Intersessional Working Group on the Draft Declaration on Indigenous Peoples

News from Geneva

by James W. Zion , Elsie RedBird  Navajo Working Group for Human Right

Geneva, Day-Five  27-11-00                                             Day Six, 28-11-00

Friday's morning discussions in the working group focused on article 44 of  the draft declaration, which simply provides that nothing in the Declaration can be read to imply that any State, group or person can engage in any activity or perform any act contrary to the UN Charter. Most of the state comments were to the effect that they could accept this provision as written.
However, there were indigenous comments to the effect that there was consensus on accepting the article, and if the states could not accept it, that meant that they intended to violate the UN Charter. Several speakers kept raising the issue of "peoples," and the chair said that we needed to make progress on "peoples" "without having to make a decision on the substance." He proposed that there should be an "informal informal" meeting to talk about the issue and move toward a solution later.

The United States said it supported article 44 in general.

The chair brought up a problem that the working text is in English, and the translation varies in French and Spanish. He said he felt that the "vast majority" was in favor of the English text being modified to reflect the meaning in Spanisn and French, but that was not clear. The chair had been asked the last time to arrange for a better translation, but that was not done. Was this a test of the indigenous caucus' insistence that the Declaration be adopted word-for-word in the original?

Discussions on article 1 began in the afternoon. A state "position paper" on   the article had peoples in brackets -[peoples]- and there was a proposal that the word "applicable" should modify either [law] or [instruments]. The article says that indigenous peoples should fully enjoy all human rights and fundamental freedoms recognized in the UN Charter, the Universal Declaration
of Human Rights and international human rights "law." The United States takes the position that the word "instruments" should take the place of "law." That of course refers to the international covenants adopted to implement the Universal Declaration of Human Rights following 1948. The US says, in passing, that "instruments" includes international customary law, which of course is not quite the case.

When the indigenous caucus insisted on knowing why the word "applicable" was proposed, it said it would be brave and rose to explan that it wants "applicable" to deal with the situation where it may not have ratified a human rights covenant. I rose to say that the word "applicable" was usually implied in law anyway, but that if you use "instruments," that would lock out international customary law. I pointed out that most international law prior to the Universal Declaration was international customary law, and that it should not be locked out.

I then put my foot in my mouth as far as the indigenous caucus was concerned. The chair asked if I would accept "applicable" if it modified "laws." I said that so long as applicable modified "laws" and not "instruments," that was acceptable. I did not say I accepted an amendment to the article. That got me into trouble with the word-for-word purists. The Australian delegate
came up to me to say that it has no problem with "laws" and that international customary law must still apply (implying it did not agree with the US position).

At end, we are playing word games, and the process is far from over. While there is a lot of fuss about the brackets, it is clear that the negotiation of the actual words in the declaration is a long way off. Many governments rose to say that they had no problem with the article as it was written, and that they could accept "peoples." I thought I saw Michael Dennis turn red as the states rose, one by one, to say that they accepted the article as is. He privately said that he wasn't really bothered, because many states have not spoken, and many agree on the issue of "peoples" and that there should be no collective rights recognized.

Following the debate, the Working Group broke for the weekend.

Day Six, 27-11-00

As before, when the session began on Monday, there was a state "position paper." This time, it was on article 2, which has to do with the right of   indigenous peoples to be free and equal with everyone else in dignity and rights, and the additional right to be free of any kind of adverse discrimination based on indigenous origin or identity. Peoples was bracketed  again, as was adverse, and there was new language which said that "This does not preclude special measures as contemplated in article 1.4 of the International Convention for the Elimination of All Forms of Racial Discrimination. Other states believed that the article should more closely track article 2(1) of the Universal Declaration of Human Rights. There was a  lengthy explanatory note on "peoples" which largely had the US position.

The debate was most curious. Although the "peoples" bracket was in the text, the chair announced there would be no discussion of that issue. Several states asked why "adverse" was in the section. I think it is unusual to see it, because it assumed that all discrimination is indeed "adverse," and you don't see it in most US anti-discrimination legislation. Several states arose to say that they would like to see some language in favor of affirmative action, and there was a lot of discussion of "positive" discrimination, "negative" discrimnation and affirmative action.

I wondered as I listened to the states supporting affirmative action language if that wasn't a reaction to the situation in the US where affirmative action is under attack.

Ken Deer said that he looked back to when the document was being drafted and remembered that the word "adverse" was the product of a lack of trust of the states; the indigenous representatives did not trust the states, so they insisted upon the word.

