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Pritchard, Sarah --- "Commission on Human Rights Working Group (CHRWG) Third Session 27 October - 7 November 1997" [1998] IndigLawB 26; (1998) 4(10) Indigenous Law Bulletin 4

Commission on Human Rights Working Group (CHRWG) Third Session 27 October-7 November 1997

By Sarah Pritchard

The Commission on Human Rights Working Group (‘the working group’) on the Draft Declaration on the Rights of Indigenous Peoples (‘the draft declaration’) was established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995. It held its first session in Geneva 20 November—1 December 1995 (‘CHRWG 1’).[1] At this session, the draft declaration was subjected to a preliminary reading and the working group identified, in general terms, the positions of delegations in relation to the text.

At the second session of the working group(‘CHRWG 2’), held 21 October—1 November 1996, participants were invited to comment upon operative provisions of the draft declaration, which were grouped into interrelated clusters. As at CHRWG 1, discussion of textual issues remained at a general level. Indigenous participants opposed the Chairman’s proposal that interventions should consist of concrete proposals (additions, changes, deletions etc) in relation to each article of the draft. Instead, they sought to contextualise the declaration’s provisions and emphasised theirconsistency with existing principles of international law. CHRWG 2 was largely dominated by a procedural debate relating to the working group’s methods, in particular the modalities for participation of indigenous representatives (see ILB 3(89)).

The third session of the CHRWG (‘CHRWG 3’) was held in Geneva from 27 October to 7 October 1997. Mr Jose Urrutia, Ambassador of Peru to the United Nations, was re–elected Chairperson/Rapporteur of the working group. A total of 6 formal and 16 informal plenary meetings were held during the session. In accordance with UN practice, an official record was kept only of the debate in formal meetings. The session saw the debate concerning indigenous participation largely unresolved, indigenous resistance to any textual changes maintained, and the adoption at first reading of two of the easier provisions in the draft declaration.

These articles—articles 43 and 5—employ language of ‘indigenous individuals’ rather than that of ‘indigenous peoples’ which has its implications for the right to self–determination. The objections of a number of State delegations to articles 15, 16, 17 and 18 which are rendered in the language of ‘indigenous peoples’ meant that the consensus necessary for their adoption could not be reached.

The third session also saw a fascinating debate on article 3 of the draft declaration concerning the right of indigenous peoples to self–determination and the crystallisation of a number of different positions of States around this debate.

The Australian indigenous delegation consisted of former Aboriginal and Torres Strait Islander Social Justice Commissioner, Mick Dodson, Aboriginal and Torres Strait Islander Commissioners Geoff Clark and Spencer Riley, Les Malezer of the Foundation of Aboriginal and Islander Research Action, Michael Mansell of the Tasmanian Aboriginal Centre, Helen Corbett of Indigenous Woman Aboriginal Corporation, Betty Riley, Frank Guivarra and Matilda House of the National Aboriginal and Islander Legal Services Secretariat, and Rod Towney and Millie Ingram of the New South Wales Aboriginal Land Council.

Scope and definition

CHRWG 1 saw a number of Asian Government delegations urging definition of the term ‘indigenous’ as a threshold issue. At both CHRWG2 and CHRWG3, there was little debate on definition. At CHRWG3, several Asian delegations, including Bangladesh, India and Pakistan made substantive interventions in informal plenary sessions without raising definitional issues.

Indonesia, Malaysia and the Philippines, whilst represented, made no oral interventions at CHRWG3. African countries represented at CHRWG3 were Ethiopia, Kenya, South Africa and Sudan. South Africa made a single intervention (together with Russia and Spain). Kenya made two interventions, Ethiopia and Sudan, none.

In a formal plenary meeting in the general debate, China reiterated its position that definition of the term ‘indigenous people’ is fundamental in order to provide for the scope of application of the draft declaration. China’s Representative stated that the following factors should be considered in arriving a definition:

  1. The issue of indigenous people emerged under specific historic circumstances. It is mainly the result of colonial policies pursued by European countries in other regions of the world, particularly in the Americas and Oceania.
  2. Before the arrival of the colonialists or foreign dominators, indigenous people had lived for generations in certain countries or geographical regions and had wholly or partly preserved their own social, economic, cultural and political characteristics.
  3. Indigenous people must not only identify themselves as such, but must be recognised by the government and people of the countries in which they reside. Self–identification should be exercised through legal procedures in the context of national legislation.[2]

