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The 10th session of the United Nations Working Group on Indigenous Populations, held in Geneva, Switzerland, 20-31 July 1992, concerned itself with four major topics: 1) development of international standards for the protection of indigenous peoplesespecially the proposed Declaration on the Rights of Indigenous Peoples; 2) report of the Special Rapporteur on the Study on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Populations; 3) recent developments affecting indigenous peoples; and 4) discussion of the International Year for Indigenous Peoples.
On the first topic, development of international standards, extensive discussion ensued during the conclusion of the first reading of the draft declaration. The Chairperson/Rapporteur of the Working Group, Ms. Erica-Irene Daes, submitted a revised working paper (E/CN.4/Sub.2/1992/28, 23 June 1992) based on written comments and observations of various governments, indigenous peoples, scholars, and non_governmental organizations on the first draft of the declaration.
While there was prolonged and often contentious debate about specific provisions of the declarationsuch as the right to restitution or compensation for occupied or confiscated lands and territories, the ever_present tension in the session was over broader principles concerning the legitimacy of certain descriptions of indigenous peoples and their conditions, and the attendant rights that accompany that descriptive vocabulary.
First and foremost in this regard was the debate over individual versus group rights in international human rights development. The United States' position was clear: "The draft declaration is largely a list of collective rights to which indigenous peoples are entitled. This approach to the declaration is fundamentally inconsistent with existing international human rights instruments...." This interpretation was opposed by virtually all of the indigenous delegates to the session who support an extension of the traditional Western understanding of human rights, i.e., rights of individuals to be free from oppression by the state, to a broader recognition of the right of peoples to exist as collectives and to be secure in their collective integrity from intrusions by the state or other threatening forces.
In a similar vein, some of the more contentious matters before the Working Group concerned the definitions and implications of key terms, such as "peoples" and "self_determination." In the evolution of decolonization principles under international law in the first 60 years of this century, the above terms were understood to possess a meaning that recognized certain rights in colonized peoples, and, conversely, certain responsibilities in statesnamely for colonial states to allow and facilitate the expression of political free will by the peoples they had colonized. Indigenous delegates have often advanced the position that the same decolonization principles should be extended to indigenous circumstances, and that the same understandings of the meanings of the relevant terms should be maintained. Most states adamantly disagree.
The fear held by many of them with respect to the extension of such a right to indigenous peoples was expressed by the United States:
Although the term "self_determination" is often used to imply a wide range of autonomous decision-making arrangements short of full independence, it is clear that operative paragragh 1 [recognizing a right to self_determination for indigenous peoples] might be construed as guaranteeing the right of full independence as a separate state to all indigenous groups. Accordingly, the United States Government could not accept...a declaration including such a provision.
The application of the right to self-determination for indigenous peoples was also the source of great debate during deliberations over the International Labor Organization's (ILO) Convention 169 in 1988_89. That debate provided a preview for later consideration of the same terms in the draft declaration. At the conclusion of the ILO debate a caveat was presented in Article 1(3) of the Convention that limited the meaning of the term "peoples," reading:
The use of the term "peoples" in this convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.
To the indigenous representatives at the ILO, this development indicated a design by states to emasculate previously understood juridical terms so as to limit their use by indigenous peoples.
This debate continued in the 10th session of the Working Group. In the session, the government of Canada was the standard bearer for the position that previously recognized international principles of decolonization do not apply to indigenous peoples. With specific reference to the use of the term "peoples," Canada stated that recent drafts of the declaration "have replaced the term `populations' with the term `peoples', a term which is unacceptable to Canada, unless accompanied by an acceptable qualifier, because of the possible incorporation of a right of self_determination, as that term is understood at international law." The U.S. went even further to limit the term by stating that "this draft declaration should not include the term `peoples'." But, if it did, it "should include a provision equivalent to that used in ILO Convention 169, making clear that the use of the term does not imply the right of self_determination as it is understood in international law."
To the indigenous delegates, the state position led by Canada and the U.S. presented a continuing formidable obstacle to the explicit recognition of the right of indigenous peoples to engage in a process of decolonization. However, at least one influential state provided a possibility for optimism among indigenous peoples.
Australia advanced its "support for the inclusion of self-determination language in the draft declaration," while "simultaneously recognizing the legitimate concern of states to preserve their territorial integrity." It continued by stating that "the concept of self-determination must be considered broadly," and that "[s]elf determination clearly cannot be allowed to wither away in the post decolonisation period and must be capable of adjustment to changing circumstances."
Publicly, the Australian government was presenting its position as an attempt to balance the aspirations of indigenous peoples and the fears of states that recognition of the right to self-determination would lead to a plague of secessionism. Privately, there was debate between indigenous delegates over the purity of Australia's motives. On the one hand, some argued, the Australian position represented a truly enlightened transformationthe consequence of years of persistent education by indigenous delegates. Conversely, some argued that Australia might be in a collusive relationship with the U.S. and Canada in a "good_cop/bad_cop" arrangement where the U.S. and Canada would present the worst case scenario to indigenous peoples and Australia would present a more accomodating, but generally still insufficient, interpretation of indigenous rights. In this scenario, indigenous peoples might be lured to accept the Australian position for fear of getting nothing if the U.S/Canada position prevails.
This debate will continue into the 11th session, at which time the second reading of the draft declaration should be completed. The Working Group has recommended that it then go to the U.N. Sub_Commission on Prevention of Discrimination and Protection of Minorities, then on to the Commission on Human Rights, and ultimately to the General Assembly for ratification by the state members.
Most indigenous delegates feel that this procedure should be slowed, and that the Working Group should travel to locales more accessible to indigenous peoples. A bloc of 34 indigenous movements and organizations recommended that the Working Group hold its 12th and 13th sessions, possibly at the U.N. centers in Santiago, Chile and Bangkok, Thailand, with the express purpose of soliciting input from indigenous peoples.
Fourth World Bulletin • October 1992
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