Working Group established in accordance
Tuesday 8th of May 2018
Joint Statement on the Right of Self-Determination:
Response to States’ Amendments
Working Group established in accordance
with Commission on Human Rights
resolution 1995/32 of 3 March 1995
Geneva, 2-13 December 2002
Agenda item: Arts. 3 and 31
11 December 2002
American Indian Law Alliance, Inuit Circumpolar Conference, Tetuwan Oyate, Grand Council of the Crees (of Québec), International Treaty Four Secretariat, Samson Cree Nation, Ermineskin Cree Nation, Montana Cree Nation, Louis Bull Cree Nation, International Organization of Indigenous Resource Development, African Indigenous Women’s Organization, Innu Council of Nitassinan, Na Koa Ikaika Kalahui Hawaii, Indigenous Information Network, Indigenous World Association, Indigenous Peoples and Nations Coalition, Fédérations des Organisations Autochtones de Guyane Française, Foundation for Aboriginal and Islander Research Action, Aboriginal and Torres Strait Islander Commission, National Aboriginal and Torres Strait Islander Legal Services Secretariat, Buffalo River Denè Nation, Asia Indigenous Peoples Pact
In regard to Article 3 and the right of self-determination, we welcome this opportunity to comment on the positions and proposed amendments of the various States in this Working Group. Kindly note that, in our written Statement, we have substantiated our analyses and positions with numerous references in international law.
… a democratic and equitable international order requires, inter alia, the realization of the following rights:
(a) The right of all peoples to self-determination, by virtue of which they can freely determine their political status and freely pursue their economic, social and cultural development …”
U.N. Commission on Human Rights, Promotion of the right to a democratic and equitable international order, E/CN.4/RES/2000/62, 27 April 2000, para. 3.
The affirmation of the right of self-determination of Indigenous peoples is a core element of the draft U.N. Declaration on the Rights of Indigenous Peoples and essential to its integrity. In regard to peoples, including Indigenous peoples, the right of self-determination is a collective human right. It is also a “prerequisite” for the enjoyment of all other human rights.
… it is certain that self-determination is now a human right in international law.
R. McCorquodale, “Human Rights and Self-Determination” in M. Sellers, ed., The New World Order [:] Sovereignty, Human Rights, and the Self-Determination of Peoples (Oxford/Washington, D.C.: Berg, 1996) 9, at p. 11.
… human rights can only exist truly and fully when self-determination also exists. Such is the fundamental importance of self-determination as a human right and as a prerequisite for the enjoyment of all the other rights and freedoms.
H. Gros Espiell, Special Rapporteur, The Right to Self-Determination: Implementation of United Nations Resolutions, Study for the Sub-Commission on Prevention of Discrimination and Protection of Minorities, (New York: United Nations, 1980), U.N. Doc. E/CN.4/Sub.2/405/Rev.1 at p. 10, para. 59.
In considering Article 3 of the draft Declaration, it is critical to note that a technical review, carried out in 1994 by the U.N. Centre for Human Rights, has concluded that the “text of this article is precisely based on article 1, paragraph 1, of the two International Covenants.” Therefore, any amendment by States that has the effect of altering the meaning in any way of Article 3 is creating a double standard.
U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Technical review of the United Nations draft declaration on the rights of indigenous peoples: Note by the secretariat, UN Doc E/CN 4/Sub 2/1994/2, 5 April 1994, p. 7, para. 30.
The types of amendments being sought by various States are diverse. Some, like the United States of America and the United Kingdom, simply and openly attack the content of Article 3 and demand substantive changes. Others add limiting notions within either Article 3 or other Articles. Most States support the idea of “clustering” other related Articles with Article 3, with the idea that it may compel, or at least invite, in the future a different and lesser interpretation.
… the denial of self-determination is essentially incompatible with true democracy. Only if the peoples’ right to self-determination is respected can a democratic society flourish …
R. Stavenhagen, “Self-Determination: Right or Demon?” in D. Clark & R. Williamson, eds., Self-Determination: International Perspectives (New York: St. Martin’s Press, 1996) 1, at p. 8.
The question then is why are so many States seeking to effect substantive changes to Article 3 of the draft Declaration? The short answer is that a number of self-proclaimed democratic States clearly do not seek to uphold the international law principle of “equal rights and self-determination of peoples”. They do not wish to precisely reflect Article 1 of the international human rights Covenants. In a number of cases, States seek to perpetuate the dominance and superiority over Indigenous peoples within their domestic legal systems.
… political platforms based on racism … or doctrines of racial superiority and related discrimination must be condemned as incompatible with democracy …, and that racial discrimination condoned by governmental policies violates human rights …
U.N. Commission on Human Rights, The Incompatibility Between Democracy and Racism, E/CN.4/RES/ 2000/40, preamble.
…any doctrine of superiority based on racial differentiation is … scientifically false, morally condemnable, socially unjust and dangerous, and … there is no justification anywhere for racial discrimination, in theory or in practice, anywhere …
Convention on the Elimination of All Forms of Discrimination against Women, 1249 U.N.T.S. 13; Can. T.S. 1982 No. 31, adopted by the General Assembly in resolution 34/180 of 18 December 1979 and entered into force on September 3, 1981, preamble.
