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Claire Charters[∗]
After more than 22 years of negotiation both inside and outside the halls of the United Nations (the UN), the Human Rights Council adopted the Declaration on the Rights of Indigenous Peoples (the Declaration) in June 2006.[1] While the General Assembly deferred its adoption of the Declaration in December 2006, it is hoped it will do so before September 2007.[2] This note details the substance of the Declaration, and how the particular wording of contentious provisions was arrived at, focusing on the last two years when the Declaration was amended frequently in intense, highly political and sometimes hostile environments. The preparatory work leading to the Declaration’s adoption will influence its interpretation and, ultimately, its application to protect the rights of Indigenous peoples worldwide.[3]
The Declaration is the result of the UN’s increasing attention to the rights of non-state actors. It is the culmination, too, of a strong and on-going push by Indigenous peoples to galvanise the international community into responding to their specific circumstances, often characterised by colonisation, loss of sovereignty and lands, and injustice.[4]
Drafting of the Declaration began in 1984 in the UN Working Group on Indigenous Populations (WGIP), an institution established under the UN Sub-Commission on the Promotion and Protection on Human Rights (Sub-Commission) in 1982 and made up of five appointed experts on Indigenous issues. The WGIP has the explicit mandate to elaborate international standards concerning Indigenous peoples’ rights.[5] Indigenous peoples and States were heavily involved in the drafting.[6]
The WGIP submitted the Declaration text to the Sub-Commission in 1993 (the Sub-Commission Text), where it was approved in 1994.[7] The Human Rights Commission, then the Sub-Commission’s parent body, established an open-ended inter-sessional working group to consider the Sub-Commission Text (the WGDD) in 1995,[8] with a view to adoption by the end of the First International Decade on the World’s Indigenous Peoples in 2004. It was here that the Declaration text was vociferously negotiated by States and Indigenous peoples, who, uniquely, played an integral part.
The WGDD was unable to achieve consensus on the entire text before 2004. It was only after an extension of the WGDD’s mandate, and an informal meeting hosted by the Mexican government, that a text was forwarded to the Human Rights Council in June 2006. By that time the majority of States and participating Indigenous peoples’ representatives, and a number of international institutions including the UN Permanent Forum on Indigenous Issues, supported the Declaration.[9]
The Declaration is the most progressive and comprehensive international instrument dealing exclusively with the rights of Indigenous peoples. While it is not legally binding as a matter of international law, the Declaration remains significant as a reflection of evolving customary international law on Indigenous peoples’ rights, as a potential guide to the interpretation of legal norms relevant to Indigenous peoples domestically and internationally by institutions such as the human rights treaty bodies, and to set benchmarks below which State behaviour should not fall.[10]
The Declaration has 23 preambular paragraphs and 46 articles. The preambular paragraphs are broad and general in scope. They refer to, for example,[11] Indigenous peoples’ diversity and the right to freedom from discrimination, colonisation and injustice suffered by Indigenous peoples, the need to respect treaties between Indigenous peoples and States, Indigenous peoples’ traditional knowledge, and the Charter of the United Nations.
The Declaration’s substantive articles cover Indigenous peoples’ collective rights to self-determination, lands, territories and resources, political participation, traditional knowledge, development, the environment, respect for treaties, agreements and other constructive arrangements and culture, in areas such as education, language, housing and health.[12] The Declaration also confirms Indigenous individuals’ human rights.
The Declaration as a whole does not enjoy consensus support by States, reflected in State dissension when the Declaration was voted on in the Human Rights Council and the General Assembly’s December 2006 decision to defer its consideration of the text until 2007.[13] Rather, some of the Declaration is ‘compromise text’, crafted by the Chair of the WGDD based on the suggested amendments by States and Indigenous peoples over the 20 years of negotiation. The substantive issues on which language could not be agreed included self-determination and lands. However, the WGDD participants agreed to the majority of articles and preambular paragraphs and the vast majority of States and Indigenous peoples eventually accepted the text as a whole.
