A/69/267
C.
The relevance of effective and special measures to achieve
indigenous peoples’ economic, social and cultural rights
23. A number of countries in which indigenous peoples live face enormous
development challenges, and clearly indigenous peoples may be one group among
many within a country experiencing difficulties in this regard. Nevertheless,
indigenous peoples face distinct challenges, and measures to address social and
economic disparities must be differentiated from measures targeting other
disadvantaged groups.
24. In order to overcome situations of discrimination, international human rights
standards generally provide for the adoption of positive or special measures to
ensure effective and substantial equality. With this in mind, the Declaration was
premised on the concern that indigenous peoples have suffered from injustices that
prevent them from exercising their right to development in accordance with their
own needs and interests. Hence, the Declaration has essentially a remedial purpose,
and, in the words of the previous Special Rapporteur, “aims at repairing the ongoing
consequences of the historical denial of the right to self-determination and other
basic human rights affirmed in international instruments of general applicability ”. 4
25. The Declaration, in particular with regard to economic, social and cultural
rights, points out in numerous articles the need for States to adopt “effective” or
“specific” measures or to take “necessary steps” to overcome discrimination and
ensure the progressive achievement of these rights. In general, article 21(2)
stipulates that “States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their [indigenous peoples ’]
economic and social conditions”. More specifically, the Declaration calls for:
measures to: safeguard the cultural values and identity of indigenous peoples and
prevent their forced assimilation or integration (article 8(2)); protection of their right
to revitalize, use, develop and transmit their cultural heritage (article 13(1 and 2));
ensured access to education in their own culture and their own language (article 14);
protection of indigenous children from economic exploitation and child labour
(article 17(2)); protection of indigenous women and children against violence and
discrimination (article 22(2)); and the right to achieve the highest attainable
standard of physical and mental health (article 24(2)).
26. From her own experience, the Special Rapporteur reported on concerns
expressed that such affirmative measures to address the particu lar situation of
indigenous peoples would constitute an act of discrimination against other sectors of
society. In that regard, the Special Rapporteur finds it useful to draw attention to the
comprehensive body of authoritative interpretation of human righ ts standards, which
explain the non-discriminatory nature of special measures, if these are adopted
specifically to overcome discrimination.
27. For example, the Committee on the Elimination of Racial Discrimination, in
its general recommendation No. 32, underlines that the “term “non-discrimination”
does not signify the necessity of uniform treatment when there are significant
differences in situation between one person or group and another, in other words, if
there is an objective and reasonable justification for differential treatment. To treat
persons or groups whose situations are objectively different in an equal manner
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A/HRC/9/9, para. 36.
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