(Study on Treaties)

CHAPTER IV: LOOKING AHEAD: CONCLUSIONS AND RECOMMENDATIONS

The Special Rapporteur has a number of elements to be duly taken into account at the time of formulating Conclusions and Recommendations in this Final Report. The most important are the following:

a) His own mandate, as established by Commission on Human Rights Resolution 1988/56 and ECOSOC decision 1988/134;

b) The outline of the Study (Document E/CN.4/Sub.2/1988/24/Add. l.)   submitted to the Working Group's parent bodies and explicitly or implicitly endorsed by them, and

c) The issues mentioned in the 1982 Martínez Cobo Report as possible questions to be elucidated in a Study such as the one now ending.

251. As far as his mandate is concerned, it must be recalled that the main purpose of the study is to analyse the potential utility of treaties, agreements and other constructive arrangements between Indigenous peoples and Governments for the purpose of ensuring the promotion and protection of the human rights and fundamental freedoms of those peoples.

252. His terms of reference also instructed the Special Rapporteur to pay "particular attention to the ongoing development of universally relevant standards and the need to develop innovative, forward-looking approaches... to the relationship between Indigenous peoples and Governments. In doing so, he was to take into account the inviolability of the sovereignty and territorial integrity of States, as well as the socio-economic realities existing in them. The mentioning of "the ongoing development of universally relevant standards" obviously referred to the process of elaborating a Draft Declaration on the Rights of Indigenous Peoples begun in the Working Group in 1985.

253. Regarding the Draft Declaration, the Special Rapporteur has taken its provisions as a basic point of reference for his Conclusions and Recommendations, notwithstanding the fact that the process for its final adoption is still unfinished. He has taken very much into account the fact that its text, as it now stands, was adopted after long years of deliberation both in the Working Group and for some time in the Sub-Commission as well, with ample participation of both Indigenous representatives and Government delegations.

254. As far as issues recognised in the 1988 outline as elements to be addressed at the end of the Study, the Special Rapporteur identified the role of treaties in European expansion overseas (already dealt with in Chapter III supra); the contemporary significance of treaties, agreements, and other constructive arrangements, including questions related to State succession, national recognition of said instruments, as well as the views held by Indigenous peoples on them. In addition, the outline identified three main sources that were to guide both the process of data gathering and his Conclusions and Recommendations, i.e., public international law, the municipal law of present-day States (including decisions by municipal courts), and Indigenous juridical views (in particular, on societal authority, treaties, and treaty-making in general). Special Rapporteur Martínez Cobo thought it convenient to explore further issues as relevant as the areas covered today by the provisions of treaties and other international legal instruments involving Indigenous peoples, whether or not they are observed, the consequences for Indigenous peoples of their implementation or lack thereof (an issue also dealt with in Chapter III supra), as well as the present status of those legal instruments involving Indigenous peoples.

255. At this point in time, the Special Rapporteur is prepared to offer, first, some general Conclusions applicable to the issues of the Study as a whole; and then to provide more specific Conclusions regarding the two main categories of currently existing situations under which Indigenous peoples live in multinational societies: those in which treaties, agreements or other

256. The first general Conclusion concerns the issue of recognition of Indígenous peoples' right to their lands and their resources and to continue engaging, unmolested, in their traditional economic activities on those lands. This is the paramount problem to be addressed in any effort to establish a more solid, equitable, and durable relationship between the Indigenous and non- indigenous sectors in multinational societies. Due to their special relationship --spiritual and material-- with their lands, the Special
Rapporteur believes that very little or no progress can be made in this regard without tackling, solving, and redressing --in a way acceptable to the Indigenous peoples concerned-- the question of the uninterrupted dispossession of this unique resource, vital to their lives and survival.

257. The primacy of this issue is reflected, not only in the data gathered for the Study and in the personal testimony heard by the Special Rapporteur, but also in the debates held in the Working Group and other international fora. The fact that more than a dozen articles of the Draft Declaration deal with the question of land rights and the concerns recently expressed by Vatican sources (Pontificio Consejo "Justicia y Paz", Para una Mejor Distribución de la Tierra: El reto de la reforma agraria, Libreria Editrice Vaticana, Vatican City, 1997, para. 55) on the violence and discrimination exerted, up to the present, against Indigenous peoples to deprive them of their lands, are also proof of the above.