It is also important to understand the context from which the Declaration emerged and the idiosyncrasies of multinational negotiations where States, all 191 of them, and Indigenous peoples have a voice. In the crucial final years the Chair attempted to control the negotiations by concentrating only on contentious issues in the plenary meetings and asking participants to only speak up if they could provide compromise language. The provisions on which consensus appeared more likely were dealt with in informal but more tightly controlled and ‘no-nonsense’ meetings chaired by the Norwegian delegation. This illustrates that the Declaration is not necessarily the outcome of one principled theoretical premise for Indigenous peoples’ rights. Instead, it is the result of pragmatic concessions by all participants and, in part, the creative use of language to obscure rather than resolve some of the underlying tensions between Indigenous peoples’ demands and States’ self-interest.
It should also be remembered that both States and Indigenous peoples used different tactics at different times in negotiations. Some chose to play ‘hard-ball’ while others worked more closely with other parties in an attempt to achieve consensus. These strategies, quite deliberate in the case of Indigenous representatives, differed from year to year, meaning particular alliances were built-up at certain points in time, and altered from meeting to meeting.
While not detailed here, it is also interesting to note that both Indigenous peoples and States referenced existing international law and instruments on Indigenous peoples’ rights in negotiations to argue for greater or lesser recognition of Indigenous peoples’ rights in the Declaration,[14] including, for example, the ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989 (No 169) and the Committee on the Elimination on Racial Discrimination’s General Recommendation on Indigenous Peoples.[15] Both States and Indigenous peoples alike relied on self-serving, but mostly perfectly feasible, interpretations of existing standards to either discredit or support the inclusion of particular language in the Declaration.
I will briefly describe how the language in some of the Declaration’s provisions was arrived at over the last two years, illustrating the fine balance reached between State and Indigenous peoples’ interests.
Even the Declaration articles and preambular paragraphs that achieved consensus support were the subject of intense negotiation that sometimes took up many precious hours of delegates’ time and energy. For example, the United Kingdom had difficulties with the reference to Indigenous peoples’ ‘inherent’ rights in preambular paragraph 6, arguing that only human rights could be inherent.[16] Indigenous peoples were relatively wedded to the term, to signify that their rights are not given by the State but come from prior or first occupancy and sovereignty.[17] Various proposals were suggested, such as reference to Indigenous peoples’ inherent status, rather than rights.[18] The United Kingdom dropped its objection during the last days of negotiations when it became clear that it was the only State holding up consensus on preambular paragraph 6.[19]
Similarly, much discussion took place to amend what is now article 38, dealing with States’ obligations to implement the Declaration domestically. The text moved from requiring States to take “effective and appropriate measures, in consultation with the Indigenous peoples concerned to give full effect to the provisions of this Declaration” to the lesser requirement that “States in consultation and cooperation with Indigenous peoples shall take appropriate measures… to achieve the ends of this Declaration”.[20]
Numerous States were concerned with the possibility that the Sub-Commission Text’s article 3, simply stating an Indigenous peoples’ right to self-determination, would create a unilateral Indigenous peoples’ right to secede, thereby disrupting States’ territorial integrity and political unity.[21] While many Indigenous peoples made it clear that they were not seeking to secede, they also argued that it would be discriminatory to include language explicitly referencing States’ territorial integrity or political unity in a declaration on Indigenous peoples.[22] Other instruments, such as the Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, do not include such language.[23] Further, Indigenous peoples argued that referencing territorial integrity was unnecessary because the Declaration is subject to existing international law, which confines the right to secession to particular peoples, including non-self-governing and trust territories and those under alien domination or foreign occupation.[24]
These broader concerns played themselves out in proposals for amendment to the Sub-Commission Text. In 2004, Denmark, Finland, New Zealand, Norway, Sweden and Switzerland proposed amendments to article 3 to explicitly reference the right of “peoples under colonial or other forms of alien domination or foreign occupations… to take any legitimate action… to realise their inalienable right of self-determination” and a prohibition on the impairment of States’ territorial integrity and political unity.[25] This proposal was unacceptable to most Indigenous peoples, for whom a clean article 3 was considered essential.[26]
As a result, attention moved to possibilities for amendments to other articles to allay States’ fears about threats to territorial integrity. This ‘tactic’ was acknowledged in an informal meeting between some key States and Indigenous representatives in Mexico in September 2005. It reported that:[27]
it is feasible to reach an agreement based upon the current text of article 3, insofar as the right to self-determination of Indigenous peoples is no longer questioned. Precisions and nuances could be introduced, preferably in other parts of the Declaration.
