Written statement submitted by the Asian Indigenous and

Distr.
GENERAL

E/CN.4/2004/NGO/138
8 March 2004

Original: ENGLISH

COMMISSION ON HUMAN RIGHTS
Sixtieth session
Item 15 of the provisional agenda

INDIGENOUS ISSUES

Written statement* submitted by the Asian Indigenous and Tribal Peoples Network (AITPN),
a non-governmental organization in special consultative status

The Secretary-General has received the following written statement which is circulated in accordance with Economic and Social Council resolution 1996/31.

[1 February 2004]

The damp squib of the international decade: adoption of the draft declaration on the rights of indigenous peoples

For the seventh successive session, the Open Ended Working Group on the Draft Declaration (WGDD) on the Rights of Indigenous Peoples under the United Nations Commission on Human Rights failed to adopt a single article of the "Draft United Nations Declaration on the Rights of Indigenous Peoples". The WGDD was set up "as a matter of priority" to complete the adoption of the Draft Declaration within the International Decade of the World's Indigenous People, which will end in 2004. With the International Decade all set to come to an end in 2004, the WGDD has a daunting task ahead. It has been caught between the State's obduracy not to grant minimum rights to indigenous peoples and indigenous peoples obstinacy not to follow the UN rules of procedures and past practices on international standard setting processes.

State obduracy and inconsistencies

In the course of the last eight years, the WGDD adopted only two articles, Article 5 and 43 in November 1997. These articles are non-controversial as they relate to the rights of indigenous individuals.

There are few governments that play an active role at the WGDD. While many representatives of the Latin American countries speak positively at the WGDD, their domestic track record on the treatment of indigenous peoples and the proposed American Declaration on the Rights of Indigenous Peoples are contrary to their assertions at the WGDD. The Chair of the WG often interprets the silence of the majority States as their assent or as having nothing substantive to add to the debate.

However, the silence is deceptive. Representatives of Asian governments affirm that they are simply holding their interventions until an article in the Draft Declaration appears to be moving closer to consensus. The lack of progress in the last six years may have reduced the interest of otherwise hyperactive representatives from Bangladesh, China, India, Japan and Malaysia, but the representatives of Thailand and Vietnam keenly observed the proceedings at the 8th session.

In that sense, after nine years of deliberation, the WGDD is, astonishingly, far from assessing the positions of the States with the regard to the Draft Declaration. What appears negative proposals from certain State representatives at present need not necessarily be the lowest common denominator if past standard-setting practices are any indication.

The hypersensitivity of a few countries led by the United States to the use of the term "indigenous peoples" is well known. Related to the use of the term 'peoples' is the right of self-determination, collective rights of indigenous peoples, land rights and rights over natural resources and some of the State's insistence on third party rights.

States that have a negative attitude interpret the Draft Declaration on the Rights of Indigenous Peoples to be legally binding and attempt to make a Universal Declaration subservient to domestic law. For example, the United States delegation objected to Article 7(e) relating to "any form of propaganda directed against them (indigenous peoples)" on the ground that the right freedom of expression under the US constitution and sought its deletion. The US delegation cited its reservation to Article 4 of the ICERD (footnote). This is despite the fact that the right to freedom of expression is not an absolute right. Article 19 of the International Covenant on Civil and Political Rights relating to freedom of expression imposes reasonable restrictions. The right to freedom of expression does not include the right to propagate child pornography. In addition, the US reservation to Article 4 of the ICERD prevails over the Draft Declaration. A declaration is morally compelling, whereas a treaty is legally binding.

Similarly, the representatives of France and United Kingdom continue to deny the existence of collective rights, contrary to many provisions of international law such as the United Nations Charter, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), a number of non-binding resolutions of the UN General Assembly including resolution 421D(V) of 4 December 1950 concerning the draft human rights covenants, the UN Declaration on the Right to Development, the International Convention on the Elimination of Racial Discrimination, the Convention on the Prevention and Punishment of the Crime of Genocide, the ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries and the UNESCO Declaration on Race and Racial Prejudice.

The representatives of the United Kingdom always insist on the use of the term "should" instead of "shall" because a Declaration is meant to be inspirational. This despite the fact that the mother of all UN Declarations, the Universal Declaration of Human Rights, uses the term "shall" throughout the text.

Indigenous peoples' obstinacy:

Since the beginning of the work of the WGDD, indigenous peoples adopted a 'no change' . "No change" position means the Sub-Commission approved Draft Declaration should be proclaimed by the United Nations General Assembly without any changes. position with regard to the Draft Declaration. During the WGDD in 1996, indigenous peoples staged a walkout fearing that States may engage in a drafting exercise. Many indigenous representatives continue to interpret the term "elaborate". The term "elaborate" is classical – and controversial – UN lingo at the WGDD. All CHR resolutions on standard-settings, such as the Optional Protocols to the Convention on the Rights of the Child and the Convention Against Torture, used the term "elaborate", which basically meant drafting.

Just as State representatives contextualise the Draft Declaration with their constitutional obligations, indigenous peoples place it in the context of their own experiences and situations spread over diverse political landscapes. Therefore, Draft Declaration may have a different meaning for the Yanomamis in Brazil than for the Nagas of India. Similarly, the Draft Declaration has a different meaning for Norway and the United States in terms of the legal obligation of complying with the judgements of regional human rights mechanisms and the opinions of the UN Treaty bodies.

The adoption of the 'no change' position by the Indigenous Caucus appears to be unreasonable, even to sympathetic countries. Furthermore, the actual positions of the States relating to specific articles did not emerge since no substantive debate on drafting could take place. It would be imprudent to conclude that the differences are restricted between the Nordic countries on the one hand and Canada, Australia and United States on the other.

The Indigenous Caucus sought to address the stalemate situation of the WGDD by seeking to co-chair the Working Group and by changing the working methodology and the organisation of work of the WGDD. The Chair tries to identify the soft and hard articles and holds Working Group discussions in informal sessions. Often "informal informal meetings" between State representatives and indigenous representatives are held without the nameplates of the governmental representatives and in a different room from the allotted conference room to change the ambience of the debate. The "informal informal meetings" are also co-chaired by an indigenous representative. In reality, irrespective of whether one holds the "informal informal meetings" in the allotted conference room at the Palais des Nations or in the Inter-Continental hotel, with or without the nameplates, the representatives of the States will stick to their positions and follow briefings received from their State capitals. Ultimately, it all boils down to whether indigenous peoples will give up their infamous 'no change' position and whether the States are willing to recognise the term 'indigenous peoples', their right of self-determination, collective rights, land rights and rights over natural resources and territory.

The Indigenous Peoples Caucus consists of diverse peoples from all parts of the world, representing different histories, cultures, politics, constitutional systems and records of engagement with their governments. While a few indigenous peoples representatives such as the Samis of Norway and Innuits in Greenland may share a healthy relationship with their governments, many indigenous peoples are engaged in conflict with their respective governments. In such a situation and in the absence of organised mechanisms for consultation, seeking a common position among indigenous peoples on any article of the Draft Declaration is like trying to climb the Mount Everest. Therefore, the only commonly agreed position is the Sub-Commission text.

It is a delusion to think that indigenous peoples cause is advanced by sticking to present stalemate situation. Unless something drastic happens, after the deluge of the International Decade, the WGDD will end up being a damp squib.

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* This written statement is issued, unedited, in the language(s) received from the submitting non-governmental organization(s).