Human Rights · Riding A Dead Horse

12th Report on the 10th Working Group on the Draft Declaration, November 29, 2004

Greetings,

By the good graces of the Spirits and the support of the International League for the Rights and Liberations of Peoples (LIDLIP) as well as Indigenous World Association, I am back again to report on the ‘final’ week of the Working Group on the Draft Declaration for the Rights of Indigenous Peoples. Please forward this report as you wish and I will remind you that all opinions expressed within this report are my own and do not reflect the views of LIDLIP or IWA unless expressly noted. Now, they say that this is the last week for negotiations and that by some miraculous force of political will (that has been absent in the last, oh, 27 years) the Declaration will finally be adopted and the indigenous peoples of the world can rest easy now the United Nations has an official document in support of the basic human rights for indigenous peoples. Even though I am an idealist, I have had to concede with myself that this is simply not possible, and it is now for us to see what will happen this week for the future of this Declaration.

That said, after today’s meeting things are looking bleak, grim and as stormy as the weather in Geneva. Before I get into the substantial discussions of the day, I will just let you know that Mr. Chavez’s agenda for the week is as follows: Monday and Tuesday to discuss the hot topics of self-determination and lands and territories, Wednesday and Thursday for informal discussions, and then Friday for the presentation and adoption of the Chairman’s report. It was expressly noted over the weekend by Mr. Chavez during his visit to the Indigenous Caucus that he will not call for the provisional adoption of any articles at all (because he claims that in no way will this demonstrate progress to the CHR!), that he is already working on the Chairman’s text which will be presented to the CHR as a middle ground between all the varying positions within the negotiations, and even though indigenous delegates had alternate workplans that seemed far more time efficient, he would be sticking with his original agenda and that was all final. Oh yes, and we haven’t even begun talking about today’s meeting yet! Just wait!

As usual, this morning’s session did not begin until 1040 AM (a trick of the Chair to just eat away at the time like acid) and when it did Saul Vicente of IITC announced to the WGDD that there would be seven indigenous delegates who would be on a hunger strike and spiritual fast until the end of the negotiations or until some significant progress was made. The fasters are Saul Vicente (Zapoteca, Mexico), Charmaine White Face (Oglala Tetuan, Sioux Nation), Adelard Blackman (Buffalo River Dene Nation), Andrea Carmen (Yaqui Nation), Alexis Tiouka (Kalina, French Guyana), Aucan Huillcaman (Chile), and Danny Billie (Seminole Nation). If you would like to send a letter in support of this “hunger strike for indigenous rights” please send a fax to 00-41-22-917-0079, emails to indigenousolidarity@yahoo.com, and to have your letter posted on the IITC website email it also to iitc@e-w-t.net with ‘to post’ in the subject line. During the course of the day, many indigenous delegations expressed their support of the hunger strike, and these included World Peace Council, IORD, CISA, IITC, RAIPON, ICC, AILA, AIR Trust, IWA, among others which included most Latin American indigenous groups and organizations.

The announcement of the hunger strike was met with surprise and shock, and Mr. Chavez suspended the meeting for ten minutes in order to consult with government delegates as well as UN security in order to determine what to do and whether or not the fasters would be allowed to remain in the building. When the meeting resumed, Clifford White Eyes from the Oglala Sioux Nation opened the meeting with a prayer. Immediately after the prayer, an irate Russian delegate took the floor on a point of order claiming that the WGDD was violating the agenda not only by allowing a spiritual manifestation but also in terms of the hunger strike, which he claimed were inappropriate and that the Chairperson should take measures to correct. Russia wanted the Chairperson to bring order to the room. Chavez pointed out to the Russian delegate (for whom this is his first meeting at the UN) that the indigenous meetings were always opened with a prayer and that UN security had been informed about the hunger strike and thus he would have nothing further to do with that. Boy, was the Russian delegate mad, beet red and shaking his head, and I’m positive, cursing in Russian under his breath.

The Chair opened up discussion on Article 3 on self-determination by noting the various proposals of new text or amendments that had been made by different delegations, included in the document CRP4. Mr. Chavez made it clear that he would not allow for general comments to be made in an interchange with Mr. Lazaro Pary that lasted about ten minutes, and then the substantial discussion began. Russia had presented a proposal for new text in Article 3 having to do with self-determination relating to national constitutions and constructive arrangements, which was categorically rejected by all indigenous organizations that took the floor. Willie Littlechild took the floor on a point of order to ask about the ECOSOC process of submitting proposals to be included into the UN record, and stated that as per his knowledge, all documents had to be submitted six weeks before the start of the meeting, which in the case of the 10th WGDD was in September. Willie asked this because very recently a huge proposal of new text and amendments was presented by the Saami Council and Tebtebba Foundation (CRP5), and he wanted to know what the legality of that was from the Chair. Willie also pointed out that there were many proposals made during the two weeks in September that never made mention in the Chair’s report to date, including the so-called Indigenous Proposal which you will recall has to do with the articles of self-determination and is the package deal to add a preambular paragraph that could leave Article 3 as is. Mr. Chavez apologized profusely for the omission of the proposal (which had been a remarkable point of the September meetings) and this proposal was re-circulated and presented once again. The proposal would also get a formal title of CRP6 or something of the like. Mr. Chavez’s oversight in including many of the indigenous proposals would be a theme throughout the day and he really had no reason for why it was so, other than it just somehow didn’t make it into the report.

