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Joint statement items 5, 6 and 15

COMMISSION ON HUMAN RIGHTS
Sixtieth session
Items 5, 6 and 15 of the provisional agenda

THE RIGHT OF PEOPLES TO SELF-DETERMINATION AND ITS
APPLICATION TO PEOPLES UNDER COLONIAL OR ALIEN
DOMINATION OR FOREIGN OCCUPATION

RACISM, RACIAL DISCRIMINATION, XENOPHOBIA AND ALL FORMS OF DISCRIMINATION

INDIGENOUS ISSUES


Written statement submitted by American Indian Law Alliance, Grand Council of the Crees (Eeyou Istchee) and Inuit Circumpolar Conference, non-governmental organizations in special consultative status

In regard to the UNCHR inter-sessional Working Group on the draft U.N. Declaration on the Rights of Indigenous Peoples, one of the main impediments to progress and consensus has been the insistence of some States to add specific language to the draft Declaration relating to the territorial integrity of States. The inclusion of such language is presented as a precondition for States’ agreement to Art. 3 of the draft Declaration recognizing the right of Indigenous peoples to self-determination.

In particular, at the September 2003 session of the Working Group, the Nordic countries submitted a proposal suggesting the following amendment (underlined portion) to preambular paragraph 15 of the draft Declaration:

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, and further emphasising that nothing in this Declaration shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples, and thus possessed of a government representing the peoples belonging to the territory without distinction of any kind,

that nothing in this Declaration may be used to deny any peoples their right of self-determination  </dir></dir></dir></dir>

According to their various statements in the Working Group, the Nordic States made this proposal in order to bridge the existing gaps between different positions in the Working Group and as an attempt to find a consensus. However, consensus in violation of the Purposes and Principles of the Charter of the United Nations, as well as of the mandate concerning the draft Declaration, 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.

Upon carefully examining the Nordic proposal, a large number of Indigenous representatives in the Working Group have concluded that the proposed Nordic amendment would create discriminatory double standards. In regard to Indigenous peoples, the interrelationship between the human right of self-determination and the principle of territorial integrity under international law would be significantly altered to our detriment. Our other human rights could also be severely undermined, in ways not yet fully determined.

pon carefully examining the Nordic proposal, Indigenous representatives in the Working Group have concluded that the proposed Nordic amendment would create discriminatory double standardsn regard to Indigenous peoples, the interrelationship between the human right of self-determination and the principle of territorial integrity under international law would be significantly altered to our detriment. Our other human rights could also be severely undermined, in ways not yet fully determined.

1. Indigenous concerns relating to the Nordic proposal

According to statements of the Nordic States, their proposed amendment reflects wording from the 1970 U.N. Declaration on Friendly Relations. However, the Nordic proposal derogates from the 1970 Declaration in significant ways.

The 1970 Declaration first affirms 3 key elements: the “principle of equal rights and self-determination of peoples” under the U.N. Charter; the right of all peoples to self-determination; and the duty of every state to respect this right. Only then does the 1970 Declaration seek to “balance” in different situations these express rights and state obligations with the principle of territorial integrity.

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. [emphasis added]

shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. [emphasis added] </dir></dir></dir></dir>

In contrast, the suggested amendment of the Nordic States does not first recognize clearly the right of self-determination of Indigenous peoples under international law. Therefore, the principle of territorial integrity would be applied to a right of self-determination with a different and lesser meaning than the right of self-determination of non-Indigenous peoples; this would not only be discriminatory but also undemocratic. Further, the Nordic proposal does not balance the right of peoples to self-determination with the principle of territorial integrity in the same manner as the Nordic States suggest is done in the Declaration on Friendly Relations.

Instead, the Nordic amendment subjects the whole draft Declaration – including potentially every human right of Indigenous peoples – to the principle of territorial integrity. This would greatly expand the application of “territorial integrity” in uncertain and unprecedented ways. States could acquire new rationales for dominating Indigenous peoples and overriding or circumscribing the valid exercise of our basic rights.

The Nordic amendment . This would greatly expand the application of “territorial integrity” in uncertain and unprecedented ways. States could acquire new rationales for dominating Indigenous peoples and overriding or circumscribing the valid exercise of our basic rights.