From the outset, we wish to underline our grave concern that 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.
Four of the five permanent Security Council Members – namely, the United States, the United Kingdom, France, and the Russian Federation – do not accept that the right of self-determination under international law must apply to Indigenous peoples in an equal manner and to the same extent as to non-Indigenous peoples. By insisting on far-reaching changes to Article 3 of the draft Declaration, these States are consciously creating double standards. They are blatantly discriminating against the world’s Indigenous peoples.
Failure to recognize indigenous peoples’ right to self-determination, when this right is readily accorded to other, non-indigenous peoples, is clearly racism.
International Centre for Human Rights and Democratic Development, Libertas, Summer 2001, vol. 11, No. 1, p. 3 (quoting its then President Warren Allmand).
… I believe that discrimination and racism are at the heart of the indigenous issue, whether this is expressed in the reluctance of many States to recognize the right of self-determination of indigenous peoples – a right recognized for all other peoples – or in the absurd denial of the use of the term “indigenous peoples”, contradicting all logic of language and pretending in so doing that the different indigenous peoples of the world do not have a language, history or culture unique to them, or in the insistence by the dominant world that indigenous peoples do not have their own long-established and dynamic systems of knowledge and law.
Working Paper on discrimination against indigenous peoples submitted by Mrs. Erica-Irene Daes in accordance with Sub-Commission resolution 1999/20, E/CN.4/Sub.2/2001/2, 18 August 2001, para. 11.
The fifth permanent Security Council Member, China, has taken the untenable position that all of the human rights in the draft Declaration would only apply to those Indigenous peoples who are recognized by the government and people of the countries in which they reside. If our understanding is accurate, it means that the enjoyment or exercise of Indigenous peoples’ human rights in the Declaration would be dependent on the whims or views of others. This would be an arbitrary and outrageous approach to human rights. It contradicts the widely held understanding that human rights are inherent and inalienable.
In a formal plenary meeting [at the UNCHR Working Group in 1997] … China reiterated its position that it is fundamental to define the term “Indigenous people” and provide clearly for the scope of application of the declaration. China stated that the following factors should be considered in arriving at a definition of Indigenous people [included]:
Indigenous people must not only identify themselves as such, but must be recognized by the government and people of the countries in which they reside. Self-identification should be exercised through legal procedures in the context of national legislation.
S. Pritchard, Setting International Standards: An Analysis of the United Nations Declaration on the Rights of Indigenous Peoples and the first six sessions of the Commission on Human Rights Working Group, paper, 3rd ed., June 2001, at p. 90.
All Member States of the United Nations are legally bound to uphold at all times the Purposes and Principles of the Charter.
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. (Art. 2, para.2)
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55. (Art. 56)
Charter of the United Nations.
These Purposes require actions “promoting and encouraging respect” for human rights 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”.
The Purposes of the United Nations are:
3. To achieve international cooperation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion … (Art. 1, para. 3)
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion. (Art. 55, para. c).
Charter of the United Nations.
Upholding the Purposes and Principles of the U.N. Charter, as well as international law generally, is critical for all peoples and States in the international community.
We recall that non-compliance with obligations under the Charter of the United Nations constitutes a violation of international law.
Charter of Paris for a New Europe, A New Era of Democracy, Peace and Unity, November 21, 1990, reprinted in (1991) 30 I.L.M. 190.
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 recently stated:
… 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.
U.N. Secretary-General, “When Force is Considered, There is No Substitute for Legitimacy Provided by United Nations, Secretary-General Says in General Assembly Address”, Press Release, SG/SM/8378/GA/10045, 12 September 2002.
By seeking to further subjugate and discriminate against Indigenous peoples, the five 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.
Today, we will focus on the amendments proposed by the United States and Canada. This is at least partly based on our assessment that their amendments would have some of the most far-reaching and discriminatory consequences. Thus, the changes suggested by these two countries provide an opportunity to respond to a wide range of concerns.
A. UNITED STATES – PROPOSED AMENDMENT
In regard to the United States, we view its proposed amendment as having three main elements that would significantly derogate from the present text in Article 3 of the draft Declaration.
Indigenous peoples have a right of internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social, and cultural development. Indigenous peoples, in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language, religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.
Proposal by United States for Articles 3 and 31, September 16, 2002.
First, Article 3 is amended to state that the right of Indigenous peoples to self-determination is solely “internal”.
Second, Article 31 is inserted into Article 3 to indicate the specific nature of the right of Indigenous peoples to self-determination. The wording once again leaves no doubt that the right is limited to “internal” self-determination.
Third, in contrast to non-Indigenous peoples, there is no longer a right to “freely determine” one’s political status. Rather, Indigenous peoples “may negotiate their political status within the framework of the existing nation-state”.
