DOCUMENT: UNWGIP93.TXT [Ed. Note: This article may be reproduced for electronic transfer and posting on computer bulletin boards in part or full, provided that no profit is made by such transfer and that full credit is given to the author, the Center For World Indigenous Studies and The Fourth World Documentation Project.] INDIAN NATIONS & UNITED STATES DEBATE SELF-DETERMINATION AND SELF-GOVERNMENT AT THE UNITED NATIONS - Geneva, Switzerland - July 18-31, 1993 - By Rudolph C. Ryser Center for World Indigenous Studies 20 August, 1993 (COPYRIGHT 1993 Center for World Indigenous Studies All Rights Reserved) The United Nations Working Group on Indigenous Populations just completed its Eleventh Session in Geneva, Switzerland. It was one of the few times in international diplomatic history that representatives of many of the world's indigenous nations directly debated the formulation of new international law. During the week of July 18 through July 31 at the Palaise des Nacions of the United Nations in Geneva, Switzerland more than one hundred twenty five indigenous nations' delegations and more than sixty states' government delegations conducted a vigorous debate over key words and phrases to be contained in the Declaration on the Rights of Indigenous Peoples slated soon to go before the UN General Assembly for final adoption. At stake is whether international protections for the rights (land, cultural, economic, political) of the world's original nations will be recognized: * whether treaties between nations and states' governments will have the force of international law, * whether states' governments may violate the rights of nations and avoid international scrutiny or sanctions, * whether nations will have the actual rather than the implied right to self-determination, self-government and the right to exercise sovereignty over their territories, and * whether nations will enjoy the same rights to freely choose their political, economic, social and cultural future without external interference in the same way as other peoples in the world have the guaranteed right under international law. The Vatican, the leaders of the Russian Orthodox Church, fundamentalist Christians in England, United States and Canada, and militant practitioners of Islam would now argue that the Age of Ethics and Morality has replaced the Cold War dualism of Communism vs. Capitalism. While there is a great deal of evidence that religious contests for global domination are at work around the world, there is also evidence that a major global political realignment is now underway. I suggest that we have just entered a transition period from political dominance by the global state system to a basic political rearrangement which places cultural and political diversity among peoples and ecosystems as the driving force for human development. The "informal negotiations" between indigenous nations and states at the annual Geneva Working Group on Indigenous Populations sessions since 1982 have provided the foundation for a new movement toward global realignment. Nations like the Haudenosaunee (Six Nations Confederacy), Mapuche of Chile, the La Lahui of Hawai'i, Lakota, Lubicon Cree, Maori of New Zealand, Nuba of Sudan, Dene of Canada, Chukchi of Siberia, Sycuan Band of Mission Indians (California), Alliance of Taiwan Aborigines, Teton Sioux, Chamorro of Guam, Hmong of Laos, Chirapaq of Peru, Chakma of Bangladesh, the Even of the Russian Federation, and the Ecuarunari of Ecuador are among the many nations that have been participating in the process of developing new international laws for the benefit of nations at the United Nations since 1982. The Center for World Indigenous Studies, Indian Council of South America, Nordic Sami Council, Indian Law Resource Center, and National Aboriginal and Islander Legal Services Secretariat are among the organizations that have been participating as well. Now, after eleven years of focused United Nations Working Group activity aimed at developing new international standards for relations between nations and states' governments, the first working Draft Declaration on the Rights of Indigenous Peoples has been completed. The drafting process now moves from the Working Group to the Sub-commission on the Prevention of Discrimination and Protection of Minorities (August 1993), the Commission on Human Rights (February 1994), the UN Economic and Social Council (April 1994) and the UN General Assembly (October 1994). THE OPENING INTERNATIONAL DEBATE OVER THE RIGHTS OF INDIGENOUS NATIONS What made this Session of the Working Group more remarkable than any one previous is the direct verbal debate between nations' and states' delegations over the language to be contained in the Declaration on the Rights of Indigenous Peoples. Sharp exchanges concerning whether certain terms would be acceptable in the Declaration flew back and forth. The