Aboriginal Law Bulletin
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Aboriginal Law Bulletin |
|
by David Weissbrodt
The WGIP held its 4th Session during the week commencing on 29 July this year.
The indigenous participants in the fourth session of the Working Group were much more numerous, better prepared, and better organised than during the sessions of previous years. There were two overlapping efforts to prepare participants which significantly moulded the nature of the fourth session. First, there was a seminar beginning two weeks before the Working Group; between 25 and 40 indigenous individuals participated. The seminar dealt with the historical background of the Working Group, its procedures, the substantive issues it faced, etc.
Second, during the week immediately preceding the Working Group session up to 90 indigenous participants from many parts of the world assembled in a room at the Palais des Nations to develop strategies. A different indigenous participant chaired each of the strategy sessions; decisions were made by consensus. One significant project of the strategy sessions was the preparation of a Draft Declaration of Principles concerning indigenous rights, which was later presented to the Working Group and became a central document of the 1985session.[1] The indigenous participants developed an expectation that important initiatives should be presented initially to the strategy sessions before introduction to the Working Group. The strategy sessions continued every evening immediately following the Working Group sessions.
For the first time since the initial yearof the Working Group all five members were in attendance. Madame Erica-Irene Daes of Greece was elected Chair/Rapporteur having presided over the third session of last year. Professor Ivan Toshevski of Yugoslavia is the only member who has been present for all four sessions. Madame Gu Yijie of China and Mr Alfonso Martinez of Cuba were elected to the Sub-Com mission in 1984 and were thus attending the Working Group for the second time. Mr Kwesi Simpson of Ghana was participating for the first time this year. The Working Group was served by extremely competent staff from the UN Centre for Human Rights including Gudmundur Alfredsson of Iceland.
The Chair repeated previous rulings to the effect that specific complaints should be made to other UN bodies-that the WGIP was not a chamber of complaints.
As the fourth session continued. however, the admonitions grew rather formalistic. that is, made to assuage any criticisms from government observers and not to mold the presentations by the indigenous participants. Indeed, indigenous participants continued unabated to provide the Working Group with information about human rights violations. More experienced indigenous participants also suggested that such concrete information was necessary as a basis for the Working Group to fulfill its standard setting role. Furthermore, despite the admonitions of the Chair the resolution which established the Working Group clearly authorises that body to receive human rights information; the Working Group may not. however, be equipped to assess the evidence and is certainly unable to issue judgments.[2]
Whatever doubt might have been shed by the Chair's admonitions during the fourth session the Working Group's plan of action for 1986 includes the following statement of interest: 'Under the item of the agenda concerning the review of developments any issue falling under the mandate of the Working Group may be brought up. It is expected that protection of the right to life, to physical integrity and security of indigenous populations will be discussed each year.[3]
During the fourth session of the Working Group three principal steps were taken toward the evolution of standards. First, indigenous representatives tabled two significant proposals which might eventually form the basis of a Working Group draft declaration on indigenous rights.[4]
Second, there was a debate both in public and in private among the Working Group members as to how the Group should proceed to develop standards. Third, the Working Group's report contained in Annex 11 the Working Group's determination that it would aim at producing a draft declaration of indigenous rights, which may be proclaimed at the General Assembly.[5]
Annex II also contains the preliminary wording of seven draft principles as to which the Working Group solicits the comments of Governments and indigenous organisations for discussion at the fifth session in 1986.[6]
Before the Working Group session began the World Council of Indigenous Peoples I WCIPI tabled a ‘draft containing the most basic rights of indigenous peoples.’[7]
During the strategy meetings prior to the Working Group indigenous participants drafted a more ambitious text taking as their point of departure three documents: (1) the WCIP draft, Supra; (2) the Draft Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere[8]; and (3) the Principles forGuidingthe Deliberations of the Working Group on Indigenous Populations[9] The draft declaration of principles was adopted by consensus in the strategy session and was submitted to the Working Group by six NGOs of indigenous peoples which have consultative status at the UN.[1]
The 6 NGO draft is more complex, spelling out in stronger terms the detail of specific rights.[1]
The second major development at the fourth session was that the members of the Working Group finally began to discuss the Group's possible role in evolving standards for indigenous rights. On the one hand, Mr Alfonso Martinez of Cuba took an ambitious view that the Working Group should immediately begin to draft standards for indigenous rights and issue some draft at the fourth session for comment at the fifth. On the other hand, Professor Toshevski indicated that he was uncertain of either the propriety or wisdom of drafting special standards for indigenous rights. For example, as to the crucial issue of land. Toshevski could not see how the interest of indigenous peoples in their ancestral lands was distinguishable from the claims of other minorities or groups insocieties. Toshevski was also reluctant to use the phrase 'indigenous peoples' because most such groups could be treated as minorities with no need for special rights.
Mr Simpson stated his belief that the Working Group could draft a set of principles which would eventually form the basis of a declaration of indigenous rights. Indeed, Simpson urged that the Working Group draw inspiration from the influence of the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples[1], which led to the process of decolonisation and independence for most of the people of the world.
Madame Gu supported the idea of special rights for indigenous populations and distinguished indigenous populations from ethnic minorities. Madame Daes supported the role of the Working Group in drafting standards for indigenous rights.