Indigenous participation

Despite the fact that in an annex to resolution 1995/32, the Commission on Human Rights adopted a special procedure for authorising participation in the CHRWG of indigenous peoples’ organisations without Economic and Social Council (‘ECOSOC’) consultative status, it remains unclear what this procedure entails. Throughout CHRWG2, indigenous organisations urged a change of the rules of procedure to provide for the equal and full participation of indigenous peoples (ILB 3(89)). CHRWG3 saw no discussion of formal amendments to the rules concerning procedure although the session was generally characterised by a search for consensual outcomes and flexible and informal methods of work. This was evident in:

The Chairperson consulted with indigenous representatives in relation to the organisation of work, including attendance at the Indigenous Preparatory Meeting and suspension of the first meeting to enable further informal consultations. Throughout the session, the Chairperson held regular informal consultations with indigenous representatives.

In response to a request of the Indigenous Preparatory Meeting, the proposed agenda was reordered to accommodate a debate on self–determination at the end of the first week. The program of work, as approved, by consensus in a formal meeting on Tuesday, 28 October, also reflected demands of indigenous representatives through the inclusion of an initial general debate.

In order to identify a common level of understanding with respect to particular articles of the declaration, 11 informal plenary meetings were held. In these informal meetings, participants first examined the principle contained in each article before considering the actual wording of the article. Formal sessions were limited to an introductory general debate and to formalise the adoption of articles agreed to by consensus of all participants in informal plenary meetings.

At CHRWG3 a number of delegations—especially Australia, Canada and the United States—made concrete proposals for redrafting particular articles. Despite appeals by other State delegations for greater flexibility, these delegations insisted on amendments. Further aspects of the concept of ‘full and equal participation’ remain to be clarified at future sessions, particularly if pressure for redrafting intensifies.

Organisation of work

The organisation of work agreed to by consensus was as follows:

  1. General debate in formal plenary meeting.
  2. Consideration in informal plenary meetings of articles 15, 16, 17, 18, 43, 5, 14, 44, 45, 1, 2 and 12.
  3. Adoption in formal meetings of articles agreed upon by consensus in informal meetings.
  4. Towards the end of the first week, a discussion on articles 3 and 30 (self–determination).

Despite the consensus achieved in the organisation of work indigenous representatives expressed a number of concerns. Several interventions emphasised the importance of looking at the declaration as a whole, of understanding its provisions as interrelated and inseparable, including the preambular paragraphs which provide the philosophical foundation for the entire declaration.[3] Others queried the desirability of continuing to postpone consideration of more `contentious’ issues.[4]

General debate

A general debate in formal session was conducted on the morning of Tuesday, 28 October 1997. With the exception of the statement by China on definition, not a single State delegation participated in the general debate. In their general statements, indigenous organisations again evinced strong resistance to any redrafting of the declaration. Numerous delegations urged the CHRWG to adopt the declaration as a minimum standard for the protection of the rights of indigenous peoples as the ‘floor not the ceiling’ of indigenous peoples’ aspirations and entitlements.[5] Others referred to the seriousness of the situation faced by many indigenous peoples and urged adoption of the declaration as a matter of urgency.[6] Numerous statements reiterated the importance of self–determination and the concept of ‘peoples’.[7] A number of interventions recalled the important statement on self–determination made by Canada at CHRWG2 and encouraged other States to engage in similar dialogue with indigenous representatives.[8]

Textual Issues

The discussion of particular articles in informal meetings saw the development of a flexible and potentially fruitful dialogue between State delegations and indigenous representatives, with a departure from the format of prepared written interventions. In ex tempore interventions, indigenous participants sought clarification from particular States and responded to concerns expressed in their interventions. Referring to the development of this dialogue, the Representative of Brazil commented: `The more we talk, the more we understand one another.’[9]

Whilst the level of technical expertise required to engage in such dialogue created difficulties for some delegations, indigenous participants demonstrated considerable skill and erudition in their interventions. As at previous sessions, they employed various lines of argument to defend the present text, including:

The approach of State delegations to the declaration can be divided into three blocs:

The Latin Americans minus Brazil (Argentina, Bolivia, Chile, Colombia, Costa Rica, El Salvador, Mexico, Peru, Venezuela), the Nordics (Denmark, Finland, Norway, Sweden) and Fiji.

Australia, Canada, New Zealand (in order of increasing flexibility).

USA, France, Japan and Brazil (USA, France and Japan making a number of joint proposals).

