CONSEJO INTERNACIONAL DE TRATADOS INDIOS

JOINT STATEMENT

TO THE 9^TH INTERSESSIONAL WORKING GROUP ON THE

UN DRAFT DECLARATION FOR THE RIGHTS OF INDIGENOUS PEOPLES

Submitted by American Indian Law Alliance, International Indian Treaty Council, Asia Indigenous Peoples Pact, Chin Human Rights Organization, Inuit Circumpolar Conference (ICC), Cordillera Peoples Alliance, PIDP-KIVU Dem. Rep. Of Congo, Jharkhandis Organisation for Human Rights (JOHAR), Fund. Pro. Conocimiento Indígena, Comisión Juridica para el Autodesarrollo de los Pueblos Originarios Andines, Buffalo River Denè Nation, Indigenous Peoples African Coordinating Committee (IPACC), Tamaynut Association, Confederación Nacional de Organizaciones Campesinas Indígenas y Negras FENOCIN, Consejo de Todas las Tierras Mapuche, Teton Sioux Nation Treaty Council, Foundation for Aboriginal and Islander Research Action (FAIRA), Coalición Campesina Estudiantic Indígena del Istmo – Freinte por la Democracia y el Desarrollo (COCEI-FDD), Indigenous Peoples and Nations Coalition, Indigenous World Association, International Organization of Indigenous Resource Development, Asociación Napguana, Defensoria Maya, Asociación Regional Indígena ARADIKES, CISA, Cealp, Indian Confederation of Indigenous and Tribal Peoples ICITP, Taungya, National Adivasi Coordination Committee Bangladesh, Aboriginal and Torres Strait Islander Commission (ATSIC), Russian Association of Indigenous Peoples of the North (RAIPON), Mejlis of Crimean Tatar People, Association of the Shor People, Committee for Citizenship Rights of the Chakmas of Arunachal Pradesh, Hill Watch Human Rights Forum Chittagong Hill Tracts (CHT) Bangladesh, Warã Instituto Indígena Brasileiro – Brasil, Asociación Mapuche – Urbanos Kaxawaiñ - Chile

SEPTEMBER 15, 2003

As we approach the end of the Decade for Indigenous Peoples in 2004, a sense of urgency has been expressed by some Indigenous Peoples, their representatives and organizations, as well as some states concerning the draft United Nations Declaration on the Rights of Indigenous Peoples and the apparent lack of progress of this Ad Hoc Intersessional Working Group created by the Commission on Human Rights under resolution 1995/32.  It is shocking that, in the past eight years, only 2 of the 45 Articles in the draft Declaration have been approved provisionally by the Working Group. We wish at this time to address our concerns regarding the principles under which we are all working, and some principal reasons in our view for our lack of progress. 

Need for consistency with international law

Since the first session of this Working Group in November 1995, the members of the Indigenous Peoples Caucus, both jointly and as individual delegations, have expressed the unwavering conviction that any proposals presented for discussion should attempt to strengthen or clarify the current text. This is both because the text was developed over many years with the participation of Indigenous Peoples as well states and experts of the Working Group on Indigenous Populations and the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, and the current text was unanimously approved by these two UN bodies. Most importantly, all proposals must uphold the fundamental principle of non-discrimination. The peremptory international norm prohibiting racial discrimination must at all times be fully respected in this process .

Many states are making a sincere attempt to maintain these principles in our discussions, and many have expressed their support for the current text. However, others continue to propose amendments that seek to qualify or impose limitations on the human rights of Indigenous Peoples. States often do this based on their stated intention to reflect their own internal law regarding the status and rights of Indigenous Peoples. In this and other ways, they place themselves in a position to circumvent our international human rights now and in the future. We strongly affirm that in doing so they are violating the fundamental principles inherent in international standard setting.

International human rights are dynamic in nature. They have an independent meaning as inherent rights of peoples and individuals, and must not be made equivalent to the meaning given to them in each state’s domestic law.  Furthermore, human rights are generally worded in broad and flexible terms, so as to embrace a diverse range of circumstances. Their interpretation must be able to evolve with changing values and conditions.

As the Universal Declaration of Human Rights itself affirms, “recognition of … the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. There is no legitimacy or validity in state proposals that seek to impose a lesser and different standard for Indigenous peoples’ human rights.

We call upon all the states participating in the historic discussions in this Working Group, and especially our distinguished Chair, to bear in mind during this session General Assembly resolution A/Res/41/120 on standard setting in the field of human rights, adopted on December 4^th, 1986.  This resolution emphasizes the primacy of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights in the extensive network of international standards in the field of human rights established by United Nations bodies and specialized agencies.  Operative paragraph 2 of the resolution, “Urges Member States and United Nations bodies engaged in developing new international human rights standards to give due consideration in this work to the established international legal framework.”

As the U.N. Charter makes clear, the General Assembly encourages the “progressive development of international law” and not regression to sub-standard domestic norms. In regard to Indigenous Peoples, the Economic and Social Council in its resolution 1982/34 of 7 May 1982 authorized the Sub-Commission to establish annually a working group to:

Give special attention to the evolution of standards concerning the rights of indigenous peoples, taking account of both the similarities and the differences in the situations and aspirations of indigenous peoples throughout the world.

It is in this overall flexible context that the Commission on Human Rights confirmed on March 3, 1995 that “[i]nternational standards must be developed on the basis of the diverse realities of indigenous peoples in all parts of the world” (E/CN.4/RES/1995/31).

Need for more balance and fairness in Chair’s reports

In order to fairly reflect Indigenous realities and concerns in a democratic manner, it is critical that the Chair’s report of each year’s session be an accurate reflection of Working Group discussions. The human rights of more than 300 million Indigenous people worldwide are potentially at stake in the current standard-setting process. Full and effective participation of Indigenous Peoples in this process is therefore crucial. This was recognized by the General Assembly in 2001, when it "underline[d] the importance of effective participation by indigenous representatives in the open-ended inter-sessional working group of the Commission on Human Rights" (GA Res. 56/140 of 19 December 2001).

In our respectful view, the Chair’s report for the December 2002 session is not balanced,   fair nor, in some cases, an accurate refection of the debate.  Key critical legal arguments and concerns presented by Indigenous peoples were omitted. This is especially the case with certain specific Indigenous objections to alternative language proposed by state governments.  The report therefore creates a misleading impression of the deliberations in the Working Group.  Also, more time is required for Indigenous representatives to review the draft report following Working Group sessions and submit suggested corrections to the Chair.

Conclusions

In conclusion, we call upon the Chair to ensure impartial, democratic, balanced and fair procedures within the intersessional Working Group. Any proposals for changes to the draft Declaration must strictly adhere to the Purposes and Principles of the U.N. Charter and fulfill the vital objectives of the standard-setting process. In particular, we urge the Chair to emphasize to all participants that this human rights standard-setting process cannot and will not give any weight to proposals or positions that are discriminatory against Indigenous Peoples.

The values and principles that we highlight in this Joint Statement are fundamental to the U.N. system and to all democratic states. Once they are accepted by all participants in this Working Group as a fundamental underpinning of our work together, and upheld vigilantly by the Chair, we are certain that progress in our discussions can be both substantial and swift.

Thank you.