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-Three  22-11-00                                                     Day four, 23-11-00

It is difficult to give a running account of the proceedings in Geneva, because so much of it is in UN-diplomatic speak. The divide continues to be  obvious.

The state opposition is vague. More about that later. The third day of debate focused on the issues of self-determination and land rights. Most of  the comments about self-determination by the states spoke of state  sovereignty and the need to limit indigenous rights to national law. In  other words, "all this native rights stuff is all very nice, but the state  still must control, and we want no international law interference with  business as usual." Canada denied any hidden agenda in the leaked document,
and deferred to New Zealand, which said that the document misstated New Zealand's position. The Russian delegate tipped up his sign to be  recognized, and was startled when he was recognized. The Russian indigenous  delegation is strong, and Russia is now sounding like all the rest. It too  says that indigenous rights must not infringe upon national control, and it
was most upset at the notion that given private land ownership, indigenous  rights should be protected.

The indigenous delegations are strong and articulate. They pointed to self-determination as the key to the Declaration, and insisted that the states abandon the nonsense that indigenous groups would use the self-determination provisions to justify breaking away. Some supportive  state delegations also agreed that self-determination is essential.

The state messages almost uniformly said, "The Declaration must be adopted,   but..."

One of the problems is procedure. At this stage, people are making general comments about the Declaration and the need to adopt it before the  International Decade of Indigenous Peoples is over. We are not in the  "negotiation" stage yet, where the actual language will be hammered out.

We met with the U.S. State Department folks yesterday evening. Michael Dennis explained that the usual procedure is for states and NGOs to raise questions or make comments for a text which becomes bracked with propose language or deletions for circulation and further discussions pending the actual final language. He guessed that it would take years to do the
"negotiation" of the Declaration.

The troublesome thing is that the state delegations are meeting separately, and they are circulating language drafts which are not shared with the Indigenous delegations. There are things going on behind the scenes, and it is obvious to me that there are two working groups running in separate rooms (although the actual "plenary sessions" are held together).

Today, articles will begin to be discussed. The chair did not set out a schedule for them, but State guesses that they will talk about 1, 2, 44 and 45. We began a review of the US position on each, which unfortunately got sidetracked in talks about ineffective US consulation, the process, and whether the US position has changed from the original 1995 State position
paper.

To give an illustration, Article 1 generally talks about the right of indigenous peoples to enjoy the human rights and freedoms recognized in the UN Charter, the Universal Declaration of Human Rights and international  human rights law." The US still does not like the term "peoples," because it might confer rights under separate UN instrumens where that term is used. The US would reject the term "international human rights law" and substitute "applicable human rights instruments." That is a significant weakening, because US law recognizes international customary law, and the US version would reject it. State also said that it is concerned about indigenous groups denying rights to individuals, so it wants to include individual rights. In other words, kind of a super Indian Civil Rights Act. That gives an idea of the legalisms which are driving the US position. Rather than  recognize that the Declaration is a statement of rights, State is trying to draft a statute with all the whereases and other legalistic limitations. We
got kicked out of the building by security because of the late hour before State could finish its briefing. We are promised more information.

One of the problems is that there was a lot of work done to develop the draft declaration in its present form, and that created a lot of expectations. Now that it is on the table, the states are quibbling, but the process is such that we are not talking about actual language, but general positions. That prompts the UN-speak, vagueness, and a lot of state action behind the scenes.
High expectations and indigenous frustration over the process have created a  great divide. Last night, Michael Dennis of State said that the "governments  might not renew the working group." I have heard that separately from indigenous groups. Does that mean that the UN Commission on Human Rights will take control of the document? Would that be favorable in terms of
ending the debates? Or would that put the document more firmly in control of the states?

At end, if Indigenous Peoples want the Declaration, they need to make their demands known. The prestige of the UN is at stake, and that could prompt some cutting of red tape. All Indigenous groups must make their demands clear to their own states. We get snide comments about the unreasonableness of Indigenous groups in demanding that the Declaration be adopted as is and word-for-word. I ask, "What's wrong with that?" The state positions are clear - they do not want international law to be international law, which overrides state law, and they do not want any limitations on business as usual when it comes to indigenous peoples.

Indigenous peoples have gone to the UN to ask for protection from their "own" governments. The process is about setting international standards to protect basic rights. The problem is that the states don't want that. The US insists that it supports the Declaration, but it is so preoccupied with details and legalisms that while it resents the accusation of stonewalling,  that is what appears.