Furthermore, there are two additional elements that are not immediately evident, but are integral parts of the U.S. strategy against Indigenous peoples. These are: the denial of Indigenous peoples’ resource rights under Article 1, para. 2 of the international human rights Covenants; and denial of the Indigenous peoples’ status as “peoples”, so as to deny us our human right to self-determination under international law.
We will elaborate upon all of these aspects in our discussion on the proposed U.S. amendment on the right to self-determination.
The source of the proposed U.S. amendment on “internal self-determination” is the U.S. National Security Council document entitled “Position on Indigenous Peoples”, dated January 18, 2001. As we will describe, rather than ensuring our security, the National Security Council Position generally promotes the insecurity of Indigenous peoples by undermining our fundamental status and human rights.
The U.S. amendment is an illegitimate and transparent move by the United States to categorically deny Indigenous peoples the right to self-determination under international law. Instead, the U.S. seeks to create an inferior right of self-determination, whose nature and scope would be based on U.S. domestic law.
Therefore, the U.S. amendment would be a clear violation of the principle of “equal rights and self-determination of peoples”.
The term “equality of peoples” [in Art. 1(2) of the U.N. Charter] was meant to underline that no hierarchy existed between the various peoples. To this extent, the prohibition of racial discrimination was transferred from the national level to the international level of international relations. Apart from that, the principle of equality of peoples and the right to self-determination are united. With this, it is assured that no peoples can be denied the right to self-determination on the basis of any alleged inferiority. The reference to self-determination encompasses the principle of self-government, but does not justify a secession.
R. Wolfrum, “Chapter 1. Purposes and Principles” in B. Simma, ed., The Charter of the United Nations: A Commentary (New York: Oxford University Press, 1994) 49, at 53. [emphasis added]
Under Article 55 c) of the U.N. Charter, the United States has an international obligation, based on respect for the principle of equal rights and self-determination of peoples, to promote universal respect for, and observance of, human rights without discrimination. This does not mean that the U.S. can ignore the international law principle of equal rights and self-determination of peoples and replace it with some inferior notion that reflects its own inadequate domestic law.
The United States is committed to lasting institutions like the United Nations, the World Trade Organization, the Organization of American States, and NATO as well as other long-standing alliances. … In all cases, international obligations are to be taken seriously. They are not to be undertaken symbolically to rally support for an ideal without furthering its attainment.
U.S. National Security Council, “The National Security Strategy of the United States of America”, September 2002, at p. v (President George Bush, White House). [emphasis added]
U.S. disregard for any resulting derogation from the existing human right to self-determination under international law is evident in the U.S. National Security Council Position on Indigenous Peoples. In this official Position, the National Security Council states:
While the US domestic concept of self-determination is similar to the rights articulated in the draft declaration, it is not necessarily synonymous with more general understandings of self-determination under international law. (para. 4, emphasis added)
Misuse of notion of “internal self-determination”
In regard to the notion of “internal self-determination”, this concept is not defined in international law. Nor is there any international instrument that contains this concept. Rather, it is a theoretical construct used by some jurists; there is no real consensus on its meaning and scope.
… no international legal instrument to date, to my knowledge, defines or even contains the terms “internal self-determination”, “autonomy”, or “self-government”. That is, the terms have no meaning under international law, and are thus subject to the interpretation that particular States give them. … I expect that the U.S. will continue to oppose the 1994 wording of Article 3 through the foreseeable future inasmuch as its behaviour here is consistent with its behaviour in other international law-drafting exercises that it judges inconvenient: whether on the law of the sea (UNCLOS), global warming (Kyoto Protocol), or the International Criminal Court (ICC). In each instance, the U.S. delays and delays the exercise with inordinate demands to safeguard its short-term interests, only to refuse to sign anyway (Kyoto Protocol), or compel re-drafting (UNCLOS), or even “unsign” (ICC).
M.C. Lâm, “The Self-Determination of Indigenous Peoples: Past Debt and Future Promise” in International Centre for Human Rights and Democratic Development, Seminar: Right to Self-Determination of Indigenous Peoples (Montreal: ICHRDD, 2002) 17 at p. 19.
In today’s complex world, aspects of “internal” and “external” self-determination are interrelated and interdependent. In many essential ways, they are indivisible elements of the human right to self-determination. This is hardly surprising, since such qualities are common to all human rights.
Both the internal and external aspects of the right to self-determination of peoples and nations are constitutive and inseparable elements of this basic collective human right.
F. Przetacznik, “The Basic Collective Right to Self-Determination of Peoples and Nations as a Pre-Requisite to Peace” (1990) 8 N.Y.L.Sch. J. of H. Rts. 49, at p. 55.
Today, the distinction between domestic and foreign affairs is diminishing. In a globalized world, events beyond America’s borders have a greater impact inside them.
U.S. National Security Council, “The National Security Strategy of the United States of America”, September 2002, at p. 31. [emphasis added]
All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. … [I]t is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and freedoms.
United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), (1993) 32 I.L.M. 1661, para. 5.
