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Murdoch University Electronic Journal of Law |
| Author: | Catherine J Iorns |
| Issue: | Volume 1, Number 1 (1993) |
1. Introduction
The Working Group on Indigenous Peoples(1) has produced a Draft Declaration on
the Rights of Indigenous Peoples and submitted it to the Sub-Commission on
Prevention of Discrimination and Protection of Minorities. This Comment will
briefly describe the process that the Draft Declaration has gone through, give
an overview of its provisions, and comment on the substance of some of the more
important articles. It concludes with some overall comments about the Draft and
whether or not it is a document worthy of our support as it wends its way
through the UN process of review and consideration.
2. Process
The Working Group on Indigenous Peoples was established in 1982 in order to
draft international standards for the protection of indigenous peoples and to
review the situation of indigenous peoples within countries around the
world.(2) The Working Group started the drafting of the draft Declaration on
the Rights of Indigenous Peoples in its 1985 session, when it agreed on a set
of principles upon which such a Declaration would be based.(3) Each year since
1987 the Working Group has met and considered proposals for the development of
the draft.(4) The typical process each year has now become that the Chair of
the Working Group produces a draft before the annual session of the Working
Group for the participants to consider.(5) Representatives of states and of
indigenous peoples, as well as other interested observers, attend the session
and comment on the proposals, both orally and in writing, and often make
proposals of their own. The Working Group then meets in private to consider the
comments and proposals and then appends, to each year's report of the Working
Group's session, a revised draft. States and other interested bodies often make
written comments on the draft to the Secretariat. These comments are then taken
into account by the Chair when revising the draft for consideration at the next
annual session. The process of comment and consideration then begins all over
again.
At the 1993 session of the Working Group the Chair of the Working Group,
Erica-Irene Daes, announced that the session would be the last in which the
text was debated: after discussion the Working Group would produce the final
draft of the Declaration, for submission to the Sub-Commission on the
Prevention of Discrimination and Protection of Minorities at its 45th (August
1993) session.(6) It was fairly clear that there would not be enough time for
detailed consideration of the draft as well as revision by the Working Group
members to occur within the 11th session. But it also became clear that the
majority of the Working Group members and of state representatives, as well as
some indigenous representatives, did not want to delay the production of the
draft until the 12th session; there was a felt need to capitalise on the
international momentum for the recognition of the rights of indigenous peoples
and to finalise the draft. This feeling was not unanimous; various indigenous
participants in particular wanted to be able to take back to their peoples the
revisions that had been produced in order to review and respond to them. However,
the former view held sway and an attempt was made to complete the discussion of
the previous draft. The discussion of the draft thus had an urgency that other
sessions had not produced. Upon the direction of the Chair, this resulted in
discussion during the session only of proposed provisions for which more serious
or fundamental changes were considered necessary. After the session, the
Working Group members met privately to finalise the provisions, taking into
account the various comments that had been made during the 11th session.(7)
On 18 August, 1993, the Working Group members concluded their private
discussion on the Draft Declaration and, on 23 August, released the Report of
the Working Group's 11th Session with the Draft Declaration annexed to it.(8) While
the Report was presented to the Sub-Commission at its 45th session, it was not
done in time for the Sub-Commission to consider it fully at that session. The
Working Group has thus recommended to the Sub-Commission that it consider the
draft in its 46th session (August 1994) and present it to the Commission on
Human Rights at its next (51st) session in early-1995. Presuming that the
Commission on Human Rights considers and adopts the draft Declaration at that
session, it would then proceed to the Economic and Social Council (ECOSOC) and,
finally, the General Assembly. It is hoped that this can be done in time for
the General Assembly's 1995 session. Importantly, the Working Group stresses
that the Draft has now been removed from consideration by the Working Group. While
the text remains to be formally adopted by the Working Group in its 12th
session, the substantive provisions of the Declaration will not be able to be
discussed at the Working Group's future sessions. While the participation of
indigenous peoples in the bodies other than the Working Group is of extreme
concern, the Working Group has recommended that the Commission on Human Rights
and ECOSOC "take special measures so that indigenous peoples be enabled to
participate fully and effectively" in all future consideration of the
draft by the various relevant UN bodies.(9) If this eventuates, indigenous
peoples should not be disadvantaged simply by reason of the draft having left
the Working Group forum.
3. Substance: The Draft Itself
As the Draft Declaration is attached to this Comment, I will not proceed to
simply describe its contents. I will, however, go through its provisions,
noting what has changed from the previous draft and why, and comment on the
text adopted.(10)
The Preamble has had very few changes, with the few changes that have been made
being to the benefit of indigenous peoples. For example, in preambular
paragraph 5, "many indigenous peoples" has been changed to simply
"indigenous peoples;" in preambular paragraph 8, "increasing the
control by indigenous peoples" has been made stronger with the more simple
"control by indigenous peoples;" in the 9th pp, a requirement of
"sustainable development" has been turned into "sustainable and
equitable development." Interestingly, most of these such changes made by
the Working Group were proposed by the Grand Council of the Crees (Quebec) in a
substantial written proposal, submitted during the session. The Working Group
has in fact adopted a number of the Crees' proposals.
One change to the preamble suggested during discussion and adopted by the
Working Group was the insertion of what is now preambular paragraph 17. This
paragraph, in emphasising the importance of the role of the United Nations in
relation to the rights of indigenous peoples, is a welcome addition.
Part I of the Draft recognises general, fundamental rights, all of which are
essential for inclusion in a Declaration. There were suggestions made during the session that the order of
these articles be altered, in order to emphasise the primacy that indigenous
peoples place on the right of self-determination. However, the Working Group
has not adopted these suggestions -- and, in my opinion, quite rightly -- such
that the articles read logically from the more general to the more specific. Thus,
Article 1 provides that indigenous peoples have the right to full enjoyment of
all human rights and fundamental freedoms recognised in international law; Article
2 moves to the right to be free from adverse discrimination;(11) then Article 3
states that indigenous peoples have the right of self-determination, as
specified in Article 1 of the International Covenants on human rights. Article
4 provides specifically for the maintenance of indigenous systems while
retaining participation in the non-indigenous systems of the state; Article 5
recognises the right of indigenous persons to a nationality.
