Expatria · Human Rights · Riding A Dead Horse

Second report on the 10th Working Group on the Draft Declaration, September 14, 2004

Greetings,

Today, discussions in the WGDD continued with the so-called no-change articles contained within the Nordic Proposal. Discussions moved on to the operative paragraphs with no changes, and these negotiations began with Article 2. Mr Chavez presented a work plan for the week which includes a day of informal consultations on Friday that will be used to discuss the very “difficult” issues of self-determination as well as a few other points mentioned by States. Canada, during the course of the discussion also noted they would like to discuss the terminology ‘effective’ versus ‘reasonable’ in these discussions. Any errors are entirely my own and I apologize in advance for anything that may be mixed up. Please do let me know if you spot anything so that I can change my own records and let the list know….

A2: Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.

*USA proposed to delete ‘and rights.’

*The UK supports the USA proposal and wants to change ‘rights’ to ‘shall’ throughout the whole document.

A8 : Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.

*Canada withdrew last year’s proposal of ‘and individuals’ and will help with consensus on this article as it is.

* The USA voiced their problems with this articles as they gave a speech about how difficult it is for States to identify who is indigenous and who isn’t. This is problematic for them because if the Declaration goes through, then it will be up to States to determine who will receive the rights granted therein the Declaration. They went on to completely gut the text and included a list of qualifications that States may use to determine the authenticity of indigenous identity. They also noted that many States that were not present in the room were of the position that there were no indigenous in their countries and wanted this clarification to note that. I will send a copy of the wordy text once it is distributed tomorrow.

*A discussion ensued after this about consensus, as Mr. Chavez assumes silence means support for the original text. Guatemala wanted to know how the voice of supporters will be recorded in his report. France disagreed and said that silence does not necessarily mean support, and then went on to voice their problems with this article. Australia also went on to disagree with the Chairman’s definition that silence equals consent and expressed their problems with indigenous peoples self-identifying. The UK supported France and Australia’s positions.

*IITC reminded the WGDD that new texts should not become the basis of discussion for the negotiations.

*Venezuela, Guatemala, and Mexico found the discussion disturbing as it was unclear how it would be monitored who holds what position. Mexico proposed that the Chair find a method to monitor the various positions in a transparent manner that could be reflected in his report. Indigenous people supported Mexico’s proposal, but Mr. Chavez did not feel it was necessary.

OP10: Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.

*Canada wanted clarification on this article, whether it was referring to permanent relocation or all relocation in general. And if it referred to all relocations, then they could not support the article as it is because of the issue of whether a national emergency would occur that would require the government to move people.

*Russia proposed to change ‘from their lands and territories’ to ‘the places of their traditional residence or economic activities.’

*USA has similar concerns to Canada and feels this article can’t be discussed until land rights are explored further. They also find the term ‘compensation’ problematic. Thus the USA would like to delete the article.

*IITC, CAPAJ, RAIPON and the World Peace Council all spoke on favour of leaving the article as it is.

A14: Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.

States shall take effective measures, whenever any right of indigenous peoples may be threatened, to ensure this right is protected and also to ensure that they can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.

*The UK proposed to delete ‘Indigenous peoples have the right to’ from the first paragraph and replace it with ‘States shall take effective measures that.’

*France would like to change ‘effective’ from the second paragraph to ‘reasonable.’ They also have a few other deletions, but conceded their one concern was a new adjective for ‘effective.’

*Russia would like this article to be split into two parts.

*Canada agreed with France.

*IITC, ICC, and other indigenous organizations noted that they would be willing to substitute another adjective for ‘effective’ but that the UK proposal would be totally unacceptable as this Declaration is a rights-based document and essentially the UK is attempting to remove this sense.

A19: Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

*UK again would like to change this from ‘have the right to’ to ‘can.’ They wanted to note that they want the removal of mentions of rights from the entire text.

*Australia has a problem with the broad scope of this article as it could mean that indigenous peoples have the right to sit at all levels of the government. As per last year’s Chairman’s report, they would prefer the language that combines 19 and 20.

*USA agreed with Australia about breadth of article and about language from last year.

*Canada would like to delete ‘fully,’ ‘at all levels of,’ and would like to replace ‘may’ with ‘directly.’ They would like to delete also ‘lives and destinies.’

*Guatemala would like to delete ‘if they so choose’ as they feel it is redundant and they gave a very nice intervention about what it means to be in a democratic system and how participation is simply granted. They would like to know what democracy means in these nations that do not seem to encourage full participation of all peoples as is evident in these discussions.

