A/HRC/54/52 resources (arts. 26, 29 and 31) and the right to participate in decisions affecting their lands and territories (arts. 3, 18, 19 and 33). 6. In the same way, article 30 of the American Declaration on the Rights of Indigenous Peoples establishes that Indigenous Peoples have the right to peace and security and to protection and security in situations or periods of internal or international armed conflict, in accordance with international humanitarian law. 7. The militarization of territories is not a new phenomenon for Indigenous Peoples; there is a close link between militarization and colonization processes. During the cold war, Inuit organizations were specifically concerned with weapons testing and military waste. Furthermore, there is a long history of Indigenous struggles for demilitarization as part of decolonization processes. Paragraph 12 of the preamble to the United Nations Declaration on the Rights of Indigenous Peoples emphasizes that demilitarization of the lands and territories of Indigenous Peoples has contributed to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world. 4 As a key purpose of the Declaration, demilitarization should be read into the operative articles, including article 7 (2), which establishes that Indigenous Peoples have the collective right to live in freedom, peace and security as distinct peoples. As the Declaration is meant to be read as a whole, the right to security applies to many other provisions – such as those on food security, land security and language security. 8. The direct reference to proscribe the effects of militarization on Indigenous Peoples is set forth in article 30 of the Declaration.5 Article 30 (1) states: “Military activities shall not take place in the lands or territories of Indigenous Peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the Indigenous Peoples concerned.” Article 30 (2) affirms: “States shall undertake effective consultations with the Indigenous Peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.” 9. Article 30 precludes militarization on the land of Indigenous Peoples, except in the exceptional circumstance where the State both has established a public interest, or Indigenous Peoples have requested such military presence, and the State has undertaken effective consultations with the Indigenous Peoples concerned. The “public interest” component provides an exceedingly narrow exception to the general prohibition6 on military activities in Indigenous Peoples’ lands and territories. 10. “Public interest” does not constitute by itself a determinative factor. Any stated public interest must comply with the principles of necessity and proportionality as defined within an overall framework of respect for human rights. 7 The principle of necessity requires the action to be appropriate to achieve its protective function. The principle of proportionality is at the heart of many human rights claims, as any restrictions must be a proportionate means of achieving a legitimate aim.8 It is not sufficient that the restrictions serve the permissible purposes; they must also be necessary in order to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument among those which might achieve the desired result; and they must be proportionate to the interest to be protected. 9 In practice, however, extractive industry projects, conservation initiatives and military operations in Indigenous territories continue to be authorized on the basis of “public need”, “public interest” or “public purpose” without any justification for the associated restrictions 4 5 6 7 8 9 GE.23-14759 To be read in conjunction with articles 3, 7, 28, 29 and 30 of the Declaration. To be read in conjunction with articles 7, 10, 19, 23, 26, 29, 32, 36 and 46 of the Declaration. International Law Association Committee on the Rights of Indigenous Peoples, Interim Report, 74th Biennial Conference, The Hague, Kingdom of the Netherlands (2010). With regard to the African Court on Human and Peoples’ Rights, there are references to consultations with Indigenous Peoples in the ruling in the case brought by the Ogiek Indigenous people against Kenya. See African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, application No. 006/212, judgment, 23 June 2022. Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. Human Rights Committee, general comment No. 27 (1999), para. 14. 3