Commentary on the UN Draft Declaration on the Rights of Indigenous Peoples
After almost ten years of work, the United Nations Working Group on Indigenous Populations has completed the draft Declaration on the Rights of Indigenous Peoples. This historic statement will soon be considered by the higher level human rights bodies at the UN: the Sub-Commission on Prevention of Discrimination and Protection of Minorities, the Commission on Human Rights, the Economic and Social Council, and finally the General Assembly who will review the draft Declaration for eventual adoption. It has been controversial both because indigenous peoples' rights arouse ancient fears on the part of governments worldwide and because the Declaration raises for the first time in the UN a number of issues, including the issue of group or community rights.
What the Declaration really says and what it will mean in practice are not well understood, even by many of those actively involved in developing it. The meaning of the Declaration has remained somewhat in mists, partly because of the UN's peculiar procedure for developing human rights standards. Although the Working Group conducted years of open meetings to discuss the Declaration, it has written the actual text in closed sessions without issuing much commentary or explanation. This article will describe and explain the draft Declaration and include observations by the Chairperson of the UN Working Group, Erica-Irene A. Daes.
Work on the Declaration began in 1977, when Indian and other Native leaders from the Americas drafted a proposed declaration on the rights of indigenous peoples for consideration at the 1977 NGO Conference at the UN on "Discrimination Against Indigenous Populations in the Americas." Indigenous leaders prepared a declaration of principles, because that has been the traditional first step in developing human rights standards in a particular area. The NGO Conference adopted it as the "Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere." This early draft declaration had been circulated among indigenous nations and communities in the Americas for many months prior to the conference, and, with revisions, it had received wide support. This statement of human rights - which included self-determination, environmental protection and other essential rights for indigenous peoples as nations or communities - represented a strategy of seeking formal recognition of indigenous peoples' rights by the United Nations. It was the indigenous peoples' own initial proposal for the declaration that the UN would be asked to prepare by indigenous leaders at the conference in 1977 and later.
To prepare a formal UN Declaration and to bring indigenous rights issues into more active consideration at the UN, indigenous leaders pressed the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities to establish a working group. The Sub-Commission (a body of experts elected by the UN Human Rights Commission which meets annually in Geneva) had already appointed a Special Rapporteur to study discrimination against indigenous populations. But the study was far from completion, and indigenous leaders felt that a working group should be created to begin developing human rights standards.
After years of lobbying by indigenous people, the UN in 1982 created the Working Group on Indigenous Populations, which soon became the foremost international forum for indigenous representatives to discuss human rights and to propose action by the UN. At first dozens and now hundreds of indigenous peoples' leaders and representatives participate in the Working Group meetings each July in Geneva. At the 1993 session more than 600 persons attended, including representatives of some 124 indigenous nations, peoples and organizations from all parts of the world.
The Working Group itself is made up of five human rights experts, one from each of the UN's five regions of the world. They submit their work to the full Sub-Commission on Prevention of Discrimination and Protection of Minorities, which makes recommendations to the Human Rights Commission, which in turn submits its proposals to the Economic and Social Council. Finally, the Council makes recommendations to the General Assembly on human rights matters.
The draft Declaration, though written by the Working Group, is the product of years of work by many Indian and other indigenous leaders, who have held their own meetings year after year in Geneva to develop proposals and draft language to be submitted to the Working Group as the Declaration developed. Indigenous representatives by the hundreds have reviewed, revised, criticized, debated and added to the Declaration over the course of about ten years. Many member governments of the UN have also participated in the drafting and debate along with many of the most experienced and respected human rights organizations and experts.
However, it is ultimately the member nations of the United Nations that will decide whether to adopt, reject or change the Declaration. Indigenous people have had a great deal to say in creating and shaping the draft, but in the end the document will be a declaration by member nations of the UN, not by indigenous peoples.
It is important to keep in mind that a declaration of rights is not a binding legal instrument or agreement. It is a statement of what the member states believe the rights to be, a broad statement of fundamental values and human or legal rights that ought to be respected by the countries of the world. It can be immensely important, because it is adopted by consensus of all or nearly all the countries of the world. Though it is not legally binding in a technical sense, nevertheless it is a formal statement of the most important rules and policies that must be observed by all countries in relation to indigenous peoples.
