CONSEJO INTERNACIONAL DE TRATADOS INDIOS

Treaty Study Expert Seminar Conclusions and Recommendations 

1.         Experts at the United Nations seminar on treaties, agreements and other constructive arrangements between States and indigenous peoples meeting in Geneva from 15 to 17 December 2003 agreed upon the following conclusions and recommendations:

Conclusions

2.         The Experts noted that historic treaties, agreements and other constructive arrangements between States and indigenous peoples should be understood and implemented in accordance with the spirit in which they were agreed upon. Experts also noted that treaties, agreements and other constructive arrangements between States and indigenous peoples have not been respected leading to the loss of lands, resources and rights and that non-implementation threatened indigenous peoples survival as distinct peoples.

3.         The Experts considered that treaties, agreements and other constructive arrangements constitute a means for the promotion of harmonious, just and more positive relations between States and indigenous peoples because of their consensual basis and because they provide mutual benefit to indigenous and non-indigenous peoples.

4.         The Experts welcomed the efforts being made by States exploring ways to redress historical and contemporary injustices related to treaties, agreements and other constructive arrangements through negotiations and underlined the principle of free, prior and informed consent. The Experts agreed that the processes for negotiations should have legitimacy with both indigenous and non-indigenous parties to the treaties, agreements and other constructive arrangements.

5.         The Experts drew attention to the situation of indigenous peoples who had not entered into formal juridical relations with colonial powers and whose lands had been occupied on the basis of terra nullius and affirmed that such peoples should be able to claim status as nations should they so wish.

6.         The Experts also recognized that indigenous peoples had a legitimate interest in the elaboration and implementation of multilateral and bilateral treaties among and between States in cases where their peoples may be affected negatively or positively by such agreements

 States

7.         The Experts called upon States to respect treaties, agreements and other constructive arrangements between States and indigenous peoples and, in cases where disputes arise, to establish effective mechanisms for the resolution of conflicts. Such conflict resolution processes should include, inter alia, the following elements:

·  They should be developed with the free, prior and informed consent of the indigenous peoples concerned.

·  They should include as an integral part of the process indigenous laws and legal norms. 

·  They should be independent and free from political interference. 

·  They should recognize the collective nature of the rights of indigenous peoples including to their lands and resources. 

8.         The Experts recommend that States promote and educate the general public particularly through the education system about indigenous peoples’ treaties, agreements and other constructive arrangements underlining that such treaties are sacred agreements defining the nature of indigenous peoples’ relationships with the world family of nations.

Commission on Human Rights

9.         The Experts requested the Commission on Human Rights to consider recommending to the Economic and Social Council that a workshop be convened drawing upon existing good practices of conflict resolution with a view to exploring ways and means for the development of a mechanism to resolve conflicts arising from treaty, agreements and other constructive arrangements in cases in which the domestic conflict resolution processes have proven ineffective.

10.       The Experts requested the Commission on Human Rights to consider recommending to the Economic and Social Council a World Conference on Indigenous Peoples at which the question of treaties, agreements and other constructive arrangements between States and indigenous peoples, and inter alia the principle of pacta sunt servanda (“treaties must be kept”), the impacts of treaty abrogation on indigenous peoples, and remedies for such abrogation could be considered. 

11.       The Experts requested the Commission on Human Rights to consider recommending to the   Economic and Social Council that a further seminar be held on treaties, agreements and other constructive arrangements from all regions. 

12.       The Experts requested the Commission on Human Rights to consider recommending that the Economic and Social Council seek an advisory opinion from the International Court of Justice in relation to treaties and agreements between States and indigenous peoples.

13.       The Experts requested the Commission on Human Rights to consider recommending that the Economic and Social Council request that the United Nations Treaty Office be charged with locating, compiling, registering, numbering and publishing all treaties concluded between indigenous peoples and States. 

14.       The Experts requested the Commission on Human Rights to authorize the publication by the Office of the High Commissioner of the Study on treaties, agreements and other constructive arrangements between States and indigenous peoples consider in a consolidated version in all official languages and including the recommendations of the present seminar.

15.       The Experts requested the Commission on Human Rights to recommend that the United Nations library receive, catalogue and publish an inventory of materials relating to treaties and agreements including materials submitted to the Special Rapporteur on the Study of treaties, agreements and other constructive arrangements between indigenous peoples and states. 

16.       The Experts affirm the importance of article 36 of the draft declaration on the rights of indigenous peoples in its current text as approved by the Sub-Commission, in particular its importance as a critical element of the right of self-determination, as well as the importance of its last sentence which calls for the establishment of a competent international body to directly adjudicate treaty disputes unresolved through other mechanisms and calls upon the working group to adopt the article.

United Nations’ system

17.       The Experts invited the Working Group on Indigenous Populations to place as a permanent part of its agenda an item relating to treaties, agreements and other constructive arrangements. They also recommended that the Working Group elaborate guiding principles on the elaboration, negotiation and implementation of treaties, agreements and other constructive arrangements taking into account the importance of open, transparent, equitable, inclusive and participatory avenues of redress, monitoring, arbitration and mediation. 

18.       The Experts invited the Working Group to develop a working paper to follow up on mechanisms for resolving conflicts arising from treaties, agreements and other constructive arrangements. 

19.       The Experts recommend that the UN Department of Public Information provide information about indigenous peoples’ treaties, agreements and other constructive arrangements underlining that such treaties are sacred agreements defining indigenous peoples’ relationship with States and the international community.

20.       The Experts recommend that a study be undertaken by the secretariat of the Convention on Biological Diversity on the impact of treaty abrogation on the life ways and biological diversity   of territories specifically covered by a treaty, agreement or other constructive arrangement.

21.       The Experts recommend that the World Intellectual Property Organization (WIPO) begin cataloging the oral history of indigenous peoples on the making of treaties, agreements and other constructive arrangements.

22.       The Experts called upon the working group on the draft United Nations declaration on the rights of indigenous peoples to adopt the declaration before the end of the International Decade of the World’s Indigenous People.

23.       The Experts recommend that the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples pay special attention to the question of treaties, agreements and other constructive arrangements in his official visits.

24.       The Experts recommend that the UN human rights treaty bodies pay specific attention to obligations contained in treaties agreements and other constructive arrangements signed between States and indigenous peoples as the non-compliance of these obligations have negative effects with regard to rights protected under international human rights conventions.

25.       The Experts recommended that OHCHR make available technical cooperation to assist indigenous peoples with their negotiations in relation to treaties, agreements and other constructive arrangements.

26.       The Experts recommend that the report of the seminar be made available to States, indigenous peoples and non-governmental organizations and the 3^rd session of the Permanent Forum and the 22^nd session of the Working Group on Indigenous Populations.