Depending on the circumstances in any specific situation, “external” acts of self-determination can serve to preserve the territorial integrity of States. For example, in the context of Québec secession, a number of Indigenous peoples in the province have asserted their right of self-determination. This was done in a manner that served to reinforce or safeguard the integrity of their own territories, as well as the territorial integrity of Canada.
Grand Council of the Crees, Sovereign Injustice: Forcible Inclusion of the James Bay Crees and Cree Territory into a Sovereign Québec (Nemaska, Québec, 1995).
Furthermore, the active participation of Indigenous peoples as distinct international actors in a broad range of standard-setting processes is also a highly positive manifestation of “external” self-determination. The contribution of Indigenous peoples at the United Nations and in regional processes is widely recognized in all parts of the world.
Throughout 1997, … a troubling discussion was prompted by States concerning the notion of “internal” and “external” self-determination. This false dichotomy has been set up by States in order to confine indigenous peoples right to self-determination to one of domestic or State prescription. … The expressions of indigenous peoples in this seminar, at the UN, the Arctic Council and other international fora are examples of the external exercise of the right to self-determination. We, ourselves, are expressing our worldviews and perspectives on the international plane, and making our voices heard outside of or external to our own communities. And, this is one aspect of the right to self-determination.
D. Sambo Dorough, Recognition of the Right to Self-Determination of Indigenous Peoples: The Future” in International Centre for Human Rights and Democratic Development, Seminar: Right to Self-Determination of Indigenous Peoples (Montreal: ICHRDD, 2002) 43 at p. 44-45.
Clearly the protection and advancement of Indigenous peoples’ status, rights and heritage will continue to require both “internal” and “external” acts of self-determination. This entails not only the exercise of Indigenous rights, but also the fulfillment of Indigenous responsibilities, at the international and national levels.
To be effective, the protection of indigenous peoples’ heritage should be based broadly on the principle of self-determination, which includes the right and the duty of indigenous peoples to develop their own cultures and knowledge systems, and forms of social organization.
“Principles and Guidelines for the Protection of the Heritage of Indigenous People”, in Final Report of the Special Rapporteur, Mrs. Erica-Irene Daes, in conformity with Subcommission resolution 1993/44 and decision 1994/105 of the Commission on Human Rights, E/CN.4/Sub.2/1995/26, 21 June 1995, Annex, Principle 2.
No State can simply decide that it will unilaterally deny certain parts of the human right of self-determination to Indigenous peoples. This is equally true for the United States, whose own discriminatory domestic policies and laws must not determine globally the nature and scope of Indigenous peoples’ human rights.
… contemporary Federal Indian law jurisprudence remains inescapably and irredeemably racist, and … the current conservative majority on the Rehnquist Court perpetuates and extends Columbus’ legacy of cultural racism directed against American Indian peoples’ self-determining rights.
R.A. Williams, Jr., “Columbus’s Legacy: The Rehnquist Court’s Perpetuation of European Cultural Racism Against American Indian Tribes” 39 Federal Bar News & Journal 358 (1992).
Independence and natural resources
In regard to the issue of independence and natural resources, the 2001 U.S. National Security Council Position on Indigenous Peoples unilaterally declares:
… the US delegation to both the UN and OAS working groups on the indigenous declarations will read a prepared statement that expresses the US understanding of the term “internal self-determination” and indicates that it does not include a right of independence or permanent sovereignty over natural resources. (para. 4, emphasis added)
Since this Position forecloses any possibility of “independence” for Indigenous peoples under any circumstances worldwide, it would run counter to the 1970 U.N. Declaration on Friendly Relations. Little or no regard is given to the careful balancing of the principle of equal rights and self-determination of peoples with the principle of territorial integrity in the 1970 U.N. Declaration, which includes aspects of customary international law.
Unlike the 1966 Covenants, which bind only those states that ratify them, Resolution 2625 [1970 Declaration on Friendly Relations] is seen as a datum of customary international law. Its drafting consequently re-involved all states in the debate over the who, the what, and the how of self-determination generated by Resolutions 1514 and 1541, which also constitute manifestations of customary law.
M.C. Lâm, At the Edge of the State: Indigenous Peoples and Self-Determination (Ardsley, N.Y.: Transnational Publishers, 2000), at p. 124.
The U.S. National Security Council Position suggests that, regardless what crimes against humanity or other human rights abuses might be committed against Indigenous peoples by a State, those Indigenous peoples living within a sovereign State could never exercise the exceptional option of independence even as a last resort. In contrast to the situation of non-Indigenous peoples, the international norms on this whole issue would simply never apply to Indigenous peoples if the U.S. position were ever accepted as new international law.
The principle of territorial integrity is intended to be invoked in the interests of all of the peoples in a given territory. However, the U.S. seeks to create a new rule whereby the human rights of Indigenous peoples could be grossly violated but there would be no effective remedy in international law.
… the ultimate purpose of territorial integrity is to safeguard the interests of the peoples of a territory. The concept of territorial integrity is therefore meaningful so long as it continues to fulfill that purpose to all the sections of the people.
