Expatria · Human Rights · Riding A Dead Horse

Third report on the 10th Working Group on the Draft Declaration, September 15, 2004

Greetings,

Today’s discussions/negotiations were about Articles 18, 33, 45, and Preambular Paragraphs 6, 10, 11, 15. This will be a significantly shorter report than I have sent the last two days as there were so many proposals made towards this series of provisions that it would be quite confusing to attempt to elucidate every proposal made. All of them will be detailed within the Chairman’s final report, and it is possible in the following days that many of the disparate proposals, through consultations, may become unified proposals and it will be clearer to present them to you. Furthermore, as discussions are (somewhat problematically) based on the Nordic Proposal text, you will need to refer to a copy of the text to see what is being discussed. Again, this is too confusing to attempt to outline in these highly informal reports, and thus I will only be including the original text and a very basic outline of what was discussed.

A18: Indigenous peoples have the right to enjoy fully all rights established under international labour law and national labour legislation.

Indigenous individuals have the right not to be subjected to any discriminatory conditions of labour, employment or salary.

*The Nordic Proposal, henceforth referred to as CRP1, proposes lengthy text insertion regarding child labor and indigenous children. It also will change ‘peoples’ to ‘individuals’ among other things. AILA, IITC, ICC, Associacion Napguana, the Asian Indigenous Caucus, CISA, Guatemala, Mexico and Bolivia, for the most part agreed that the text should remain in the original Sub-Commission text version. Many of them proposed their own amendments to the text, or amendments to the Nordic amendment. It was especially important that indigenous ‘peoples’ be maintained.

A33: Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive juridical customs, traditions, procedures and practices, in accordance with internationally recognized human rights standards.

*CRP1 cuts and shifts around language that has to do with ‘distinctive juridical customs.’ The Saami Council found CRP1 acceptable. ICC, Confederacy of Treaty 6 Nations, AILA, Asian Caucus, IITC, Guatemala, Bolivia, the Navajo Nation said that there could be some flexibility with language in this article (but preferred the original text) and made points regarding how indigenous juridical systems are not merely customs and as it is many nations prevent indigenous groups from using their juridical practices. Furthermore, the terminology ‘applicable’ in regards to international human rights standards is problematic as it seems to domesticate international law.

*Canada has reservations on this article, as does Australia who would like additional language to determine what constitutes indigenous legal systems.

There was a very dramatic situation regarding Mr. Pary of the organization Indian Movement Tupaj Amaru, which as many know has been suspended for one year because of a situation with the American government. Today the USA delegate asked the Chair to please not let Mr. Pary take the floor anymore as his organization has been suspended, and it constitutes fraud for him to be speaking under the name of another NGO. There was quite a lengthy discussion regarding legal issues, in which Mr. Chavez suspended Mr. Pary’s participation in the discussions until a legal decision was given from the NGO Committee. Cuba took the floor in Mr. Pary’s favour and said that Mr. Pary should be allowed to speak until a decision is made, and that Mr. Chavez should not be prejudged. The Chair explained that if a decision comes back claiming that Mr. Pary’s presence has been fraudulent and illegal, then quite a bit of damage would have been done to the process and so he was sticking by his original decision and would suspend Mr. Pary from discussions until he heard from the legal department.

A45: Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations.

*Again CRP1 adds quite a bit of verbiage to the end of this article. Many indigenous peoples noted that this article can not be discussed until a more complete discussion was done on the issue of self-determination as well as article 6. Again, based on sound legal issues, it was demonstrated by the speakers that CRP1 adds nothing to this article, and in fact undermines the Charter of the UN as well as international treaties and conventions.

PP6: Recognizing the urgent need to respect and promote the inherent rights and characteristics of indigenous peoples, especially their rights to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies,

*Japan found the CRP1 amendment caused a contradiction between inherent rights and rights that are derived from indigenous people’s agreements with States. They presented a proposal to which New Zealand (one of the drafters of CRP1) agreed to.

*The Assembly of First Nations, IITC, ICC, Asian Caucus, and other indigenous delegates brought up this problematic of inherent rights being separate from state-granted rights. ICC and Mexico both presented new proposals of alternative language.

*Mr. Chavez asked all of the proposal-makers to get together and consolidate their various views and come back with one proposal.

PP10: Emphasizing the need for demilitarization of the lands and territories of indigenous peoples, which will contribute to peace, economic and social progress and development, understanding and friendly relations among nations and peoples of the world,

*The CRP1 proposal changes the wording of this as they feel demilitarisation may not necessarily contribute to peace, etc. USA would like simply to delete the text. Guatemala made a proposal of alternate language which was outright objected to by the CRP1 drafters.

PP11: Recognizing in particular the right of indigenous families and communities to retain shared responsibility for the upbringing, training, education and well-being of their children,

*unfortunately, I was not present for this discussion.

PP13: Considering that treaties, agreements and other arrangements between States and indigenous peoples are properly matters of international concern and responsibility,

*There were several proposals brought to the table aside from the CRP1 proposal, which included from Goddess Mililani, COICA, Willie Littlechild with AILA, Canada, and the Navajo Nation. Mr. Chavez asked them again to meet and consolidate into one proposal.

PP15: Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination,

*Again the CRP1 proposal contains the addition of further text to explicate applicable principles of international law which would apply. With the addition of the CRP1 text, consensus was very close last year.

*AILA and Guatemala renewed their proposal from last year’s WGDD and asked that it be brought to the floor again.

*It seemed that most people were bothered again by the term ‘applicable’, although as it is continually said, the original text is the clearest version of the right being outlined. Indigenous organizations also noted that this PP needed to be discussed in conjunction with article 3 on self-determination.

IITC wanted to know when the Chair was planning on breaking into a formal session to adopt the articles 2,3,7,9 which had been discussed and still remained with no changes. The Chair noted that the WG is not ready for adoption as States had wanted to discuss the issue of self-determination before moving onto these. He gave a tentative time frame of next week to bring this up for discussion again.

I fear that these reports will become more and more technical as proposals upon proposals will continue to be made in the working towards consensus. I will continue to do my best making sense of the discussions, and as concrete proposals are submitted in writing I will try to include these into my reports. For those who had requests regarding these reports, problems, etc, they will have to send me an email to remind me and I will do my best to oblige.

Until tomorrow,

Sezin

Thoughts?

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