UN

Draft Declaration faces litmus test at UNGA: There is a way out for the African Group

In September 2007, the United Nations General Assembly is slated to vote for adoption of the Draft Declaration on the Rights of Indigenous Peoples. H.E. Ambassador Hilario Davide of the Philippines, the Facilitator appointed by the President of the UNGA for adoption of the  Draft United Nations Declaration on the Rights of Indigenous Peoples  urged for the middle path. But, the UN standard setting processes have been infamous for finding the lowest common denominators.

On 29 June 2007, at the plenary of the UNGA, Ambassador John McNee, Permanent Representative of Canada to the United Nations called for re-opening of the Draft Declaration.

The positions of Australia, Canada, New Zealand and the United States, especially on issues like lands and resources; free, prior and informed consent; self- government or autonomy; intellectual property; military issues: and the balance between the rights and obligations of indigenous peoples, member States and third parties are well known. Ambassador John McNee just reiterated the same.

Yet, what has caught indigenous peoples virtually unaware is the opposition by the African Group. In the last one year since the General Assembly deferred the consideration of action on the Draft Declaration on the Rights of Indigenous Peoples to allow time for further consultations on 20 December 2006, the African Group has been up ante. It is as if indigenous issues are so crucial and critical that they touch upon the existence of member States from the African Group that members of the African Union have to be more vocal than Australia, Canada, New Zealand and the United States. New Zealand, whose existence depends on the treaties like The Treaty of Waitangi, has been less vocal than the African Group.

I. Analysis of the African onslaught on the Draft Declaration

After having tasted blood at the UNGA in December 2006, the African Union in a decision on the United Nations Declaration on the Rights of Indigenous Peoples (DOC. ASSEMBLY/AU/9 (VIII) ADD.6) on 30 January 2007 affirmed “to maintain a united position in the negotiations on amending the Declaration” and decided to re-draft five cardinal issues of the Draft Declaration: definition of indigenous peoples; right of self-determination; ownership of land and resources; establishment of distinct political and economic institutions; and national and territorial integrity.

On 8 May 2007, the African Group at the UNGA submitted 30 amendments to the Draft Declaration littered with reference to “provisions of national laws”, “where appropriate”, “where applicable” etc. The proposals are incongruous and effectively negate the Draft Declaration.

a. Denial of distinctiveness of indigenous peoples

At the heart of the African group's proposals lies the denial of the specificities or distinctiveness of indigenous peoples, and therefore, the proposals to treat them as “equal” with other peoples and citizens. Therefore, the proposals suggest inclusion of new texts such as “on equal basis with other citizens” freely to determine their relationships with state in a spirit of coexistence, mutual benefit and full respect (Preambular Para 13) participate in the political affairs of the State; to pursue their economic, social and cultural development “on an equal basis with others” (Article 3); indigenous peoples right  to exercise their “rights granted to all citizens and from assuming the corresponding duties” (Article 5 bis) and indigenous peoples' right “on equal basis with other citizens” to have access to and prompt decision through just, fair procedures for the resolution of conflicts and disputes with States or other parties (Article 40).

All these amendments deny the specificities of the indigenous world. The African Group obviously failed to see the distinction between racism and racial discrimination – a case that may arise in the event of denial of rights to indigenous peoples at par with other citizens, and positive discrimination or affirmative action which the Draft Declaration is all about. If equality among citizens and peoples alone was sufficient, there would not have been any need for the Draft Declaration on the Rights of Indigenous Peoples or the United Nations Declaration  on specific groups whether women, children, minorities, victims of enforced disappearances etc.

Though legally sanctioned administrative measures have been taken to assimilate indigenous peoples, the proposals of the African Group eliminate any effective assimilation by “legislative, administrative or other measures” [Article 8(D)].

b. Is Waitangi in Africa?

With regard to the treaties, the African Group referred to “applicable existing” treaties, agreements and other constructive arrangements with States (Preambular para 14 and Article 37). It is as if treaties could be signed in future by the indigenous peoples without the consent of the State! A treaty is always signed on mutual consent.

c. Upholding the supremacy of national law

Out of 30 proposals, 11 proposals pertain to inclusion of references to national law, in accordance with the national laws, applicable law [PP 3, Article 4, Article 5, Article 8, Article 9, Article 19, Article 20, Article 26(1), 26(2), Article 28, Article 39].

In fact, a particular para stating that the entire Draft Declaration is subject to national law would have looked less crude than reference to national law in 11 paragraphs. 

d. Definition of “indigenous peoples”

In an attempt to define indigenous peoples, the African Group inserted a new preambular paragraph reiterating the prerogative of the State to “define who constitutes indigenous people in their respective countries or regions taking into account its national or regional peculiarities”.