With such a sharp divergence of view it is not altogether surprising that the Working Group experienced considerable difficulty in developing a consensus as to how they could proceed to develop standards for indigenous rights. Apparently. after considerable discussion, four members of the Working Group were able to agree on seven draft principles on some of the rights which are less debatable than such issues as land and self-determination. The Working Group's report notes that one member of the Working Group 'was not present when this decision was taken.' That one member was almost certainly Professor Toshevski. His absence permitted the Working Group to continue taking decisions by consensus. In any case, the seven principles prepared by the Working Group for discussion were the following:
the right to:
Prior to next year's session of the Working Group it is expected that there will be preparatory meetings for indigenous participants to develop their strategies. The Working Group will continue to receive information on developments relating to human rights violations against indigenous populations, particularly related to the protection of their right to life, to physical integrity, and to security.
The Working Group will give greater attention to establishing standards on the issues which have been discussed: the right to land and natural resources; the definition of indigenous populations; the right of indigenous populations to develop their own culture. traditions, language and way of life, including the right to freedom of religion and traditional practices; and the right to education.
In addition, the Working Group has placed on its agenda for the 1986 session the receipt of information and draft standards relating to the:
(i) Consideration of the right to autonomy, self-government and self-determination, including political representation and institutions;
(ii) Consideration of the duty of indigenous populations, as of all others to respect universal human rights;
(iii) Consideration of the right to health. medical care, other social services and adequate housing.
In connection with its standard setting activities, the Working Group should have available next year an analytical compilation of the existing international legal instruments and proposed draft standards relating to indigenous rights.[1]
If the Working Group experiences difficulty in developing standards or as an interim measure while it is working on a draft declaration of indigenous rights. the Working Group may increase its efforts to encourage dialogue between indigenous peoples and Member States to resolve their differences. Indeed, the Working Group may give further consideration to including among its draft standards an international duty of indigenous peoples and Member States to settle their disputes in good faith through mediation or negotiation.[1]
[1] UN Doc. E/CN.4/Sub.2/AC.4/1985/WP.4/Add.4.[]
2 The report of the Working Group reflects this problem in a way far more nuanced than appeared during the session itself: ‘The Chairman- Rapporteur reiterated the understanding which had prevailed among all participants at previous sessions that it was outside the mandate of the Working Group to assess evidence concerning any specific allegations and she urged the participants to engage in a constructive dialogue.’ UN Doc. E/CN.4/ Sub.2/AC.4/l985/WP.5, at 7(1985).[]
3 UN Doc. E/CN.4/Sub.2/1985/22. Annex 1. at 1 (1985).[]
4 These two drafts were reprinted in Annexes III and IV of the Working Groups report on its fourth session. UN Doc. E/CN.4/Sub.2/1985/22. Annex III & IV (1985).[]
5 This objective was later endorsed in Sub-Commission res. 1985/22, para. 3. UN Doc, E/CN.4/Sub.2/1985/CRP.2/Add.2. at 22.[]
6 UN Doc. E/CN.4/Sub.2/1985/22, Annex III (1985).[]
7 UN Doc. E/CN.4/Sub.2/ACA/1985/WP.4.[]
8 UN Doc. E/CN.4/Sub.2/476/Add.5/Annex IV at 1 (1981) (issued at a 1977 NGO conference in Geneva).[]
9 UN Doc. E/CN.4/Sub.2/AC.4/1982/R.I at 3(1982) (submitted by all the indigenous participants at the first session of the Working Group).[]
10 That is, the Indian Law Resource Center, Four Directions Council, National Aboriginal and Islander Legal Service, National Indian Youth Council, Inuit Circumpolar Conference. and the International Indian Treaty Council, UN Doc. E/CN.4/Sub.2/AC.4/ 1985/WP.4/Add.4. at 2(1985).[]
11 . Compare the two versions in relation to self determination and the effect of treaties relating to indigenous peoples.
WCIP draft:
Principle 1: All indigenous peoples have the right of self-determination. By virtue of this right they may freely determine their political status and freely pursue their economic, social, religious and cultural development.
Six NGO draft:
2. All indigenous nations and peoples have the right to self-determination by virtue of which they have the right to whatever degree of autonomy of self-government they choose. This includes the right to freely determine their political status, freely pursue their own economic, social, religious and cultural development, and determine their own membership and/or citizenship, without external interference.
...
18. Indigenous nations and people may engage in self-defense against State actions in conflict with their right to self-determination.
WCIP draft:
Principle 17: Treaties between indigenous nations or peoples and representatives of States freely entered into, shall be given full effect under national and international law.
Six NGO draft:
15. Indigenous nations and peoples are subjects of international law.
16. Treaties and other agreements freely made with indigenous nations or peoples shall be recognised and applied in the same manner and according to the same international laws and principle as treaties and agreements entered into with other States.
17. Disputes regarding the jurisdiction, territories and institutions of an indigenous nation or people are a properconcern of international law, and must be resolved by mutual agreement or valid treaty.
...
20. In addition to these rights, indigenous nations and peoples are entitled to the enjoyment of all the human rights and fundamental freedoms enumerated in the international Bill of Rights and other United Nations instruments. In no circumstances shall they be subjected to adverse discrimination.[]
12 UN Doc. ST/HR/l/Rev.2/at 20(1983).[]
13 UN. Doc. E/CN.4/1985/CRP.2/Add.2. at 23(1985).[]
14 See UN Doc.E/CN.4/Sub.2/1985/NGO/14(1985).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1985/64.html