Of all the rights in Part 1, the right to self-determination provoked the most
discussion during the 11th session, just as it has at previous sessions. As I have described elsewhere,(12)indigenous
peoples argue that that they must be recognised as having the (inherent) right
of self-determination that all "peoples" have and which is well
recognised in international law. They are not expressing a desire for each and
every indigenous people to secede from the state in which they live; they are
instead concerned about the ability to decide upon and form their own destiny
and about the equal application of the laws that recognise that peoples have
such a right. The concern of states, on the other hand, is the maintenance of
their sovereignty and territorial integrity. The right of self-determination as
interpreted by state practice since 1960 is more a right of decolonisation, or
liberation from rule by a foreign (and assumed Western or European) power. States
have narrowly interpreted this right so as to exclude minorities within states
-- within which they have classified indigenous peoples -- from exercising it. The
state representatives at the Working Group sessions have thus tried to ensure
that any recognition of a right to self-determination for indigenous peoples is
limited to an internally exercised right -- i.e., one that does not include a
right of secession and thus one that avoids the violation of the territorial
integrity or diminution of state sovereignty. Indigenous peoples, not
surprisingly, reject such attempts to limit their right of self-determination. At
the 11th session this was forcefully put in a statement signed by most, if not
all, of the representatives of the indigenous delegations at the session, which
argued that there must be no fetters on the right of self-determination and
stated that indigenous peoples would accept nothing less than the full and
equal right that other "peoples" enjoyed by virtue of Articles 1 of
the International Covenants.
At earlier sessions of the Working Group, states vehemently refused to consider
the inclusion of any statement of the right of self-determination. This began
to change with the proposal by Australia in 1991 (repeated in 1992 and 1993)
that some statement of the right could be included, provided that it was
limited to the internal exercise of self-determination. Other states began to
accept this suggestion such that the Working Group felt comfortable including a
statement on the right of self-determination in the draft.(13) In 1993 it
reached the point whereby the Working Group agreed amongst themselves that the
right to self-determination in the draft had to be simple and clear and not, on
its face, restrictive as to how indigenous peoples may exercise it. Interestingly,
indigenous peoples themselves argued that the vast majority of indigenous
peoples did not in fact seek secession from present states; but it was a matter
of principle that had to made clear: that states did not have the right to say,
in advance, how indigenous peoples must decide on their own destiny and how
they should thus exercise their right of self-determination. Therefore,
indigenous peoples maintained that the right to self-determination in the Draft
Declaration must not be limited. Accordingly, Article 3 provides simply and
clearly that indigenous peoples have the right of self-determination and, as
the Covenants provide, "[b]y virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural
development." In the opinion of this author, this is precisely what
Article 3 should provide. Any more or less could be interpreted as implying a
right different from the right of self-determination enjoyed by other peoples
and could thus be seen to discriminate against indigenous peoples.
Part II of the Draft contains rights to the existence of indigenous peoples as
distinct peoples. Article 6 accordingly recognises "full guarantees
against genocide;" Article 7 prohibits ethnocide and cultural genocide. Specific
actions over which indigenous peoples have particular concern are listed in
Article 7 so as to make it clear that the actions are covered. One which
indigenous peoples were particularly concerned be included has been added to
the previous list: that of population transfer.(14)
One article in Part II that received particular attention from indigenous
peoples during the session -- and which has always received attention from
indigenous peoples -- is what is now Article 10, concerning relocation. This is
an issue that was discussed extensively in relation to ILO 169(15) and in
respect of which indigenous peoples lobbied hard to get a more acceptable
formulation. The formulation achieved in ILO 169 was a compromise provision and
was objected to by indigenous peoples.(16) The formulation reached in Article
10 of the Draft Declaration is only slightly different. On the surface, Article
10 appears strong. It provides that indigenous peoples "shall not be
forcibly removed from their lands and territories." This implies that any
relocation may only take place where indigenous peoples voluntarily consent to
be moved. Indeed, the second sentence goes on to make that explicit: "No
relocation shall take place without the free and informed consent of the
indigenous peoples concerned." It even goes further, and provides that
this can also only take place "after agreement on just and fair
compensation and, where possible, with the option of return."
The requirement that relocation can only take place with the free and informed
consent of indigenous peoples is an improvement on the relevant provision --
Article 16 -- in ILO 169. Article 16 provides that relocation can still take
place even where consent cannot be obtained. This means that ILO 169 provides
for forcible relocation where the draft Declaration does not. However,
indigenous peoples don't trust this requirement of consent. They complain that
they are coerced into agreeing to matters such as relocation, sometimes with
the lure of compensation, only to find that it doesn't eventuate in full, or
comes after such a long time that it becomes meaningless. Further, they have
found that past relocations -- even ones that may have initially been thought
to be reasonable in the circumstances -- have wreaked havoc on indigenous
peoples' ways of life and ties to their land. As indigenous peoples have
frequently pointed out in discussion, it may be commonly recognised that
indigenous peoples have special relationships with land, but it is not just any
land that will do; it is special relationships with particular pieces of land. Therefore,
monetary compensation, or even substituted areas of land, can't actually
properly compensate indigenous peoples for a relocation. It is for this reason
that some indigenous representatives argued for a simple blanket statement that
indigenous peoples shall not be relocated. Full stop. As a compromise, the
Grand Council of the Crees proposed that a requirement of "exceptional
circumstances" be imposed upon any relocation, and that
"forcibly" should be replaced with the explicit requirement of
"free and informed consent." They further proposed a definition of
"free and informed consent" to govern the use of the concept in the
Draft: that its use
"intends that full regard be paid to the reality of consent, including,
inter alia, the particular circumstances of the arrangement, dispensation or
event, the relative strengths and capacities of the parties, the presence or
otherwise of fraud, coercion or duress, and the adequacy and comprehension of
material information."