At end, I am reminded of the desk sign which says, "Thank you for turning a simple transaction into a bizarre dream sequence." The nouvelle vague movie continues to run, and so must I because I'm supposed to speak today and I need to be on time.

James W. Zion

Navajo Working Group for Human Rights

Day four, 23-11-00

At the close of day three on Wednesday, there were still indigenous speakers who wanted to address the issues of self-determination, land rights and natural resources. Mr. Deer pointed out that the morning and afternoon sessions had begun 20 minutes late and asked if that time could be set aside on Thursday for the remaining speakers to speak. The chair,
Luis-Enrique Chavez of Peru, peevishly said he would allow that time on Thursday (US Thanksgiving); but 40 minues only.

The chair permitted interventions for the whole morning, and around noon, he made a proposal to the Working Group: That we needed to discuss articles 1, 2, 12, 13, 14, 44 and 45, but since there had already been a great deal of discussion of most of those articles during a previous year, past arguments should not be repeated, and there should be some discussion of the
specifics. However, he said that there still was not enough consensus to actually adopt the articles. He also asked for some agreement on the order in which the articles would be discussed. The Working Group recessed at around noon.

The Indigenous Caucus began discussing a strategy and broke for lunch. Unfortunately, I cannot relate the strategy the Indigenous Caucus developed after lunch, but it was interesting to note that when the Caucus broke up into regional groups, the proposals on how to proceed reported back by each region were almost exactly the same.

The states also caucused separately, and when the whole group came back together, the states proposed to discuss articles 44 and 45. Article 44 says that nothing in the Declaration will diminish or extinguish existing or future rights indigenous peoples may have or acquire, and Article 45 says that nothing in the Declaration can be interpreted as allowing anyone to engage in any activity or perform any act which is contrary to the Charter of the United Nations. The chair announced that there was a written
common state response on those articles, namely that while there were no objections to them, the articles are not ready for adoption, because they qualify the entire Declaration and thus would have to be reviewed later. The qualification for Article 45 also said that it might be addressed in the context of Article 3, which is the keystone article having to do with the right of self-determination.

The indigenous representatives were not amused. Several speakers said that the language in Article 45 was almost word-for-word the language insome of  the international covenants, including the International Covenant on Civil and Political Rights, and asked "what's the big deal?" Other speakers said that adoption of 44 and 45, as "boilerplate" provisions, would show some progress. Still others said that the only way to take state refusal to agree to the articles, and particularly 45, would be to conclude that the states in fact intended to violate the Charter of the United Nations.

As things were getting hot, Argentina rose to say that it too could not understand what all the fuss was about. Then, the Danish delegate arose, and somewhat sheepishly said that while the Indigenous Caucus seemed to think that there was a hidden agenda, what it was all about was that article 45 was being left open in hopes that it might provide the space to put some
compromise language so that article 3 could be adopted as stated.

Commentary: There is still a great divide of mistrust and suspicion We have known full well that the state delegates are meeeting separately to exchange language for possible amendments, and we do not know the nature of those talks. "Just because you're paranoid, that doesn't mean they aren't out to get you." Over and over, state delegates complain about the
indigenous insistence that the Declaration must be adopted word-by-word. The indigenous groups insist that the states must say why something is wrong, and give justification for any proposal to amend the Declaration. There is also  insistence that any amending language must have support in international law, and it must advance, and not cut back, on the rights in the proposed
Declaration.

The United States, as promised, circulated a two page summary of its views on the remaining articles. For all the articles, the US insists that the term   "peoples" should be in brackets (i.e. challenged) "because of the implication this term may have in international law with respect to self-determination, and individual and collective rights." The US does not like the idea of collective rights (despite the fact that the collective rights of cultural, linguistic and religious "minorities" are recognized in the
International Covenant on Civil and Political Rights), and it insists that individuals must be protected from their own indigenous groups.

On article 1, which has to do with the right of indigenous peoples to enjoy all human rights and fundamental freedoms recognized in the UN Charter, the Universal Declaration of Human Rights and "international human rights law,"
The US says that it would be more consistent with "standard practice" to use   the term "applicable human rights instruments," with "applicable" including human rights instruments the US has ratified, "as well as customary international law." There is some double-speak going on here. Under current US law, customary international law is the law of the United States.There are some right wing folks in the US who deplore a growing body of  international customary law in favor of human rights, and they want to prevent new and favorable international doctrines from being enforced in the US courts. It is amazing to see a right wing position being advanced by he Clinton State Department. The comment that "applicable" includes customary international law is smoke, because an "instrument" is clearly an international human rights covenant or treaty. The US also proposes
language to guarantee that individuals can enjoy such rights; something which is already covered in a general concluding section.

