CISA   Consejo Indio de Sud América

HUMAN RIGHTS COMMISSION                                                                                    (español)

Working Group established in accordance with Commission on Human Rights
resolution 1995/32 of 3 March 1995

10th Session

Geneva, 13-24 September 2004



Item: Self-Determination



Thank you Mr.Chairman

The Indian Council of South America –CISA- expresses its opinion in relation to the amendments to the original text of Article 3 presented by seven governmental delegations (Denmark, Finland, Iceland, New Zealand, Norway, Sweden and
Switzerland) in the document known as CRP.1, and also regarding the proposal presented by Mrs.Sambo—in the name of a good number of Indigenous delegations—to integrate a new paragraph into the Preamble and to take out the
Guatemalan delegation’s changes to Paragraph 15 so that the States will in turn take back their changes to Article 3, as agreed with a governmental delegation.

CISA does not agree with the decision of the Latin America Indigenous Peoples Caucus to support Mrs Zambo’s proposal because it considers that the proposal makes unnecessary and restricting changes to the Indigenous Peoples’ right to self-determination. The addition to paragraph 15 limits the paragraph by predicating it on the principles of current international law, whilst self-determination is a right that predates all others since it derives from the”principle of jus cogens, that is, it sets a binding norm of general international law, which sets it at the highest level of legal hierarchy and, in this way, is a fundamental principle that has to be applied universally and is an inalienable right of all people”; it is virtually eve rlasting, as stated by the jurists at the seminar organized by the Mapuche University Educational Corporation in Pitrufquen (Chile) in September 2004.

CISA believes that the addition of a new preambular paragraph to the Draft declaration implies that the authors did not take into account the terms of the Draft which already contains some of them. CISA does not agree to include terms that
have never been used here, and which do not fit into into this context, such as the word “democracy” which corresponds to a political and social system originating in, and which is part of a slave society – the ancient Greek society – and which
“Western Civilization” draws on, with all its social in equalities, and imposes it by force throughout the world..

Experience gained from past discussions has made us think that States reticent to recognize Indigenous Peoples’self determination will indeed be able to accept the new paragraph and the amendment to paragraph 15, the better to constrain Indigenous Peoples’self determination while retaining the amendments to Article 3. The Australian delegation confirmed this, accepting the new paragraph as well as the amendments to Paragraph 15, while at the same time retaining the amendments to article 3. Other States have taken the same position.

As to the two paragraphs included in article 3 of CRP1, CISA considers they weaken its strength and clarity. Article 3 of the original text is based on a binding norm of general international law that makes amendments unnecessary. Furthermore, the two paragraphs are not complementary:the first deals with subjugated peoples, and the second does not refer to peoples but rather to friendly relations and cooperation between States. This latter is part of an article of a treaty that has been made to prevent States from attacking their neighbor States in order to appropriate their territories, or to invade them in order to control and operate their oil wells, for example. This has been incl udrd in the Article in order to qualify all self-determination acts of Indigenous Peoples as hostile; this in order to make sure that Indigenous Peoples cannot reclaim their territories and resources, because the States that invaded them established them as their property, and also to ensure that the indigenous population be considered as one of the social sectors of the state, and therefore as not having any right to self-determination.

CISA notes that where self-determination is concerned, States operate double standards under which they need not adhere to any international agreement or norm because jus cogens obtains de facto, while they seek to place Indigenous Peop les at a lower level and require them to abide by the principles of international deliberation without recognizing that their States are based on the same binding norm. They forget that “the right to self-determination of peoples, as enshrined in modern international law, is not subject to any conditions or requirements whatsoever” as stated by the above-mentioned seminar. Hence, it does not make sense to claim that there is no international case law on indigenous self-determination. Similarly, seeking more justification in this area may lead us to adopt principles established by
States for pre-existing States.

We hold that the jus cogens character of the right to self-deter mination of Indigenous Peoples is sufficient in itself, and similarly binds it to its lands, territories and resources. The above-mentioned seminar reminds us of this, saying
that during the debates on the adoption of UN General Assembly Resolution 1514 (XV), it was held that the right to self-determination includes, inter alia, the right of a people to freely enjoy their spiritual and material heritage.

CISA recalls that Indigenous Peoples’existence precedes by thousands of years the States that invaded them or which were formed on their territories. Indigenous Peoples exercised their sovereignty there as a product of their right to
self-determination, and the having it interfered w ith, over centuries, does not deprive them of it in international law. CISA also wishes to clarify that invading States brought with them neither lands nor territories nor resources for Indigenous
Peoples, but on the contrary they appropriated and took advantage of indigenous heritage. Therefore it is States who must justify this appropriation in international law, and not Indigenous Peoples.

We consider that this Declaration is being made for future generations;and for this reason we must not limit it by taking into account only the situation today, and the local circumstances. If an indigenous people demands the right to
self-determination, then they must exercise it fully, and not b e constra ined by politics that give them only half as much right to self-determination as the non-indigenous population has.

In the light of the above, CISA deems that Article 3, as in the original text adopted by the Sub-Commission, most clearly and properly addresses the self-determination of ondigenous peoples.

Thank you, Mr.Chairman


Nolasco MAMANI
Tomás CONDORI


Geneva 21 September 2004