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Indigenous International Debate: Which Way Forward on the Draft Declaration? A Challenge to ILRC Position of May 2, 2006

We, the undersigned, are writing in regard to the recent Indian Country Today article titled “Indigenous Rights Declaration moves to Human Rights Council” [by Valerie Taliman, Vol. 25, Iss. 42].

We generally welcome a wide range of views on indigenous peoples’ human rights. However, the analyses and positions expressed in the article by Robert “Tim” Coulter, executive director of the Indian Law Resource Center, are cause for grave concern.

We strongly disagree with Coulter’s call for extending the discussion on the draft U.N. Declaration on the Rights of Indigenous Peoples. If endorsed by a sufficient number of states, that path would derail the approval of the declaration in June 2006 by the newly established U.N. Human Rights Council. It would lead to indefinite delays in taking definitive action. Indigenous peoples from all regions of the globe have worked with states for more than 20 years on the declaration. We are determined to ensure its adoption by the U.N. General Assembly before the end of 2006.

The legal opinions expressed by Coulter to support his position are misleading or erroneous. From a strategic perspective, they could be highly damaging to more than 300 million Indigenous people worldwide.

Our specific concerns include the following:

1. Coulter insists that the “Human Rights Council continue to work on the declaration in order to resolve the remaining issues on self-determination, lands, territories and natural resources.” He also insists that a text of the declaration be “adopted by consensus” so as to accommodate “objecting states,” such as the United States, Australia and the Russian Federation, among others. In our view, New Zealand could be added to this list.

However, for more than two decades, indigenous peoples have discussed these and other issues with states at the United Nations. In the case of the United States, Australia and the Russian Federation, as well as New Zealand, these states are already legally bound under international law to respect the rights of indigenous peoples – including rights to self-determination, lands and resources.

2. Coulter’s argument for reopening discussions on the right of self-determination rests on a flawed premise. He has repeatedly declared at the working group in Geneva that indigenous peoples have no such right under existing international law. His position runs directly counter to that of the overwhelming majority of indigenous peoples, most participating states and the leading international legal experts who have opined on the subject. It also contradicts the conclusions of U.N. treaty-monitoring bodies and numerous U.N. special rapporteurs, as well as ILRC’s stated position before the Human Rights Committee in March 2006.

3. Reopening discussions in an attempt to reach further consensus would run the risk of unraveling many key gains that we have made to date. We are not prepared to weaken the human rights of indigenous peoples that are affirmed in the current text of the declaration. We are especially not prepared to do so in order to satisfy a few outlying states that may wish to minimize their responsibilities to uphold indigenous peoples’ rights. The United States, Australia, New Zealand and the Russian Federation have all been subject to “early warning and urgent action procedures” by the Committee on the Elimination of Racial Discrimination for acts that constitute violations of human rights, including the rights of indigenous peoples.

4. Coulter overstates the

significance of having the

declaration adopted by a consensus that includes all states. He asserts that if the declaration were adopted by consensus, it would be a “recognition that these rights are binding on member states.” This is simply inaccurate. Consensus or no consensus, U.N. declarations, unlike treaties, do not themselves establish legal obligations. U.N. declarations are to affirm standards that go beyond what may be deemed already legally binding on states.

A declaration on indigenous rights that is widely supported by states will go a long way toward consolidating or furthering the development of customary and general principles of international law on the subject. But it is simply wrong to assume that the declaration itself will automatically create legal obligations. Just as it is mistaken to believe that the declaration’s contribution to the building of international standards will be negated by the possible refusal of a few states to vote in favor of it.

5. It is off the mark for Coulter to assert in this context that, if a state “consistently objected” to an emerging rule of customary international law, it would prevent that rule from applying to the opposing state. First, even if states were to vote against the declaration, that act alone would not qualify them as “persistent objectors” against emerging norms of customary international law that are reflected in the declaration. Second, the law on “persistent objectors” is far from clear.