258. There is another Conclusion closely related to the previous one. It is that, not only the land rights issue, but, in general, the entire Indigenous problematique and its possible overall solution cannot be approached exclusively on the basis of juridical reasoning. The problems confronted in a sizeable number of multinational States are essentially political in essence. Thus considerable political will is required from all involved parties, but in particular from the non-indigenous political leadership of modern States, if they are to be resolved through forward-looking new approaches. Juridical discussions and argumentation simply take too long, require copious resources (which the Indigenous side almost always lacks or has only in limited amounts), and in many cases are prejudiced by centuries of sedimented rationale. In addition, the urgency of the existing problems simply leave no room to engage, at the threshold of the 21st century, in the type of juridico-philosophical debates which Las Casas and Sepulveda pursued in the 16th century.

259. The Special Rapporteur is fully convinced that the overall Indigenous problematique today is also ethical in nature. He believes that humanity has contracted a debt with Indigenous peoples because of the historical misdeeds against them. Consequently, these must be redressed on the basis of equity and historical justice. He is also very much aware of the practical impossibility to take the world back to the condition existing at the beginning of the encounters between Indigenous and non-indigenous peoples five centuries ago. It is not possible to undo all that has been done (both positive and negative) in this time lapse, but this does not negate the ethical imperative to undo even at the expense, if need be, of the straitjacket imposed by the unbending observance of the "rule of [non-indigenous] law")-- the wrongs done, both spiritually and materially, to the Indigenous peoples.

260. The Special Rapporteur also harbours no doubts concerning the much debated issue of the right to self-determination. Indigenous peoples, like all peoples on earth, are entitled to that inalienable right. The United Nations Charter in Article 1 gives blanket recognition of this right to all peoples (enshrining it as a principle of contemporary international law) as does Article 1 common to both International Covenants on Human Rights. This right is also expressly recognized for Indigenous peoples in Article 3 of the Draft Declaration.

261. In his view, any contradiction that may emerge between the exercise of said right by Indigenous peoples in present-day conditions and the recognised right and duty of the States in which they now live to protect their sovereignty and territorial integrity, should be resolved by peaceful means first and foremost via negotiations-- through adequate conflict-resolution mechanisms (either existing or to be established); preferably within the domestic jurisdiction and always, with effec.tive participation by Indigenous peoples. We will return to this issue at a later stage in this same Chapter.

262. Regarding the question of whether or not Indigenous peoples can be considered as nations --in the sense of contemporary international law-- in the context of countries where some Indigenous peoples have been formally recognized as such (by non-indigenous nations at the beginning of their contacts, or at a later stage) through international legal instruments, such as treaties, and other peoples/nations have not, the Special Rapporteur believes it is pertinent to distinguish between those two situations, although the final analysis may lead to the same conclusion. More on this infra, paragraphs 270- 271 and 289-293.

263. In reviewing the cases selected for analysis by the Special Rapporteur, he has been led to conclude that the vast majority either describe situations of actual conflict between the Indigenous and non-indigenous sectors of society, or contain the seeds of a conflict that could erupt unexpectedly because of issues that have simmering without appropriate solution for a long period, perhaps even centuries. The developments in Oka (Quebec) in 1991, Chiapas (Mexico) in 1994, and in various communities in Australia in 1997 are examples of that potential.

264. Another general Conclusion to be made is that, as recognized in the Draft United Nations Declaration on the Rights of Indigenous Peoples Article l of the Draft Declaration. See document (E/CN.4/Sub.2/1994/56, at 105.) submitted by the Working Group to the Sub-Commission and adopted by the latter, (Sub-Commission resolution 1994/45 of 26 August 1994.)  all the human rights and freedoms recognised in international instruments --either legally binding norms or non-binding standards-- accepted by the State in which they now live, are applicable to Indigenous peoples and individuals now living within their borders. This also applies to all rights and freedoms recognised in the domestic legislation of the State concerned, for all individuals and social groups under its jurisdiction. In the view of the Special Rapporteur this is so, provided that the manner in which said rights and freedoms are recognised in said instruments is, in fact, consistent with Indigenous customs, societal institutions, and legal traditions.