The draft Declaration on the Rights of Indigenous Peoples is somewhat unusual because it is very detailed and contains specific implementing language. Usually a declaration of human rights is not the last word on the subject but rather the beginning of the process of creating law. The next step would usually be a human rights convention or treaty, which is usually more detailed and more specific and includes provisions for implementing or enforcing the terms of the convention. It is widely assumed that a universal convention on the rights of indigenous peoples will be developed by the UN based upon the Declaration. There already exists an important but somewhat limited convention on the rights of indigenous peoples that was drafted and adopted by the International Labor Organization in 1989.
The draft Declaration is a relatively long and detailed document, with 45 articles divided into nine parts: equality of rights, self-determination, and other rights; physical integrity and identity, including freedom from genocide and ethnocide; culture and religion; education, media and labor; self-government, participation in decision-making and the right to development; lands and resources, environment, and intellectual property; self-determination and treaties; implementation, financing and dispute resolution; and savings provisions (provisions which insure that the Declaration does not limit or diminish the development of rights.)
THE BASIC PRINCIPLES
The preamble of the draft Declaration is itself a strong declaration of rights, affirming the most important themes of the document. One of these principles is the equality of rights and prohibition of discrimination. The second major theme is the right to be different and to live as such, with the third one closely related: the protection of the unique character and attributes of indigenous peoples, including culture, religion and social institutions.
Practically all human rights now expressly recognized in international law are rights of individuals. Indigenous representatives have from the beginning insisted that group rights will be an historic step in international human rights law, and it has sparked considerable comment by some countries. It is clear that the draft Declaration expressed both individual and group rights.
Another basic theme of the Declaration is the proposition that indigenous peoples are denied rights as the result of colonization and dispossession of their lands. The Working Group has overwhelmingly documented this view. The right of indigenous peoples to control matters affecting them - including the right of self-determination - is another of the great, over-arching principles of the Declaration, which frequently repeats the principle of requiring free consent by indigenous peoples to decisions that affect them.
A closely related theme is the call to democratize the relationship between indigenous peoples and state governments and to uphold democratic values through the rule of law. The longstanding relationship between indigenous peoples and states has been compared to colonial relationships of the sort that the UN has condemned. A democratic relationship requires equality and dignity for all, with the rightful power of government deriving from the consent of the people rather than the imposition of force.
The draft Declaration insists that consent and agreement be a hallmark of the relationship between indigenous peoples and states. Thus it fundamentally affirms democratic values. This is a giant stride away from rule by elites in distant capital cities and towards government of, by and for indigenous peoples themselves.
Finally, the Declaration calls for concrete action to promote and protect indigenous peoples' rights, on the part of both the United Nations and its member nations. The language calling for action and implementation is an important and somewhat unusual feature for a declaration.
PART I: EQUALITY AND SELF-DETERMINATION
The first two articles seem to state the obvious - that indigenous peoples have the right to enjoy all the human rights recognized by the UN and by international law, and that indigenous peoples and individuals may not be subjected to any form of discrimination. But since most countries have laws and policies that discriminate against indigenous peoples and deprive them of basic rights, these first two articles, in their unarguable simplicity, may be the most practical and important parts of the Declaration.
The Declaration provides no definition of the term "indigenous peoples," but it uses the one that was formulated in 1983 Study of the Problem of Discrimination Against Indigenous Populations:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.
Indigenous representatives have consistently opposed including a definition of indigenous peoples in the Declaration, primarily because almost any definition might eventually be used to deny certain groups the rights in the Declaration. By omitting a formal definition, the Working Group chose to leave the term open-ended and as widely applicable as possible.