Evidence of blatant misuse of the principle of territorial integrity against Indigenous peoples is already apparent in Canada. At international law, the principle of “territorial integrity” clearly does not apply to provinces, such as QuÈbec. Nevertheless, a law was adopted in December 2000 that applies the principle of “territorial integrity of QuÈbec” to potentially all matters within the province, regardless of whether it relates to secession or non-secession issues. Maintenance and respect for QuÈbec’s territorial integrity has now become a legal duty of the provincial government. In treaty negotiations on Indigenous land, resource and self-government rights, the government of QuÈbec is increasingly imposing respect for the “territorial integrity of QuÈbec” as a precondition for any agreement.

 

States are currently free to invoke “territorial integrity” and other international principles, if and when justifiable circumstances arise. Therefore, there is no need to highlight such principles in the draft Declaration so as to possibly imply that these principles have some kind of overriding or special status.

Further, it would make little sense for Indigenous peoples to put at risk such a central and core right as self-determination, by endorsing language in the draft Declaration that could well result in a discriminatory double standard. As the U.N. Human Rights Committee has confirmed, the right of self-determination of Indigenous peoples, like all peoples, is affirmed in Art. 1 of the human rights Covenants. The principle of “territorial integrity” should not be applied to the human rights of Indigenous peoples in a manner that is wholly different from that of all other peoples.

t would make little sense for Indigenous peoples to put at risk such a central and core right as self-determination, by endorsing language in the draft that could well result in a discriminatory double standard. As the U.N. Human Rights Committee has confirmed, the right of self-determination of Indigenous peoples, like all peoples, is affirmed in Art. 1 of the human rights Covenants. he principle of “territorial integrity” should not be applied to the human rights of Indigenous peoples in a manner that is wholly different from that of all other peoples.

In light of past and ongoing violations of Indigenous peoples’ human rights, the central focus must be the integrity of Indigenous territories that has been severely undermined or destroyed by states or third parties. In both historical and contemporary times, this has occurred through colonialism, dispossession, discrimination, forced assimilation, genocide and outright theft.

2. Alternative Proposal – Consistent with International Law

We firmly believe that, if basic international values and principles are strictly adhered to without discrimination, consensus can be reached on “self-determination” and “territorial integrity”. States’ concerns regarding secession, as well as Indigenous concerns with the Nordic proposal, can be addressed in a manner consistent with international law.

On 23 September 2003, an overwhelming majority of the Indigenous peoples’ caucus submitted the following proposed amendments (underlined portion) to the Working Group:

Preambular para. 14:

Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, and that this right applies equally to indigenous peoples.

that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, .

Preambular para. 15:

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, exercised in accordance with principles of international law, including the principles contained in this Declaration.

Article 3

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.

In regard to preambular para. 14, our proposed amendment would, for greater certainty, affirm that the right of self-determination under international law applies equally to Indigenous peoples. No discriminatory double standard against Indigenous peoples would be created in respect to the right of self-determination. As a human right, self-determination cannot be transformed by the U.N. or member States into a different and lesser right when applied to Indigenous peoples.

In regard to preambular para. 15, our proposed amendment would confirm that the right of self-determination of Indigenous peoples is exercised in accordance with principles of international law. This would ensure that the right of self-determination is exercised in a fair and balanced manner. It would affirm the ability of States and others to freely invoke any principles of international law in the context of Indigenous peoples’ right to self-determination. Therefore, there is no need to explicitly highlight the principle of territorial integrity.

The principle of territorial integrity has no special status or significance above a host of other international law principles – such as democracy, rule of law, respect for human rights, non-discrimination, and justice – which all apply in the context of self-determination. There is no hierarchy that would place the principle of territorial integrity above respect for human rights or other international law principles identified in international instruments.

Therefore, we call upon the Commission on Human Rights to urge States to cease imposing new and discriminatory preconditions on Indigenous peoples, as a precondition to obtaining affirmation of their right of self-determination in the draft U.N. Declaration on the Rights of Indigenous Peoples.

In view of such far-ranging abuses, it is unconscionable for States to insist that all of our human rights in the draft U.N. Declaration be explicitly made subject to the principle of territorial integrity.