U. Umozurike, Self-Determination in International Law (Hamden, Connecticut: Archon Books, 1972), at p. 234.
In regard to natural resources, the United States position is also a confused mixture of manipulation and discrimination that is inconsistent with and unacceptable under international law.
First, the U.S. seeks to deny all Indigenous peoples worldwide the economic aspects of the right of self-determination, as provided under international law. Then, the U.S. attempts to impose limitations on resource rights in the draft Declaration. Finally, the U.S. supports the clustering of “self-determination” rights in the Declaration that would include newly-crafted limitations on Indigenous land and resource rights.
With regard to natural resources and other matters, Indigenous peoples’ perspectives, value and cultures include an important notion of sharing. However, we strongly reject any interpretation of Article 1, para. 2 of the International human rights Covenants that suggests that economic aspects of the right of self-determination – namely, the right to natural wealth and resources – would simply not apply to us. Such a view is not consistent with prevailing views in international law.
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
International Covenant on Civil and Political Rights, Art. 1, para. 2.; International Covenant on Economic, Social and Cultural Rights, Art. 1, para. 2.
This paragraph [in Art. 1], however, is not merely a reaffirmation of the right of every state over its own natural resources; it clearly provides that the right over natural wealth belongs to peoples. [emphasis in original.]
A. Cassese, “The Self-Determination of Peoples”, in L. Henkin, (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), 92 at p. 103.
The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources.
Declaration on the Right to Development, adopted by General Assembly resolution 41/128, 4 December 1986, Art. 1, para. 2.
In addition, the U.S. position on natural resources fails to conform to the views of the U.N. Human Rights Committee, who has explicitly applied to Indigenous peoples the natural resource provision in Article 1 of the International Covenant on Civil and Political Rights.
… the Committee emphasizes that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence.
Human Rights Committee, Concluding observations of the Human Rights Committee: Canada, UN Doc. CCPR/C/79/Add.105, 7 April 1999, para. 8.
Failure to fully recognize the right of Indigenous peoples to natural resources under Article 1 of the international human rights Covenants is clearly discriminatory. It also severely impedes our right to development, which is an interrelated and interdependent human right.
It cannot be forgotten that the right of peoples to dispose freely of natural wealth and resources so as to pursue their development is granted by virtue of the exercise of self-determination on the part of both indigenous and national peoples. A violation of the right to self-determination would occur … if indigenous peoples were discriminated against or marginalized from the benefit of natural wealth and resources, especially when the latter are located in the territory where they live …
A.A. Forno, “Indigenous Peoples and the Right of Self-Determination: A Governmental Perspective” in International Centre for Human Rights and Democratic Development, Seminar: Right to Self-Determination of Indigenous Peoples (Montreal: ICHRDD, 2002) 38 at p. 42.
Failure to respect the right of peoples to self-determination, and their right to permanent sovereignty over their natural resources is a serious obstacle to the realization of the right to development as a human right.
United Nations Commission on Human Rights, Global Consultation on the Realization of the Right to Development as a Human Right: Report prepared by the Secretary-General pursuant to Commission on Human Rights resolution 1989/45, U.N. Doc. E/CN.4/1990/9/ Rev. 1, 26 September 1990, p. 43, para.161.
Virtually all States have pledged their full commitment to fighting poverty and injustice.
We will spare no effort to make the United Nations a more effective instrument for pursuing all of these priorities: the fight for development for all the peoples of the world, the fight against poverty, ignorance and disease; the fight against injustice; the fight against violence, terror and crime; and the fight against the degradation and destruction of our common home.
United Nations Millennium Declaration, U.N. Doc. A/RES/55/2, 8 December 2000, Art. 29.
REAFFIRMING that the fight against poverty, and especially the elimination of extreme poverty, is essential to the promotion and consolidation of democracy and constitutes a common and shared responsibility of the American states …
Inter-American Democratic Charter, adopted by acclamation by the Hemisphere’s Foreign Ministers and signed by the 34 countries of the Americas at the 28th special session of the OAS General Assembly, Lima, Peru, September 11, 2001.
Yet the denial by States of the resource rights of Indigenous peoples is a major reason for the enduring legacy of severe impoverishment inflicted on Indigenous peoples globally. Such poverty is inconsistent with true democracy. It also prevents Indigenous peoples from enjoyment of other fundamental human rights.
… the existence of widespread extreme poverty inhibits the full and effective enjoyment of human rights; its immediate alleviation and eventual elimination must remain a high priority for the international community.”
United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), (1993) 32 I.L.M. 1661, para. 14.
… economic growth and social development[,] based on justice and equity, and democracy are interdependent and mutually reinforcing …
Inter-American Democratic Charter, supra, preamble.
… for some people some civil and political rights, even in advanced democracies, may be in a sense formal. … Existing poverty in some highly developed countries … [is] among the conditions that make the enjoyment of some civil and political rights for many people impossible, and thus, there still is some room for improvement in civil and political rights even in rich democratic countries in the sense of making the enjoyment of these rights real to everyone.
R. Müllerson, “Reflections on the Future of Civil and Political Rights” in B.H. Weston & S.P. Marks, eds., The Future of International Human Rights (Ardsley, New York: Transnational Publishers, 1999) 225, at 235.