This proposal, however, was not taken up by the Working Group.
While the Draft Declaration is stronger than Article 16 of ILO 169 in respect
of forcible relocation, it provides less in relation to other aspects. For
example, even a relocation that requires the free and informed consent of
indigenous peoples in ILO 169 must first pass the threshold of necessity as an
"exceptional measure." The Draft Declaration provides no such
requirement. Both documents provide that the option of return must be available
where "possible." However, while the Draft Declaration provides that
any compensation must be agreed upon by indigenous peoples, there are no
guidelines for such compensation. In
contrast, ILO 169 provides that the primary form of compensation must be
"lands of quality and status at least equal to" that taken and which
is "suitable to provide for their present needs and future
development." Compensation in money or kind is only possible where the
peoples concerned "express a preference" for that. There are no such
requirements established in the Draft Declaration for lands taken with the
"free and informed consent" of indigenous peoples.(17)
Article 10 of the Draft Declaration is thus an interesting mix of both more and
less stringent requirements than Article 16 of ILO 169. As ILO 169 can only be
considered to establish minimum standards for the protection of indigenous
peoples' rights, and certainly not greater protection than the Draft
Declaration, Article 10 of the Draft Declaration should be made stronger than
it is at the moment.
Another matter of particular concern to indigenous peoples relates to military
forces and armed conflict. While the right to special protection and security
in times of armed conflict was included as a right in previous drafts -- as was
a prohibition on the recruitment of indigenous peoples into the armed forces
against their will and a prohibition on relocation for military purposes --
being forced to work for the military but without being officially recruited
into the armed forces was not prohibited. Indigenous peoples, particularly those
from several Latin American countries, argued that the draft should cover this
important loophole; and the Working Group covered it in this draft in Article
11. Article 11 does not provide as strict protection as indigenous peoples
argued for, in that it prohibits forced work "under discriminatory
conditions" rather than just forced work per se. It is thus open to the
argument that even some forced work may not be prohibited because all persons
in an area may be required to do the work in question (i.e., therefore they are
not being discriminated against). A difficulty that indigenous peoples have is
where they are the only people who live in the area in question, so a situation
that may not appear discriminatory on its face may in fact be so in its effect.
Thus, while even loosely covering the loophole in question is at least a step
in the right direction, I do think that the Working Group should have gone
further in this provision than they did.
Part III concerns cultural rights. This Part is substantially the same as in
previous drafts. I have a criticism of Articles 12 and 13 (concerning the right
to practice spiritual and religious traditions, customs and ceremonies) in that
they overlap in their coverage; I think that their elements could be separated
in a way different from how they are at present. This, however, is more a
technical, drafting problem than a substantive one.
I also have a technical criticism of the insertion in Article 14. As this
technical problem also creates a substantive problem of interpretation, I will
note it here. The new aspect contained in Part III is in the second paragraph
of Article 14 requiring states to take effective measures to ensure that
indigenous peoples "can understand and be understood in political, legal
and administrative proceedings:" this requirement now comes into effect
"whenever any right of indigenous peoples may be threatened, to ensure
that this right is protected." Admittedly, the use of "this
right" could be construed as ambiguous: it could refer to either the
"any right that is threatened" or the cultural right mentioned in the
first paragraph of Article 14. If there is to be any reason for inserting this
duty in Article 14 it must presumably be linked to the cultural right in the
first paragraph. Yet, if this is so, there seems little point in referring to
"any" (i.e., including other than cultural) right that might be
infringed because the circumstances when the duty comes into play are already
circumscribed. The Working Group's wording apears to be the result of an
attempt to accommodate the suggestion of the Grand Council of the Crees (among
other indigenous peoples) that the duty to ensure that indigenous peoples are
understood in the various proceedings come into effect "especially
whenever any rights of indigenous peoples may be affected." However, the
meaning and effect of the provision in Article 14 is unclear. I thus consider that the intended scope of
this duty on states be clarified and this paragraph be reworded and/or located
accordingly.
Part IV contains rights concerning education and public information. It
provides for rights to education in indigenous cultures and languages as well
as to all forms and levels of State education. New paragraphs in Article 15
recognise the right of indigenous children who are living outside their
communities to be provided access to such education, as well as the duty on the
state to appropriate resources for these purposes.
Article 17 maintains the right of indigenous peoples to establish their own
media as well as the duty of state-owned media to "duly reflect indigenous
cultural diversity."
Article 18 is new. It recognises "the right to enjoy fully all rights
established under international labour law and national labour
legislation" as well as the right not to be discriminated against in
relation to labour or employment conditions or salary." I note that this
does not sit well with the right of education and information in the rest of
Part IV, but this is again a simple matter of organisation and drafting.
Part V of the Draft primarily concerns economic and social matters. Most of the
articles are substantially the same as in the previous draft. One beneficial
change is an addition to Article 19. Article 19 previously only recognised a
right of indigenous peoples to participate in decision-making in matters that
affected them; the addition provides a right also to maintain and develop their
own decision-making institutions. This is an advance, not only on previous
drafts, but also on ILO Convention 169, which merely provides for government
consultation on such matters.(18)
A further beneficial addition has been made to Article 24, which declares a
right to indigenous peoples' traditional medicines and health practices. The
addition stresses the right to equal access to all other health and medical
services. While this is only a right of equality with other citizens rather
than one of affirmative action, many indigenous communities presently do not
enjoy equality of access to such services. Given the fundamental importance of
health to the well-being and survival of indigenous peoples, this addition is
essential.