One suggestion that emerged in 2005 was the inclusion of an additional article in the Declaration stating that it “shall not be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”.[28] This was ultimately rejected given that some Indigenous peoples might satisfy existing requisite international legal criteria to secede.[29] Further, there were proposals to include references to peoples under colonial or alien domination or foreign occupation in the preambular rather than operative parts of the Declaration.[30]
Progress on reaching agreement on the self-determination provisions was set back again in December 2005 when New Zealand, Australia and the United States proposed text that not only expressly set out States’ territorial integrity but also defined self-determination to mean self-management.[31] Indigenous peoples and many States resoundingly rejected this proposal and it was quickly discarded and largely ignored.
Ultimately, the vast majority of WGDD participants agreed to more subtle but equally effective amendments.[32] They included moving what had been article 31 in the Sub-Commission Text, dealing with self-government and autonomy, to become article 4, so that it now follows article 3. That article was also amended to suggest that autonomy and self-government are the expression of an Indigenous peoples’ right to self-determination rather than simply ‘one form’ of the right to self-determination. Preambular paragraph 15, which in the Sub-Commission Text stated “bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination” now includes the additional limb “exercised in conformity with international law”. This suggests that the Declaration does not create any right for Indigenous peoples to secede beyond what is already permissible under international law. Further, much was made of what is now article 46 in negotiations, which states that the Declaration may not be interpreted to authorise any act contrary to the Charter of the United Nations.[33] The Charter guarantees States’ territorial integrity and political unity. Finally, a new preambular paragraph was added to encapsulate one of the principal intentions behind the inclusion of an Indigenous peoples’ right to self-determination: “Encouraging harmonious and cooperative relations between States and Indigenous peoples based on principles of justice, democracy, respect for human rights, non-discrimination and good faith”.[34]
The lands, territories and resources provisions in the Sub-Commission Text were subject to significant amendment in the WGDD. Some States, including New Zealand, sought to make amendments to limit Indigenous peoples’ rights to lands traditionally occupied by Indigenous peoples but which are no longer possessed by Indigenous peoples, in order to protect settlers’ property rights, and to minimise States’ duties to provide redress.[35] As one would expect, Indigenous peoples fought hard to maximise their rights to lands, territories and resources, not least because of their significance to most Indigenous cultures. The issue was equally crucial for nomadic Indigenous peoples, for example, in Africa and northern Scandinavia, who sought to protect their rights to lands that they do not traditionally occupy year-round. The negotiations were particularly complex given the close inter-relationship between the lands’ rights provisions, especially articles 25 to 30. An amendment to one article often led to an amendment of another provision.
Much time was spent negotiating the deletion of the reference to Indigenous peoples’ right to maintain and strengthen their material relationship with traditionally owned lands, territories and resources.[36] Indigenous peoples ultimately agreed, albeit reluctantly, and possibly as a trade-off for the inclusion of a broadly expressed Indigenous peoples’ “right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” in article 26.
In saying that, the rights in article 26 were watered down significantly. The Sub-Commission Text had included an Indigenous peoples’ right to “own, develop, control and use the lands and territories, including the total environment of the lands, air, waters, coastal seas, sea-ice, flora and fauna and other resources which they have traditionally owned or otherwise occupied and used” [emphasis added].[37] The new article 26 does not include a list of the resources to which Indigenous peoples’ have rights.[38] Even more significantly, Indigenous peoples’ only have the express right to “own, use, develop and control” the lands they (currently) possess.[39]
The WGDD negotiations led to a new land rights provision, article 27, detailing States’ duties to establish a process to recognise and adjudicate Indigenous peoples’ land rights, including those traditionally owned, occupied and used.[40] The reference to State obligations to recognise Indigenous peoples’ laws, traditions, customs and land-tenure systems, which had been in article 26 in the Sub-Commission Text, was moved to become the new article 27.[41] The impact of that amendment is as yet unclear. It may be that it minimises States’ obligations by requiring that the process incorporate Indigenous peoples’ laws, customs and land tenure systems instead of obliging the State to recognise Indigenous peoples’ land rights held under customary law.
