NEW YORK – The draft United Nations Declaration on the Rights of Indigenous Peoples was on the table when the newly formed Human Rights Council held its initial meeting in Geneva on June 19.
The council was created by the U.N. General Assembly in March to replace the Commission on Human Rights as part of U.N. restructuring. In May, the General Assembly voted 47 nation members to the new council.
“The council will have the draft declaration before it; indeed, all the work of the soon-to-be-dissolved Commission on Human Rights has been transmitted to the council,” council spokesman Jose Luis Diaz told Indian Country Today prior to the meeting.
The council must adopt the draft declaration before recommending it to the General Assembly for adoption. But some legal experts and delegates to the permanent forum expressed concern about when the draft declaration will be adopted, whether it will be adopted in its current form and whether it will be adopted by consensus or by vote.
“Until the body actually starts meeting we will not know exactly what the disposition of the draft will be,” Diaz said.
The council would prefer adoption by consensus, Diaz said.
“When the council is eventually called upon to approve the declaration it will want to do it by consensus, but if that is not possible it will do it through a vote. This is the case for all its decisions,” Diaz said. The council will meet three times a year for a minimum of 10 weeks.
Twenty-five years in the making, the draft Declaration on the Rights of Indigenous Peoples received particular focus this year at the fifth session of the U.N. Permanent Forum on Indigenous Issues, which took place in New York in May.
“The permanent forum strongly recommended the adoption of the draft Declaration of on the Rights of Indigenous Peoples at the General Assembly during its sixty-first session in September 2006,” Victoria Tauli-Corpuz, chairman of the permanent forum, said at a press conference at the end of the session.
“The forum is convinced that the declaration will be an instrument of great value to advance the rights and aspirations of indigenous peoples and would represent a major achievement for the Second Decade [of the World’s Indigenous Peoples],” Tauli-Corpuz said.
Although most governments have fully endorsed the proposed declaration adopted by the forum during its fifth session, some delegates and legal experts question certain articles.
Kent Lebsock, Lakota, executive director of the New York-based nonprofit American Indian Law Alliance, said he hopes the council will extend time for additional work on the draft.
“We’re one of the few delegations that have a couple of problems with it and we aren’t so quick to say pass it on to the General Assembly,” Lebsock said. “I want to make sure it’s the right document for the future.”
Many elders and tribal leaders have passed on since the draft declaration permanent forum work began, Lebsock said.
“So this is legacy work,” he said. “We’re not here just because we think it’s interesting. We were selected to stand up for certain principles and it’s really important that we maintain those principles. It concerns me to some extent that this has become a process of too many professionals and not enough of our traditional leaders and elders.”
Among the textual concerns are Articles 3 and 45, which deal with self-determination and sovereignty and, by extension, land and resources. The two articles have been “watered down” since the original document was drawn up in 1994, Lebsock said.
Article 3 originally stated that “indigenous peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The governments of the United States, Australia and New Zealand included an addition that reads: “Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in all matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.”
The language about “autonomy” and “government” clouds the clear meaning of the original, Lebsock said.
“It could be interpreted as saying that indigenous peoples’ self determination rights are limited to those two areas – autonomy and government,” he said. “It creates ambiguity, and that’s why I’m opposed to it. The other reason is no other human rights instrument puts that qualifying specification on other peoples’ right to self-determination, so I think it is prejudicial and we shouldn’t tolerate that.”
Article 45, the final article in the document, was originally drafted to say that the declaration must conform to the U.N. Charter. The United States, Australia and New Zealand have tweaked it to say the declaration does not authorize or encourage “any action which would dismember or impair … the territorial integrity or political unity of sovereign and independent States” complying with “the principles of equal rights and self determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind.”
“They’re very concerned about the illegal occupation by certain countries of certain territories, so they wanted to put in all this goop about territorial integrity not being violated,” Lebsock said. “Basically, they’re all countries with large indigenous populations in their midst and where their title to the land they claim is somewhat circumspect.”
In the United States, for example, only around one-third of U.S. territory is held legally by treaty, he said.
And, although occupied Palestine is not really part of the forum as an indigenous group, a group of Palestinian Bedouins attended the forum for the first time, Lebsock said.
It’s important for the Human Rights Council to adopt the draft declaration by consensus rather than by a vote. A vote would mean not all countries agree to the declaration. It would simply become a non-binding statement of the majority.
Adoption by consensus would mean that all countries agree to and are bound by its standards, even though the declaration still would not be law.
“But the thing is often standards become international law either through customary use or they turns into a convention, which is actually a treaty that countries sign on to, so you always want the best document you can get,” Lebsock said.
Some delegates have argued against further editing on the grounds that opening the door to change in those two articles may open a Pandora’s Box of other changes.
“I find that argument somewhat weak, because the U.S., Australia and New Zealand have already said they’re not going to support it no way, no how. But even if it doesn’t pass the council by consensus, we think we have the votes to pass it,” Lebsock said.
The three countries are not represented on the council and so they won’t be voting, but it’s not beyond imagination that the United States would try to pressure other countries into opposing the declaration.
“A lot of people think that if it’s close, big countries like France will be too ashamed to go against it,” Lebsock said.