The UN General Assembly adopts the Declaration on the Rights of Indigenous Peoples

Update to ASIL Insight Vol. 10, Issue 19

On September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of Indigenous Peoples ("Declaration"). The adoption came after more than a year of delays in the General Assembly, and represented the culmination of more than 20 years of work. Four States - the United States, Canada, Australia and New Zealand - voted against the adoption. Implementation of the provisions of the Declaration is currently under discussion at the UN Human Rights Council. However, by only being included in a "declaration", these provisions are not legally binding on States unless they can be said to reflect customary international law.

Following adoption by the UN Human Rights Council on June 19, 2006, the Declaration had been forwarded to the General Assembly for consideration and adoption at the 61st session. Adoption was delayed over concerns that Declaration provisions relating to self-determination, indigenous peoples' rights over land and resources and indigenous institutions posed a potential threat to national and territorial integrity of States. Additionally, various delegations were critical of the lack of a definition of "indigenous peoples." As a result of these concerns, the African Group of States[1] last year tabled a resolution, later adopted by the Third Committee of the General Assembly (Social, Humanitarian and Cultural Committee) on November 28 2006, aimed at "defer[ing] consideration and action on the United Nations Declaration on the Rights of Indigenous Peoples to allow time for further consultations thereon",[2] while at the same time calling on the General Assembly "to conclude its consideration of the Declaration before the end of its sixty-first session", i.e., September 2007.[3] Adoption of the Declaration was delayed despite the fact that the original proposed umbrella resolution containing the draft Declaration, which was put before the Third Committee by the Human Rights Council, had been modified - leaving the text of the Declaration unchanged - to include an explicit reference to the territorial integrity of States,[4] precisely in order to accommodate the concerns expressed by some delegations.

On June 6, 2007, the President of the 61st session of the UN General Assembly, H.E. Haya Rashed Al Khalifa, appointed the Permanent Representative of the Philippines to the United Nations in New York, H.E. Hilario G. Davide Jr., as "facilitator," charging him with the task of conducting further consultations on the draft Declaration and finally reporting the outcomes to the General Assembly with a view to making a decision on the Declaration by September 2007.

As reported by the Facilitator, proposals were made by States either to amend various paragraphs in text of the Declaration in order to accommodate the concerns expressed by some States, or to consider an umbrella resolution which could address the subjects of concerns without changing the wording of the Declaration. Eventually, the Co-sponsoring States for adoption of the Declaration and the African Group of States negotiated and agreed on a final proposal, contemplating nine amendments to the original draft Declaration as adopted by the Human Rights Council.[5] The Steering Committee of the global Indigenous Peoples' Caucus also endorsed adoption of the Declaration incorporating the nine amendments.[6] The UN General Assembly considered and voted on that proposal on September 13, 2007.[7] The Declaration was finally adopted by a vote of 143[8] in favour to 4 against (Australia, Canada, New Zealand and the United States), with 11 abstentions.[9]

On the whole, the nine amendments do not change the substance of the indigenous peoples' rights recognized in the Declaration as adopted by the Human Rights Council. First, two preambular paragraphs have been introduced, recalling respectively the principles of the Charter of the United Nations and the 1993 Vienna Declaration and Programme of Action. They should be read in conjunction with the sentence added to the end of article 46, para. 1, according to which "Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nation or construed as authorizing or encouraging any action which would dismember or impair totally or in part, the territorial integrity or political unity of sovereign and independent States." It is thus confirmed that the Declaration does not provide indigenous peoples with special treatment regarding "external self-determination". This reading of the Declaration had already come out of the debates which took place during the sessions of the Working Group on the Draft Declaration and, more recently, the statements made at the Human Rights Council as well as at the Third Committee of the General Assembly, as no intention was shown to recognise, for the benefit of indigenous peoples, further hypotheses, other than those traditionally known, allowing independence and secession from existing States. As a result, the right of self-determination indigenous peoples may exercise has, essentially, an internal dimension. In this respect, it should be noted that the paragraph "recognizing that indigenous peoples have the right freely to determine their relationships with States in a spirit of coexistence, mutual benefit and full respect," has been removed from the Preamble of the Declaration. Yet, the fact that article 5 of the Declaration has remained unchanged, notably as to the expression "if they so choose" with regard to the indigenous peoples' right to participate in the political, economic, social and cultural life of the State,[10] suggests that the extent of indigenous peoples' right to internal self-determination has not been altered.

Second, a specific preambular paragraph has been added acknowledging that "the situation of indigenous peoples varies from region to region and from country to country and that the significance of national and regional particularities and various historical and cultural backgrounds should be taken into consideration". On the other hand, with regard to the States' obligation to provide effective mechanisms for prevention of, and redress for, among others, any forms of forced assimilation or integration, as stated at article 8 of the Declaration, the reference to assimilation or integration "by other cultures or ways of life imposed on them [i.e., indigenous peoples] by legislative, administrative or other measures" has been deleted.

Third, as regards the provisions concerning indigenous peoples' rights over traditional lands and resources, they have remained unchanged, except for the deletion of the adjective "their" before resource at article 32, para 2, reflecting the controversial status of the issue of ownership of natural resources. Additionally, article 30, which addresses military activities taking place in indigenous peoples' lands and territories, has been changed by deleting the reference to a "significant threat" to "relevant public interest," thus justifying military activities on the mere basis of an existing relevant public interest, which may raise some concerns in light of the serious militarization of indigenous territory experienced by various indigenous communities around the globe.

Finally, the Declaration affirms at article 46, para 2, that "[t]he exercise of the rights set forth in this Declaration shall be subjected only to such limitations as are determined by law, and in accordance with international human rights obligations." The question to be addressed now is how to implement the provisions incorporated in the Declaration. Indeed, article 42 of the Declaration states that "[t]he United Nations, its bodies, including the Permanent Forum on Indigenous Issues, and specialized agencies, including at the country level, and States shall promote respect for and full application of the provisions of this Declaration and follow up the effectiveness of this Declaration". Accordingly, the issue of the implementation of the Declaration has in fact been raised and is currently being discussed before the Human Rights Council in relation to the mandate of the Special Rapporteur on indigenous issues.

About the Author
PhD candidate in International Law at "Federico II" University of Naples; observer at the 11th session of the UN Working Group on the Draft Declaration on the Rights of Indigenous Peoples and at the 1st session of the UN Human Rights Council.

Footnotes