, it is not all Australian people are considered to enjoy the protection of their human rights for all aspects of their lives all the time, and in particular, the indigenous aboriginal and Torres Strait islander people.
Human rights for the indigenous communities have been used to some extend as a moderator of social behaviour. However, this is only in isolated cases and for cases where the social behaviour is considered harmful to the recipient or a third party person. The application of human rights as a moderator of social behaviour is however not singly enough as other tools of the state are required for success of this agenda, in particular the law enforcement agency of the state, and the justice system. An example of how this is applied is for example, when indigenous people are required to comply with the right to health by having their children immunized, and their sick introduced to the mainstream healthcare. For the none-complying and especially in the developing countries, the criminal and justice system is used to make them comply.
Based on the inadequacy of human right to singly act as a moderator of social behaviour, it is insufficient to say that human rights are a moderator of social behaviour because in essence, the law is the moderator of social behaviour, in particular, vices that are outlined in the law as crimes. There has been increased need for change on numerous occasions including the United Nations human rights committees. For example, the UN Committee on Elimination of Racial Discrimination has raised concern on the absence from the Australian law an entrancement of a guarantee against racial discrimination that has the potential of overriding subsequent law of the commonwealth, states, and territories (Gillies 2013). The indigenous human rights law by the UN Committee in this case is not a moderator for social behaviour as it doesn’t fully cover indigenous people in Australian especially against racial discrimination.
According to May (1998), the UN Committee indigenous people’s human rights played a key role and cased Australia to consider the agenda and ensure adequate protection of the human rights of aboriginal and Torres Strait Islander communities into the future. The immediate step of this was the federal government completing a national consultation on human rights and released a report through the consultations committee. The consultation platform provided the first ever opportunity in Australia for a conversation on the protection and promotion of human rights and thus a critical step in enhancing indigenous people’s human rights protection in the country. The UN human rights law for indigenous people therefore encouraged the realization of the human right protection in Australia.
Even though human rights protection and national development can be pursued in tandem, with human rights informing and determining the scope and content of development policies, sometimes certain programmes e.g. education do take place without the proper human rights law to inform the programme. According to May (1998) and Schimmel (2007), government will initiate projects and programmes that are geared towards modernizing the lifestyle of indigenous people and lift them from poverty by provision of education through formal schooling system with the objective being to integrate them into the mainstream economy and culture. However, more often, these projects and programmes end up being failures with the indigenous people rejecting them by arguing that such attempts are meant to control their lifestyle, and that they would wish to ‘develop’ under their values and culture. This however will often conflict with the development goals of the government as the government development protocols will often favour cultural assimilation.
The objectives of human rights not only to the indigenous people but also to the wider population is to enhance self-determination and it is a matter of basic human dignity as well as preparing one to be successful with practical outcomes. Indigenous human rights therefore, for example the right to education for indigenous people, enhances indigenous people with skills in relevant areas so that they are able to participate and engage in the various development projects and programmes that affect them in the changing world including in the natural resource extraction projects (). In this case, the right to education can be taken as an aspiration to reorient the indigenous population to the changing demands of the day to day life and make them better.
Given the indigenous people way of life is considerably different from the general population in every society, state, and country, human rights are meant to strengthen the indigenous people’s own institutions for self governance with the objective of empowering them to gain control of their own affairs. Just like every other community, indigenous communities have their own affairs in all aspect that are meant to ensure that development processes are aligned with their customs, values, patterns, and culture-oriented view of the world (Taylor 2007). Human rights in this case are purposed to motivate and aspire an indigenous community to re-evaluate their values and culture-oriented views in line with development.
Indigenous human rights provides the indigenous people with the opportunity to participate and engage as equals in the development process when their interests as well as those of the wider community in which they are part of are affected (Daes 2000). This way, indigenous people are able to design and implement development activities hence directly benefit from them either economically or through any other benefit that can be derived from the development activities. However, this has not been fully realized as the number of indigenous professionals equipped with the appropriate skills and knowledge about development activities are few.
In conclusion, indigenous human rights indigenous communities are characterised by unique and distinctive languages, legal systems, culture and histories. The culture and traditions for the indigenous people determine and characterise what they consider superior. As a result, human rights which are part of the mainstream legal system do not most often identify with the cultural system. The objectives of human rights not only to the indigenous people but also to the wider population is to enhance self-determination and it is a matter of basic human dignity as well as preparing one to be successful with practical outcomes. Indigenous human rights therefore enhances indigenous people with skills in relevant areas so that they are able to participate and engage in the various development projects and programmes that affect them in the changing world including in the natural resource extraction projects. Human rights are purposed to motivate and aspire an indigenous community to re-evaluate their values and culture-oriented views in line with development. Indigenous human rights provides the indigenous people with the opportunity to participate and engage as equals in the development process when their interests as well as those of the wider community in which they are part of are affected. Therefore, indigenous human rights are merely an aspiration.
- Daes, E 2000, “Striving for self-determination for indigenous peoples” in In pursuit of the right to self-determination, Kly, Y and Kly, D (eds.), p. 57.
- Gillies, C 2013, ‘Establishing the United Nations’ Declaration on the Rights of Indigenous Peoples as the Minimum Standard for All Forensic Practice with Australian Indigenous Peoples’,Australian Psychologist, 48, 1, pp. 14-27.
- Hinton, M 1997, “Sentencing and Indigenous Australians—Addressing overrepresentation from within the criminal justice system”. In E. Johnston, M. Hinton, & D. Rigney (Eds.), Indigenous Australians and the law (pp. 64–85). Sydney: Cavendish Publishing (Australia) Pty. Ltd.
- May, S 1998, ‘Language and Education Rights for Indigenous Peoples’, 11:3 Language, Culture, and Curriculum, pp. 272–296.
- Schimmel, N 2007, ‘Indigenous Education and Human Rights’,International Journal On Minority & Group Rights, 14, 4, pp. 425-453.
- Taylor, J 2007, “Indigenous peoples and indicators of well being: Australian perspective on United Nations global frameworks”. Social Indication Research, 1, 111–126.