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59th session of UN Commission on Human rights

Commission on Human Rights

Fifty-ninth session

20 January and 17 March-25 April 2003

Geneva

Item 18 – Effective functioning of human rights mechanisms

JOINT STATEMENT OF THE AMERICAN INDIAN LAW ALLIANCE,

GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) AND

INUIT CIRCUMPOLAR CONFERENCE

In regard to agenda Item 18, we would like to address the critical problems that Indigenous peoples are facing in the current standard-setting process relating to our human rights. In particular, we are referring here to the intersessional Working Group (UNCHR Res. 1995/32, 3 March 1995) that is considering the draft U.N. Declaration on the Rights of Indigenous Peoples for possible adoption by the General Assembly.

In an earlier statement submitted jointly by the American Indian Law Alliance, Grand Council of the Crees (Eeyou Istchee), and Inuit Circumpolar Conference under agenda Items 5, 6 and 15, we described how many of the States participating in the Working Group are failing to fully respect the Purposes and Principles of the Charter of the United Nations in the standard-setting process. As a result, Indigenous peoples’ fundamental status and human rights are being put in jeopardy. Discriminatory double standards are repeatedly being proposed in violation of international law. This is especially evident in regard to our status as "peoples" and our human right to self-determination.

In addition, a number of participating States are misstating international law, so as to justify the imposition of unwarranted restrictions. They are also ignoring critical interrelationships among human rights. Some States are still seeking to deny the very existence of Indigenous peoples’ collective rights.

These illegitimate actions are laying the ground for further injustices in the future. Why are many of the participating States abusing the standard-setting process? Why are they ignoring their solemn obligations to promote and respect human rights, as required under the U.N. Charter?

As we describe below, many of the States participating in the UNCHR Working Group constitute the past or present perpetrators of some of the worst misdeeds and crimes against Indigenous peoples. While these States certainly need to be involved, they should not be dominating the current process. They must not be entrusted to determine the international standards that would be submitted to the General Assembly.

In our respectful view, it is unacceptable for the United Nations to support or continue a process where a large number of the participating States have committed atrocities and are in effect controlling what human rights norms are suitable for their victims. Such a biased procedure offends the most fundamental principles of justice, fairness, democracy, rule of law and respect for human rights.

Offender States must not determine standards for their victims

There are over 300 million Indigenous people in the various regions of the globe. Over the centuries, as distinct peoples and sovereign nations, we have engaged in relations with a vast number of States. As the historical record makes clear, virtually all of the States that have had dealings with Indigenous peoples and that have sought control over our territories, lands and resources have engaged in reprehensible and unconscionable acts. These acts include:

    • devastating colonialism
    • pervasive racial and other forms of discrimination
    • widespread land and resource dispossession
    • genocide and cultural genocide
    • slavery
    • persistent failure to honour treaty commitments.

The ongoing legacy of these actions against Indigenous peoples is the perpetuation of extreme and debilitating poverty. Rampant poverty severely impedes the enjoyment by Indigenous peoples of our basic human rights. It constitutes "a violation of human dignity" and "renders democracy ... fragile" (Human rights and extreme poverty, UNCHR Res. 2000/12, 17 April 2000.).

In regard to the new Rome Statute of the International Criminal Court, (U.N. Doc. A/Conf.183/9 (1998), adopted in Rome, 17 July 1998, Arts. 12, 17, 87, 126), States have accorded themselves immunity from prosecution, as a last resort by the ICC, for a wide range of criminal acts committed prior to their ratification of this Statute. Therefore, Indigenous peoples have no recourse or remedy under the Statute for past acts of genocide and crimes against humanity committed against them by States and others.

In view of the lack of effective remedies for Indigenous peoples, the current standard-setting process within the U.N. system assumes an even greater importance. This vital procedure must be carried out with the utmost integrity and sensitivity. It must not be undermined. Ongoing injustices would be seriously compounded if, despite our vigorous opposition, the positions of some of the offender governments on the draft Declaration were allowed to prevail.