Denial of status of “peoples” under international law
In regard to use of the term “peoples”, the U.S. National Security Council Position on Indigenous Peoples states the following:
… although the purpose of the UN and OAS declarations is to set forth the rights enjoyed by indigenous peoples, other international declarations, actions plans, etc., that do not define the rights of indigenous peoples with regard to self-determination and sovereignty over natural resources may nonetheless make reference to indigenous groups. In such instances, the United States would be able to support the use of the term indigenous “peoples” but only with a footnote that states as follows:
The use of the term “peoples” in this document shall not be construed as having any implications as regards the rights that may attach to the term under international law. (para. 5, emphasis added)
Countries, such as the United States and France, that seek to restrict the status of Indigenous peoples, in order to restrict or deny the right of Indigenous peoples to self-determination, are violating the International Convention on the Elimination of All Forms of Racial Discrimination. As the Convention stipulates in Article 1:
… any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. [emphasis added]
There are no longer any scientific or historical grounds to doubt that the lands and territories settled by Europeans in the New World were, and continue to be, occupied by organized societies of indigenous peoples who have their own cultures, laws, languages, lands, beliefs and other attributes which characterize them as peoples and nations.
R.J. Epstein, “The Role of Extinguishment in the Cosmology of Dispossession” in G. Alfredsson & M. Stavropoulou, eds., Justice Pending: Indigenous Peoples and Other Good Causes (The Hague: Kluwer Law International, 2002) 45, at p. 47.
As renowned international law professor James Crawford has concluded in a recent law article, to define the term “peoples” for international purposes “in such a way that it reflects neither normal usage nor the self-perception and identity of diverse and long-established human groups … That would make the principle of self-determination into a cruel deception”.
J. Crawford, “The Right of Self-Determination in International Law: Its Development and Future” in P. Alston, ed., Peoples’ Rights (Oxford: Oxford University Press, 2001) 7, at p. 64.
Within the U.S. domestic context, the so-called congressional “plenary power” to arbitrarily determine and extinguish Indigenous peoples’ status and rights continues to be a demeaning, discriminatory and devastating experience for virtually all of the peoples concerned. It is an affront to human dignity and disrespectful of human rights.
By distorting the relationship [between Indian and white America], the doctrine also has played a role leading to concrete gains for the protectors. The doctrine has propounded white America as the protector of the true interests of Indians during times when the doctrine’s effects were anything but protective.
I.K. Harvey, “Constitutional Law: Congressional Power Over Indian Affairs – A Doctrine Rooted in Prejudice” (1982) 10 Am. Indian L. Rev. 117, at p. 48.
America must stand firmly for the nonnegotiable demands of human dignity: the rule of law; limits on the absolute power of the state; free speech; freedom of worship; equal justice; respect for women; religious and ethnic tolerance; and respect for private property.
… History has not been kind to those nations which ignored or flouted the rights and aspirations of their people.
U.S. National Security Council, “The National Security Strategy of the United States of America”, September 2002, at p. 3. [emphasis added]
The use of such legal terms for Indigenous peoples as “domestic dependent nations” is wrongly based on notions of helplessness and inferiority. In contrast to principles of interdependence, the criteria used by all three branches of the U.S. government unjustly perpetuate an out-dated, colonial and diminished status for the Indigenous nations concerned.
According to a 1978 congressional survey, federal legislation contained thirty-three definitions of Indians. (p. 1481, emphasis added)
Although the government now disclaims the use of race as a component of its relationship with Indians, the government has previously used, and currently uses race, or blood quantum, as a requirement for allotments, awards, services, and benefits. … Whether or not the Bureau [of Indian Affairs] was willing to declare an Indian individual competent, thereby capable of alienating his or her land, depended upon the person’s possession of one-half or more blood quantum. Individuals possessing less than one-half Indian blood were considered “more competent” than those with one-half or more. (pp. 1483-1484, emphasis added)
S.L. O’Brien, “Tribes and Indians: With Whom Does the United States Maintain a Relationship?” (1991) 66 Notre Dame L. Rev. 1461.
U.S. manipulation of international human rights
With regard to the right of self-determination, it is important to underline that, during the drafting stages, Western States were initially opposed to affirming this right in the international human rights Covenants. However, once they realized that the right would be included in the Covenants, they insisted that the right be applied not only to peoples in colonial situations, but also to peoples in sovereign and independent states.
T. Musgrave, Self-Determination and National Minorities (Oxford: Clarendon Press, 1997), at p. 68.
The provision [on the right of self-determination] was approved by a large majority, led by Third World states, with the concurrence of the Socialist countries. … The contribution of the Western states to the development of this article should not, however, be underestimated: they contributed to widening the scope of the article and were instrumental in effecting important changes in the text.
A. Cassese, “The Self-Determination of Peoples” in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) 92, at p. 93.
In addition, in regard to the 1975 Helsinki Final Act, the U.S. government has taken the view that Principle VIII concerning the international law right of self-determination is applicable to Indigenous peoples in the United States. This has been confirmed in the 1979 Report of the U.S. Commission on the Security and Cooperation in Europe.
