At the outset, it should be noted that there are two key rights for indigenous peoples around the world. This is the right to ownership of ancestral lands and territories, and the right to self-government and independent decision-making about their own development. The significance of these rights is reflected in international normative documents.

On April 16, 1999, the Russian parliament adopted the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation”. Its name fully reflects the importance of this law. The Russian Federation recognizes that indigenous peoples have special rights and guarantees their observance.

I found the original version of this document, and tracked all the changes made since its adoption. In this article, I will highlight the most significant of these changes with my own comments.

I. The first edition of the law contained Article 4 as follows:

Article 4. Ensuring the rights of small peoples to socio-economic and cultural development

The state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation and local self-government bodies, in accordance with federal legislation and the legislation of the constituent entities of the Russian Federation, ensure the rights of indigenous peoples to a distinctive socio-economic and cultural development, protection of their original habitat, traditional way of life and management.

Organizations of all forms of ownership, public associations and individuals have the right to assist small peoples in the exercise of their rights to original socio-economic and cultural development in the manner determined by federal legislation and the legislation of the constituent entities of the Russian Federation.

This article is aimed at realizing one of the key rights of indigenous peoples – the right to self-government and independent decision-making about their own development. State authorities at all levels are charged with the responsibility to ensure this right of indigenous peoples. And organizations of all forms of ownership are endowed with the right to assist indigenous peoples in the exercise of their right to self-government and independent decision-making about their own development.

This article was declared invalid (completely canceled) in 2004.

II. Article 5. Powers of federal bodies of state power.

The bodies of state power of the Russian Federation in order to protect the primordial habitat, traditional way of life, economic activity and crafts of indigenous peoples have the right:

Clause 10)
To regulate, together with the state authorities of the constituent entities of the Russian Federation, the legal regime of possession, use and disposal of lands of traditional nature management and lands of historical and cultural purposes in places of residence of small peoples.

This rule allowed federal government bodies, together with regional government bodies, to establish the procedure for the ownership, use and disposal of lands significant for indigenous peoples in favor of indigenous peoples.

This clause was completely canceled in 2004.

Clause 12)
Establish the boundaries of lands of traditional nature use of small peoples and the procedure for granting these peoples for these purposes lands in federal ownership.

This rule, among other things, allowed the indigenous peoples to be granted lands in federal ownership. For the conduct of traditional nature management.

Canceled in 2007.

III. Article 6 conferred on regional public authorities the following, inter alia, rights:

Clause 1)
In accordance with the legislation of the Russian Federation, to adopt laws and other normative legal acts of the constituent entities of the Russian Federation on the protection of the original habitat, traditional way of life, management and crafts of indigenous peoples, as well as on the procedure for organizing and operating communities of indigenous peoples, taking into account historical, national and other traditions these peoples.

Canceled in 2004.

Clause 6)
Establish general principles for the organization and activities of territorial public self-government of small peoples in places of their traditional residence and economic activity.

Canceled in 2004.

Clause 7)
Establish the procedure for the allotment, use and protection of lands of traditional use of natural resources by small peoples in the ownership of the constituent entities of the Russian Federation.

Here, a comment is needed on what is the allotment of a land plot. This is a complex of land management actions to establish a land plot in nature, grant it ownership, possession, use, and lease. This is a kind of alienation of land. That is, regional government bodies can transfer their land plots to third parties. Including in favor of indigenous peoples.

Canceled in 2007.

Clause 9)
Establish administrative responsibility for violation of the legislation of the constituent entities of the Russian Federation on the protection of the original habitat, traditional way of life, management and crafts of indigenous peoples.

Canceled in 2004.

Clause 11)
Together with local self-government bodies, ensure compliance with federal legislation and the legislation of the constituent entities of the Russian Federation with regulatory legal acts of local self-government bodies on the protection of the original habitat, traditional way of life, economic activity and crafts of small peoples.

Canceled in 2004.

Clause 12)
Issue licenses and establish quotas for the traditional crafts of indigenous peoples and monitor compliance with the terms of these licenses and quotas.