Role of Indigenous peoples in the standard-setting process

In view of the extraordinary situation facing Indigenous peoples, it is imperative that the role of Indigenous peoples in the standard-setting process be significantly strengthened. This unique, unacceptable situation calls for special measures for redress.

In its resolution entitled International Decade of the World’s Indigenous People (GA Res. 56/140, 19 December 2001), the U.N. General Assembly "underlines the importance of effective participation by indigenous representatives in the open-ended inter-sessional working group of the Commission on Human Rights". The draft Declaration also affirms: "Indigenous peoples have the right to participate fully … at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves" (Art. 19).

Yet the current role of Indigenous representatives in the Working Group can hardly be considered as "effective" or "full". It is fundamental to any sense of democracy and justice that States, many of which are responsible for committing atrocities against Indigenous peoples worldwide, not dominate this particular standard-setting process. Nor should Indigenous peoples be prevented from participating in the present process, as a result of a difficult accreditation procedure that can take up to two years.

Over the past few decades, we have increasingly made extensive and unique contributions in a wide range of international forums. As international political actors, peoples and nations, we have a right and a responsibility to fulfill our role in strengthening the international human rights system, safeguarding the rights of our people, and contributing to peace, international cooperation, and the heritage of humankind. On May 24, 2002, on the occasion of the first session of the Permanent Forum on Indigenous Issues, Secretary-General Kofi Annan stated:

You [Indigenous peoples] have a home at the United Nations. You have rights, needs and aspirations that can and must be addressed by the world organization. And you have knowledge, vision, values, skills and many other attributes that can and must help us at the United Nations, and indeed all of humankind, to achieve our long-sought goals … ."

Indigenous peoples and our basic rights are the central subjects of the draft Declaration. We constitute the past and current victims of grave human rights violations by States and third parties. Therefore, we must now be assured a central role in elaborating human rights standards that are remedial, uplifting, and just.

Globally, a vast range of human rights abuses against Indigenous peoples continue to go unchecked. The draft Declaration, if adopted by the General Assembly, is intended, inter alia, to help address this ongoing tragedy.

In a spirit of cooperation, we continue to welcome a constructive dialogue with all State representatives in the intersessional Working Group. However, the overall standard-setting process must fully respect Indigenous peoples and our distinct role. We must be in a position to ensure that this is carried out in a manner that is fully consistent with the Purposes and Principles of the U.N. Charter and the key objectives of the standard-setting process.

Existing circumstances in the Working Group are creating a crisis in the standard-setting process. The measures that we propose below should well serve to reinforce respect for the U.N. Charter, democracy and human rights. Our enhanced role should strengthen multilateralism, in a fair and balanced manner that is fully consistent with principles of justice and international law.

In the United Nations Millennium Declaration (U.N. Doc. A/RES/55/2, 8 December 2000), Member States have avowed that they "will spare no effort to promote democracy and strengthen the rule of law, as well as respect for all internationally recognized human rights" (Art. 24). They have also declared that they "will spare no effort to make the United Nations a more effective instrument for pursuing … the fight against injustice" (Art. 29).

In light of all of the above considerations, we respectfully urge that the following measures be taken by the U.N. Commission on Human Rights on an urgent basis:

    • Explicitly affirm the distinct status and essential role of Indigenous peoples in the standard-setting process, so as to ensure that the numerous States that have committed atrocities against Indigenous peoples are not dominating the process
    • In particular, elaborate on the full and effective participation of Indigenous peoples and eliminate existing accreditation problems for Indigenous participants
    • Seek increased funding for Indigenous peoples, so as to significantly enhance their active input in the process on an equitable regional basis  
    • Provide for an impartial, democratic, balanced and fair procedure within the intersessional Working Group that is fully respectful of the Purposes and Principles of the U.N. Charter and the vital objectives of the standard-setting process 

Declare that any draft Declaration recommended by the Working Group for adoption by the United Nations General Assembly must have strong support among Indigenous peoples, as indicated by their representatives in the process.

