A/HRC/15/35
6.
Finally, as the right to participation applies to indigenous peoples both collectively
and individually, and taking into account the fact that the rights specific to indigenous
peoples are generally formulated as collective rights, the report will also focus on the
collective right of indigenous peoples to participate in decision-making.
II.
International human rights framework
7.
International human rights law refers to the right to participation in both general and
specific forms. Participation in its general form is to take part in the conduct of public
affairs, whereas electoral participation is a specific form of participation. The right to take
part in public affairs is not limited to formal political institutions, as it also includes social
activities of a public nature. Furthermore, the right to participation is characterized as an
individual right as well as a collective right. These fundamental principles are protected
under the Universal Declaration of Human Rights: article 21 (1) affirms that everyone has
the right to take part in the government of his country, directly or through freely chosen
representatives; and article 21 (3) establishes that the will of the people should be the basis
of the authority of government.
8.
The Declaration contains more than 20 provisions affirming the right of indigenous
peoples to participate in decision-making, articulated as, inter alia, (a) the right to selfdetermination; (b) the right to autonomy or self-government; (c) the “right to participate”;
(d) the “right to be actively involved”; (e) the duty of States to “obtain their free, prior and
informed consent”; (f) the duty to seek “free agreement” with indigenous peoples; (g) the
duty to “consult and cooperate” with indigenous peoples; (h) the duty to undertake
measures “in conjunction” with indigenous peoples; and (i) the duty to pay due “respect to
the customs” of indigenous peoples. This emphasizes that the right to participation of
indigenous peoples is a core principle and right under international human rights law.
9.
The articulation of the right to the individual dimension of participation has been
further elaborated in human rights treaty provisions, including article 25 of the International
Covenant on Civil and Political Rights, which establishes the rights of citizens (a) to take
part in the conduct of public affairs, directly or through freely chosen representatives; (b) to
vote and to be elected at genuine periodic elections; and (c) to have equal access to public
service.
10.
In contrast to all other provisions of the Covenant, article 25 employs the notion of
“citizen” when referring to the subjects of the right. Thus, States may require citizenship as
a condition for exercising the rights under article 25, although the provision does not
prevent States from extending these rights to non-citizens. However, the particular
reference to citizenship is a fundamental legal obstacle for a large number of stateless
indigenous individuals, as their legal status as aliens in their country of birth and residence
restricts their ability to participate in public affairs.
11.
In its general comment No. 25 (1996) on participation in public affairs and the right
to vote, the Human Rights Committee clarified that the rights under article 25 are related to,
but distinct from, the right of peoples to self-determination, under article 1 (1) of the
Covenant.2 The Committee concluded that the rights covered by article 1 (1) include the
right of peoples to freely determine their political status and to enjoy the right to choose the
form of their constitution or government, whereas article 25 deals with the right of
individuals to participate in those processes that constitute the conduct of public affairs. In a
1991 case involving indigenous peoples, Marshall et al. (Mikmaq people) v. Canada, the
2
4
General comment No. 25, para. 2.
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