CONSEJO INTERNACIONAL DE TRATADOS INDIOS

United Nations Commission on Human Rights

8th Session, Ad Hoc Intersessional Working Group on the

Draft Declaration on the Rights of Indigenous Peoples

December 2 - 13, 2002

Norway Proposal, Article 36, Statement by the International Indian Treaty Council

Mr. Chairman, it is difficult to respond to the proposal of Norway. For the past two days, we have been encouraged to participate in the discussion of the Norway proposal that in part joins Articles 3, 31 and 36 as a package, on the Right of Self Determination. Privately, in conversations with States representatives, we have been told that the Indigenous caucus should participate in the process of negotiation, and that our position that the draft declaration should be accepted without substantive change or amendment is too hard and fast and that we must demonstrate some flexibility if this process is to succeed. In that spirit we have agreed to listen and respond.

Yet these same States that have encouraged us to participate, particularly with respect to Article 36, concerning our right to the recognition and respect of treaties and agreements, tell us that we have no rights. They reject Article 36 and declare that the sacred treaties entered into between Indigenous Peoples and States are purely a domestic matter. If there are violations of treaties, it is the violator that decides if a violation has occurred.

Mr. Chairman, the International Indian Treaty Council unequivocally rejects the position of the Canadian government that the questions of treaties between Indigenous Peoples and States is a domestic matter. Obviously, the Sub-Commission agreed with us, by allowing the inclusion of this article as has Mr. Miguel Alfonso Martinez, the Special Rapporteur on Treaties, Agreements and other constructive Arrangements between Indigenous Peoples and States.

It is clear, as the Special Rapporteur points out, that there are certain legal doctrines that have served as the basis of the "domestication" of Indigenous Peoples, such as Terra Nullis (so-called "empty lands," or lands not possessed by someone), or conquest and armed force that  have been discredited by modern international law as a basis for depriving Indigenous Peoples of their lands and territories.[1]

In the case of abrogated or terminated treaties entered into between Indigenous Peoples and the colonizers or successor states, the States many times argue that modern law on treaties, codified in the 1969 Vienna Convention on the law of Treaties, which entered into force in 1980, has a non-retroactivity provision expressly stating that the Convention "applies only to treaties which are concluded by States after the entry into force of the present convention with regard to such States."[2] But the Vienna Convention also states that this non-retroactivity "shall not affect the legal force of international agreements" entered into prior to its entry into force."[3] (emphasis supplied)

In fact, the Special Rapporteur of the Treaty Study argues that the Vienna Convention codified international principles and law that had stood the test of time, "and were, in 1969 already part and parcel of international law, either as customary law or as positive law embodied in a number of already-existing bilateral and/or multilateral international instruments.[4] Thus,

"The Special Rapporteur is of the opinion that those instruments indeed maintain their original status and continue fully in effect, and consequently are sources of rights and obligations for all the original parties to them (or their successors), who (sic) shall implement their provisions in good faith."[5]

In his Treaty Study, the Special Rapporteur also stresses the point that unilateral termination of international obligations are disfavored, even by modern international law today:

"On the other hand, the unilateral termination of a treaty or of any other internationally legally binding instrument, or the non-fulfillment of the obligation contained in its provisions, has been and continues to be unacceptable behaviour according to both the Law of Nations and more modern international law."[6]

And,

"It is well known that fulfillment, in good faith, of legal obligations that are not in contradiction with the Charter of the United Nations (Art. 2.2) is considered one of the tenets of present day positive international law and one of the most important principles ruling international relations, being as it is, a peremptory norm of international law (jus cogens)." [7]

Indeed Mr. Chairman, the Inter American Commission on Human Rights recently found that the Western Shoshone Peoples in the United States had been denied equality before the law, the right to a fair trial, and the right to property because their lands were declared by the United States to have been somehow "lost" without giving them the opportunity to litigate their title to their lands, including the issue of what was actually ceded and what was not by their 1863 Treaty of Ruby Valley with the United States.[8]

The United States has stated that it "rejects" the Inter-American Commission on Human Rights decision. Mr. Chairman, it is difficult to participate in any process that refuses to recognize our rights, as a basis for the declaration of those same rights. We have agreed to listen and respond. But it is not Indigenous Peoples that are not taking this process seriously.

Thank you, Mr. Chairman.