Commission on Human Rights

Fifty-ninth session

20 January and 17 March-25 April 2003

Geneva

Item 5 – The right of peoples to self-determination

Item 6 – Racism, racial discrimination, xenophobia

and all forms of discrimination

Item 15 – Indigenous issues

 

JOINT STATEMENT OF THE AMERICAN INDIAN LAW ALLIANCE,

GRAND COUNCIL OF THE CREES (EEYOU ISTCHEE) AND

INUIT CIRCUMPOLAR CONFERENCE

We wish to bring to the attention of this Commission (UNCHR) a most serious matter concerning Indigenous peoples’ human rights. It involves the intersessional Working Group (UNCHR Res. 1995/32, 3 March 1995) that is considering the draft U.N. Declaration on the Rights of Indigenous Peoples for possible adoption by the General Assembly.

In this important standard-setting process, many States are attempting to undermine the basic status and human rights of Indigenous peoples. In this context, repeated acts of racial discrimination against the world’s Indigenous peoples are being committed by Member States. As described below, these actions have far-reaching implications for the Charter of the United Nations, multilateralism and the international human rights system itself. Some key recommendations to address these concerns are included at the end of this statement.

Discriminatory norms on self-determination

A central concern is the continuing efforts of States to deny Indigenous peoples the right to self-determination under international law, including our natural resource rights. A number of States who actively promote democracy clearly are not upholding the principle of "equal rights and self-determination of peoples". They in effect reject that Article 1 of the international human rights Covenants applies with the same emphasis and on an equal footing to Indigenous peoples as it does to non-Indigenous peoples.

Many States are also explicitly seeking to restrict or deny the status of Indigenous peoples as "peoples" under international law, in order to restrict or deny the right of Indigenous peoples to self-determination. This constitutes "racial discrimination" as defined in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination.

The human right to self-determination is firmly established as a democratic entitlement of all peoples. It is a prerequisite for the enjoyment of all other human rights. Moreover, self-determination is interdependent and interrelated with other human rights. Therefore, the implications of attempts to create double standards on the right of Indigenous peoples to self-determination are extremely far-reaching. These positions imply doctrines of racial superiority that must be condemned (International Convention on the Elimination of All Forms of Racial Discrimination, preamble; The Incompatibility Between Democracy and Racism, E/CN.4/RES/ 2000/40, preamble).

The U.N. Human Rights Committee has applied Article 1 of the International Covenant on Civil and Political Rights to Indigenous peoples. It has indicated that the right to self-determination, including resource rights, under international law applies to Indigenous peoples (Concluding observations of the Human Rights Committee: Canada, UN Doc. CCPR/C/79/Add.105, 7 April 1999, para. 8). Yet State actions in the Working Group show utter disregard for this vital conclusion of the Human Rights Committee and violate solemn commitments under the United Nations Charter.

State violations of the U.N. Charter

All Member States of the United Nations are legally bound to uphold at all times the Purposes and Principles of the Charter. These Purposes require actions "promoting and encouraging respect for human rights" (Art. 1, para. 3) and not undermining them. Moreover, in the U.N. Charter, the duty to promote respect for human rights is to be based on "respect for the principle of equal rights and self-determination of peoples" (Art. 55, para. c). Failure to fulfill these most fundamental obligations adversely impacts upon a wide range of Indigenous rights affirmed in the draft Declaration.

There are over 300 million Indigenous people worldwide, whose fundamental human rights are being undermined by Member States within the intersessional Working Group. Many of the participating States have committed, or are committing, atrocities against Indigenous peoples. Globally, the resulting impoverishment and human toll has been, and continues to be, devastating. Yet instead of seeking to redress past and ongoing injustices, some of these States are seeking to create lesser human rights norms for Indigenous peoples than those enjoyed by others.

A significant number of States in the Working Group are currently failing to adhere to the Purposes and Principles of the U.N. Charter. It is appalling that five of these States constitute as well the five permanent members of the U.N. Security Council. These Members should be role models in terms of upholding the basic values and principles of the U.N. Charter.