265. On the other hand, the Special Rapporteur is inclined to argue in favour of the proposition that treaties/agreements or constructive arrangements do have the potential to become very important tools for formally establishing and implementing (because of their consensual basis) not only those very same rights and freedoms alluded to in the preceding paragraph, but also the ancestral inalienable rights --in particular, their land rights-- in the specific context of a given society.

266. On the basis of a vast amount of documentation, the work of the Working Group, and oral testimony heard by the Special Rapporteur, he has reached the Conclusion that there is an almost unanimous opinion among geographically- dispersed Indigenous peoples on the inability of existing State mechanisms, either administrative or judicial, to satisfy their aspirations and hopes for redress.

267. Likewise, he also has reasons to conclude that there is a widespread desire on the Indigenous side to establish (or reestablish) a solid, new, and different kind of relationship, quite unlike the almost constantly adversarial, often acrimonious relations it has had until now with the non- indigenous sector of society in the countries where they coexist. In their view this can only be achieved either by the full implementation of the existing mutually agreed-upon legal documents governing that relationship (and a common construction of their provisions), or by new instruments negotiated with their full participation. This perception is shared by the appropriate government officials in a number of countries, including Canada, New Zealand, and Guatemala.

268. Finally, the Special Rapporteur is strongly convinced that the process of negotiation and seeking consent inherent in treaty-making (in the broadest sense) is the most suitable way of, not only securing an effective Indigenous contribution to any effort toward the eventual recognition or restitution of their rights and freedoms, but also of establishing much needed practical mechanisms to facilitate the realisation and implementation of their ancestral rights and those enshrined in national and international texts. It is thus the most appropriate way to approach conflict-resolution of Zndigenous issues at all levels with Indigenous free and educated consent.

269. In his view, it is also the most suitable way to effectively implement the appeal addressed to Governments by the 1993 Vienna World Conference on Human Rights to guarantee the full and free participation of Indigenous peoples in all aspects of society, particularly in issues of their concern. (Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights, 25 June, 1993, Section 2-B-2, para. 31)

270. In the case of Indigenous peoples having concluded treaties or other legal instruments with the European settlers and/or their continuators in the colonisation process, the Special Rapporteur has not found any sound legal argument to sustain the position that they have lost their international juridical status as nations. The treaty provisions which --according to the non-indigenous version and construction--contain express renunciations by Indigenous of their attributes as subjects of international law (particularly, jurisdiction over their lands and unshared control of their political power and institutions) are strongly challenged by most Indigenous peoples whom he has consulted.

271. Their rejection is based either on the existence of an invalid consent obtained by fraud and/or induced error as to the object and purpose of the compact, or on their ancestors' total lack of knowledge of the very existence of such stipulations in the compact, or on the fact that their ancestral tradi.tions and culture simply would not allow them to relinquish such attributes (particularly those related to lands and governance).

272. The State parties to those compacts --who have benefited the most from gaining jurisdiction over former Indigenous lands-- argue that those attributes were indeed relinquished, on the basis of provisions of their domestic legislation and decisions of their domestic courts, as well as on the realities of today's world, and of the historical developments leading to the present situation. However, the principle that no one can go against their own acts is as old as ancient Rome and was valid as a general principle of law at the time of the dispossession.

273. In connection with the above, the Special Rapporteur is very aware of the non-retroactivity of the 1969 Vienna Convention on the Law of Treaties (U.N. document A/Conf. 39/27, Fourth Annex, Article 4.) , entered into force in 1980. A sizeable number of States with Indigenous peoples living within their present borders are Parties to it. Notwithstanding, he has also borne in mind the fact that the text adopted in Vienna has to do not only with the development of new rules and concepts in international law, but also with the codification of those which had survived the test of time and were, in 1969, already part and parcel of international law, either as customary law or as positive law as embodied in a number of already-existing bilateral and/or multilateral international instruments.

274. He believes that the content of its Article 27 ("A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty...") was already a rule of international law at times when the process leading to the disenfranchisement and dispossession of Indigenous peoples' sovereign attributes was taking place, despite treaties to the contrary concluded with them in their capacity as recognised subjects of international law.
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