In assessing the relative influence of each of these positions, it is important to note that two members of the Security Council—France and the USA—belong to the bloc which continues to raise fundamental objections. Three other members of the Security Council—China, the Russian Federation and the United Kingdom—are closer to the compromise bloc. In several interventions China stressed that the CHRWG is in the process of drafting a declaration, not a convention, the major purpose of which is to send a positive message to the world community about the importance of indigenous peoples and their rights. Whilst noting that it had a few concerns in relation to wording, China urged all States to work positively towards adopting the declaration as quickly as possible. The activity of States during CHRWG3 can be evaluated as follows (© signifies membership of the Commission on Human Rights):

  1. Most active:

Argentina©, Australia, Bolivia, Brazil©, Canada©, Chile©, China©, Colombia©, Costa Rica, Denmark©, El Salvador©, Fiji, Finland, France©, Japan©, Mexico©, New Zealand, Norway, Russian Federation©, Sweden, Switzerland, Venezuela and the United States©.

  1. Largely silent:

Bangladesh©, Estonia, Guatemala, Kenya, Pakistan©, Peru, South Africa©, Spain, UK©.

  1. Silent:

Austria©, Cuba©, Egypt©, Ethiopia©, Germany©, Holy See, Honduras, India©, Indonesia©, Malaysia©, Netherlands©, Philippines©, Poland, Sudan, Uruguay©.

  1. Previously attended CHRWG but did not attend CHRWG3:

Ukraine©, Ecuador©, Morocco, Nepal©, Nicaragua©, Nigeria, Panama, Thailand, Vietnam.

  1. Members of Commission on Human Rights who are unknown quantities:

Algeria, Angola, Belarus, Benin, Bhutan, Bulgaria, Cape Verde, Czech Republic, Dominican Republic, Egypt, Gabon, Guinea, Ireland, Italy, Korea, Madagascar, Mali, Mozambique, Sri Lanka, Uganda, Zaire, Zimbabwe.

Discussions in plenary meetings were continued in a series of small informal meetings of indigenous and State delegations from particular regions (for example, the CANZUS delegations—Canada, Australia, New Zealand and the United States). Indigenous delegations insisted that the purpose of such meetings was to enhance discussion and foster an exchange of views, and not to commence a process of negotiation or redrafting. As the session progressed, a number of indigenous representatives expressed concern as to the effect of these meetings on the plenary discussion. They referred to the need for transparency, the importance of maintaining unity and the dangers of segregating concerns.[10]

Articles 15–18

The working group held a total of 9 informal meetings on the principles underlying articles 15, 16, 17 and 18.[11]These provide as follows:

Article 15

Indigenous children have the right to all levels and forms of education of the State. All indigenous peoples also have this right and the right to establish and control their educational systems and institutions providing education in their own languages, in a manner appropriate to their cultural methods of teaching and learning.

Article 16

Indigenous children living outside their communities have the right to be provided access to education in their own culture and language.

Article 17

Indigenous peoples have the right to establish their own media in their own languages. They also have the right to equal access to all forms of non–indigenous media.

States shall take effective measures to ensure that State–owned media duly reflect indigenous cultural diversity.

Article 18

Indigenous peoples have the right to enjoy fully all rights established under international labour law and national labour legislation.

Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour, employment or salary.

At a number of junctures it appeared that there was sufficient consensus for the adoption of articles 15–18 as worded. At one point Denmark stated that article 17 was the ideal place to make some progress on the draft declaration. Mexico stated that articles 15–18 were supported by many delegations and could be adopted, at least at first reading. In a spirit of compromise, Norway supported the adoption of articles 15–18, as worded, to show that progress was being made. Norway’s proposal was supported by Sweden, Denmark and Switzerland.

At the conclusion of consideration of articles 15–18, the Chairman stated that broad consensus on the underlying principles had been reached, but that some differences existed with respect to the wording. In the report of the session the Chairman noted that:

[T]here was broad consensus for the principles underlying articles 15, 16, 17 and 18 ... [and] that certain States could adopt the articles of Part IV of the draft declaration as currently drafted. He also acknowledged that other States required further discussion.[12]

The Tables on pages 22–23 summarise the debate on these provisions.

Articles 5 and 43

Discussion of articles 5 and 43 began on the morning of 5 November 1997. Article 5 provides:

Every indigenous individual has the right to a nationality.