The fact that the United Nations failed to reach consensus on the definition of terrorism has not served as a lesson. The UN Committee on the Elimination of Racial Discrimination made numerous Concluding Observations on the indigenous peoples of Africa.

e. Self-determination, sovereignty and territorial integrity

The proposal to delete any reference to the right of self-determination (Article 3) had to come from the former colonies. Even the United States did not propose deletion of the right of self-determination. Obviously, the African Group seeks to violate the principles of equality and non-discrimination and prohibition of racial discrimination in the application of international human rights standards.

In the Preambular Paragraph 13 and Article 46(3), the African Group suggested insertion of “territorial integrity, sovereignty”. This is despite the fact that Article 46(1) clearly and unequivocally states that “Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations”.

II. Dead of the moral voice: Explaining the African Group's position on the Draft Declaration

Political instability, hunger and a series of war crimes in Africa necessitated interventions by the United Nations bodies. In the post 1990s, most country resolutions at the UN Commission on Human Rights focused on the African countries with the exception of countries like North Korea, Afghanistan and former Yugoslavia.

None complained against the resolutions at the Commission on Human Rights. The complaint has always been against inability to condemn the human rights violators.

Yet, many of the African countries developed victim-hood syndrome and considered the United Nations instruments and the use of UN mechanisms in general as “interference by the West”. As African countries developed a unified position, their intention became increasingly clear – how to destroy the UN human rights mechanisms. In the negotiations at the newly established Human Rights Council, African Group has been the most vocal about the Code of Conduct for the Special Procedures (Special Rapporteurs/Special Representatives/ Working Groups).

The role for leadership of the African Union has been quite open and the proposal to expand the UN Security Council enhanced the rat race of leadership. Nigeria and South Africa have been slogging it out. In its attempt to consolidate its position as the leader of African Union, South Africa, which in the initial post-Apartheid period supported the Draft Declaration, became the most negative country.

Today, South Africa takes the most negative position from opposing the UN resolutions for appropriate actions against the continued illegal detention of the Burmese Nobel Laureate Aung San Suu Kyi to prevention of the genocide in Darfur.

Undoubtedly, Nelson Mandela remains the greatest moral voice on the Mother Earth. But, his voice is mostly ignored by the Foreign Office in Pretoria.

In a nutshell, the moral voice in Africa has already died.

III: Been there, done that

Many of the concerns being raised by the African Group such as supremacy of national laws over a UN declaration, sovereignty, territorial integrity, right of self-determination, definition of indigenous peoples, land rights, enforcement of treaties etc have been repeatedly raised by the member States from Asia during the drafting of the Declaration by the Working Group on the Draft Declaration of the UN Commission on Human Rights.

During drafting of the Draft Declaration, many of these critical issues including the proposed “prerogative to define who constitutes indigenous people in their respective countries” were set aside for consensus. Many Asian States also moved away from the position of opposing the Draft Declaration. It does not imply that many of the Asian States do not share the same concerns today.

While supporting the adoption of the Draft Declaration at the United Nations Human Rights Council on 29 June 2006, the distinguished representative of India stated that “The entire population of India is considered indigenous…. With regard to the right to self-determination, this is understood to apply only to peoples under foreign domination and not to a nation of indigenous persons”.

Asian Indigenous and Tribal Peoples Network (AITPN) does not agree with the statement of the distinguished representative of India at the Human Rights Council. But AITPN does appreciate the decision of India to vote in favour of the Draft Declaration after having recorded its reservation.

IV: There is a way out: Record reservations orally but support the adoption of the Draft Declaration as adopted by the Human Rights Council

A United Nations Declaration is only morally binding upon the States. Yet, a few States record their reservation while adopting a Declaration but do not propose changes to the text of the Draft Declaration.

During the adoption of the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, popularly known as “UN Declaration on the Human Rights Defenders” by the General Assembly, a few States recorded their reservations without formally placing amendments but supported the adoption of the Human Rights Defenders' Declaration. 

In its appeal to the member States of the UN, AITPN stated that the concerns expressed by the African Group or any other country for that matter can be addressed by (1) recording the reservations individually or collectively; (2) withdrawing the amendments proposed by the African Group on 8 May 2007; and (3) supporting the relevant resolution for unanimous adoption of the Draft Declaration as adopted by the UN Human Rights Council on 29 June 2006.

If the amendments proposed by the African Group were to be adopted, the very purpose of having a United Nations Declaration on the Rights of Indigenous Peoples would be be defeated. Nothing could be more unfortunate than the African Group colluding with Australia, Canada, New Zealand and the United States to undermine the Draft United Nations Declaration on the Rights of Indigenous Peoples. Indigenous peoples have been the symbol of atrocities perpetrated by the colonisers; and today, they are once being victimised by the very region, Africa where the outrage against colonisation is still fresh and more strongly felt than the other continents.