GENEVA—The current round of negotiations on the United Nations Draft Declaration on the Rights of Indigenous Peoples came to a close on February 3 with nearly two-thirds of the provisions agreed upon by the member states of the U.N. Human Rights Commission.
The Human Rights Commission’s Working Group on the Draft Declaration, including member countries as well as many indigenous participants, wrapped up its final week of negotiations after some 11 years of work.
“We were able to reach agreement with member countries on a number of articles that protect individual and collective rights of indigenous peoples, and that was an important accomplishment. However, there were several areas where we could not reach consensus, even though there was agreement on basic issues,” said Robert T. Coulter, director of the Indian Law Resource Center in Helena, Montana, and Washington, D.C.
Articles regarding indigenous peoples’ right of self-determination and rights to lands and natural resources continued to be controversial in negotiations between indigenous delegates and several nation states.
The United States, Australia and New Zealand, among others, sought changes in the articles on self-determination for indigenous peoples. Some indigenous participants sought rights to all the lands and territories that they had ever traditionally owned.
Lacking consensus on the articles dealing with these major issues, Working Group Chairman Luis Enrique Chavez, of Peru, will now prepare his version of a text that includes the agreed-upon provisions and his recommendation for the remaining articles that he believes are most likely to achieve consensus among the member-states of the Human Rights Commission. He will submit his proposed text to the commission before its meeting begins in mid-March.
If the commission adopts Chavez’s text, the draft declaration would then be forwarded to the Economic and Social Council for approval before being sent to the U.N. General Assembly for final adoption.
However, the United Nations is currently reorganizing its human rights bodies, creating uncertainty over whether the declaration will be adopted by the Human Rights Commission or passed along to the proposed Human Rights Council, which will replace the commission. If the draft declaration is forwarded to the Human Rights Council, the council would not consider it before its first session beginning in mid-June.
Though the negotiations did not result in consensus on all provisions, the advancement of the declaration represents a major development in the rights of indigenous peoples in international law. The term “consensus” in the United Nations means that no country openly objects to adoption.
“There is a good chance we could get the declaration adopted within a year or two,” said Coulter. “If consensus is reached in the commission or the council, it could probably be adopted by the General Assembly next fall.”
Coulter said the reason the ILRC and many Native leaders began working in the international arena was that the rights of Indian nations and other indigenous peoples are not spelled in the U.S. Constitution.
By creating a set of legal standards and rules at the international level that have a healthy influence on domestic law, Coulter hopes that Congress will see that there is something fundamentally wrong with terminating tribes and violating their rights in other ways.”Once the U.N. has adopted the declaration on the rights of indigenous peoples, we will have a formal legal statement on the rights of indigenous peoples that is accepted by every country in the world. After countries demonstrate over a period of time that they regard the law as binding, it becomes a part of customary international law,” he said.
When Native leaders first went to the United Nations, many countries did not know much about indigenous peoples. “Country representatives sometimes said they didn’t have any indigenous peoples, and these were countries that today acknowledge huge indigenous populations,” said Coulter.
“There was a lot of disbelief that indigenous peoples had or ought to have specific rights. It has taken a long time to educate people about who we are. So when we first spoke of self-determination for indigenous peoples, many countries thought that was absurd. Now nearly all countries support the idea that indigenous peoples should have the right of self-determination, to be self-governing within the countries where they live.”
Coulter said advancement of indigenous rights in the international arena is a backstop against unfair law within the American legal system, where Indian and Alaska Native nations are often denied equality before the law.
“Indian nations have particular rights, and we are fighting for justice and equality before the law. It is about time we stopped termination and the fear of it. Reforming these laws and putting to rest these old injustices is way overdue.”
Because the declaration sets standards on how countries should treat indigenous peoples, it may be effective in influencing federal laws and policies regarding Indian nations and tribes.
Coulter believes the declaration will eventually have an influence on court decisions. The Supreme Court at times turns to international law in deciding cases, including four or five in the past four years in which it looked at international law concerning the death penalty, equal protection of the law and other issues.
“We now have the support of most if not all the countries in the U.N. Human Rights Commission for provisions in the declaration stating that we have a right of self-determination as distinct groups within the countries where we live. We are unique in the world that way. No other category of peoples has such a right,” he said.
In some countries, the declaration will be especially important—particularly where the rights of indigenous peoples have been barely acknowledged in the past.
“In some countries, indigenous people are killed, shot, driven from the land,” said Coulter. “The official acknowledgment of their legal rights could mean [the] survival of peoples and communities that might otherwise perish.”