Some States’ baulked at the article 27 of the Sub-Commission Text which boldly stated Indigenous peoples’ right to “restitution of the lands, territories and resources which they have traditionally owned or otherwise used” where they had been involuntarily lost, although it allowed for compensation where restitution was not possible.[42] The debate on this article was heated, and the outcome sophisticated. Under article 28 of the Declaration, Indigenous peoples now have a general right to redress rather than restitution, although redress can include restitution, and where that is not possible, compensation.[43] Compensation is to take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress, where agreed to by the Indigenous peoples concerned.[44]
The inclusion of a general limitations clause in the Declaration, allowing States to limit Indigenous peoples’ rights in the interests of protecting the human rights of others, was essential to some States’ acceptance of the land rights provisions.[45] They were presumably motivated by a desire to protect settlers’ existing property rights. The Sub-Commission Text did not include such a clause. Indigenous peoples were unwilling to accept the inclusion of any provision legitimising limitations on their rights in an international instrument designed to achieve the opposite.[46] However, States’ tenacity won the day, although Indigenous peoples had some success in influencing the language used in what has become article 46(2) of the Declaration.[47]
Only some States and Indigenous peoples took a particular interest in the provisions on treaties, agreements and other constructive arrangements between States and Indigenous peoples, perhaps reflecting the fact that not all Indigenous peoples have entered into such instruments with States. The most contentious issue for States was the implication that such treaties, agreements and other constructive arrangements have an international legal quality.[48] It may be that States were concerned this might suggest that Indigenous peoples retain a State-like quality and that Indigenous treaties have the status of international law.
The relevant Sub-Commission Text’s provisions included the preambular paragraph that treaties, agreements and other constructive arrangements are “properly matters of international concern and responsibility”.[49] Article 36 stated “[c]onflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed by all parties concerned”.[50] All States and Indigenous peoples, except the United States, compromised to accept less exacting wording in the preambular provision. Treaties, agreements and other constructive arrangements are instead “in some situations, matters of international concern, interest, responsibility and character”.[51] The reference to international dispute settlement was deleted from article 36.[52] States were also successful in negotiating away the requirement that such instruments be interpreted in accordance with their original spirit and intent.[53]
Some States, by far the minority, made last-ditch efforts to advance State-centric interpretations of the Declaration in the form of explanations of their vote at the time of its passage in the Human Rights Council. The legal quality of these statements is unclear, although they may provide some evidence of the content of customary international law on Indigenous peoples’ rights. At the very least, however, this ‘vent’ may have enabled some States to support the Declaration when they might otherwise have abstained or voted against the Declaration. For example, a number of States clarified that the Declaration does not authorise Indigenous peoples to secede except as is already provided for in international law.[54]
The Declaration reflects more than 22 years of negotiations between States, whose policies often changed as governments changed, and Indigenous peoples, who have been struggling for international protection of Indigenous peoples’ rights for centuries. States sought to protect their territorial integrity and settlers’ human rights, to minimise their obligation to provide redress and to limit the possibility of international censure. Indigenous peoples sought to ensure rights to autonomy and freedom from State interference, recognition of their land rights and State compliance with treaty obligations. There were many moments when agreement between the parties looked impossible.
As a result of these conflicting agendas, almost every paragraph of the Declaration is a highly sophisticated compromise, often achieved in the early hours of the morning and after consideration of literally hundreds of drafts. The Declaration as a whole is the outcome of political manoeuvring and tactics, creative use of language to accommodate the needs of different Indigenous peoples and States the world over, the firm hand of hard-working Chairs, and the emotional and intellectual efforts of thousands of people. Given this history, States should now have little difficulty in adopting the Declaration in the General Assembly and, more importantly, implementing the Declaration, thereby taking the necessary steps to recognise and protect the rights of the world’s Indigenous peoples.
[∗] Ngati Whakaue. Senior lecturer, Faculty of Law, Victoria University of Wellington and PhD Candidate, University of Cambridge. The author participated in the UN negotiations on the Declaration on the Rights of Indigenous Peoples intermittently from 1998 until 2006.
[1] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[2] GA Doc A/Res/61/178, Working group of the Commission on Human Rights to Elaborate a Draft Declaration in Accordance with Paragraph 5 of General Assembly Resolution 49/214 of 23 December 1994, UN GAOR, 61st session, 82nd plen mtg, UN Doc A/61/448 (2006).