At the end of the day, the state comments were to the effect that the article should more closely track the Universal Declaration on Human Rights and international anti-discrimination covenants. Were these comments real? Or are they a test of the insitence of the indigenous caucus that the declaration be adopted word for word? There were several peevish exchanges between indigenous representatives and the chair over the continued addition of an "explanatory note," not subject to debate, over peoples, and the chair lectured on brackets and what would be in the final report as far as state comments on the language.

At the end of the day, the chair announced that we would finish articles 12, 13 and 14 and that there would be one meeting on Wednesday for "informal consultations" between the states and the indigenous groups. In the meantime, the states were to caucus on Monday evening and Tuesday morning to write up their position papers on the remaining articles. The States
-them- giving their written positions to the Indigenous Caucus - us. The divide continues.

The anger and bitterness are obvious. The indigenous groups are frustrated over the lack of progress and inability to bring closure to the group rights issue. The states are showing their frustration over the "word for word" stance of the indigenous caucus. It is obvious to me that there are rules of  the game, which the state diplomats know very well, have not been
taught to the indigenous representatives.

There was an informal meeting with the State Department folks on Friday where there was a lot of frustration over the US position. Michael Dennis explained that he had his instructions from Washington, and that while he had some flexibility on words, he could not go against the Washington position. I said that I know that most federal agencies use the principle of
collegiality to come to a collective decision, but that it is hard for us to get at the heart of things if we do not know who is involved in that decision. One state official seemed surprised, and said that the information on who is involved is public information. She named Frank Lloyd of "Global Affairs," Eric Schwartz of the National Security Council, and the people from Interior and the Office of Tribal Justice in the Justice Department.We had asked for that information from Gare Smith in prior years, only to be blown off.

As I write early on Tuesday, I'm wondering what in the heck we are doing here. We know the US position from a short position paper its folks gave us, so we know that the US position is legalistic. At this point, we are playing lawyer word games. The non-lawyers in the indigenous caucus are at a loss about what it is all about. They thought they came to Geneva to have
progressive discussions of human rights, and instead they are puzzling at "applicable," "adverse" and US quibbling over the implications of property  rights and public safety in enjoying religious sites, intellectual property rights to indigenous names, and similar small issues. The US wants to narrow the scope of protections and water down language which requires
affirmative state action (different from "affirmative action") and replace obligations to enforce the Declaration with "consultation" and "where we can do it" kinds of  language.

Following a report on today's session (which we will be late in attending because of writing these updates), there will be no more reports from Geneva by the Navajo Working Group for Human Rights. We have had enough, and it is obvious that as this process drags on and on, we had better do our homework. It makes no sense to come here to fight with people whose instructions are set in stone, and we have a lot of work to do at home before any future session. Elsie RedBird and I are going to spend Wednesday and Thursday playing tourists before we return.

This is not the end of these postings. I intend to review my notes and do some analysis when I get home. Again, we can thank the UN and the states for "turning a simple transaction into a bizarre dream sequence." Elsie went over to the old League of Nations chambers with Shirley Hill Witt to get a sense and a feel of Eleanor Roosevelt negotiating the Universal Declaration
of Human Rights. Where is that US spirit of leadership on human rights? Where are the high ideals of the UN in protecting the targets of human rights violations? Why isn't the US rhetoric on human rights translated into positive support of the Declaration rather than legalistic quibbling? What is the National Security Council's problem with the Declaration and
group rights and its fear of an unnamed indigenous group in some remote part of the world rising up and using the Declaration as support?

The indigenous caucus is in a difficult position by insiting upon utterly no changes, and the state bitterness over such seeming intransigence is a problem. We have not been told the customary rules of the game, and the UN people don't seem to recognize that the failure to do that is creating frustration and divide.

I assume that Net Warriors from around the world will read this. All I can tell you after our days here is that I don't think we have done our homework. We haven't targeted the people at home to get off the dime, and we haven't gone to the media. Where is the news over US stonewalling and legalistics? Is the Declaration a priority for the US human rights agenda and if not, why not? Is it truly a priority for indigenous peoples in terms of the time and energy we are willing to devote to lobbying at home? We need to ask and answer these questions, or it is clear that the process of slow movement and quibbling over minor issues will continue until either some kind of  declaration is passed many years from now or the UN Commission on Human Rights stops funding the Working Group (a possibility I have heard from more than one source). Another option might be the Commission as a whole taking charge of the Declaration, and if that happens, then we will all have to get down to the process of taking charge at home.

James W Zion
Navajo Working Group on Human Rights

The Navajo Working Group for Human Rights is a non-governmental
organization
which is not affiliated with the Government of the Navajo Nation