E/CN.4/2002/97 page 28 landmark case which some Ainu had filed against the Government in relation to the construction of a dam on their land, recognized the indigenous identity of the Ainu. Moreover, Ainu delegations have been present at the annual sessions of the WGIP, and demand recognition as an indigenous people.39 99. In its continuing activities surrounding indigenous issues the United Nations system is contributing to the clarification of the issue of definition of indigenous peoples. The Martínez Cobo report suggests one definition, which has been widely used and quoted.40 Convention 169 has used some of its elements in defining the peoples to which it applies and adds, in article 1, paragraph 2: “Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.”41 The Draft United Nations declaration on the rights of indigenous peoples does not provide a definition, but states the right to membership in an indigenous community.42 The WGIP in 1995 adopted four principles to be taken into account in any possible definition of indigenous peoples: (a) priority in time, with respect to the occupation and use of a specific territory; (b) the voluntary perpetuation of cultural distinctiveness, which may include the aspects of language, social organization, religion and spiritual values, modes of production, laws and institutions; (c) self-identification, as well as recognition by other groups, or by State authorities, as a distinct collectivity; and (d) an experience of subjugation, marginalization, dispossession, exclusion or discrimination, whether or not these conditions persist.43 100. As regards individual membership, indigenous communities usually apply their own criteria, and whereas some States do regulate individual membership, it has become increasingly accepted that the right to decide who is or is not an indigenous person belongs to the indigenous people alone. Nevertheless, it must be recognized that membership in indigenous communities implies not only rights and obligations of the individual vis-à-vis his or her group, but may also have legal implications with regard to the State. In the design and application of policies regarding indigenous peoples, States must respect the right of self-definition and self-identification of indigenous people. The Special Rapporteur, drawing on a vast amount of expertise held by the indigenous peoples themselves, Governments and academic institutions, expects to continue to report on this debate at the international level. IV. SPECIFIC CONCERNS RELATING TO THE HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS OF INDIGENOUS PEOPLE 101. At this early stage in his mandate, the Special Rapporteur cannot hope to provide a full picture of the human rights situation of indigenous peoples and communities around the world. But drawing on existing information, basically the communications and statements that have been addressed recently to the WGIP, CERD and other bodies, as well as communications and complaints that have come to the attention of the Special Rapporteur directly since he took up his mandate, it is possible to identify some of the principal current concerns of indigenous peoples, communities and organizations. Fuller treatment is provided in the addendum to this report. 102. A look at the pattern of many of these concerns reveals that the problem of a “protection gap” between existing human rights legislation and specific situations facing indigenous people is indeed of major significance and presents a challenge to international mechanisms for the effective protection of human rights. The Special Rapporteur has not yet had the opportunity to