In its interventions, Canada sought clarification and further discussion of the relationship between article 5, and articles 9 (which refers to indigenous nations) and 32 (which refers to indigenous citizenship). Others states, including Norway, Switzerland, Mexico, Sweden, Venezuela and New Zealand, supported the adoption of article 5 without prejudice to discussions on articles 9 and 32. Fiji, Ukraine, Chile, Colombia, Peru and Denmark had no difficulties with the wording of article 5 and supported its adoption. Australia stated that the right to a nationality is a universal right and that Australia gives the term ‘nationality’ its ordinary and natural meaning, that is the nationality of a State, and thus supported the adoption of article 5 as currently worded. The US, Argentina, Mexico expressed similar sentiments. New Zealand stressed the importance of ensuring that the right to nationality remains consistent with the existing constitutional framework of States. Brazil supported the principle enshrined in article 5 but preferred a different wording: `Every indigenous person has the right to citizenship of the State to which he or she belongs.’

Numerous indigenous delegations—including the International Organization of Indigenous Resource Development, the International Indian Treaty Council and the Assembly of First Nations—objected to the statement of the United States that article 5 should be read to mean State nationality and to exclude citizenship of indigenous nations. At the conclusion of the debate, the Chairman concluded that the present wording of article 5 had met no formal objections and could be adopted. Accordingly, the informal meeting was adjourned, a 5th formal meeting convened, and article 5 adopted by consensus at first reading. In the report of the session, the Chairman observed that:

[A] number of States ... identified the need, in due course, to clarify the relationship between the rights expressed in this article and the language of article 32 on citizenship and article 9 relating to the right to belong to an indigenous community.

He also recognised that:

[A]pproval on first reading of article 5 occurred without prejudice to the discussions still pending on articles 9 and 32, whose contents have a bearing on the interpretation of article 5.

Article 43 provides:

All the rights and freedoms recognised herein are equally guaranteed to male and female indigenous individuals.

Whilst a number of States supported moving article 43 to Part I of the declaration, the current wording was supported (in order) by Canada, New Zealand, Norway, Peru, USA, Colombia, Australia, Venezuela, El Salvador, Mexico, France, Finland, Japan, Denmark, Brazil, Switzerland, Sweden, Kenya. At the conclusion of the debate, the Chairman noted that the working group had clearly reached consensus on the wording of article 43. The informal meeting was adjourned, the 4th formal meeting convened, and article 43 adopted by consensus at first reading.

Article 14

The working group held 3 informal meetings on the principles underlying articles 14, 44 and 45. As currently drafted, article 14 provides:

Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

States shall take effective measures, whenever any right of indigenous peoples may be threatened, to ensure this right is protected and also to ensure that they can understand and be understood in political, legal and administrative proceedings, where necessary through the provisions of interpretation or by other appropriate means.

In a striking intervention, Mr Willie Littlechild spoke in his own language, Cree, to support the adoption of article 14 as worded. Fiji, Venezuela, Colombia and Norway supported the article as currently drafted. Switzerland supported the current wording of the 2 paragraphs, proposing their adoption as separate articles. Canada requested more information on the scope of para 2 and queried how it might be implemented. Canada also repeated its proposal to move para 2 to Part V of the declaration, dealing with civil and political rights.

France stated in relation to para 2 that the language of such proceedings should be French. In connection with para 1, the USA referred to a right of individuals. In relation to para 2, the USA stated that States should take steps to facilitate the protection of these rights. Mexico supported the adoption of para 1, as article 14, and proposed the separation of para 2. New Zealand called for clarification of the current wording, especially in relation to preemptive rights. Australia suggested that para 2 be placed in aspirational language. Chile had no difficulty in supporting article 14, as worded. Having listened to other delegations, Chile noted that there might be grounds for moving para 2 elsewhere in the declaration at some later date. Kenya voiced its support for the principles of article 14. Argentina accepted the principles contained in article 14, expressing doubt however about the breadth of the terms ‘administrative’ and ‘political’ proceedings. Sweden supported the principle in para 1, and noted in relation to para 2 that it is indigenous individuals who must be understood and able to make themselves understood in political, legal and administrative proceedings. Japan supported the principles in article 14 but suggested further study taking into consideration other international instruments.

The Representative of China noted that all States had voiced their support for the principles contained in article 14, and asked why this couldn’t be translated into adoption of the article?

Article 44

As currently drafted, article 44 provides:

Nothing in this Declaration may be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.

