Protecting Human Rights, Preserving Cultural Identity

A conversation with UA Law Professor James Anaya, United Nations special rapporteur on the rights of indigenous peoples

Jill Goetz

When James Anaya stepped off a helicopter onto a tiny airstrip deep in the Amazon rainforest in Peru in December 2013, more than 100 local indigenous leaders and villagers were there to greet him. 

Such receptions are common for Anaya on his visits around the globe as United Nations special rapporteur on the rights of indigenous peoples. Acting as an independent expert for the Geneva-based U.N. Human Rights Council, he has traveled to dozens of countries on fact-finding missions to examine and report on alleged human rights violations. 

Anaya is also widely known for his legal advocacy. He was lead counsel on two landmark cases involving the land rights of indigenous peoples. In Awas Tingni v. Nicaragua, the Inter-American Court of Human Rights for the first time upheld indigenous land rights as a matter of international law. In Cal et al (Maya villages) v. Attorney General, the Belize Supreme Court upheld Mayan land and resource rights on the basis of customary land tenure. 

For his day job, Anaya is a Regents’ Professor and the James J. Lenoir Professor of Human Rights Law and Policy at the University of Arizona’s James E. Rogers College of Law, where he teaches international human rights law and related courses on indigenous peoples’ rights.

Anaya, whose ancestry includes the Apache and Purépecha peoples, also serves on the faculty of the college’s Indigenous Peoples Law & Policy Program. The first program of its kind, it is also the largest, in terms of curriculum and faculty, and is the only program to offer three law degrees in Indian and indigenous peoples’ law. The program has dramatically expanded the UA’s global reputation and reach, from the Arctic to the Australian Outback. 

That reach grew dramatically in 2008, when Anaya was appointed special rapporteur by the U.N. Human Rights Council, a body made up of 47 U.N. member states. He is the second person to hold this position. Earlier this year, a member of the Norwegian Parliament reported that he nominated Anaya to receive the Nobel Peace Prize jointly with the U.N. Permanent Forum on Indigenous Issues.

Arizona Alumni Magazine writer Jill Goetz sat down with Anaya to reflect on his work as he prepares to complete his second three-year term in April 2014.

You were one of the drafters of the U.N. Declaration on the Rights of Indigenous Peoples, adopted in 2007. It must have been deeply gratifying to see this document come to life.

I have been extremely privileged to be a small part of this effort. I remember that September day in New York, sitting in the hall of the U.N. General Assembly with so many others who’d worked on these issues for more than two decades. When the voting board flashed with the affirmative votes of the vast majority of U.N. member states, it was extremely moving. 

What happened after approval? 

Adoption of the declaration was a watershed event. With this new document, the real work began: to bridge the gap between the aspirations outlined in the declaration and the reality for indigenous peoples in their everyday lives. The declaration emphasizes the rights of indigenous peoples to live in dignity, to maintain their institutions and traditions, and to self-determination. Self-determination includes the right to determine one’s own economic, social, educational, 
cultural, and religious practices.

Is there one single greatest threat to indigenous peoples’ rights and survival? 

Characteristically, indigenous peoples are deeply tied to their traditional or ancestral lands, and identify themselves through those ties. What threatens their land may threaten their cultural identity or even their very survival. One indigenous leader in Argentina, at the site of an oil extraction project, told me, “What we want is a guarantee that the land will be returned and that we will be able to use the natural resources, because these represent our sources of life, our spirituality, our medicines, and our culture.”

Outside interests may value these lands quite differently.

Because in many places resource-rich lands are on or adjacent to indigenous lands, they are frequently targeted for resource extraction. Much of my work as special rapporteur has examined the effect of extractive industries such as oil, gas, mining, and logging on indigenous peoples’ rights. The projects are often operated by transnational corporations, with approval by the state, without adequate consultation or agreement with those who live and rely on the land. Too often, the work is carried out without respect for indigenous peoples’ rights and customs. 

But there are other issues to deal with as well?

Extractive projects, when conducted irresponsibly, can have devastating consequences. But extractive industries are not always the greatest threat. For indigenous peoples such as the Maasai in Tanzania and the San in Namibia, an often greater threat has been the designation of their lands as national parks or game preserves — off-limits to the grazing, hunting, and other practices essential to their way of life. Other serious threats to indigenous peoples come in the form of lack of access to education and medical care appropriate to their cultures and ways of life, and violence against women and girls. 

How has your work as special rapporteur influenced change?

A core responsibility in my work is promoting and protecting indigenous peoples’ right to determine how their lands are used. Indigenous peoples are often viewed in romantic terms, as shepherds of pristine lands. Yet, as I have documented to the Human Rights Council, indigenous peoples are increasingly open to negotiating with states and transnational companies on development of their lands and resources — as long as they are able to secure beneficial terms that are protective of their rights, in accordance with the principles of the declaration. 

Indigenous peoples and transnational corporations seem like unlikely negotiating partners.

But they can and do negotiate in many cases. Resource extraction projects are typically a problem when there is a lack of consultation with and input from peoples who have tended the land for centuries. Indigenous leaders in places around the globe do not oppose development, but it must be in keeping with their own aspirations and priorities. Development and respect for indigenous peoples’ rights need not be at odds. 

Have you seen progress since the U.N. declaration was adopted? 

Yes, despite ongoing, serious problems. Like most indigenous leaders I have met with, I am optimistic. I have  seen greater awareness among governments and transnational corporations and positive movement toward new laws. 
For example — most Latin American countries have reformed their constitutions to protect indigenous peoples’ rights. Representatives of the indigenous Sami peoples of Norway and Sweden have negotiated with these countries to provide significant, if not fully satisfactory, protections for the Sami. Even in African and Asian regions where progress is slower, we have seen advances. A new law adopted by the Congo and recent court rulings in Indonesia recognize indigenous peoples’ rights in forest lands.

With its renowned programs focusing on indigenous peoples, the UA provides fruitful ground for indigenous rights experts and students interested in the topic. 

The UA has distinguished itself globally on indigenous peoples’ rights. People here are deeply committed — not just in the College of Law, but across campus. With its proximity to several indigenous nations, the University is a natural educational environment for these issues to flourish. Some of my law students have gained extraordinary practical experience in supporting me in my role as special rapporteur, meeting indigenous leaders and working with the international institutions charged with protecting those rights. 

What will you miss and what do you look forward to when your term ends in April?

Serving as special rapporteur has given me an unmatched platform for helping indigenous peoples’ voices to be heard. You might say the same is true for my own voice. The dream of a scholar is to have people pay attention to your ideas. We scholars think we have something to contribute. We think hard about issues we care about. As special rapporteur, I have had an incredible opportunity to increase awareness of issues that I care deeply about on the world stage. What I look forward to is continuing to contribute in some way to the conversation about indigenous peoples’ human rights, and I hope to do so in a way that will help expand recognition, appreciation, and respect for the human rights of all.

What are your thoughts on your nomination for the 2014 Nobel Peace Prize? The UA and communities around the world have shared their congratulations.

I was quite surprised by the nomination. I’m sure that there are many other qualified nominees. Whatever the chances that I might ultimately receive the prize along with the Permanent Forum, I hope the nomination serves to highlight the issues indigenous peoples face on a global scale.