It is especially serious that the United States – the richest and most powerful country in the world – has declared at the Working Group (December 4, 2002 informal meeting) that it would only accept an international human rights instrument relating to Indigenous peoples, if it were in accordance with its own domestic law. Yet, as an increasing number of jurists continue to demonstrate, "federal Indian law" in the U.S. is often discriminatory, arbitrary, incoherent and unjust. If U.S. domestic law were reflected in the draft Declaration, U.S. injustices would be unfairly imposed on all of the world’s Indigenous peoples. As former U.S. President Richard Nixon confirmed in a formal message to Congress (September 8, 1970):

From the time of their first contact with European settlers, the American Indians have been oppressed and brutalized, deprived of their ancestral lands and denied the opportunity to control their own destiny. Even the Federal programs which are intended to meet their needs have frequently proven to be ineffective and demeaning.

With regard to the draft Declaration, some States appear willing to compromise human rights standards with regard to Indigenous peoples for the purposes of reaching a "consensus" among States. However, consensus in violation of the Purposes and Principles of the Charter of the United Nations would not be a valid basis for agreement. This would also be a serious breach of the principles of international cooperation and multilateralism contemplated in the Charter.

By seeking to further subjugate and discriminate against Indigenous peoples, the permanent members of the Security Council and certain other Member States are placing in jeopardy the integrity of the U.N. Charter and the U.N. system itself. The essential and wide-ranging international interests of peoples, individuals, organizations and States worldwide must not be compromised by the illegitimate and self-serving actions of offending States.

This is especially crucial in the current political environment, where a diverse range of measures is being implemented internationally to promote international peace, security and cooperation; combat terrorism; prosecute crimes against humanity; and address other issues of global concern.

Clearly, it is not in the interests of the international community for the U.N. and its Member States to undermine their own credibility. They must not fail to fully respect the U.N. Charter, human rights, and fundamental principles of justice, fairness, and democracy. Otherwise, they could hardly insist that other States, peoples and individuals must adhere to these same precepts and respect the rule of law. As U.N. Secretary-General Kofi Annan has stated (U.N. Press Release, 12 September 2002):

… every government that is committed to the rule of law at home, must be committed also to the rule of law abroad.  And all States have a clear interest, as well as clear responsibility, to uphold international law and maintain international order.

Need for specific measures by UNCHR

At the eighth session of the intersessional Working Group in December 2002, the representatives of 22 Indigenous nations and organizations submitted a joint statement focusing on the right of Indigenous peoples to self-determination and the discriminatory responses of States. Key concerns raised at that time were virtually ignored in the final report of the Chairperson/Rapporteur, as were many other fundamental points made by Indigenous representatives. In contrast, State proposals for amendments, even if discriminatory or contrary to the U.N. Charter, were included in the report. To address these concerns, the American Indian Law Alliance sent two letters to the Chairperson/Rapporteur.

It is critical to ensure that States participating in the Working Group do not continue to act in a manner that violates the U.N. Charter or other aspects of international law. Therefore, we respectfully urge the U.N. Commission on Human Rights to adopt a new resolution in this current session that includes the following directives for the Working Group and its participants in fulfilling their work on the draft Declaration:

  • All State proposals in relation to the draft Declaration must fully respect the Purposes and Principles of the U.N. Charter, as well as the principles of equal rights and self-determination of peoples, equality, non-discrimination, the prohibition against racial discrimination and other fundamental principles of international law
  • State proposals must be fully compatible with and reinforce the basic aspirations, status and rights of Indigenous peoples, and seek to redress the impacts of discrimination, genocide, colonization, forced assimilation, dispossession, marginalization and exclusion
  • Any State proposal that fails to meet the above criteria must be excluded by the Chairperson of the Working Group from further consideration
  • Any draft Declaration recommended by the Working Group for adoption by the United Nations General Assembly must have strong support among Indigenous peoples, as indicated by their representatives in the standard-setting process  
  • Indigenous representatives must be given sufficient time to review and request changes to the final reports of all meetings of the Working Group, and the positions of Indigenous representatives and States must be reflected in all reports in a fair and balanced manner.