The USA supported the general principle in article 44, however described the reference to ‘future rights’ as confusing and proposed its deletion. The Russian Federation also proposed the removal of the reference. Canada, Australia, New Zealand, Costa Rica, Colombia, Norway, Mexico, Denmark, Venezuela, Sweden, Switzerland and Estonia (on behalf of El Salvador and Fiji) accepted the current wording. Brazil supported the principle in article 44, however as there had been no discussion of articles 1 and 2 requested the bracketing of ‘s’ in peoples. France supported the principles of article 44, suggesting as a ‘small semantic change’ replacing ‘indigenous peoples’ with ‘indigenous populations’. Brazil stated that it could support the proposal of France.

The proposals to bracket the ‘s’ in ‘peoples’ and to use language of ‘indigenous populations’ drew strong opposition from indigenous delegations, many of whom sat behind signs carrying the Peoples graphic shown on this page. With reference to the objections of France, Brazil and the USA, Ted Moses of the Grand Council of the Crees stated that concern over the word ‘peoples’ was not a technical objection but an objection in principle. Mick Dodson stated on behalf of the indigenous delegation from Australia:

It is our firm conviction that the position of these few State delegations has become untenable. ... [I]t is well–established practice of both the Human Rights Committee and the [Committee on the Elimination of Racial Discrimination] to use the term Indigenous ‘peoples.‘ We note that all the States which have raised issues with respect to language of Indigenous ‘peoples‘ are parties to both the [International Covenant on Civil and Political Rights] and the [International Convention on the Elimination of All Forms of Racial Discrimination].

As drafted, the Declaration more than adequately protects the rights of Indigenous individuals through, in particular, articles 1, 5, 33, 44 and 45.

In response the Representative of Brazil stated that the declaration’s preoccupation with collective rights is clearly justified. In Brazil there is judicial protection of collective rights of ownership of lands which indigenous people have traditionally occupied. Brazil has no problem with collective rights, but much work remains to be done on articles 1, 2 & 3. Accordingly, it had proposed bracketing of ‘s’ in peoples. In a related intervention, the Representative of Argentina stated that whilst Argentina had accepted use of the term indigenous peoples and could adopt the text of article 44, it was not in this way adopting article 3. The Representative of France stated that the collective rights of indigenous people should be recognised. In French Guyana, the collective right to land is recognised. The thrust of his delegation’s previous intervention was that article 44 does not reflect individual as well as collective rights.

Article 45

Article 45 provides:

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

Colombia, New Zealand, Mexico, Japan and Kenya supported article 45 as currently worded. Australia supported the principle underlying article 45 but made two comments: 1. Article 45 talks about States, groups and persons and refers to activities contrary to the UN Charter. The UN Charter addresses itself to States, not to persons, so article 45 is the first attempt to link persons to the Charter. 2. Why should article 45 be linked only to the Charter and not extend to other international instruments?

Brazil and Venezuela had no problems with article 45 but considered that Australia had raised some interesting points which should be addressed. The US also associated itself with the comments of Australia. Canada expressed support for the broad principle contained in article 45, recognising that it is drawn from other international instruments.

In the report of the session, the Chairman noted that:

[T]here was broad consensus on the principles underlying articles 14, 44 and 45. Many States indicated that they could adopt paragraph 1 of article 14 and article 44 without change. Other States explained that they still had difficulties with these articles and required further clarifications.[13]

Article 3—Self–Determination

The working group held four informal meetings on the principles underlying article 3. Article 3 provides:

Indigenous peoples have the right of self–determination. By virtue of that right they freely determine their political status and freely pursue their economic social and cultural development.

In an eloquent intervention, Ted Moses of the Grand Council of the Crees reiterated that self–determination is the fundamental principle that binds the entire declaration together. He called upon States to engage in real debate and give explanations of their positions. On behalf of the indigenous delegation from Australia, ATSIC Commissioner Geoff Clark stated that `morally and legally, the arguments for recognition of the right of indigenous peoples to self–determination [we]re irresistible.’ The most compelling of these arguments was that pursuant to common article 1 of the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, self–determination is a right of all peoples.

Geoff Clark also recalled that in the exercise of self–determination, few indigenous peoples are likely to seek independence from existing States:

International practice has increasingly shown that self–determination can be realized in many different forms. In the case of indigenous peoples, these forms will vary in accordance with particular customs, needs and aspirations. ... Central to the right of self–determination are notions of control and consent: control over decision–making processes affecting our affairs and consent to the terms of our relationships with States. Increasingly, these have been recognised as central to any catalogue of the rights of indigenous peoples and implicit in the principle of racial non–discrimination, as applied to indigenous peoples.