Observer Delegation for the United States government set the tone for what would be the states' government position when it issued its statement on July 21. Earlier, the Observer Delegation for Canada hinted at the arguments that would be formally presented by the U.S. Government later. Brazil, India, Canada, Japan, Australia, New Zealand, Belgium, to some extent the Netherlands, Mexico, Indonesia, Malaysia echoed the U.S. government position. Maori led the less than unanimous debate by the nations' delegations. The most frequent speakers included the Grand Council of the Cree of Canada, Dene of Canada, Haudenosaunee, Confederacy of Treaty Six First Nations (Canada), Cordillera Peoples' Alliance (the Philippines), the Nordic Sami Council, Ka Lahui (Hawai'i), Mikmaq Grand Council (Canada), the National Aboriginal and Islander Legal Services Secretariat, and the Indian Council of South America. While it wasn't always unanimous, virtually all of the nations' delegations remained consistent. (CWIS has the non-verbatim transcripts for all debates with the identity of key speakers and the substance of their remarks.) One of the most remarkable aspects of the debate was the position taken by the United States government. Despite the affirmation of the right of self-determination by each U.S. President since 1970, and despite a stated commitment to government-to-government relations and self- government for Indian nations since 1983, the U.S. Observer Delegation pronounced the U.S. government's opposition to the application of self- determination, self-government and the reference term "peoples" to indigenous nations. Striking for its contradiction of U.S. stated policy, the U.S. government's views as expressed before the Working Group basically rejected tribal sovereignty, tribal self-determination, and self- government. Clearly the State Department, Department of the Interior, and the White House are each running totally different policies as far as Indian nations are concerned. Equally disturbing is the fundamental contradiction between U.S. statements at the Working Group and the U.S. government's formal policy toward Indian nations as presented to the Commission on Security and Cooperation in Europe. Not only are the statements contrary to these other international commitments, but they are also contrary to agreements just concluded with self-governance tribes (Quinault, Lummi, Jamestown S'Klallam, Hoopa in 1990). The United States government has also ratified the International Convention on Political and Economic Rights (1992) which now obligates it further to support the self-determination of peoples. Its positions before the UN Working Group on Indigenous Populations contributes further to the sense that the U.S. government is pursuing a mixed policy internally and externally regarding the self-determination of peoples. During consultations between indigenous delegations it was decided on July 30 to distribute a "Nations' draft" of the Declaration of Indigenous Peoples for consideration by nations' governments during the next twelve months in each of the world's regions. Haudenosaunee and the Indian Law Resource Center are coordinating for North America. The NCAI President was said to be attending the Sub-commission session in August. It is not clear if the NCAI is planning to directly participate in the final process of drafting the Declaration. Here are the essential issues dividing nation and state representatives, and a summary of agenda items taken up at the UN Working Group on Indigenous Populations Session 11 in July 1993: SUMMARY OF CONSIDERATIONS BEFORE THE WORKING GROUP Standards Setting Activities: Declaration on the Rights of Indigenous Peoples - Final Readings and amendments Since the Working Group was established in 1982, delegates from indigenous nations have been working to formulate internationally acceptable principles on the rights of Indigenous peoples which would help preserve the political, social, cultural and economic interests of indigenous nations world-wide. Between 1982 and 1987, indigenous delegates met in Geneva, Switzerland to formulate the principles relying in part on the guidance of indigenous nations meeting in international conferences during the period 1977 - 1987. In 1987, the indigenous nations draft principles had been completed. In that previous year, the UN Working Group on Indigenous Populations had been mandated by its parent body, the UN Economic and Social Council/ Commission on Human Rights to draft and submit a Declaration on the Rights of Indigenous Peoples for consideration by the UN General Assembly. Using the draft principles prepared by indigenous representatives, the Working Group began preparing new drafts in each succeeding year -- making amendments, adjustments and refinements upon each succeeding reading. That process, involving the participation of indigenous