One paragraph in Part V that I do not think is well-drafted is that in Article
22, providing that "Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and disabled
persons." This began as an attempt to provide for particular attention to
be paid to the special needs of particularly vulnerable sectors of indigenous
society. My objection to this paragraph comes from a feminist perspective: it
is not appropriate to categorise women along with children and disabled persons
as similar vulnerable groups that need looking after. Women typically only have
"special needs" because of oppression that they face; it is not
because they are in some way inherently weak or vulnerable. The focus on
"special needs" perpetuates the stereotype of woman as victim, unable
to defend herself or cater to those needs herself, and thus unable to take
control over her own life. The
insertion of "rights and" in addition to "special needs" is
a minor improvement, but this still leaves the fundamental orientation
objectionable. Much more preferable would be to focus on the positive rights of
women to participation in decision-making and government and thereby to focus
on the structures that perpetuate their oppression. With such positive measures
many -- it not all -- of the "special needs" that women face because
of discrimination will disappear. In sum, I suggest that women should not be
included in this general paragraph, but that their rights and needs be
addressed separately.
Part VI concerns land and other property rights. Overall, the rights contained
in Part VI are better than in previous drafts as well as more extensive than
the land rights provided in ILO 169. The primary difference between the Draft
Declaration and ILO 169 is that ILO 169 only recognises rights to land
presently owned, occupied or used by indigenous peoples, whereas the Draft
Declaration recognises rights to land that has been "traditionally owned
or otherwise occupied or used." That is, as well as being owned, etc., in
the present, it includes lands (etc) owned (etc) in the past, even where
indigenous peoples are presently deprived of them. Accordingly, while ILO 169
does not recognise any rights to restitution of lands which indigenous peoples
have lost to the State, Article 27 of the Draft Declaration specifically
provides for such restitution.(19) Where this is not possible Article 27
provides for "just and fair compensation," which must "take the
form of lands, territories and resources equal in quality, size and legal
status," unless indigenous peoples freely agree upon some other form of
compensation.
The other main difference between ILO 169 and the Draft Declaration is that,
where the Draft Declaration provides only generally for the right to effective
measures on the part of States to protect the rights provided in the
Declaration, ILO 169 details such measures. For example, ILO 169 requires
governments to identify lands subject to native title, to guarantee protection
of ownership and possession, and to establish national land claims procedures
(Article 14). ILO 169 also specifically requires governments to make
"unauthorised intrusion upon, or use of, the lands of" indigenous
peoples illegal and to punish and prevent such offences (Article 15). However,
such detailed measures are to be expected more of a Convention than a
Declaration as a Convention is meant to be specifically implemented by States
whereas a Declaration is more a statement of general principle. Further, as the
Declaration does provide for "effective measures," and as the
measures that ILO 169 provides are all absolutely necessary in order to give
effect to the land and resource rights of indigenous peoples, I suggest that
the measures provided for in ILO 169 are implied in the Draft Declaration. For
both of these reasons I suggest that the Draft Declaration cannot be considered
lacking in this area simply because of these differences.
There have been several changes to the Articles in Part VI, with all except one
being in favour of the positions taken by indigenous peoples. The one setback
for indigenous peoples is that already mentioned above: the deletion in Article
27 (the provision concerning restitution and compensation) of the phrase
"at least," leaving only "equal."(20) As it is almost
impossible to accurately compare and make equal the "quality, size and
legal status" of land, territories and resources -- particularly their
"quality" -- it would be better to include a less exact standard. Further,
if the result is to differ from strict equality then it should differ in
indigenous peoples' favour, given their present position and historical
treatment in relation to their lands, territories and resources. While the
application of this provision in good faith would not necessarily result in
further harm to indigenous peoples, the existence of good faith is often
questionable. It thus seems that the best course of action would be to
re-insert the phrase "at least."
Despite this drawback, however, Part VI is generally a substantial improvement
on the earlier drafts. The wording of nearly all of the articles -- Article 25,
26, 28, 29 and 30 -- have been changed and added to such that their coverage is
increased and the rights strengthened. Despite the numerous changes made to
these provisions and the importance of property rights to Aboriginal peoples, I
will not quote them in full as the Declaration is appended to this paper. I
will thus just note aspects of these provisions that will be of particular
interest to Aboriginal peoples in Australia (because they are the subject of
their current concern and are not presently sufficiently protected in law in
Australia). These include: - the rights to the full recognition and
protection of customary (or "native") title over lands and resources
(Art. 26); - the right to maintain their spiritual relationship with the
land, and thus the protection of sacred sites (Art. 25); - the full
protection of their cultural and intellectual property (Art. 29); and - a
veto on mineral or other exploitation activities affecting their lands and
resources (Art. 30).
Article 30, in particular, is much stronger than it was in previous drafts. There are some drafting concerns that I
have(21) but these do not significantly detract from the protections offered by
these articles.
Part VII concerns rights to indigenous peoples' self-government. This is
another Part that received particular attention from indigenous peoples during
the discussion in the 11th session of the Working Group. The primary concern
was what is now Article 31, which provides for the right of indigenous peoples
"to autonomy or self-government in matters relating to their internal or
local affairs." The concern expressed was that this right was stated to be
"a specific form of exercising their right to self-determination." While
indigenous peoples didn't dispute that this should be considered to be a
specific form, they were concerned that the emphasis of this point was an
attempt to limit the general right of self-determination expressed in Article 3
to internal self-determination (or self-government) only, thus excluding any
form of external self-determination. I.e., on its face, Article 31 is perfectly
benign; but indigenous peoples were worried about the way it might be
interpreted by States with not-so-benign intentions.
Despite these objections by indigenous peoples, this phrase has been retained
by the Working Group. The position of the Working Group is that the grammar
makes it clear that it is not meant to be a limitation of the right of self-determination
to one of self-government -- self-government is only one option or form of the
exercise of the right of self-determination. It is clear that the literal and
grammatically correct interpretation of this phrase is just that. However, it
is also a concern that so many State representatives at the sessions of the
Working Group argue that this limitation should be included. I.e., if they
thought that the phrase was really neutral on its face, why would they bother
arguing for it ?! I thus suggest that it would have been better to allay the
fears of indigenous peoples by deleting this phrase; however, I doubt that it
can really make much difference in practice.