This is a very important point that needs clarification. For indigenous peoples, hunting and fishing are traditional trades. They hunt and fish not for entertainment or commercial enterprise, but for survival. And it is quite true that for such purposes it is necessary to separately allocate quotas and permits for the production of animals and catching fish. These quotas must be issued separately from quotas for all other hunters and fishermen.

However, the question of entrepreneurial activity of indigenous peoples also remains open.

Canceled in 2004.

In the current version of the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation,” regional government bodies are deprived of all of the above rights. Which were aimed at protecting the interests of indigenous peoples.

IV. Article 7 endowed local governments with the following, inter alia, rights:

Clause 1)
Allocate funds from local budgets to provide financial assistance for the socio-economic and cultural development of small peoples in order to protect their ancestral habitat, traditional way of life, economic activity and crafts.

Canceled in 2004.

Clause 3)
Exercise control over the allotment, use and protection by persons belonging to small peoples of lands necessary for conducting a traditional way of life and engaging in traditional crafts of small peoples.

In 2007, the word “allotment” was changed to the word “grant”. And these are completely different legal meanings.

Clause 5)
Adopt normative legal acts on the socio-economic and cultural development of small peoples, as well as on the protection of their ancestral habitat, traditional way of life, business and crafts.

Canceled in 2004.

In the current version of the federal law “On guarantees of the rights of the indigenous peoples of the Russian Federation”, local governments are deprived of all of the above rights. Which were aimed at protecting the interests of indigenous peoples.

V. Article 8 lists the following, among others, the rights of indigenous peoples:

Clause 1 of Part 1)
Own and use, free of charge, in places of traditional residence and economic activity of small peoples, lands of various categories necessary for the implementation of their traditional management and engaging in traditional crafts, and widespread minerals in the manner prescribed by federal legislation and the legislation of the constituent entities of the Russian Federation.

A comment is needed here. This regulation deals with the ownership of indigenous peoples to ancestral lands and territories. Truncated truth. Indeed, in full measure, the right of ownership includes the right of ownership, the right to use, and the right to dispose. Here, indigenous peoples were endowed with the right to own and use land. Without the right to dispose. That is, without the right to sell, donate, rent, and so on.

In 2007, the words “own and” were removed. We were deprived of the right to own land.

Clause 8 of part 2)
Receive free social services in the manner prescribed by the legislation of the Russian Federation.

In 2004, the word “free” was dropped.

VI. The first edition of the law contained Article 13 as follows:

Article 13. Representation of small peoples in the legislative (representative) bodies of the constituent entities of the Russian Federation and representative bodies of local self-government.

For the purpose of the most consistent solution of issues of socio-economic and cultural development of small peoples, protection of their original habitat, traditional way of life, business and crafts, the laws of the constituent entities of the Russian Federation may establish quotas for the representation of small peoples in the legislative (representative) bodies of the constituent entities of the Russian Federation and representative bodies of local government.

This article was completely canceled in 2004. Regional governments are no longer allowed to allocate quotas for indigenous peoples to be represented in the regional parliament.

Over the past 20 years, the legal status of indigenous peoples in Russia has deteriorated dramatically. I have reviewed only one key law. To track all negative changes, an analysis of a large number of different regulatory documents is required. Many of which are not directly related to indigenous peoples, but have a direct impact on us.

The first Cooperation Agreement of the newly established Batani international Indigenous Fund for Development and Solidarity has been signed with the Norwegian consulting company “Arctic Consult,” whose mission is to provide legal and economic advice to indigenous communities.

Arctic Consult will assist with the research project “Why indigenous rights don’t work in Russia?” This project involves a series of studies about the implementation of state policies that affect indigenous peoples, as well as the problems of the implementation of the rights of indigenous peoples to self-determination and access to lands and resources in the Russian Federation. The project will prepare science-based proposals for the development of a strategy for the sustainable development of the indigenous peoples of Russia, taking into account their right to self-determination.

Within the framework of the project, the partners intend to develop a new innovative methodology for collecting and processing information on the socio-economic development of the indigenous peoples of Russia and their self-government, the implementation of state policy towards indigenous peoples, as well as violations of their rights by public authorities and businesses.