representatives, representatives of states' governments, non-governmental organizations and a growing list of consulting experts was completed by the Working Group in its Eleventh Session (1993). The document as drafted was submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities. After further refinements in this body, the document is expected to proceed to the Commission on Human Rights where representatives of states' governments will make further amendments and refinements. If the Declaration is approved with changes in the Commission on Human Rights, it then goes before the UN Economic and Social Council, and from there to the UN General Assembly. It is widely expected that a UN Declaration on the Rights of Indigenous Peoples will be adopted before the end of this year. What the text of the UN Declaration on the Rights of Indigenous Peoples will actually say when all is said and done (following more than fourteen years of work), is not yet clear. Though it is likely that the final Declaration will follow the contours of the June 8, 1993 revised working draft (E/CN.4/Sub.2/1993/26), there remain some uncertainties. Here are the reasons why: * the draft Declaration leaving the Working Group has many more "refinement and amendment" levels to complete before it is formally adopted. * by the end of Session 11, the gap between indigenous representative views and states' government views on the use of the words "self-determination," "self-government," "territory," and "peoples" remained wide and unresolved. Indigenous representatives argued for inclusion of these terms while states' government representatives argued for their omission, deletion or substitution. I described the process for adoption above, but the controversy over "terms" requires more elaboration. Since the very beginning of the formal process of considering the draft Declaration (1987) the states' governments of United States of America, Canada, Australia, New Zealand, Norway, Sweden and Denmark have stressed their unwillingness to apply the international meaning of the words "self-determination," "self-government," "territory," and "peoples" to indigenous peoples. Each of these states, joined by others including Japan, Brazil, India, Burma, Peoples' Republic of China and Indonesia has emphasized the view that questions concerning indigenous peoples must remain a "domestic issue," not open for consideration at the international level. One reason for this tact is the fear of all states' governments that some indigenous nations may not chose to remain under state control, thus creating the possibility that some states will come apart, disassemble, dismember, or collapse. Events associated with the collapse of the U.S.S.R. into fifteen states and probably many more, (when all is said and done) illustrate how even the apparently most powerful super-state can come apart. So it is not without some justification that states' government representatives express opposition to recognizing the international right of self-determination applied to indigenous nations. However, its neither an absolute certainty that a nation will opt for independence from a state nor a strong probability that a nation will work to change its relationship to the state at all. It is highly probable that most nations will seek to continue a cooperative relationship with a state. SELF-DETERMINATION: While states' governments seek to maintain political control over indigenous nations (even those not consenting to such control), nations' representatives at the UN Working Group stress the view that "denying the right of self-determination to indigenous peoples simply sets the stage for potential violent confrontations between indigenous nations and states' governments." The wars in India between the state government and the Naga nation, in Bangladesh between the Jumma peoples and the state government and in Indonesia between the state government and several nations including the Timorese, Molluccans and the Papuans are often cited as examples of "self-determination denied." PEOPLES: Similarly, states' governments have difficulty with the term "peoples" being applied to indigenous nations. This problem flows from the fact that virtually all international legislation authorizing the exercise of certain rights allows only "peoples" to exercise those rights. States' governments are obliged to take steps to implement the rights of peoples if they sign the relevant international laws. Working Group Chairman/Rapporteur Eric- Irene Daes notes in her "Explanatory note concerning the draft declaration" (E/CN.4/Sub.2/1993/26/Add.1) "Certain Governments have sought to narrow the definition of "peoples" in order to limit the number of groups entitled to exercise a claim to self-determination. ....Indigenous groups are unquestionably "peoples" in every political, social, cultural and ethnological meaning