American Indians have much in common with other U.S. minority groups. However, it would be extremely misleading to view the rights of American Indians solely in terms of their status as a racially distinct minority group, while neglecting their tribal rights. The Indian tribes are sovereign, domestic dependent nations that have entered into a trust relationship with the U.S. Government. Their unique status as distinct political entities within the U.S. federal system is acknowledged by the U.S. Government in treaties, statutes, court decisions and executive orders, and recognized in the U.S. Constitution. This nationhood status and trust relationship has led American Indian tribes and organizations, and the U.S. Government to conclude that Indian rights issues fall under both Principle VII of the Helsinki Final Act, where the rights of national minorities are addressed, and under Principle VIII, which addresses equal rights and the self-determination of peoples.
U.S. Commission on Security and Cooperation in Europe, Fulfilling Our Promises: The United States and the Helsinki Final Act (Washington, D.C.: U.S. Government Printing Office, 1979), at p. 148.
Principle VIII (Equal rights and self-determination of peoples):
The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States.
By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.
The participating States reaffirm the universal significance of respect for and effective exercise of equal rights and self-determination of peoples for the development of friendly relations among themselves as among all States; they also recall the importance of the elimination of any form of violation of this principle.
Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act), signed by 35 states (including Canada and the United States) on August 1, 1975, reprinted in (1975) 14 I.L.M. 1295.
We are not suggesting that the United States has ever adequately honored or fulfilled its obligations to promote and realize the right of Indigenous peoples to self-determination. However, the United States has formally recognized the application of Article 1 of the international human rights Covenants to Indigenous peoples.
The United States cannot now ignore its positions, interpretations and actions in the past that recognized the international law right of self-determination as applicable to Indigenous peoples. The basic human rights of Indigenous and other peoples cannot be withdrawn or altered, depending on the whims, prejudices or policies of different U.S. leaders.
It is also essential to note that, when the Senate ratified the International Covenant on Civil and Political Rights in 1992, it included the following understandings and declarations:
That it is the view of the United States that States Party to the Covenant should wherever possible refrain from imposing any restrictions or limitations on the exercise of the rights recognized and protected by the Covenant, even when such restrictions and limitations are permissible under the terms of the Covenant.
That the United States declares that the right referred to in Article 47 [inherent right of all peoples to their natural wealth and resources] may be exercised only in accordance with international law.
U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992), para. III.
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
International Covenant on Civil and Political Rights, Art. 47.
In conclusion, we view the proposed U.S. amendment on the right of self-determination and the U.S. position on Indigenous peoples’ resource rights as perpetuating severe impoverishment, violating the peremptory norm against racial discrimination, and wholly inconsistent with international law. In addition, the present position directly contradicts previous U.S. positions on and interpretation of the International Covenant on Civil and Political Rights and the Helsinki Final Act.
Further, the present U.S. position is inconsistent with the declarations and understandings of the U.S. Senate, when it ratified the Covenant. Also, the U.S. position shows utter disregard for the conclusions of the U.N. Human Rights Committee on Indigenous peoples’ right to self-determination, including resource rights, under international law.
The manipulations in this Working Group by the U.S. government of international human rights and related legal obligations are not in the interests of Indigenous peoples, Americans, or the international community as a whole. Nor are these U.S. actions consistent with the 2002 “National Security Strategy of the United States of America”, officially endorsed by President George Bush.
In the twenty-first century, only nations that share a commitment to protecting basic human rights and guaranteeing political and economic freedom will be able to unleash the potential of their people and assure their future prosperity.
U.S. National Security Council, “The National Security Strategy of the United States of America”, September 2002, at p. i (President George Bush, White House)
CANADA – PROPOSED AMENDMENTS
The government of Canada has proposed two alternatives for amending Article 3 of the draft Declaration.
States and Indigenous peoples shall work together towards the realization of this right, recognizing the jurisdictions and responsibilities of governments, the needs, circumstances, aspirations and identity of the indigenous peoples concerned, and the importance of achieving harmonious arrangements. [emphasis added]
The political status of indigenous peoples, and the means of pursuing their economic, social and cultural development, are matters for resolution between the state and indigenous peoples, respecting the jurisdiction and competence of governments and the needs, circumstances and aspirations of the indigenous peoples involved. [emphasis added]
Basically, the two alternative amendments proposed by Canada have the potential to significantly alter the interpretation of Article 3. In both alternatives, there is an implication that exercise of the right of self-determination would have to be negotiated with State governments prior to any application of the right.
If any such interpretation were upheld in the future, States could continue to do little or virtually nothing in terms of promoting the realization of Indigenous peoples’ human right to self-determination. In this way, Canada’s proposed amendment could possibly create a far-reaching and discriminatory double standard concerning the right of self-determination under international law.