As scholars and experts in the fields of public international law, human rights law, business and human rights, and international economic law, we have closely followed and analysed the work of the Open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG) established by Resolution 26/9 of the United Nations Human Rights Council in June 2014. Some of us have also participated, in various capacities, in the first three sessions of the OEIGWG.

According to Resolution 26/9, the mandate of the OEIGWG is “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.” Based on the discussion held during the first three sessions as well as a series of open informal consultations held in 2018, the Chairperson of the OEIGWG published a zero draft of an international legally binding instrument on 19 July 2018 and a zero draft of an optional protocol to the proposed instrument on 4 September 2018.

We note that there have been differences in opinion among states regarding the need for such an instrument and its scope as well as content. We also note some states who are of the view that the mandate of the OEIGWG was limited to holding three sessions and that a new Human Rights Council resolution would be required to hold the Fourth Session, which is scheduled to take place during 15-19 October 2018.

This open letter addresses these issues with a view to assist states as well as other relevant stakeholders in engaging with the ongoing process (including the Fourth Session of the OEIGWG) in a constructive and informed manner.

International Legally Binding Instrument as a Necessary Complement to Existing Instruments

We acknowledge the positive contribution made by the UN Guiding Principles on Business and Human Rights and other initiatives in providing guidance on the relationship between business and human rights. Significant gaps, however, remain in ensuring that businesses respect human rights and effective remedies are available to victims of business-related human rights abuses. There is also no legally binding international framework to facilitate mutual cooperation and international assistance among states to hold business enterprises accountable for human rights abuses. We believe that an international legally binding instrument would strengthen and complement existing regulatory initiatives and evolving good practice regulation at the national level.

States should Negotiate in Good Faith on the Basis of the Zero Draft

We note that the zero draft of an international legally binding instrument as well as its optional protocol build on existing human rights treaties and other international instruments binding on states. The zero draft seems to reflect the input provided by states and other stakeholders. All states should therefore engage in the process of negotiating an international legally binding instrument in good faith.

Even though we consider that the zero draft needs substantial refinement and revisions to adequately fulfil the mandate of the OEIGWG, it provides a valuable basis for further negotiations. We believe that if future negotiations are conducted in good faith, this should lead to a result which reflects the common goals of all stakeholders to promote respect for human rights by business and improved access to effective remedies for victims of business- related human rights abuses.

Resolution 26/9 as Sufficient Legal Basis for Holding Further Sessions

In addition to establishing the mandate of the OEIGWG, Resolution 26/9 also provides that the two first two sessions of the OEIGWG “shall be dedicated to conducting constructive deliberations on the content, scope, nature and form of the future international instrument”. The Chairperson-Rapporteur’s was to “prepare elements for the draft legally binding instrument for substantive negotiations at the commencement of the third session”.

As further sessions are not explicitly mentioned in the text of Resolution 26/9, there have been questions as to whether the OEIGWG’s mandate allows holding a Fourth Session (and subsequent sessions). At the outset, it should be noted that even though the Resolution only refers to three sessions, it does not say that these would be the only sessions. In fact, the context, object and purpose of Resolution 26/9 suggest that the mandate of the OEIGWG is not limited to just three sessions. As stated in paragraph 1, the OEIGWG’s “mandate shall be to elaborate an international legally binding instrument”, not just have three sessions. Paragraph 3 of the Resolution further provides that the elements to be prepared by the Chairperson-Rapporteur should serve as the basis of “substantive negotiations”. It is thus clear in our view that the mandate of the OEIGWG is not confined to preparing the background for such negotiations but includes conducting such negotiations on a substantive level. This conclusion is also supported by the open-ended nature of the IGWG.

While it may have been the practice in the past that the Human Rights Council would revisit and renew the mandate of an OEIGWG in similar cases, there is no legal requirement to do so. In the absence of a decision of the Human Rights Council to amend the mandate of the OEIGWG, the Fourth Session and any subsequent session rest on the solid legal basis of Resolution 26/9.

In view of the above observations, we strongly urge all states to engage constructively and in good faith with the process of negotiating an international legally binding instrument. By doing so, states will demonstrate their continuous commitment to respect, protect and fulfil all human rights amidst the challenges of the 21st century.

1 October 2018

Signatories (institutions are for identification purposes only)

Source: business-humanrights.org