[3] Even if not a treaty, presumably the rules relating to interpretation set out in Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), article 31, would still apply.
[4] For example, representatives of Haudenosaunee in 1923, and Maori in 1926, appealed to the League of Nations. See UN Permanent Forum on Indigenous Issues, ‘About UNPFII / History’, online: <www.un.org/esa/socdev/unpfii/en/history.html> (last accessed 7 August 2006).
[5] Resolution on the Working Group on Indigenous Populations, ECOSOC Res 1982/34, UN Doc E/1982/82 (1982).
[6] Russel Lawrence Barsh, ‘Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force’ (1996) 18(4) Human Rights Quarterly 782.
[7] Resolution on the Draft United Nations Declaration on the Rights of Indigenous Peoples, Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution 1994/45, UN Doc E/CN.4/SUB.2/RES/1994/45 (1994).
[8] Resolution on the Establishment of a Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Commission on Human Rights Res 1995/32, UN Doc E/CN.4/RES/1995/32 (1995).
[9] UN Permanent Forum on Indigenous Issues, Report of the Fifth Session, UN Doc E/C.19/2006/11 (2006). The UN Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous Peoples also called for the adoption of the Declaration in 2006: Report –The Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc A/59/258 (2004).
[10] See discussion in Claire Charters, ‘Responding to New Zealand’s Objections to the Declaration on the Rights of Indigenous Peoples’ [2006] New Zealand Law Journal 335.
[11] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[12] Ibid.
[13] Thirty States voted for the Declaration in the Human Rights Council, 2 voted against and 12 abstained. See ibid. Note also that the majority of states in the General Assembly voted to defer their adoption of the Declaration: GA Doc A/Res/61/178, Working Group of the Commission on Human Rights to Elaborate a Draft Declaration in Accordance with Paragraph 5 of General Assembly Resolution 49/214 of 23 December 1994, UN GAOR, 61st session, 82nd plen mtg, UN Doc A/61/448 (2006).
[14] Author’s meeting notes on file with author.
[15] ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989 (No 169), opened for signature 27 June 1989, 28 ILM 1382 (entered into force 5 September 1991); and UN Committee on the Elimination of Racial Discrimination, General Recommendation XXIII: Indigenous Peoples, UN Doc A/52/18 (18 August 1997).
[16] Author’s meeting notes, on file with author.
[17] Ibid.
[18] Ibid.
[19] Ibid.
[20] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[21] Author’s meeting notes, on file with author.
[22] Ibid.
[23] Covenant on Civil and Political Rights and Economic, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976); Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).
[24] Author’s meeting notes, on file with author.
[25] Denmark, Finland, New Zealand, Norway, Sweden, Switzerland, Information Provided by States, UN Doc E/CN.4/2004/WG.15/CRP.1 (6 September 2004).
[26] Author’s meeting notes, on file with author.
[27] Government of Mexico, International Workshop on the Draft United Nations Declaration on the Rights of Indigenous Peoples, Patzcuaro, Michoacan, Mexico, UN Doc E/CN.4/2005/WG.15/CRP.1 (29 November 2005).
[28] Chairman’s Summary on Self-Determination (16 December 2005) on file with the author.
[29] Author’s meeting notes, on file with author.
[30] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995 on its Tenth Session UN Doc E/CN.4/2005/89/Add.2 (1 April 2005).
[31] New Zealand, Australia and US Position on Self-Determination (5 December 2005) on file with author.
[32] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[33] Author’s meeting notes, on file with author.
[34] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[35] Author’s meeting notes, on file with author.
[36] Author’s meeting notes, on file with author.
[37] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[38] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[39] Ibid.
[40] Ibid.
[41] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[42] Ibid.
[43] Ibid.
[44] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[45] Author’s meeting notes, on file with author.
[46] Ibid.
[47] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[48] Author’s meeting note, on file with author.
[49] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[50] Ibid.
[51] Ibid.
[52] Working Group of the Commission of Human Rights to Elaborate a Draft Declaration in Accordance with General Assembly Resolution 49/214 of 23 December 1994, Human Rights Council Res 2006/2, UN Doc A/HRC/1/L.10 (2006).
[53] Chairperson-Rapporteur, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/2006/79 (24 February 2006).
[54] For example, Japan and the United Kingdom. See Author’s meeting notes on file with the author.
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