So discussion on Article 3 mainly focused on the issue of including ‘territorial integrity’ and ‘political unity’ into the Declaration text. Indigenous delegates noted that States were already protected many times over on both these issues in numerous treaties and in international law, and also that the issue of self-determination of peoples is also already recognized many times over in the same. What are not specifically recognized are these rights for indigenous peoples and hence the importance of the presence of strong language in this regard in favor of indigenous peoples. Dalee Sambo, on behalf of ICC, took the floor and gave an impassioned intervention on the issue of territorial integrity and how the Indigenous Proposal as well as the AILA/Guatemala Proposal from the 9th Session could assuage the fears of governments on this issue. Mainly, she referred to the New Zealand government comments from September in which they claimed that the Indigenous Proposal in no way met their concerns over territorial integrity, and Dalee went on to demonstrate in a very clear and succinct manner how it did. Firstly she noted that the principle of equality is in fact universal, and so is the equal application of self-determination to indigenous peoples in this context. She cited from the Universal Declaration on Human Rights as well as many other treaties which not only speak to the equality of all people in the human family, but noted where the territorial integrity of States is already provided for in various declarations, conventions and treaties. Furthermore, she posited that States in their comments on self-determination in these negotiations were in fact making a hierarchy of recognized international law and placing territorial integrity in an untouchable and supreme place. She vehemently stated that there can be no hierarchy in international law and that all people have equally the right to access the various processes therein. She also stated that the Indigenous Proposal attempts to reconfigure and reconceptualize relations between States and indigenous peoples and in this context when they speak of democracy it relates more to the discussions in terms of encouraging participation than it does as a political notion of governance. Canada expressed their support of Dalee’s comments as well as the Indigenous Proposal and encouraged States to do what they can to come to consensus, especially in regards to this Indigenous Proposal and the sticky issue of self-determination. Yes, my friends, we have now entered The Twilight Zone.

The Saami Council and Tebtebba discussed their extensive proposal contained in CRP5 and wanted to make clear that they were not chained to the proposal and only created it in an effort to forge consensus. They would still be considering other proposals and also support the Indigenous Proposal.

Australia took the floor to say that they were of the view before the morning began that the issue of self-determination could be concluded (like I said, we have entered another dimension of space and sound), but at that point if no substantial progress was made on this issue they could not support an extension of the WGDD. They also wanted to understand that if territorial integrity was present in so many treaties, then why should it be problematic to include it in the Declaration. New Zealand agreed with them on this point as well.

AILA took the floor and also gave an ardent intervention to point out that everyone is here to negotiate a Declaration on the rights of indigenous peoples, and furthermore noted once again that self-determination is entrenched in a multitude of international documents and is without limitation. She noted that it would be a scandal and without precedent if indigenous peoples were asked to accept a specific limitation of their rights, and in no way did the WGDD have the power to do this.

During the afternoon session, which also began almost 30 minutes late, the discussion on Article 3 and self-determination continued only until just a little bit past 4 PM. The Russian proposal for self-determination was criticized further as it was noted that many nations do not have written constitutions or legislation that is discriminatory and thus amendment put forward by the Russian delegation would be inappropriate for much of the world. Goddess Mililani Trask took the floor to point out that Russia is a signatory to the Covenant on Economic, Cultural and Social Rights (CECSR) and in 2003 they had been rebuked for the violent and precarious situation of indigenous peoples in their territories. Russia indignantly took the floor in a point of order to bellow that the topic under discussion was not the status of indigenous peoples in their country and angrily asked the Chair to keep the discussion on topic. Mr. Chavez, the adept diplomat, agreed that certainly it was not the place for specific cases nor denunciations of States, but at the same time he stated that Mililani’s example illustrates a situation in the light of the Russian proposal, and so he allowed for Mililani to continue with her intervention. Ironically, Mililani said nothing more about Russia but went on to note that many of the additions of text for Article 3 had been directly taken from other treaties and she discussed the problematic of taking these passages out of context and sticking them into the Declaration just like that. Ron Barnes noted that there is no such thing as internal or external self-determination, and there are no limits placed on this in international law. Russia complained that no one understood their amendment and how really it helps to implement the right of self-determination, and so they made a new proposal (not yet circulated) which would clarify their position. Chavez closed Article 3 and self-determination for discussion and moved to land rights and territories.

Discussions on Articles 25 and 26 were opened and these were discussed for the rest of the afternoon. Of course, most indigenous delegates and some States would like to see the Declaration left as it is, and the discussion became highly technical over exciting topics like should it be ‘their lands’ or ‘the lands.’ A discussion of ILO 169 entered into these discussions vis a vis comments by several organizations from Chile, Mexico, and Argentina, but Chavez pointed out that ILO 169 is not very widely ratified and thus cannot take a substantial role in the discussions. Chavez also wanted people to stop discussing their national constitutions as he felt that there are too many constitutions in the world to consider and they cannot be used to further impede the process of the WGDD. Again the point came up about the omission of proposals in the Chairman’s report from ILRC and Mr. Pary, but the Chair noted that in the case of ILRC (different from other cases) he actually did not have a copy of the proposal and that is why it wasn’t included. Hmmmm. Makes you wonder why exactly the other proposals, which he did in fact have at his disposal, somehow did not make a mention in his report.

The meeting was suspended at 6 PM but for once, not everyone poured immediately out of the room. Instead, many people went to speak with the hunger strikers, who were trying to find a way to stay in the UN overnight. Of course, Swiss bureaucracy and UN Security Policy would not allow it, so that was that. Tomorrow morning the discussions will continue on lands and territories and I will be back again tomorrow night to report back on how far down the rabbit hole will go.

In honor of Tony Black Feather,

Sezin

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