Dalee Sambo of the Indian Law Resource Center recalled the statement by Canada at CHRWG2 concerning equality and the right to self–determination. She noted growing understanding about the right of self–determination and a general consensus about the fundamental principles. In relation to State concerns about threats to territorial integrity, Dalee Sambo noted that self–determination and secession are not synonymous and that political realities and aspirations, and economic and cultural possibilities need to be taken into consideration.

Lars Anders Baer of the Saami Council challenged the suggestion that only the internal aspects of the right of self–determination apply to indigenous peoples. He referred to the statement by Finland that recognised only internal aspects of self–determination for indigenous peoples, and invited Finland to clarify how this is not discriminatory. He also noted that the dialogue had created a new understanding which ought to be reflected in the final report of the CHRWG. Responding immediately, the Representative of Finland reiterated that internal self–determination is a flexible, progressive concept, and that external self–determination normally relates to the right to secession which is what many States object to. Finland did not, however, insist that the term ‘internal’ is the only way out of the dilemma.

Numerous indigenous representatives rejected the distinction between internal and external self–determination as `unhelpful’. Mick Dodson described the equation of external self–determination with secession as ‘artificial’, confining the right and cutting off choices. He stated that the right of self–determination requires States to protect the human rights of peoples internally, within their territories, and also at the international level. Indigenous peoples’ participation in UN fora is an external expression of self–determination which does not involve secession or independence.

A significant number of State delegations participated in the debate on article 3. Australia was notably silent. This was seen by many delegations as somewhat ironic in light of Australia’s role in the WGIP as one of the earliest advocates for the inclusion of self–determination in the draft declaration. New Zealand stated:

The question of self–determination is central to the draft Declaration. ... It is ... appropriate that it be the subject of careful and extensive consideration. Such consideration is consistent with an emerging usage at international law, which sees the right of self–determination applying to groups within existing states. ...

The discussion of this issue may prove controversial but it could lead to ground–breaking understandings of the nature of the relationship between indigenous peoples and the states in which they live....

Subject to any draft Declaration being consistent with domestic understanding of the relationship between Maori and the Crown (representing all New Zealanders), and respecting the territorial integrity of democratic States and their constitutional frameworks where these meet current international human rights standards, New Zealand could accept the inclusion in the draft Declaration of a right of self–determination for indigenous peoples. ...[14]Ted Moses expressed appreciation at the statement of New Zealand, stating that it showed progress and a continuing development in how the rights involved in the right to self–determination are perceived. He was concerned, however, by the extract from the 1970 Friendly Relations Declaration (General Assembly resolution 2625) relating to territorial integrity, describing it as ‘partial’. Dalee Sambo echoed the comments of Ted Moses, referring New Zealand to Canada’s remarks about the need to move away from prescriptive solutions.

Norway noted that the legal content of the right of self–determination remains unclear and that the draft declaration leaves a number of questions open, making no distinction between internal and external aspects. There was a need to clarify the exact intent and application of article 3, perhaps by linking it with articles 31, 19, 20, 21 and 30 which elaborate on how self–determination can be exercised in different forms. Norway supported the principle that indigenous peoples qualify for the right of self–determination in the same way as non–indigenous peoples.

Canada recalled its statement on self–determination at CHRWG2 and reiterated its aim to develop a common understanding, consistent with international law, of how the right applies to indigenous peoples. Canada stated that the exercise of the right involves negotiations between States and indigenous peoples to determine the political status of the indigenous peoples involved, and the means of pursuing their economic, social and cultural development. The Representative of Canada stressed that the right to self–determination is intended to promote harmonious arrangements for self–government within sovereign and independent States, and must not be construed as authorising any action to impair territorial integrity or political unity. In reaching agreement on self–determination and the draft declaration, it is important to avoid prescriptive solutions.

The United States repeated its statement from CHRWG2:

In the domestic United States context, the term ‘self–determination’ means recognizing tribal self–government and autonomy over a broad range of issues. More generally, ‘self–determination also means the full enjoyment and free exercise of civil and political rights in a representative, democratic government, by which indigenous people and others freely determine their own political affairs. ...

