Status and rights of nomadic people in Iranian laws and regulations

Status and rights of nomadic people in Iranian laws and regulations, Ali Razmkhah, October 2017, Cenesta (in Persian)

Summary in English

Indigenous peoples (IPs) have gained considerable attention at the international level. Some international conventions and UN Declaration addressing the rights of indigenous peoples have been adopted over the last 60 years. The practices and traditional knowledge of indigenous peoples have been said to be pivotal for the achievement of sustainable development. Moreover, in 2004 the United Nations proclaimed, for the second time, the “International Decade of the World’s Indigenous Peoples” with the aim of promoting indigenous peoples’ full and effective participation in decisions that could affect their lifestyles directly or indirectly.

Notwithstanding this wave of international concern, there is still no agreement on a universal definition of indigenous peoples. Therefore, it is not clear who should be afforded special protection. A classical approach to indigenous peoples as the marginalized and uprooted society, reflected in two conventions of the International Labour Organization (ILO) and in the UN Declaration on the Rights of Indigenous Peoples, has shifted to a rather functional one in the field of international environmental law and the law of development cooperation.

Recognized in more than a dozen international instruments, the right of Indigenous peoples to protect and enjoy their traditional knowledge has become a standard-bearer of the drive for recognition and protection of their human rights and cultural heritage. Equally important are the numerous international instruments recognising Indigenous peoples’ rights to their natural resources including genetic resources.

As explained throughout this paper, the adoption of the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing to the Convention on Biological Diversity (Nagoya Protocol), in October 2010, was seen as a significant step forward in the recognition of Indigenous peoples and local communities’ rights over their genetic resources and traditional knowledge.

The Nagoya Protocol obliges States to ensure the existence of prior informed consent for access to and use of Indigenous peoples and local communities’ genetic resources and traditional knowledge. States are also obliged ‘to take into consideration’ the customary laws and protocols of Indigenous peoples and local communities in implementing the Nagoya Protocol. One of the most important rights derived from this protocol beside other international and regional instrument, as mentioned above, is Free Prior and Informed Consent (FPIC). The bodies responsible for oversight and interpretation of these instruments have clarified that this rights framework give rise to a duty on States to obtain indigenous peoples’ FPIC to the issuance of concessions, and before the commencement of related activities in or near their territories or impacting on the enjoyment of their rights. As mentioned in this newsletter, some countries such as Philippine mentioned this fundamental right into their domestic binding law. This free prior and informed consent (FPIC) must be obtained in a manner that is in accordance with the indigenous peoples’ customary laws and practices of decision-making. The right of indigenous peoples to give or withhold FPIC is therefore indivisible from, and necessary for the realization of, their cultural, territorial and self-governance rights.
Nomadic tribes (Indigenous Peoples) of Iran are comprised of 1.5 million nomadic pastoralists, organized into about 600 “independent tribes” and 100 “tribal confederacies” (each consisting of a number of tribes)—spread over some 35 million hectares in Iran. The tribes exercise a shared ownership of their lands and through application of customary laws and customary governance, have protected, utilized, and sustainably maintained natural resources for 12,000 years, thus playing a unique and deep rooted role in the country’s constitution, existing laws and governance.

Despite their long-standing history in the country, nomadic people have been marginalized, and their rights have been infringed upon in much of the past century. Arguably, the most severe infringement on their rights was the Nationalization of Natural Resources Decree of 1963 (“the Decree”), which removed the ownership of the lands from the tribes, a move which was unconstitutional. The nationalization of the ancestral lands of migrating tribes has weakened the collective tribes’ responsibility for the land and their customary governance. The sustainable use of the pastures by the tribes became tampered with, which took a heavy economic, social, and environmental toll on all the tribes. The most important issue related to indigenous people’s rights is the lack of awareness in their Communities about their rights recognized by the international and national laws.

Other challenges include the laws, regulations and policies that violate the rights of indigenous nomadic tribal peoples and impact their livelihoods. The Nationalization of Natural Resources Decree of 1963, passed by the Council of Ministers under the command of the Shah, declared the ancestral land of migrating tribes to be governmental property. The unconstitutional decree eroded the collective responsibility of migrating tribes for the land, weakened the customary governance of the tribes, and disrupted the sustainable use of the pastures, taking a heavy economic, environmental and social toll on migrating tribes. In addition, according to the Law of Conservation and Exploitation of Natural Resources and similar laws within Iran’s legal system, the government has custody over the rights of indigenous peoples to reallocation of natural resources and changing the use of nationalized land, without taking the rights of indigenous peoples into consideration.

Although there is a law approved by the Revolutionary Council which makes it absolutely forbidden to change land use and/or invade, occupy or reallocate tribal migration routes in any form, this law is repeatedly violated. Failed consequences of centralized, top-down planning in the past decades with unilateral, non-cooperative management schemes has heightened the negative change in ecological conditions.

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