of this term. ....It is neither logical nor scientific to treat them as the same "peoples" as their neighbours, who obviously have different languages, histories and cultures." If the word "peoples" is not associated with indigenous nations, then international laws have limited importance in enforcing the rights of "indigenous peoples." States' governments wish to invoke the recently revised ILO Convention 107 (1957), now standing as the ILO Convention 169 (1989), particularly Article 1(3) to narrow the meaning of the term "peoples." It is in paragraph 3 of Article 1 in ILO Convention 169 that states' governments introduced a disclaimer on the question of indigenous nations being defined as "peoples:" "The use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law." It is this disclaimer that states governments now want inserted in the Declaration. The states' appeal to ILO Convention 169 will persist despite the fact that only five states' governments have actually ratified the instrument -- leaving 188 state signatures still possible but unlikely. TERRITORY: The word "territory" also has important meanings in the international context not generally applied within the domestic state. Nations, peoples and states have territories while minorities, ethnic groups and populations have "land rights." Territory is a term governed under international law, but "land rights" is governed under domestic state law. Indian reservations are the subject of "land rights" while aboriginal lands, water, resources, etc. are subjects of "territory." Chairman/Rapporteur Erica-Irene Daes addresses this issue in her "Explanatory note concerning the draft declaration" (E/CN.4/Sub.2/1993/26/Add.1) where she equivocates and asserts a view which narrows the international meaning of "territory." Daes argues "...the reference to "territories" should not be confused with the concept of "territorial integrity" in international law. It is not meant to imply a separation from the territory of the State as a whole in political terms, for it is clear that an indigenous people, even in the exercise of its rights to autonomy or self-government, is still ordinarily connected with the political territory or sovereignty of the State, as, for example, in the case of Greenland." She goes on to rationalize her narrowing of the term's meaning by appealing to the International Labour Organization Convention 107 concerning the Protection and Integration of Indigenous and other Tribal and Semi-Tribal Populations in Independent Countries (1957): "...the term 'territory' is used here in [the] same sense as the often criticized 1957 ILO Convention No. 107. ....Hence the term 'territory' in the above-mentioned paragraphs conveys some notion of the totality of indigenous peoples' relationship to the land and to all of its resources and characteristics." Daes' arguments are clearly weak and unpersuasive on this point, and will likely not dissuade states' governments from still attempting to delete the term "territory" from the Declaration text. SELF-GOVERNMENT: Finally, the term self-government has rather vague and sometimes confusing meanings depending on whether you represent the established state point of view as opposed to the view of international relations. States' governments generally seek to limit self-government when applied to people inside state boundaries. Inside, the term is used to mean "the power to make decisions, enact laws, and provide for the common welfare within the state framework and under limitations defined by the state." Outside, in the international setting, the term self-government means "a peoples' power to freely choose a political status and decide their political, economic, social and cultural future without external interference." Clearly, a state like the United States of America would prefer the "internal meaning" due to the capacity of the state to impose limitations on the exercise of self-government. As you will see below in the "Highlights" section (July 20), the United States of America presents all of these views as its own. It denies self-determination, self-government, territory and the application of the term "peoples" to indigenous nations in an apparent contradiction of its publicly stated policies to Indian nations. Since 1970 the United States government has proclaimed its commitment to "Indian self-determination," and its courts have even gone so far as to affirm the political sovereignty of Indian nations. The United States government has been negotiating Compacts of Self-Governance since 1987 and in its solemn commitments to 38 states governments under the Helsinki Final Act of 1975 the United States government reported that it recognized the rights of Indian "peoples" and conducted its relations with Indian nations under a policy of government to government relations in accord with Principle VIII of the Final Act. In its statement at the Working Group on July 20, 1993 the U.S. government effectively denied any such policies or commitments under the Helsinki Final Act. It is quite clear that the U.S. government (as are Canada, Australia, New Zealand and several other states) is either lying to Indian nations "internally" or it is lying "externally." Worst of all, it is possible that the U.S. government has two faces it wishes to present even though they are diametrically opposed to each other -- they contradict each other. Either Indian nations are being told the truth internally or they are being manipulated by a government that cynically attempts to undermine Indian governments and Indian cultures. 