[T]he ‘peoples’ entitled to self–determination ... has been understood to be the entire peoples of a State, or those who could constitute themselves as a sovereign independent State, and not particular groups within an existing state. To date, international law and practice has not applied the term ‘self–determination’ to ‘sub–national’ groups nor has the term been interpreted to mean the right to redraw existing international borders.

[T]he United States is willing to explore whether the sort of internal autonomy that is termed ‘self–determination’ under United States domestic law could be recognised as a fundamental principle of this Declaration.

Like other delegations, Mexico recognised the importance of the right to self–determination, however the right to self–determination for indigenous peoples must not disrupt the political, constitutional and territorial integrity of States. Brazil considered it necessary to recognise the right of indigenous people to take decisions on affairs which may affect them in their own communities. The Representative of Brazil noted with interest the views of Canada that the concept has already been redefined and that there might be internal and external dimensions. The Representative of Colombia stated that in Colombia there is recognition of the political, economy and juridical autonomy of indigenous peoples within the State. The Representative affirmed the importance of the right to self–determination, and supported the principles contained in article 3, as currently drafted. Colombia was open to further clarification of the article as long as this did not limit the fundamental principles.

Argentina noted that discussion of article 3 had focussed on two terms: ‘indigenous peoples’ and ‘self–determination’. Argentina had no difficulties with the term ‘indigenous peoples’. In relation to the term ‘right to self–determination’ a reformulation of article 3 should be considered, compatible with the common framework of the nation–State. Chile supported the principle of self–determination for indigenous peoples. The term would need to be clearly defined and carefully worded, and safeguards incorporated in the text. Chile was ready to work with indigenous representatives to strive for an acceptable wording of article 3.

Sweden recognised the right to self–determination as the key element in the draft declaration. Whilst Sweden attaches great importance to the right of indigenous peoples to participate in matters affecting them, the content of the right to self–determination in international law remains ambiguous. Sweden therefore requested further discussion of this term. As at previous sessions of the CHRWG, Bolivia and Fiji supported article 3 in its current wording.

Venezuela noted that discussion of article 3 has become the cornerstone of the draft declaration and urged a constructive outcome with more specific wording of indigenous peoples’ right to self–determination in article 3.

Denmark reiterated its support for article 3 as worded, noting that there appeared to be overall consensus that self–determination is a right for all indigenous peoples. Denmark proposed the adoption by the CHRWG of a resolution on article 3 as a positive sign of progress and manifestation of good faith. Finland wished to dedramatise the concept of self–determination, supporting minimal changes to the wording of article 3, in particular the insertion of the word ‘internal’ in front of ‘self–determination’. The Representative advised against seeking to clarify the content of self–determination as it is a progressive concept. Switzerland agreed that article 3 is of fundamental importance and opined that self–determination should be interpreted in relation to the right of States to territorial integrity.

Norway described the debate on self–determination as a significant step forward for mutual understanding, and requested that some record be kept of the discussion. Numerous delegations—indigenous and States—described the exchanges on self–determination as valuable and a significant step towards mutual understanding. Willie Littlechild noted that not one State had expressed opposition to the principle of self–determination outlined in article 3 and requested that this be reflected in the final report of the session. During the session, the Chairman circulated for comment two draft summaries of the debate concerning article 3 for inclusion in the final report. On the final afternoon of CHRWG3, the Chairman’s summary of the debate on article 3 was put to the working group for adoption. The language contained in the summary prompted a heated debate, with indigenous delegations stating it did not accurately reflect the debate that had taken place, nor convey the progress made in building support for the principle of self–determination. Notwithstandingcriticism, the final reportprovides, interalia, that: Indigenous representatives and some States considered that the inclusion of the right of self–determination was indispensable to the declaration. Indigenous representatives and some States also considered that the right of self–determination must apply on a non–discriminatory basis to all peoples.

States hold a number of different positions. A number of States supported the principle contained in article 3.

A number of States, although accepting the principle of self–determination of indigenous peoples, required further clarification on the implications of the exercise of this right within the legal and constitutional frameworks of existing States, which should be reflected in the text....

Some other States took the position that the peoples entitled to self–determination are understood to be the entire peoples of a State or those who could constitute themselves as a sovereign independent State, and not subnational groups within an existing State.[15]

The final version of the report of the session also retains paragraph 4, the removal of which had been requested by the indigenous caucus. Paragraph 4 provides:

This report is solely a record of the debate and does not imply acceptance of the usage of either the expression ‘indigenous peoples’ or ‘indigenous people’. In this report both terms are used without prejudice to the positions of particular delegations, where divergences of approach remain.


