UN Declaration on the Rights of Indigenous Peoples Claire Charters.
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Transcript of UN Declaration on the Rights of Indigenous Peoples Claire Charters.
UN Declaration on the Rights of Indigenous Peoples
Claire Charters
Declaration History
– Drafting in the Working Group on Indigenous Populations (WGIP) in 80s and early 90s - by indigenous peoples and states
– Approval by the Sub-Commission in 1994– Human Rights Commission established a working
group to negotiate the text in 1995– Majority of articles accepted by consensus in 2006– Chair came up with compromise language on
contentious articles eg self-determination and land rights in 2006
– Sent to the Human Rights Council in June 2006, which adopted it by majority – Canada and Russian Federation voted against
– NZ (without a vote) one of the few states against
Significance Most progressive and comprehensive
international document dealing with Indigenous peoples rights
Not binding, but:– Moral force– Evidence of customary international law– Positive reference by New Zealand courts and the
Waitangi Tribunal– Can be used as a benchmark against which states
behaviour is assessed by international institutions and bodies eg Special Rapporteur
– Lobbying tool
Politics Tense and protracted negotiations Indigenous support originally for the 1994
Sub-Commission approved text - some states agreed
Indigenous peoples began to participate in the process of amending the text to accommodate states’ concerns
New Zealand aligned with Australia, Canada, the Russian Federation and the United States in rejecting the Chair’s text
Content Concern re colonial injustice and dispossession Collective rights Cultural rights Right to equality and other human rights Recognises international character of treaties
between indigenous peoples and states and calls for their implementation
Self-determination Political rights eg participation and retention of
Indigenous political organisation Land rights and redress Limitations confined
Self-Determination Indigenous peoples have the right of self-
determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development
From article one of the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights
Endeavours to confine to “internal self-government” rejected in article 3, but article 31, on self-government, the “new” article 4
States’ territorial integrity protected by article 45
Lands and Territories Right to maintain and strengthen spiritual relationship
with traditionally owned, occupied and used lands (omission of reference to material) - art 25
Right to lands, territories and resources traditionally owned, occupied and used - art 26
Right to own, use, develop and control lands etc currently in Indigenous possession - and state legal recognition of that ownership - art 26
Redress - restitution or, if not possible, compensation (= equal lands, $ or “other forms of appropriate redress”) - art 27
NZ’s objections
Fear of secession Ambiguity in the text Unrealistic obligations Threats to “3rd Party” rights Protection of “other” Indigenous peoples Need for consensus
Responses to NZ’s objections
Legitimacy concerns:– Lack of on-going consultation with Maori– NZ and friends are all states recently found
in breach of an indigenous peoples’ right to freedom from discrimination by the CERD
– Illogical position re supporting “other” indigenous peoples
Reponses to NZ’s objections cont’d Status of the Declaration
– “only” a non-binding instrument– does not override existing international legal protections
for non-indigenous peoples’ rights eg right to property– does not override the prohibition on threats to state’s
territorial integrity - art 45 Ambiguity
– common in international instruments– allows more for a state-centric interpretation– NZ et al seem to take a “worst-case” scenario
interpretation
Responses to NZ’s objections: self-determination Discriminatory to exclude indigenous peoples from
peoples entitled to self-determination Indigenous peoples fall into the natural meaning of
peoples Element of historical sovereignty part of justification Already recognised by UN treaty bodies and other
bodies Settled that self-determination only allows for
secession in limited circumstances Secession not available where state respecting
equality and self-determination of all peoples and representative of all peoples
Lands, territories and resources
Chair’s text waters down the Sub-Commission text in that there is no clear right to indigenous lands that have fallen out of indigenous ownership
These rights can be limited to protect non-indigenous peoples’ rights - art 45
Non-indigenous property rights protected in existing international human rights treaties and law in any event