As good as it gets
UN Declaration on the Rights of Indigenous People“S”
On 13 September 2007, the United Nations General
Assembly adopted the Declaration on the Rights of Indigenous Peoples after 22
years of negotiations. From the denial of entry to the League of Nations to the
adoption of a declaration, it has been a long and arduous journey for
indigenous peoples, whose civilisational values are
increasingly being recognized as global warming threatenes the very existence of the world.
The African bloc at the United Nations gave more
than a few hiccups since it successfully moved a procedural motion at the
General Assembly session in December 2006 to not to consider the Declaration
approved by the Human Rights Council in June 2006. New amendments on
territorial integrity were inserted to satisfy the African bloc. On the D-Day
i.e. 13 September 2007, Australia, Canada, New Zealand and the United States
which voted against the Declaration stood exposed.
The UN Declaration on the Rights of Indigenous
Peoples is really as good as it gets. Asian Indigenous and Tribal Peoples
Network in its June-December 2006 issue of Indigenous Rights Quarterly
explained the new elements in
international human rights law enunciated in the Declaration: the rights of
indigenous peoples, as a collective and as individuals (Article 1), affirmation
of equality while exercising the right of self-determination (Article 3), the
rights of indigenous peoples and individuals not to be subjected to forced
assimilation or destruction of their culture (Article 8), the right to free, prior and informed consent
(Article 10), recognition of the right to traditional medicines and the right
to maintain their health practices (Article 24), land rights (Article 25), the
right to the lands, territories and resources of indigenous peoples (Article
26), customary laws of indigenous peoples (Article 34) and the right to the
recognition, observance and enforcement of Treaties, Agreements and Other
Constructive Arrangements concluded with States or their successors and to have
States honour and respect such Treaties, Agreements
and other Constructive Arrangements (Article 37). These elements remained
intact in the final text as adopted in September 2007.
For a few radical indigenous activists, the right
of self-determination has been diluted. Article 46(1) inserted at the request
of the African bloc, among others, 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 or construed as authorising or encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of sovereign and independent
States".
The radicals are a few. While most indigenous peoples do not advocate
the right of self-determination as the right to secession, no Declaration has
been adopted or can be adopted by the UN which is "contrary to the Charter
of the United Nations". Yet, the most crucial aspect of the Declaration
has been the use of the term "peoples" with "s". The use of
the term “peoples” was one of the most controversial issues at the Vienna World
Conference on Human Rights in 1993. In fact, the resolutions of the Human
Rights Council still use the terms "people", and “populations”. The
Declaration on the Rights of Indigenous Peoples as adopted by the United
Nations should put to rest any controversy about the use of the term “peoples”.
No member State either dismembered or impaired as a
direct consequence of the adoption of legally binding International Covenant on
Civil and Political Rights. Nor shall any member State will be dismembered or
impaired because of the adoption of morally binding Declaration on the Rights
of Indigenous Peoples. Both recognise the right of
self-determination.
A few of the radicals actually gave insinuation
that even if the Draft Declaration is not adopted by the UN, it will become a
customary international law for its consistent reference just like the
international humanitarian laws and therefore, no need for its adoption by the
UN. It was a flawed interpretation of customary international law. Those who
voted against the Declaration claimed that they voted against the Declaration
to reject "any possibility that this document is or can become customary
international law". They can enjoy life in a fool's paradise.
While all UN Declarations as part of soft laws are
legally non-binding, the Declaration on the Rights of Indigenous Peoples will
play a crucial role to shape policies and programmes of the multilateral agencies. For decades, the General Comment of the Human
Rights Committee No. 23 on Article 27 of the International Covenant on Civil
and Political Rights, General Comment No. XXIII of the UN CERD Committee on
Rights of Indigenous Peoples and the ILO Convention No 169 concerning
Indigenous and Tribal Peoples in Independent Countries were the only
instruments, in addition to a few landmark opinions of the Human Rights Committee
in the cases of Lovelace Vs Canada, Ivan Kitok Vs
Sweden etc.
Nonetheless, a number of policy documents including
the World Bank's Policy on Indigenous Peoples, International Finance
Corporation's Performance Standard 1 on Social and Environmental Assessment,
Performance Standard 5 on Land Acquisition, Performance Standard 7: Indigenous Peoples, Asian Development Bank's
Policy on Indigenous Peoples, Inter-American Development Bank's Operational
Policy 765 on Indigenous Peoples and "UNDP and Indigenous Peoples: A
Policy of Engagement" seldom referred to the General Comments of the
Treaty Bodies and the ILO Convention No. 169. Even the United Nations Permanent
Forum on Indigenous Issues and the UN Special Rapporteur on the situation of human rights and fundamental freedom of indigenous people
have been working without a commonly referable and universally acceptable text
on the rights of indigenous peoples.
The adoption of the Declaration on the Rights of
Indigenous Peoples fills up the legal vaccum, and
future policy documents or guidelines must be developed based on the legal
framework provided by the UN Declaration on the Rights of Indigenous Peoples.
Time has also come for the multi-lateral agencies to revise the existing
policies/guidelines on indigenous peoples to bring conformity with the UN
Declaration on the Rights of Indigenous Peoples.