The other primary concern about the provisions in Part VII was over what is now
Article 33. This article proclaims the right of indigenous peoples "to
promote, develop and maintain their institutional structures and their
distinctive juridical customs, traditions and practices, in accordance with
internationally recognised human rights standards." The concern was that
the inclusion of the last phrase was an attempt to effectively negate the very
right of indigenous peoples to have their own customs by imposing
non-indigenous cultural values upon indigenous peoples. One member of the Working
Group, Professor Alfonso Martinez, explicitly dissented from the inclusion of
this qualification on the right recognised in Article 33, saying that it
"would render the right . . . completely meaningless in many cases. . . Although
on many occasions indigenous and non-indigenous standards coincided, that might
not always be the case."(22) What Article 33 does is provide that, where
they do not coincide, the non-indigenous standard is to be preferred.
The inclusion of this phrase in this Article shows that States do not trust
indigenous peoples to respect the (non-indigenous) individual human rights of
their members. It is an understandable position for States to take, as they
have developed the present international human rights system and they, not
surprisingly, have an interest in seeing it respected. Indeed, they see the
drafting of this declaration as being done within the present system, so they
do not expect to adopt a document that might allow indigenous peoples to
operate outside that system. However, while it is an understandable view, that
does not not mean that it is excusable. It is precisely because of the present
international system adopted and operated by states that indigenous peoples are
in the appalling situations that they are in today. It is thus arrogant for
States to assume that their standards will work better for indigenous peoples
than indigenous peoples' own standards. While I do not like to see any
individual's rights being infringed, particularly when the excuse is
"cultural difference," as, historically, it has been women who have
borne the brunt of such "differences," we must recognise that some
differences in customs must be permitted. As each situation and conflict
between rights will differ in the appropriate weight to be placed on each
system's right, it would be better not to make a blanket specification that one
set of rights will always prevail. Instead, it could be left to be determined
on a case-by-case basis as the need arose.
Interestingly, the very same qualification has been deleted from Article 34,
which provides that "Indigenous peoples have the collective right to
determine the responsibilities of individuals to their communities." For
similar reasons, I agree with its deletion in Article 33, too.
Part VIII of the Draft Declaration contains general monitoring and
implementation provisions. It has not changed significantly and the minor
changes that have been made are for the better. There are still further changes
that should be made in order to provide the best protection for indigenous
peoples, but I will not discuss them here.
Part IX is the final Part of the Draft, containing general statements about
indigenous peoples' rights and situating them within the international human
rights framework. An important change that was argued for by indigenous peoples
has been made to the final provision, Article 45: the reference to the Declaration
on Friendly Relations has been removed. Article 45 now prohibits any act or
activity "contrary to the Charter of the United Nations. It previously
also prohibited acts contrary to the Declaration on Friendly Relations as
states considered that such a reference would prevent indigenous peoples from
seceding from present states as the Declaration prohibits the violation of the
territorial integrity of states. Indigenous peoples objected to its inclusion
as it was too closely linked to a restriction on their right of
self-determination; academics objected to its inclusion because they saw it as
completely unnecessary, as well as privileging one international document over
others that were equally important. I agree with these criticisms of the
previous draft and consider that a prohibition on acts contrary to the U.N.
Charter is the correct type of provision for a Declaration of this kind; I thus
agree with the deletion and the present wording.
The final provision which I will note is the new Article 43. Requests were made
at the session for a provision recognising the equality of indigenous men and
women, a move that I support given my dislike of lumping the rights of women in
with the "special needs" of the likes of children and disabled
persons. I consider that Article 43 could elaborate and go further than it does
but, as a short, general statement, it is a large improvement on previous
drafts.
4. Conclusion
In conclusion, the final Draft Declaration is a considerable improvement on
earlier drafts and contains the majority of the rights argued for by indigenous
peoples, including those considered most important, such as an unqualified
right of self-determination and comprehensive land and resource rights. In this
respect it satisfies many of the problems that indigenous peoples have with ILO
169, including in relation to its objectionable philosophical bias. However, it
is still not as good as it needs to be for the best protection of indigenous
peoples' rights and needs. As their needs result from the treatment accorded to
indigenous peoples by states -- both in the past and the present -- then it is
incumbent on states to provide indigenous peoples with a document that does
effectively address such needs through the recognition of their rights. Therefore,
as the Draft Declaration makes its way through consideration by the various UN
bodies before adoption, there will still be a considerable amount of work for
indigenous peoples and their supporters to do -- not only to maintain the
rights achieved so far in the face of signalled opposition from states, but
also to argue for the elements that have still been excluded, some of which I
have identified in this paper. Some battles may have been won, but the war is
not over yet.
DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES
1. Affirming that indigenous peoples are equal in dignity and rights to all
other peoples, while recognizing the right of all peoples to be different, to
consider themselves different, and to be respected as such.
2. Affirming also that all peoples contribute to the diversity and richness of
civilizations and cultures, which constitute the common heritage of humankind.
3. Affirming further that all doctrines, policies and practices based on or
advocating superiority of peoples or individuals on the basis of national origin,
racial, religious, ethnic or cultural differences are racist, scientifically
false, legally invalid, morally condemnable and socially unjust.
4. Reaffirming also that indigenous peoples, in the exercise of their rights,
should be free from discrimination of any kind.
5. Concerned that indigenous peoples have been deprived of their human rights
and fundamental freedoms, resulting, inter alia, in their colonization and
dispossession of their lands, territories and resources, thus preventing them
from exercising, in particular, their right to development in accordance with
their own needs and interests.
6. Recognizing the urgent need to respect and promote the inherent rights and
characteristics of indigenous peoples, especially their rights to their lands,
territories and resources, which derive from their political, economic and
social structures and from their cultures, spiritual traditions, histories and
philosophies.
7. Welcoming the fact that indigenous peoples are organizing themselves for
political, economic, social and cultural enhancement and in order to bring an
end to all forms of discrimination and oppression wherever they occur.
8. Convinced that control by indigenous peoples over developments affecting
them and their lands, territories and resources will enable them to maintain
and strengthen their institutions, cultures and traditions, and to promote
their development in accordance with their aspirations and needs.