2. REVIEW OF DEVELOPMENTS SINCE PREVIOUS SESSION Nations' and States' delegation reported often different pictures of social, economic and political conditions around indigenous nations. From wars involving the Karen, Shan and Kachin against the state of Burma to the developing "sovereignty movement" among Hawi'ians dealing with the United States of America, at least 100 reports were delivered to the Working Group in the final two and one half days of the two week session. 3. REVIEW OF PROGRESS OF THE STUDY ON TREATIES, AGREEMENTS AND OTHER CONSTRUCTIVE ARRANGEMENTS BETWEEN STATES AND INDIGENOUS POPULATIONS - Special Rapporteur Miguel Alfonso Martinez. At the request of the Working Group on Indigenous Populations (and the urgings of indigenous delegations) the UN Economic and Social Counsel (ECOSOC) appointed in 1989 a Special Rapporteur (Prof. Miguel Alfonso Martinez) and gave him a mandate to undertake a Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations (ECOSOC resolution 1989/77 of 24 May 1989). Now in its third year, the UN Treaty Study has issued its first progress report (E/CH.4/Sub.2/1992/32) containing the following subjects: * Research and other activities so far undertaken * Some anthropological and historical considerations on key issues relevant to the study. * The first encounters: Indigenous Peoples, Euro-Centrism and the Law of Nations * Diverse Juridicial situations within the scope of the study * Treaties between States and indigenous nations * Agreements between States or other entities and indigenous peoples * Other constructive arrangements * Situations involving indigenous peoples who are not parties to, or the subject of any of the above-mentioned instruments. * Treaties between States affecting indigenous peoples as third parties * Conclusions and Recommendations (CWIS has a full copy of the Special Rapporteur's report.) 4. REVIEW OF PROGRESS OF THE STUDY ON THE PROTECTION OF THE CULTURAL AND INTELLECTUAL PROPERTY OF INDIGENOUS PEOPLES - Special Rapporteur Mme Erica-Irene Daes. 5. REVIEW THE PROGRAMME OF ACTION AS PROPOSED BY THE WORLD CONFERENCE ON HUMAN RIGHTS (Vienna, Austria - June 1993) For two weeks in June 1993, the UN hosted the World Conference on Human Rights (the first such meeting in twenty-five years) to review and create new emphasis and commitment supporting the principles of the 1948 Universal Declaration on Human Rights. At the request of indigenous peoples and the Chairman/Rapporteur of the UN Working Group on Indigenous Populations, the Conference took up a series of recommendations concerning indigenous peoples. In its final report, the World Conference on Human Rights made several recommendations directly concerning indigenous nations. These were reviewed by the Working Group and subsequently presented to the Sub-commission for approval and forwarding to other competent organs of the UN: a. Completion of the draft declaration on the rights of indigenous peoples at the eleventh session. b. Commission on Human Rights consider the renewal and updating of the mandate of the Working Group on Indigenous Populations c. The advisory services and technical assistance programs with the UN System respond positively to request by States for assistance which would be of direct benefit to indigenous peoples d. Adequate human and financial resources be made available to the Centre for Human Rights within the framework of strengthening the Centre's activities as envisaged by this document e. Urges States to ensure the full and free participation of indigenous peoples in all aspects of society, in particular in matters of concern to them f. The General Assembly proclaim an International Decade of the World's Indigenous Peoples to begin from January 1994, including action-oriented programs, to be decided upon in partnership with indigenous peoples g. Establish an appropriate Voluntary Trust Fund for the purpose of the International Decade of the World's Indigenous Peoples h. Within the framework of a Decade of the World's Indigenous Peoples, establish a permanent forum for indigenous peoples in the United Nations system. From a technical meeting designed to develop detailed recommendations from the Conference