For these reasons alone, we strongly reject Canada’s amendments. In particular, we reject Canada’s attempt to significantly alter the application of the right of self-determination to our distinct disadvantage. As Canada is well aware, the U.N. Human Rights Committee is already applying Article 1 of the international human rights Covenants to Indigenous peoples in Canada and other sovereign States.
By seeking to add new limitations or qualifications, the government of Canada is reneging on the solemn commitment that it has repeatedly made publicly since 1996. At that time, it first declared:
[The right of self-determination] … is fundamental to the international community, and its inclusion in the UN Charter, and in the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights bears witness to the important role that it plays in the protection of human rights of all peoples. … Canada is therefore legally and morally committed to the observance and protection of this right. We recognize that this right applies equally to all collectivities, indigenous and non-indigenous, which qualify as peoples under international law.
Statements of the Canadian Delegation, Commission on Human Rights, 53rd Sess., Working Group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995, 2nd Sess., Geneva, 21 October – 1 November 1996, cited in Consultations Between Canadian Aboriginal Organizations and DFAIT in Preparation for the 53rd Session of the U.N. Commission on Human Rights, February 4, 1997 (statement on Art. 3, right to self-determination, on October 31, 1996, emphasis added).
Different processes to advance self-determination arrangements may possibly be established in the future by an individual State and the various Indigenous peoples concerned. However, it would be highly inappropriate to specify any such process – or the parameters and principles governing it – in the draft Declaration. The relative success of any such process would be dependent, at least in part, on the degree of good faith demonstrated by the parties.
A good faith process can eventually result in a practical arrangement, specific to the country and the people, while consultations or negotiations in bad faith will most certainly deepen the divisions between States and indigenous peoples, and diminish the possibilities of peaceful solutions.
E.-I. Daes, “Article 3 of the Draft United Nations Declaration on the Rights of Indigenous Peoples: Obstacles and Consensus” in International Centre for Human Rights and Democratic Development, Seminar: Right to Self-Determination of Indigenous Peoples (Montreal: ICHRDD, 2002) 8 at p. 14.
In our Statement today, we have chosen to comment on the proposed amendments of the United States and Canada. This was at least partly based on our assessment that they would have some of the most far-reaching and discriminatory consequences.
As our comments on the specific amendments proposed by the United States and Canada demonstrate, we are deeply concerned that a number of States are submitting proposed changes to the draft Declaration that are clearly incompatible with the most basic precepts, norms and values in international law. This is especially true in regard to the crucial right of Indigenous peoples to self-determination, including resource rights, under international law.
In November 2000, we urged this Working Group not to consider any discriminatory amendments to the draft Declaration that were offered by States. In order to ensure full respect of the U.N. Charter and the peremptory norm against racial discrimination, we are again making the same formal request.
In our respectful view, the standard-setting process is getting out of control. While there are a number of States participating in good faith, other States are submitting an increasing number of proposed amendments that contravene the Purposes and Principles of the U.N. Charter. Clearly some reasonable parameters are necessary within this Working Group to guide this essential process.
Consideration should not be accorded to proposed amendments by States, if they fail to provide any indication of their compatibility with international law and the objectives of this Working Group. This standard-setting process must not be permitted to become a free-for-all for discriminatory State proposals.
Many of the States participating in this 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 must not be dominating the current process, particularly if they are converting it for their own political ends. They must not be entrusted to determine the international standards that would be submitted to the General Assembly.
Genocide has been committed against indigenous, Indian or tribal peoples in every region of the world, and it is this context that any discussion of indigenous rights must occur. The general perspective of the state toward indigenous peoples – that they are to be conquered or converted to the beliefs of the dominant, more “advanced” society – has remarkable similarities, whether the state is found in North, Central, South America; the Caribbean; the Pacific; Asia, from Bangladesh to China; Africa, with respect to groups such as the pygmies; or northern Europe.
H. Hannum, “New Developments in Indigenous Rights”, (1988) 28 Virginia J. Int’l L. 649 at p. 649. [emphasis added]
On February 15, 2000, a U.N. General Assembly resolution requested and empowered this Working Group and all human rights bodies within the U.N. system to “take duly into account” such principles as “non-selectivity”, “impartiality” and “objectivity”. The Working Group may also take steps to ensure that its standard-setting work is “not … used for political ends”.
The General Assembly …
5. Reaffirms that the promotion, protection and full realization of all human rights and fundamental freedoms, as a legitimate concern of the world community, should be guided by the principles of non-selectivity, impartiality and objectivity and should not be used for political ends;
6. Requests all human rights bodies within the United Nations system, as well as the special rapporteurs and representatives, independent experts and working groups, to take duly into account the contents of the present resolution in carrying out their mandates …
Strengthening United Nations action in the field of human rights through the promotion of international cooperation and the importance of non-selectivity, impartiality and objectivity, U.N.G.A. Res. 54/174, 15 February 2000.
Other Indigenous representatives have previously raised similar concerns in this Working Group. In our respectful view, the standard-setting process cannot work in any coherent manner, if we continue to be inundated with proposed amendments that are inconsistent with the human rights objectives of the Working Group, the U.N. Charter and the basic norms, principles and values of international law.