9. Recognizing also that respect for indigenous knowledge, cultures and
traditional practices contributes to sustainable and equitable development and
proper management of the environment.
10. Emphasizing the need for demilitarization of the lands and territories of
indigenous peoples, which will contribute to peace, economic and social
progress and development, understanding and friendly relations among nations
and peoples of the world.
11. Recognizing in particular the right of indigenous families and communities
to retain shared responsibility for the upbringing, training, education and
well-being of their children.
12. Recognizing also that indigenous peoples have the right freely to determine
their relationship with States in a spirit of coexistence, mutual benefit and
full respect.
13. Considering that treaties, agreements and other arrangements between States
and indigenous peoples are properly matters of international concern and
responsibility.
14. Acknowledging that the Charter of the United Nations, the International
Covenant on Economic, Social and Cultural Rights and the International Covenant
on Civil and Political Rights affirm the fundamental importance of the right of
self-determination of all peoples, by virtue of which they freely determine
their political status and freely pursue their economic, social and cultural
development.
15. Bearing in mind that nothing in this Declaration may be used to deny any
peoples their right of self-determination.
16. Encouraging States to comply with and effectively implement all
international instruments, in particular those related to human rights, as they
apply to indigenous peoples, in consultation and cooperation with the peoples
concerned.
17. Emphasizing that the United Nations has an important and continuing role to
play in promoting and protecting the rights of indigenous peoples.
18. Believing that this Declaration is a further important step forward for the
recognition, promotion and protection of the rights and freedoms of indigenous
peoples and in the development of relevant activities of the United Nations
system in this field.
Solemnly proclaims the following United Nations Declaration on the Rights of
Indigenous Peoples.
PART I
Article 1
Indigenous peoples have the right to the full and effective enjoyment of all
human rights and fundamental freedoms recognized in the Charter of the United
Nations, the Universal Declaration of Human Rights and international human
rights law.
Article 2
Indigenous individuals and peoples are free and equal to all other individuals
and peoples in dignity and rights, and have the right to be free from any kind
of adverse discrimination, in particular that based on their indigenous origin
or identity.
Article 3
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.
Article 4
Indigenous peoples have the right to maintain and strengthen their distinct
political, economic, social and cultural characteristics, as well as their
legal systems, while retaining their rights to participate fully, if they so
choose, in the political, economic, social and cultural life of the State.
Article 5
Every indigenous individual has the right to a nationality.
PART II
Article 6
Indigenous peoples have
the collective right to live in freedom, peace and security as distinct peoples
and to full guarantees against genocide or any other act of violence, including
the removal of indigenous children from their families and communities under
any pretext.
In addition, they have the individual rights to life, physical and mental
integrity, liberty and security of person.
Article 7
Indigenous peoples have the collective and individual right not to be subjected
to ethnocide and cultural genocide, including prevention of and redress for:
a. any action which has the aim or effect of depriving them of their integrity
as distinct peoples, or of their cultural values or ethnic identities;
b. any action which has the aim or effect of dispossessing them of their lands,
territories or resources;
c. any form of population transfer which has the aim or effect of violating or
undermining any of their rights;
d. any form of assimilation or integration by other cultures or ways of life
imposed on them by legislative, administrative or other measures;
e. any form of propaganda directed against them.
Article 8
Indigenous peoples have the collective and individual right to maintain and
develop their distinct identities and characteristics, including the right to
identify themselves as indigenous and to be recognized as such.
Article 9
Indigenous peoples and individuals have the right to belong to an indigenous
community or nation, in accordance with the traditions and customs of the
community or nation concerned. No disadvantage of any kind may arise from the
exercise of such a right.
Article 10
Indigenous peoples shall not be forcibly removed from their lands or
territories. No relocation shall take place without the free and informed
consent of the indigenous peoples concerned and after agreement on just and
fair compensation and, where possible, with the option of return.
Article 11
Indigenous peoples have the right to special protection and security in periods
of armed conflict.
States shall observe international standards, in particular the Fourth Geneva
Convention of 1949, for the protection of civilian populations in circumstances
of emergency and armed conflict, and shall not:
a. recruit indigenous individuals against their will into the armed forces and,
in particular, for use against other indigenous peoples;
b. recruit indigenous children into the armed forces under any circumstances;
c. force indigenous individuals to abandon their lands, territories or means of
subsistence, or relocate them in special centres for military purposes;
d. force indigenous individuals to work for military purposes under any
discriminatory conditions.
PART III
Article 12
Indigenous peoples have
the right to practice and revitalize their cultural traditions and customs. This
includes the right to maintain, protect and develop the past, present and
future manifestations of their cultures, such as archaeological and historical
sites, artefacts, designs, ceremonies, technologies and visual and performing
arts and literature, as well as the right to the restitution of cultural,
intellectual, religious and spiritual property taken without their free and
informed consent or in violation of their laws, traditions and customs.
Article 13
Indigenous peoples have the right to manifest, practice, develop and teach
their spiritual and religious traditions, customs and ceremonies; the right to
maintain, protect, and have access in privacy to their religious and cultural
sites; the right to the use and control of ceremonial objects; and the right to
the repatriation of human remains.
States shall take effective measures, in conjunction with the indigenous
peoples concerned, to ensure that indigenous sacred places, including burial
sites, be preserved, respected and protected.
Article 14
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 provision of interpretation or by
other appropriate means.
PART IV
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.
Indigenous children living outside their communities have the right to be
provided access to education in their own culture and language.
States shall take effective measures to provide appropriate resources for these
purposes.
Article 16
Indigenous peoples have the right to have the dignity and diversity of their
cultures, traditions, histories and aspirations appropriately reflected in all
forms of education and public information.
States shall take effective measures, in consultation with the indigenous
peoples concerned, to eliminate prejudice and discrimination and to promote
tolerance, understanding and good relations among indigenous peoples and all
segments of society.