After three sessions of the CHRWG, resolution of the debate on modalities of participation remains uncertain. However, for the time being consensual working methods have prevailed in relation to all aspects of work—including proposed textual amendments. That is, the Chairman has declined to open up the text for redrafting, maintaining that only those articles in relation to which there is consensus can be put to a formal meeting for adoption at first reading.

State delegations appear to have learnt a lesson from events at CHRWG2 which culminated in the withdrawal of indigenous participants—namely, that building new relationships based upon understanding, respect and recognition of indigenous rights requires patience. During CHRWG3 there was greater recognition of the need for constructive and cooperative approaches to work, including through ongoing, informal consultations involving a range of delegations. The third session also saw some real movement in the positions of many delegations. This was particularly apparent in the debate on self–determination and in the realisation by many States that article 3 is the provision upon which the entire declaration hinges.

Within the indigenous caucus there was sophisticated analysis of State positions in relation to different issues, more coordinated and strategic approaches to lobbying, and impressive use of modern information technology—proceedings were again placed on the world wide web by the Indigenous Peoples Media Committee.[16] After three sessions of the CHRWG indigenous representatives refuse to endorse any textual amendments. There was, however, a departure from the mantra of previous sessions: ‘No change, alteration or deletion.’ Tim Coulter of the Indian Law Resource Center stated that he had no problem with merely technical changes, however called on States to examine in good conscience whether their concerns about wording were really significant in relation to the necessity of articles for the survival of indigenous peoples.[17] Mick Dodson sought an explanation of how a technical review might work, stressing that any decisions relating to future processes affecting the draft declaration would require authorisation by communities and organisations in Australia. Whilst the indigenous delegation from Australia was not indifferent to the concerns of governments, in relation to the articles under discussion they had not been convinced that any of the proposed changes of text were reasonable or necessary. Governments had been unable to justify the changes they wished to make, and the very high presumption of the integrity of the existing text had not been rebutted.[18]

Finally, many delegations at CHRWG3—indigenous as well as a number of States—commented that the approach of the Australian Government to the draft declaration appears to have hardened significantly. Australia is no longer seen as a constructive and sympathetic advocate of the declaration, either in relation to procedural or to substantive questions. With the exception of the two articles adopted by consensus, with respect to all other articles under discussion Australia identified difficulties, proposed alternative wording and resisted proposals by the Nordics and others to display greater flexibility in order to build confidence. Australia’s approach to article 3 and the question of self–determination still requires clarification.

Sarah Pritchard is a lecturer in law at the University of New South Wales and was an advisor to the indigenous delegation to CHRWG 3.

[1] Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 UN Doc E/CN 4/1996/84.

[2] Report of the Workinjg group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995 UN Doc E/CN 4/1998/...(10 December 1997), par 36.

[3] For example, Grand Council of the Crees, Indian Law Resource Centre, indigenous delegation from Australia.

[4] For example, Grand Council of the Crees, International Indian Treaty Council.

[5] For example, Cordillera Peoples Alliance, International Indian Treaty Council, Assembly of First Nations, indigenous delegation from Australia, International Organization of Indigenous Resource Development.

[6] For example, Comision Juridica para el Autodesarrollo de los Pueblos Originarios Andinos, Consejo de Todas las Tierras.

[7] For example, indigenous delegation from Australia, Federation des Organisations Amerindiennes, Delegados Indigenas de Sur–y Centro–America, Comision Internacional de Derechos de los Pueblos Indigenas de Sud America, Te Whanau Rongomaiwahine, International Indian Treaty Council.

[8] For example, indigenous delegation from Australia, Assembly of First Nations.

[9] Afternoon session, 6 November 1997.

[10] For example, Indian Law Resource Center (Dalee Sambo), afternoon session, 31 October 1997.

[11] As discussion of these articles took place in informal meetings, no summary record was maintained, nor does the official report of the session provide detail as to the position of particular delegations. The accompanying comments are compiled from the author’s own notes, the daily UNPO (Unrepresented Peoples and Nations Organisations) Monitor and copies of statements on file with the author.

[12] Note 2, supra, para 44.

[13] Ibid, para 45.

[14] Draft article 3, the right of self–determination: Statement by the New Zealand Delegation, Geneva, Thursday, 30 October 1997.

[15] Note 2, supra, para 43.


[17] Afternoon session, 5 November 1997.

[18] Ibid

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