Likewise the Declaration does not attempt to define the term "peoples." The term has been used by the Working Group and by indigenous representatives as a broad and inclusive term for practically all kinds of indigenous nations, communities, bands, tribes and other groups. Indigenous representatives espouse the use of "peoples" in place of "populations" on the ground that "peoples" implies a distinct identity and the existence of a social, political or cultural body. To speak of "populations" in the Declaration would signify that indigenous groups do not have the status, dignity and rights of peoples. The use of the term "peoples" has become a symbol for the respect and equality that indigenous peoples are demanding in the international community.
The term has aroused debate because some states fear that it will imply that indigenous peoples have the right to secede. But the Declaration proclaims explicitly that indigenous peoples have the right of self-determination, in the same language used for all peoples in other human rights instruments:
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.
The meaning of the various self-determination provisions in the document is not entirely clear, because the concept is a complex and evolving one. In general, indigenous leaders mean self-determination to include freedom from political and economic domination by others; self-government and the management of all their affairs; the right to have their own governments and laws free from external control; free and agreed-upon political and legal relationships with the government of their country and other governments; the right to participate in the international community as governments; and the right to control their own economic development. Practically no indigenous representatives have ever spoken of a right to secede from an existing county (although in principle at least, indigenous peoples must have this right to the same extent as other peoples).
The intended meaning of self-determination in the Declaration has been explained in an article by Erica-Irene A. Daes, the Working Group's Chairperson. In summary, indigenous peoples are unquestionably "peoples" in every social, cultural, and ethnological meaning of this term. But where there is an existing state, the constituent peoples must act through that state's political system and government unless the system is "so exclusive and non-democratic that it no longer can be said to represent the whole of the population." There is a continuing right to secession under these circumstances.
Daes sums up as follows:
Self-determination and the right of secession cannot be denied any people that meet the basic criteria of being a distinct people and occupying a territory that is geographically separate and ethnically or culturally distinct. Ordinarily it is the right of the citizens of an existing, independent state to share power democratically. However, a state may sometimes abuse this right of its citizens so grievously and irreparably that the situation is tantamount to classic colonialism, and may have the same legal consequences. The international community discourages secession as a remedy for the abuse of fundamental rights, but as recent events around the world demonstrate, does not rule out this remedy completely in all cases. The preferred course of action, in every case but the most extreme, is to encourage the state in question to share power democratically with all groups, under a constitutional formula that guarantees that it is effectively representative.
Indigenous peoples have, in most cases, not been a part of state-building in the countries where they live, Daes observes. That is, they have not participated in constituting the state or in national decision making. Daes writes:
[T]he existing State has a duty to accommodate the aspirations of indigenous peoples through constitutional reforms designed to share power democratically. This approach also would mean that indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and, to the extent possible, to exercise their right to self-determination by this means. With regard to indigenous peoples, then, I believe that the right of self-determination would ordinarily be interpreted as the right of these peoples to negotiate freely their political status and representation in the States in which they live.
According to Daes' view, an indigenous people does not automatically have a right to secede at will; it can only separate from an existing state if the government is so unrepresentative as to be, in effect, a colonial government. In all other situations, the indigenous people have the right to demand constitutional reforms in order to share power democratically. The Declaration, then, would require states to amend their constitutions to share power with indigenous peoples and to recognize indigenous governments and institutions.
It is well to keep in mind, however, that Daes' views are not all written into the Declaration. Her analysis that indigenous peoples would not have the right to secede unless certain conditions were met, is arguably the law now and would be the probable interpretation of the Declaration. But the meaning of self-determination in the Declaration may well continue to be uncertain and ambiguous.
Some elements of self-determination are made very clear in the draft Declaration, including the right of indigenous peoples to create and to maintain their own governments or "institutions" and their own laws and legal systems. Indigenous governments would control essentially all internal and local affairs, including lands and resources, education, cultural matters and intellectual property. The question of external affairs, that is, relationships with other governments, is covered by the provisions on self-determination discussed earlier.
The Declaration declares self-government, self-determination and autonomy to be rights that an indigenous people may exercise at their option. They may also choose to participate in the political, social and economic systems of the countries where they live. The draft Declaration envisions a pluralistic state in which indigenous individuals have the right both to participate fully in the larger society and to participate in their own system of indigenous self-government. By promoting equality and prohibiting discrimination, the draft Declaration promises fuller and more effective participation than most indigenous peoples are now permitted.