Article 17
Indigenous peoples have the right to establish their own media in their own
language. 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.
PART V
Article 19
Indigenous peoples have
the right to participate fully, if they so choose, at all levels of
decision-making in matters which may affect their rights, lives and destinies
through representatives chosen by themselves in accordance with their own
procedures, as well as to maintain and develop their own indigenous decision-making
institutions.
Article 20
Indigenous peoples have the right to participate fully, if they so choose,
through procedures determined by them, in devising legislative or
administrative measures that may affect them.
States shall obtain the free and informed consent of the peoples concerned
before adopting and implementing such measures.
Article 21
Indigenous peoples have the right to maintain and develop their political,
economic and social systems, to be secure in the enjoyment of their own means
of subsistence and development, and to engage freely in all their traditional
and other economic activities. Indigenous peoples who have been deprived of
their means of subsistence and development are entitled to just and fair
compensation.
Article 22
Indigenous peoples have the right to special measures for the immediate,
effective and continuing improvement of their economic and social conditions,
including in the areas of employment, vocational training and retraining,
housing, sanitation, health and social security.
Particular attention shall be paid to the rights and special needs of
indigenous elders, women, youth, children and disabled persons.
Article 23
Indigenous peoples have the right to determine and develop priorities and
strategies for exercising their right to development. In particular, indigenous
peoples have the right to determine and develop all health, housing and other
economic and social programmes affecting them and, as far as possible, to
administer such programmes through their own institutions.
Article 24
Indigenous peoples have the right to their traditional medicines and health
practices, including the right to the protection of vital medicinal plants,
animals and minerals.
They also have the right to access, without any discrimination, to all medical
institutions, health services and medical care.
PART VI
Article 25
Indigenous peoples have
the right to maintain and strengthen their distinctive spiritual and material
relationship with the lands, territories, waters and coastal seas and other
resources which they have traditionally owned or otherwise occupied or used,
and to uphold their responsibilities to future generations in this regard.
Article 26
Indigenous peoples have the right to own, develop, control and use the lands
and territories, including the total environment of the lands, air, waters,
coastal seas, sea-ice, flora and fauna and other resources which they have
traditionally owned or otherwise occupied or used. This includes the right to
the full recognition of their laws, traditions, and customs, land-tenure
systems and institutions for the development and management of resources, and
the right to effective measures by States to prevent any interference with, alienation
of or encroachment upon these rights.
Article 27
Indigenous peoples have the right to the restitution of the lands, territories
and resources which they have traditionally owned or otherwise occupied or
used, and which have been confiscated, occupied, used or damaged without their
free and informed consent. Where this is not possible, they have the right to
just and fair compensation. Unless otherwise freely agreed upon by the peoples
concerned, compensation shall take the form of lands, territories and resources
equal in quality, size and legal status.
Article 28
Indigenous peoples have the right to the conservation, restoration, and
protection of the total environment and the productive capacity of their lands,
territories and resources, as well as to assistance for this purpose from
States and through international cooperation. Military activities shall not
take place in the lands and territories of indigenous peoples, unless otherwise
freely agreed upon by the peoples concerned.
States shall take effective measures to ensure that no storage or disposal of
hazardous materials shall take place in the lands and territories of indigenous
peoples.
States shall also take effective measures to ensure, as needed, that programmes
for monitoring, maintaining and restoring the health of indigenous peoples, as
developed and implemented by the peoples affected by such materials, are duly
implemented.
Article 29
Indigenous peoples are entitled to the recognition of the full ownership,
control and protection of their cultural and intellectual property.
They have the right to special measures to control, develop and protect their
sciences, technologies and cultural manifestations, including human and other
genetic resources, seeds, medicines, knowledge of the properties of fauna and
flora, oral traditions, literatures, designs and visual and performing arts.
Article 30
Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands, territories and other
resources, including the right to require that States obtain their free and
informed consent prior to the approval of any project affecting their lands,
territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources. Pursuant
to agreement with the indigenous peoples concerned, just and fair compensation
shall be provided for any such activities and measures taken to mitigate
adverse environmental, economic, social, cultural or spiritual impact.
PART VII
Article 31
Indigenous peoples, as a specific form of exercising their right to
self-determination, have the right to autonomy or self-government in matters
relating to their internal and local affairs, including culture, religion,
education, information, media, health, housing, employment, social welfare,
economic activities, land and resources management, environment and entry by
non-members, as well as ways and means for financing these autonomous
functions.
Article 32
Indigenous peoples have the collective right to determine their own citizenship
in accordance with their customs and traditions. Indigenous citizenship does
not impair the right of indigenous individuals to obtain citizenship of the
States in which they live.
Indigenous peoples have the right to determine the structures and to select the
membership of their institutions in accordance with their own procedures.
Article 33
Indigenous peoples have the right to promote, develop and maintain their
institutional structures and their distinctive juridical customs, traditions,
procedures and practices, in accordance with internationally recognized human
rights standards.
Article 34
Indigenous peoples have the collective right to determine the responsibilities
of individuals to their communities.
Article 35
Indigenous peoples, in particular those divided by international borders, have
the right to maintain and develop contacts, relations and cooperation,
including activities for spiritual, cultural, political, economic and social
purposes, with other peoples across borders.
States shall take effective measures to ensure the exercise and implementation
of this right.
Article 36
Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors, according to their original spirit
and intent, and to have States honour and respect such treaties, agreements and
other constructive arrangements. Conflicts and disputes which cannot otherwise
be settled should be submitted to competent international bodies agreed to by
all parties concerned.
PART VIII
Article 37
States shall take effective and appropriate measures, in consultation with the
indigenous peoples concerned, to give full effect to the provisions of this
Declaration. The rights recognized herein shall be adopted and included in
national legislation in such a manner that indigenous peoples can avail
themselves of such rights in practice.
Article 38
Indigenous peoples have the right to have access to adequate financial and
technical assistance, from States and through international cooperation, to
pursue freely their political, economic, social, cultural and spiritual
development and for the enjoyment of the rights and freedoms recognized in this
Declaration.
