Pitfalls and Pipelines - Philippine Indigenous Peoples Links

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256 Pitfalls and Pipelines: Indigenous Peoples and Extractive Industries nomic, social, cultural, and environmental rights, with a specific provision for recognizing collective rights. The African Charter provided for the creation of the African Commission on Human and Peoples’ Rights (ACHRP), a mechanism which in turn led to the establishment of the African Court on Human and Peoples’ Rights. As the only regional human rights instrument to specifically reference peoples’ rights, it may be hoped it would be leading the way on indigenous cases. This is not the case though, as African states in general have resisted the idea of particular ethnic groups having specific inherent rights, instead arguing that all native Africans are “indigenous,” in the sense of being pre-colonial. 15 This has been countered by the ACHRP, which in 2000 set up the Working Group on Indigenous Populations/Communities in Africa, and in 2006 published a summary of its work on the issue, clarifying—and dispelling some misconceptions around—the definition of indigenous peoples in Africa. 16 The ACHRP did not take up the chance to address the issues of indigenous peoples’ rights when it heard the 2002 case of The Social and Economic Rights Centre v Nigeria, concerning the Ogoni and Shell. 17 Although it gave a positive determination in holding the Federal Government of Nigeria in violation of a number of the Charters’ articles, it failed to really address the issue of indigenous rights. The fundamental case from the ACHRP, which did affirm the rights of indigenous peoples’ to own their customary lands and to FPIC, is the 2010 decision in Endorois Welfare Council v Kenya. In doing so, the ACHPR referred to both the UN Declaration on the Rights of Indigenous Peoples and the Inter-American Court’s Saramaka case in coming to their conclusions. 18 Communities can directly lodge a complaint with the ACHPR against a State Party for violations of a right guaranteed by the African Charter, which includes a states’ duty to protect from harm by non-state actors, such as extractive industry companies. The African Commission has set up a Working Group on Economic, Social and Cultural Rights, which is currently working on a set of guidelines aiming at detailing states’ obligations under the Charter. The draft
Chapter 2.6: Legal Strategy from the Local to the International 257 guidelines do refer to the role of states in protecting human rights from harm by other actors, including private actors. 19 A complaint, however, can only be brought if local remedies have been exhausted. The Commission does not offer legal assistance to complainants. Before submitting its views on a communication, it is possible for the Commission to recommend the state concerned to take provisional measures to avoid irreparable damage being caused to the victim of an alleged violation. As with the Inter-American Court, complaints are forwarded to the African Court by the Commission, rather it being approached directly. Unlike in the Americas, however, African intergovernmental organizations and any individual and NGO with observer status before the Commission may petition directly, as long as the State Party has declared there is such a right in the country in question. 20 The European System of Human Rights The Council of Europe, which is based in Strasbourg (France), brings together representatives from the 47 Member States across Europe. The aim of the Council of Europe is to develop common and democratic principles based on the European Convention on Human Rights. Those Member States include the territories of the Saami people and the Russian Federation, which is home to a number of different indigenous peoples. The Council of Europe is composed of six main bodies. One of these is a judicial body—the European Court of Human Rights. The European Court of Human Rights can only hear complaints against States Parties, which have allegedly violated the European Convention on Human Rights, but its judgements are binding on those states and they are obliged to execute them. The act or omission complained of must have been committed by one or more public authorities in the state(s) concerned. The European Court, however, can rule that a Member State is in violation of the Convention if it fails to protect people under their jurisdiction from the violations of a third party (such as a company).
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