THE RIGHT TO EXIST; GENOCIDE, ETHNOCIDE AND CULTURAL GENOCIDE
The Declaration protects against a wide variety of threats to indigenous peoples' culture and integrity, including specific problems affecting indigenous peoples, such as removal of children. It calls for the prevention of ethnocide and cultural genocide, which include actions such as population transfers, imposed assimilation and integration, and any form of propaganda against indigenous peoples.
One striking provision completely prohibits the forcible removal of indigenous peoples from their lands or territories - a long-needed protection against the abuses in recent years in the Americas and in other parts of the world. Special protections are also declared for periods of armed conflict aimed at preventing the abuses that have often occurred to indigenous peoples.
CULTURAL, RELIGIOUS AND LANGUAGE RIGHTS
The Declaration requires states to take "effective measures" to protect cultural, religious and language rights, including the rights to practice and develop indigenous cultures, spiritual and religious traditions, languages and philosophies. It specifically addresses problems such as the repatriation of human remains, the protection of burial sites and other sacred sites, and the protection of historical and cultural places and artifacts. These detailed and exhaustive articles demonstrate the intent comprehensively to protect all indigenous cultural, religious and linguistic interests and values.
The "effective measures" to protect sacred sites and burial sites would not be taken unilaterally by states, but in cooperation with the affected indigenous people. Such action would be required "whenever any right of indigenous peoples may be threatened." The state would further be required to provide interpretation for indigenous individuals in political, legal and administrative proceedings.
EDUCATION, MEDIA AND LABOR
Educational systems and educational subject matter were often identified in the Working Group meetings as potent threats to indigenous peoples' cultures. The Declaration calls for the right of indigenous peoples to comprehensive control over their own education and media in their own languages. Indigenous children must also have access without discrimination to all levels of education provided by the state in their own culture and language, with the necessary resources provided by the state.
As with education, indigenous peoples are to have equal access to the media and the right to establish their own radio stations, television broadcasting and other media. All forms of discrimination in employment are prescribed.
PARTICIPATION IN GOVERNANCE, RIGHT TO DEVELOPMENT AND HEALTH
The Declaration calls for direct, representative participation of indigenous peoples in all levels of decision making by states. Indigenous peoples have the right to take part in the development of all laws or administrative measures that may affect them; states may not adopt or implement any such laws or measures without the consent of the affected peoples. These provisions are consistent with the Declaration's philosophy of self-determination and agreed-upon partnership in governance. They are intended to overcome the longstanding problem of states unilaterally imposing devastating laws and harmful measures on indigenous peoples without their consent.
The right to economic and social development, the right to determine development priorities, and the right to determine and administer all health, housing and other economic programs are among the rights enunciated. The Declaration also calls for states to take special measures to improve the economic and social conditions of indigenous peoples. This latter provision responds to the extreme conditions of poverty and deprivation that many indigenous communities experience, often as a result of past government actions or inactions.
Traditional medicines and health practices are declared to be a right, and vital medicinal plants, animals and minerals are to be protected.
LANDS, RESOURCES, ENVIRONMENT AND INTELLECTUAL PROPERTY
The Declaration makes a great step forward on the thorny issue of land and resource rights. The central concept is that indigenous peoples have the legal and unrestricted right of ownership of their lands, waters and all related resources. This provision would, if implemented, end the countless legal fictions and discriminatory devices which in almost all countries have been used to deny indigenous peoples the full, legal ownership of their territories and resources. The matter of rights to land is set forth twice, first in language reflecting indigenous values and relationships and then in more legalistic language.
The most difficult question - one that cannot be clearly answered - is: What lands does an indigenous people have a right to own? The answer is lands, territories and resources "which they have traditionally owned or otherwise occupied or used." This phrase was crafted to overcome the problem that in so many countries indigenous peoples are not now regarded as actually owning any lands or resources. Thus the area may be described in terms of traditional use or occupancy.