Article 39
Indigenous peoples have the right to have access to and prompt decision through
mutually acceptable and fair procedures for the resolution of conflicts and
disputes with States, as well as to effective remedies for all infringements of
their individual and collective rights. Such a decision shall take into
consideration the customs, traditions, rules and legal systems of the
indigenous peoples concerned.
Article 40
The organs and specialized agencies of the United Nations system and other
intergovernmental organizations shall contribute to the full realization of the
provisions of this Declaration through the mobilization, inter alia, of
financial cooperation and technical assistance. Ways and means of ensuring
participation of indigenous peoples on issues affecting them shall be
established.
Article 41
The United Nations shall take the necessary steps to ensure the implementation
of this Declaration including the creation of a body at the highest level with
special competence in this field and with the direct participation of
indigenous peoples. All United Nations bodies shall promote respect for and
full application of the provisions of this Declaration.
PART IX
Article 42
The rights recognized herein constitute the minimum standards for the survival,
dignity and well-being of the indigenous peoples of the world.
Article 43
All the rights and freedoms recognized herein are equally guaranteed to male
and female indigenous individuals.
Article 44
Nothing in this Declaration may be construed as diminishing or extinguishing
existing or future rights indigenous peoples may have or acquire.
Article 45
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.
NOTES
1. Note that the official name of the Working Group is the Working Group on
Indigenous Populations. However, the use of "populations" is
offensive to indigenous peoples, who consider themselves more than simply ad
hoc collections of individuals. Moreover, the UN's use of
"populations" is for political reasons associated with the
non-recognition of the international legal right to self-determination for
indigenous peoples. I support the use of the term "peoples" when
referring to indigenous peoples and thus refer to the Working Group as such.
2. E.S.C. Res. 1982/34, UN ESCOR, Supp. No. 1, at 26, UN Doc. E/1982/82.
3. Report of the Working Group on Indigenous Peoples at its Fourth Session, UN
Doc. E/CN.4/Sub.2/22 (1985). See para. 57 and Annex II.
4. There was no official 1986 meeting because of the budget crisis within the
United Nations. A workshop was instead sponsored by the Anti-Slavery Society
and the World Council of Indigenous Peoples in order to discuss the preliminary
draft principles. The Report of the Workshop is contained in Review of
Developments: Standard-Setting Activities - Material Received from Non-Governmental
Organisations in Consultative Status with ECOSOC, UN Doc.,
E/CN.4/Sub.2/AC.4/WP.4/Add.1 (1987).
5. The first such "draft" was produced in 1988, for discussion at the
1988 session. Report of the Working Group on Indigenous Peoples on its Sixth
Session, UN Doc. E/CN.4/Sub.2/1988/24.
6. This announcement was "prompted" by various requests and
recommendations made to the Working Group to do so. See Sub-Commission on
Prevention of Discrimination and Protection of Minorities resolution 1992/33; Commission
on Human Rights resolution 1993/31; General Assembly Resolution 47/75; and
World Conference on Human Rights recommendation, contained in the Vienna
Declaration and Programme of Action, UN Doc. A/Conf.157/23, Part II, para. 28.
7. For a summary of the proceedings of the 11th session as a whole, see the
Note in this issue.
8. Report of the UN Working Group on
Indigenous Peoples on its eleventh session, UN Doc. E/CN.4/Sub.2/1993/29 (23
August 1993).
9. Report of the WGIP on its eleventh session, id., para. 210 (d).
10. Note that the "previous draft" is one proposed by the Working
Group during the 11th session and referred to as Conference Room Paper 4
(CRP4). CRP4 made various changes to the draft contained in Ms Daes' Revised
Working Paper, UN Doc. E/CN.4/Sub.2/1993/26, released on June 8, 1993.
11. This previously read simply "discrimination." However, the Grand
Council of the Crees proposed inserting "adverse" in order to clarify
that it was not simple different treatment that was prohibited -- i.e., so that
positive, special measures could not be included.
12. C.J. Iorns, "Indigenous People and Self-Determination: Challenging
State Sovereignty" 24 Case Western Res. Jnl. of Int'l Law 199-248 (1992).
13. See Art 1 of the draft resulting from the 1991 session. Report of the
Working Group on Indigenous Peoples on its Ninth Session, UN Doc.
E/CN.4/Sub.2/1991/40, Annex II.
14. Article 7(c).
15. International Labor Organisation Convention No. 169 (1989) concerning
Indigenous and Tribal Peoples in Independent Countries
16. This formulation is contained in Article 16 of ILO Convention 169, which is
reproduced in this issue.
17. Interestingly, Article 27 requires
compensation for lands confiscated, etc, without indigenous peoples' free and
informed consent. This similarly first provides for restitution of the original
lands; where this is not possible, Article 27 allows for the peoples concerned
to agree on compensation other than in the form of land, but it assumes that
compensation shall take the form of lands equal in quality, size and legal
status -- this is in contrast to ILO 169's requirement of "at least equal."
18. Article 6, ILO 169.
19. The first sentence of Art. 27 provides that "Indigenous peoples have
the right to the restitution of the lands, territories and resources which they
have traditionally owned or otherwise occupied or used, and which have been
confiscated, occupied, used or damaged without their free and informed
consent."
20. See supra note 17.
21. For example, does the use of "their" lands (etc), instead of
lands (etc) "traditionally owned" (etc), restrict the application of
Article 30 to lands owned, etc, in the present? Or is it intended to refer back to the lands being defined by the
wording in the other articles and thus encompass ones that indigenous peoples
may have been deprived of in the past, but in respect of which they have a good
claim. This scope of Article 30 is unclear and could be made clearer. Note that
this could be a deliberate ambiguity, in order to get diverse interest groups
to agree, with each having their own interpretation of the article. In order to
evaluate this properly I would need to go into much more detail than is
warranted in this paper.
22. Report of the Working Group on its
11th Session, supra note 8, at p.62.