A/61/490
reports on the conclusions and recommendations of international seminars organized
by the Inter-Parliamentary Union and the University of Arizona, on the topic of my
main report, held in July and October 2005, respectively (E/CN.4/2006/78/Add.5).
7.
In 2006 the Special Rapporteur devoted his thematic report to the study of the
implementation of standards and jurisprudence relating to the rights of indigenous
people. During the last decade numerous constitutional and legislative reforms have
been carried out in many countries in which the indigenous peoples and their civil,
political, economic, social and cultural rights are recognized. Some of these
legislative provisions are broader than others; in some cases recognized rights are
limited and subordinated to the interests of third parties or broader national
interests.
8.
However, the standards and jurisprudence that have evolved in recent years
concerning indigenous people still have not done enough to bring about substantive
changes in their daily lives. The “implementation gap” between standards relating to
indigenous rights and the effective enjoyment of those rights poses a serious
problem meriting the close attention of the Human Rights Council and the General
Assembly. In the present report the Special Rapporteur has identified the factors
which he believes contribute to this gap.
9.
It has been pointed out that in many countries there is a gap between
international standards and principles regarding the human rights of indigenous
people and domestic legislation. International standards, even when ratified, do not
always and automatically become part of domestic law. They are sometimes ignored
by public officials as well as in the case law of the courts. Another problem reported
is the lack of consistency between different laws, such as those relating to natural
resources management, and indigenous or human rights legislation.
10. The main problem, however, is the “implementation gap” that is, the vacuum
between existing legislation and administrative, legal and political practice. This
divide between form and substance constitutes a violation of the human rights of
indigenous people. To close the gap and narrow the divide is a challenge that must
be addressed through a programme of action for the human rights of indigenous
people in the future.
11. Indigenous people are increasingly availing themselves of international
mechanisms for the defence of their human rights. At the regional level the interAmerican human rights system has played an increasingly important role and is
beginning to be useful to the African regional system. At the international level the
International Labour Organization (ILO) and the United Nations treaty bodies have
unquestionable moral authority that is being increasingly exercised in defence of the
rights of indigenous peoples. A new circle of good practices has thereby been
established, bringing together indigenous peoples, States and international
mechanisms, but does not always obtain satisfactory results.
12. A sign of the growing interest in the “implementation gap” phenomenon and
the quest for constructive solutions to help to remedy the matter is the attention paid
to follow-up on the Special Rapporteur’s recommendations. In that context, as
mentioned earlier, pursuant to its resolution 2005/51, the Commission on Human
Rights requested the Special Rapporteur to conduct a study regarding best practices
carried out to implement recommendations contained in his general and country
reports.
06-55256
5