OP40: The organs and specialized agencies of the United Nations system and other intergovernmental organizations shall contribute to the full realization of the provisions of this Declaration through the mobilization, inter alia, of financial cooperation and technical assistance. Ways and means of ensuring participation of indigenous peoples on issues affecting them shall be established.

*Again the USA gutted this article, saying that no declaration should provide financially for its implementation. It would then read “The organs and specialised agencies of the UN system and other intergovernmental organisations shall contribute to the realization of this Declaration through, inter alia, ensuring participation of indigenous peoples on issues affecting them.”

*Both IITC and IPACC noted that to reduce this article is to further reduce the participation of indigenous peoples in UN bodies.

OP42: The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.

*USA proposed the deletion of this article as they feel if the Declaration holds only minimum standards then either the wording in all of the articles must be softer and actually reflect minimum standards or this article must simply be removed. They feel that with the strong wording of much of the Declaration, it will open the door for new rights if the Declaration will be passed.

*The UK would like to delete ‘The rights recognized herein’ to ‘The provisions of this Declaration’ or ‘This Declaration constitutes.’

*Chavez said ‘The UK is interested in eliminating rights from this Declaration.’ And yes, it is a direct quote, but I believe that he would have had the word rights in quotes, I just thought it was a funny thing to say as in all forms it is true. The UK would like to eliminate the concept of rights for indigenous people.

OP44: Nothing in this Declaration may be construed as diminishing or extinguishing existing or future rights indigenous peoples may have or acquire.

*USA states that it needs to have a mention of ‘indigenous individuals.’ This is their concern that tribes will use collective rights to abuse human rights of indigenous individuals.

*Willie Littlechild pointed out to the USA that Article 1 covers what the USA would like, but Mr. Chavez disagreed and noted there is not explicit mention of ‘individuals.’

*AILA, IITC, and Goddess Mililani Trask made references to other human rights treaties which already protect the rights of individuals, and also noted that there are already norms in place as to how international treaties are to be construed which should assuage the USA concerns with this article.

The discussion then closed for the articles that have no changes proposed within the Nordic proposal. They began negotiations on the cluster of articles that almost received consensus last year, which include 14, 16, 33 and 45. Discussion began with Article 16, and the rest of the day was consumed with this discussion.

OP16: Indigenous peoples have the right to have the dignity and diversity of their cultures, traditions, histories and aspirations appropriately reflected in all forms of education and public information.

States shall take effective measures, in consultation with the indigenous peoples concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among indigenous peoples and all segments of society. [The Nordic proposal will delete in first paragraph ‘Indigenous peoples have the right to,’ change ‘their’ to ‘indigenous peoples,’ and add ‘should be’ before appropriately. In the second paragraph they will delete ‘eliminate’ and replace it with ‘combat’ as well as add ‘other’ before segments. For a copy of the Nordic proposal please refer to the OHCHR website if this is too confusing to follow.]

*Norway presented another proposal for the 2nd paragraph which would be to elucidate ‘combat prejudice and eliminate racism’ in lieu of ‘eliminate.’ This proposal had quite a bit of support.

*IITC, AILA, Willie Littlechild, Associacion Napguana & Mapuche of Chile, FAIRA, Cordillera Peoples Alliance, Ron Barnes, CAPAJ, oppose all changes to this article.

*Mililani, Guatemala, Mexico, JOHAR, Assembly of First Nations of Canada , Innu Council of Nitassinan, the Navajo Nation and IPACC feel that the first paragraph must maintain integrity to the sub-commission text, but they are quite flexible on the changes proposed in the second paragraph and will accept them if it means consensus can be maintained.

*TEBTEBBA was willing to allow the Nordic proposal to go through as is with the new amendment from Norway as they feel the rest of Declaration makes up for rights cut in the Nordic proposal. The Saami Council also supported the entirety of the Nordic proposal for this article.

*In general, indigenous organizations did tend to find the addition of the word ‘others’ legally problematic, although they were OK for the most part with the new Norway proposal (this is of course except for the abovementioned who are of the no change position.) Switzerland is very much in support of the addition of ‘others,’ but I did not understand their reasoning for this.

*Norway asked whether Mexico and Guatemala would be able to assist with consensus building and if they could come up with some alternate proposals they would find appropriate. Mexico and Guatemala will present some of these tomorrow.

Consensus is a big issue and it is still unclear to most people how exactly the Chair is determining consensus; many feel it is not being called when it is present. There is also a problem for many delegates that the Nordic proposal has become the basis of discussion and both indigenous organizations and governments felt the discussion should still be closer to the original sub-Commission text.

Until tomorrow,

Sezin

Thoughts?

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