Would this mean all the territory once used or occupied by an indigenous people, including land that was taken from them and occupied long ago by others? Probably not, because the provision dealing with the return of lands clearly contemplates that some territories and resources cannot be returned. On the other hand, the article does not use the present tense, "occupy" (as the ILO Convention No. 169 does), thus indicating that ownership is not to be confined only to lands that are presently occupied by indigenous peoples. In this way, the Declaration tries to walk a line between the principled position that indigenous peoples have true legal rights to their lands and resources - including ownership of some lands from which they are presently dispossessed - and the recognition that the Declaration could not be adopted if it demanded the return of all indigenous territories and resources.
The text will help to illustrate this compromise:
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.
Issues such as this and the issue of self-determination, where such important interests are at stake, are not likely to be resolved entirely on the basis of a United Nations Declaration. They will no doubt continue to be the subject of intense debate, negotiation and legal action. What is important is that the Declaration take a principled position to guide future struggles over these issues.
The Declaration provides for a right to conservation and environmental protection and prohibits storage or disposal of hazardous wastes on indigenous peoples' lands. Again, states are required to take effective measures and provide assistance in regard to environmental protection and preventing interference with land and resource rights.
A separate provision has been included to recognize and protect the rights of indigenous peoples to their cultural and intellectual property, as a response to the widespread concern about abusive appropriation by pharmaceutical and other companies of indigenous peoples' knowledge of plants and their uses, and the appropriation of indigenous peoples' designs and other arts. The provision is intended to provide comprehensive protection for all intellectual property.
The Chairperson/Rapporteur is now thoroughly examining the subject of cultural and intellectual property rights in a separate study, which may result in separate principles and guidelines to protect "indigenous heritage."
TREATY RIGHTS AND BORDER CROSSING RIGHTS
One of the most positive and principled statements in the Declaration is the unqualified statement that treaties between states and indigenous peoples are to be observed and enforced. This provision would call into question laws in a number of countries, including the United States, that permit the national government to violate, abrogate or ignore treaties with indigenous peoples without any legal recourse whatever. In most countries indigenous people have no legal remedy when the government violates treaties or other agreements. Treaties and other such agreements are also the subject of a long-term study under the direction of a member of the Working Group.
Border-crossing rights are also declared. International borders often divide a single indigenous people, resulting in hardships and broken families. Indigenous peoples divided by international borders would appear to have the right to freely cross international borders and to take goods freely across borders for "spiritual, cultural, political, economic and social purposes."
In the last part of the Declaration, a number of detailed provisions call upon states to implement it effectively in consultation with indigenous peoples. National legislation is called for that would enable indigenous peoples to actually exercise and enjoy the rights set out in the Declaration. Indigenous peoples are also declared to have the right to financial and technical assistance from states and international bodies for political, social, economic, cultural and spiritual development and for enjoyment of the rights in the Declaration.
Another implementing provision calls for fair procedures for settling disputes between states and indigenous peoples. It requires sates to provide effective remedies for all infringements of individual and collective rights in the Declaration. Finally, the UN itself and its agencies are called upon to provide assistance in realizing the rights in the Declaration, and the UN is directed to create "a body at the highest level with special competence in this field and with the direct participation of indigenous peoples." The World Conference on Human Rights in Vienna in 1993 recommended that the UN create a permanent forum for indigenous peoples in the United Nations, and the Sub-Commission on Prevention of Discrimination and Protection of Minorities adopted a recommendation in 1993 calling, among other things, for the Secretary-General to consider establishing such a forum as soon as possible.
A final provision reads:
The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.
This section has far greater significance than first appears. This article is intended to make it clear that the rights or the greatest rights to which indigenous peoples may be entitled.
The draft Declaration is a powerful elaboration of basic human and social values and fundamental legal principles. It is remarkable for its adherence to principle and its thoroughness. Its full meaning will become clearer as debate and discussion take place in the UN. Those who have been involved - especially the Chairperson-Rapporteur - should be encouraged to give further explanation and analysis of the Declaration's many provisions.
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