Article 2 will go on for debate soon, and it says that indigenous individuals and peoples are free and equal with all others and have the right to be free from any kind of adverse discrimination; particularly that having to do with discrimination based upon indigenous origin or identity. While objecting to "peoples," the US only says that the UN Technical Review folks would
move the language in Article 43 having to do with gender equality to Article 2.

Article 12 is important, because it speaks to the right to "practice and   revitalize" traditions and customs, including things such as protecting archaeological and historical sites; protecting historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature; and the right to the restitution of certain kinds of property taken without free or informed consent or in violation of laws, traditions and customs. The US says it does not know what "revitalize" means and that
is has "concerns" about the scope of the restitution of property obligations. In other words the US is warning us that it does have problems with the return of stolen or fraudulently-obtained artifactsand probably the  repatriation of remains. The understatement is pregnant.

Article 13 deals with the right to spiritual and religious traditions, customs and ceremonies, the right to privacy, the right to ceremonial objects, and the right to the repatriation of human remains. On this, the US says that because of third party rights (i.e. property owners) and safety issues, it cannot support "an absolute right to access in privacy to sacred places." In other words, there is agreement with James Watt and his organization about challenging access to places such as Devil's Tower
in Wyoming. The US proposes that "States should, in consultation with the indigenous [peoples] concerned, take reasonable measures...."

Article 14 has to do with essentially intellectual property rights to protect   histories, languages, oral traditions, philosophies, writing systems and literatures and to have indigenous place names. The US says that it has concerns about "existing intellectual property rights." There is a second sentence about the state obligation to take effective measures to ensure the rights in the article, and the US agrees with the suggestion to move that language to article 19, having to do with political particiation. The US has  problems in the state obligation language with the phrase "Whenever right may  be threatened" as being too broad, and it suggests "States should as far as possible and appropriate to take effective measures...." On language, the US agrees that in official matters, indigenous persons should have interpreters or access to documents in a lanuage understandable to them.

There is no disagreement with articles 44 and 45.

The US position is to essentially make sure that international customary human rights law will not apply in the US when it comes to indigenous rights, and we see the usual objections to the violation of property rights to stolen property, and holding the government's feet to the fire about actually taking action on rights in the Declaration. We do not know what the other countries have to say at this point.

Today concludes the debates for this week, with another week to come. The chair projects that the Working Group should be done by noon on Thursday of next week. The Indigenous Caucus has done all the talking, trying to convince the states to engage in some form of dialogue. Some state representatives ask why they should say anything, because they will only become accused of being racist, etc. However, agreements are being hammered out in separate state discussions of the Declaration, and those discussions are not being shared. There seems to be a large behind the scenes deal being made, and although Denmark urges us to understand that there is not "hidden agenda," something is going on. If not, that means that the states don't  really give a damn about the Declaration.

One interesting side effect of these seemingly-useless gatherings in Geneva is that indigenous groups are sharing information. I hear a new discourse from South America about indigenous "nations," and the expression of  nation-hood is something new. In the past, the North Americans (who into discussions of sovereignty) have been disappointed because the South Americans only wanted to be free of murder, rape, pillaging and other gross  violations, but today, they are speaking of themselves as nations. It is refreshing to hear the Russian indigenous groups and those from Asia. It was good to hear an indigenous repesentative from the Solomon Islands pointing out that the political unrest there has to do with a failure to address indigenous rights. One hears from a state representative or an.indigenous delegate about steps taken in a given state to deal wth a problem in a positive way.

It isn't all wine and roses - there is a long way to go to secure human rights for indigenous peoples. The representatives here are saying that they are not going to give up on the basics, including the right to self-determination, religious freedom, and freedom from discrimination. The process is slow, and I sense a great deal of disappointment with the current UN human rights protection process and the actual operation of the Working Group. As discouraging as it seems, as the old Montana saying goes, "It's a dirty poker game, but it's the only game in town."

As for state insistence on putting legalistic quibbles in the Declaration, "If it ain't broke, don't fix it."

James W. Zion
Navajo Working Group for Human Rights

The Navajo Working Group is a private NGO which is not affiliated with
the Government of the Navajo Nation, but we are rather fond of it.