a series of more specific suggestions were made. These included suggestions concerning: a. The Technical Meeting b. Coordination of the United Nations System c. Health d. Dissemination of Information e. International Decade of the World's Indigenous Peoples f. Financial Provisions (The full document is available from CWIS) Finally, three informal consultation sessions involving indigenous peoples representatives and representatives of the UN secretariat were conducted at the World Conference on Human Rights to "discuss possible future United Nations activities." From the report of those meetings, this is a summary: * Review of Accomplishments resulting since first formal relationship between indigenous people and the United Nations in 1982: * Two major studies: UN Treaty Study and the Cultural and Intellectual Property of Indigenous Peoples Study * Three UN Expert Meetings: on Racism, Self-government and sustainable development. * Proclamation of the International Year of the World's Indigenous Peoples in 1993 * Draft Declaration on the Rights of Indigenous Peoples - Second Reading 1993. * Creation of the Voluntary Fund for International Year providing direct assistance to indigenous communities * Revision of the ILO Convention 107 and adoption of ILO Convention 169 (1989). * Establishment of Voluntary Fund for Indigenous Populations providing assistance for travel for participants in UN WGIP sessions -- 50 persons in 1993. * Increase in participation of indigenous delegations at WGIP from 30 in 1982 to 600 in 1992 -- including Africa, Asia and Pacific. * Cases relating to indigenous peoples interests submitted to UN treaty bodies. * Indigenous peoples' staff appoint to UN secretariat * World Bank policy on economic development concerning indigenous peoples * Creation of a regional fund for development of indigenous peoples in Latin America and the Caribbean * A growing information dissemination process inside countries and internationally to inform the public about the situations of indigenous peoples. During the previous 12 months representatives of indigenous peoples have expressed several concerns and made proposals before the UN General Assembly, Commission on Human Rights and at the World Conference on Human Rights: * Establish a permanent body in the UN to serve the needs of indigenous peoples. Suggest that the new body operate at a high level within the UN structure, be capable of taking decisions and have full and equitable indigenous peoples' representation. * Establish a mechanism for monitoring the situation of human rights among indigenous peoples; providing for grievances and taking action to protect their rights. * Establish a system-wide programme to improve the situations of indigenous peoples in areas such as health, development, environment, etc.; such a program would also provide technical assistance to indigenous people and launch a major initiative in education and public awareness; indigenous peoples want to be part of decision-making process. * Establish new procedures for expanding access to all levels of the UN system to indigenous peoples. Consideration of various new options for UN actions in support of indigenous peoples: A. Special Rapporteur for review of situations involving torture of indigenous people B. A New Working Group on Indigenous Populations at the UN Commission on Human Rights or the Economic and Social Counsel C. Office of Indigenous Peoples within the Centre for Human Rights D. UN System-wide programme installing indigenous peoples' offices throughout UN agencies E. UN High Commissioner for Indigenous Peoples similar to the position concerned with refugees F. Committee of Experts including indigenous peoples G. United Nations agency of indigenous peoples H. Rigoberta Menchu Tun: a Maya and Nobel Laureate appointed as a Goodwill Ambassador to appoint a panel of indigenous leaders to conduct public speeches and raise awareness. I. Place "Indigenous Peoples" as an item on the agenda of the Commission on Human Rights and the General Assembly. 6. REFERENCE TO THE SPECIAL UN MEETINGS ON TRANSNATIONAL INVESTMENTS AND OPERATIONS on THE LANDS OF INDIGENOUS PEOPLES. In the twenty years since Shuswap Chief George Manuel began his search for international help and support for Indian nations in their struggles with the Canadian government great strides have been made. But, as one who has directly participated in a great many meetings, conferences, strategy sessions, and position paper preparations since the early 1970s, I am somewhat troubled by the growing emphasis on absorbing indigenous nations into the state dominated system. I am hopeful that nations will reassume their role as the dominant influence in the formulation of international relations. It is the nation, after all, that originated the notion of "international relations." 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