While there is support among jurists for such an exception, the legal precedents are weak. There are also jurists who disagree that there exists such a “persistent objector” rule or, if so, what its legal effect would be. Numerous other jurists are of the view that, in regard to the right of self-determination, it is already customary international law.

In any event, in relation to the right of self-determination, the United States, Australia, New Zealand and the Russian Federation could hardly claim to be “persistent objectors.” All of these states have ratified at least one of the international human rights covenants, which affirm the right of self-determination and rights to natural resources, rights that apply to all peoples. These states are legally obliged to promote the realization of, and to respect, these rights of all peoples.

6. Coulter also believes that, if adopted by a vote and not by consensus, the declaration “might never become binding laws [since in] order to become legally effective and legally binding, it must first become customary international law.” This assessment is overly pessimistic and defies precedent.

There are numerous examples of a U.N. declaration contributing to the consolidation or development of customary international law when the declaration was adopted by a split vote rather than by consensus. The extent to which a U.N. declaration reflects customary law is to be determined by a careful examination of each specific principle or norm in the declaration, in light of relevant state and international practice and not just in light of whether or not the declaration was adopted by consensus.

7. Even if one or more of the norms in the declaration do not eventually become customary international law, it would not be correct to characterize the declaration as “just a statement of proposed rights.” As the current text of the declaration itself confirms, indigenous peoples’ rights are inherent in nature. They are not being created by this instrument. In any event, as has been the case with other U.N. human rights declarations, the standards in this declaration will serve as a benchmark for both international and domestic decision-making, including

decision-making by domestic courts. This will likely occur, independently of whether or not the standards qualify as

customary international law.

Already, standards articulated in the original draft of the declaration have been used by international institutions and domestic authorities to interpret the scope and content of the rights of indigenous peoples. The declaration could also serve as the basis for further elaboration of the rights of indigenous peoples, such as through a future convention.

8. It is also wrong for Coulter to suggest that indigenous peoples in the United States, Australia and the Russian Federation would be deprived of their human rights unless these states’ concerns are accommodated. It is clear beyond doubt that these states already have human rights obligations toward the indigenous peoples living within their respective territories, on the basis of already existing sources of international law. It defies

reason to suggest that any indigenous peoples will be worse off by a declaration that does not garner the affirmative votes of these states.

Quite to the contrary, adoption of the current text of the U.N. declaration will serve to reinforce the human rights of indigenous peoples everywhere. Experience suggests that the United Nations and other human rights bodies will at least on occasion hold states accountable under the terms of the declaration regardless of their vote on it. Furthermore, even if these states were to vote against the declaration, it would, at the very least, remain for them an aspirational document that would help prod the judicial and other authorities of these states toward re-examination of their respective domestic laws and policies concerning indigenous peoples.

Aside from substantive concerns, there are also critical strategic considerations. It is dangerous to insist that the Human Rights Council reopen discussions on the declaration. This could lead to the creation of yet another working group, where there may be years of interminable debate.

The future of the declaration could well be at stake. The declaration could be seriously undermined or else sacrificed in the process. In light of the widespread human rights violations suffered by indigenous peoples globally, there is no justification for taking such huge risks.

<i>Inuit Circumpolar Conference

Grand Council of the Crees

(Eeyou Istchee)

Na Koa Ikaika Kal_hui Hawai’i

Native Women’s Association

of Canada

First Peoples Human

Rights Coalition

Tebtebba (Indigenous Peoples’

International Centre for Policy

Research and Education)

Asian Indigenous

Women’s Network

Indigenous World Association

Saami Council

American Indian Law Alliance

Professor Mick Dodson, AM,

Australian Institute of

Aboriginal and Torres Strait

Islander Studies

Indigenous Peoples Law and

Policy Program, The

University of Arizona Rogers

College of Law, Tucson, Ariz.

Western Shoshone

Defense Project