The United Nations Declaration on the Rights of Indigenous Peoples and the Development of International Law
| Author | Fabiana de Oliveira Godinho |
| Position | Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and Doctoral Candidate at the Ruprecht-Karls-Universität Heidelberg, Germany. |
| Pages | 62-77 |
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After more than 20 years of intensive discussions and drafting works1, the United Nations General Assembly adopted the UN Declaration on the Rights of IndigenousPage 63Peoples (hereinafter the Declaration) on the 13th of September 20072. The Declaration is intended to summarize the minimum standard of rights and principles, which are necessary to provide for indigenous peoples worldwide a life with dignity and cultural autonomy.
The first significant step within the United Nations concerning the specific issue of indigenous’ rights goes back to an expert study on the problem of discrimination faced by indigenous persons3. This study was conducted for more than 10 years by a Special Rapporteur (Mr. Jose R. Martinez Cobo) nominated by the Human Rights Sub- Commission on Prevention of Discrimination and Protection of Minorities4 (hereinafter Sub-Commission). Its findings were documented in a broad report5 which led to the establishment of a Working Group on Indigenous Populations6 (hereinafter Working Group). This Working Group was especially mandated to “review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations”, by means of analyzing information collected by the UN Secretary-General, and considering “both similarities and the differences in the situations and aspirations of indigenous populations throughout the world”7.
The Working Group activities can be summarized as a large forum where representatives of the various interested parties, including States, intergovernmental and non-governmental organizations, and different indigenous communities could express their concerns8. The decision on the necessity of elaborating a declaration on indigenous rights was taken in 1985 and some leading principles were then formulated in preliminary wording. At its 11th session, in July 1993, the Working Group agreed on a final text for the so-called “Draft UN-Declaration on the Rights of Indigenous Peoples”, which was composed of 45 operational articles9. This draft was then submitted to the Sub-Commission for its adoption, which happened in 199410.
A significant event regarding the growing focus on indigenous issues within the United Nations was the declaration of the decade 1994-2004 as the first “World Decade on the Rights of Indigenous Peoples”11. The goal of the decade was defined as “the strengthening of international cooperation for the solution of problems faced by indigenous in such areas as human rights, the environment, development, education and health”12. In the context of this decade, the (former) Commission on Human Rights established another working group – the so-called “Working Group on the Draft Declaration” – with the attribution to review the text of the draft declarationPage 64submitted to it by the Sub-Commission13. One of the noteworthy results of the decade was the establishment of a Permanent Forum on Indigenous Issues as a subsidiary organ of the Economic and Social Council, in July 200014. The forum’s mandate is defined as to “discuss indigenous issues within the mandate of the Council relating to the economic and social development, culture, the environment, education, health and human rights15”.
A final agreement on the text of the draft declaration was only reached in 200616. The draft was one of the first instruments then adopted by the newly established Human Rights Council, by 30 votes to 2 (Canada and Russian Federation), and 12 abstentions, in June 200617. Following this event, the draft was brought before the UN General Assembly for its consideration and adoption, but a final decision on this respect was first postponed in order to “allow time for further consultations thereon”18. One year later, the UN Declaration on the Rights of Indigenous Peoples was finally adopted with 143 votes in favour, 4 votes against (Australia, Canada, New Zealand and United States of America) and 11 abstentions19.
This long process reflects the difficulties in overcoming the historical neglect of indigenous interests and in reconciling these peoples’ claims with the interests of the various States. The main obstacles to an agreement were set by the issues of indigenous peoples’ collective rights, the right to self-determination and land rights. The question of a reasonable and far reaching definition for the term “indigenous peoples” also raised strong discussion and represented a stumbling block20.
Bearing in mind this difficult and long evolution, the intention of this essay is not to provide a full commentary on the Declaration. It is, rather, to take a closer look into the final UN document, enlightening its content and scope, as well as appointing its controversial issues, and thereby to highlight the potential significance of the Declaration by the development of an international body of rights for the peoples concerned. For that purpose, the document’s conceptual framework (II) will be analyzed at first as it provides the background, which is reflected in the various provisions of the Declaration. In particular, the indigenous communities’ status of “peoples” (A) and their entitlement to collective rights (B) are the main issues to be contemplated in this context. The article will also provide an overview of the concrete provisions of the document and the themes embraced therein (III). Following, the analysis shall focus on the right to self-determination of indigenous peoples established in the Declaration (IV). The agreement reached between representativesPage 65of indigenous communities and of States depended much on the configuration of this specific issue, which is delineated by different articles of the document. The main elements of the exercise of indigenous peoples’ self-determination, i.e. the right to autonomy or self-government (A) and the right to political participation (B) will be concerned. Finally, an attempt will be made in order to highlight the meaning of the UN Declaration to the whole corpus of international law by establishing innovative international legal standards on the rights of indigenous peoples (V).
The UN Declaration on the Rights of Indigenous Peoples is better understood as an instrument which combines the most developed standards of international law, especially the ones related to human rights, and to the rights of groups and minorities, to new formulas regarding the specific rights of indigenous peoples. As such, the Declaration calls upon States to comply with the various existing international instruments and, in this context, to consider the new document as a “further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples”21. Bearing in mind the “historic injustices”22 suffered by these peoples, the States have accorded in the Declaration a set of rights which delineate a “standard of achievement to be pursued in a spirit of partnership and mutual respect”23.
A leading notion in the Declaration that also defines the desirable status of indigenous peoples could be expressed as equality in the diversity. That means, the Declaration goes from the assumption that all peoples have the right to be different, to consider themselves different and to be respected as such. Under this premise, it affirms that indigenous peoples are “equal to all other peoples”24. Many of the operational provisions in the Declaration go back to this central notion, reinforcing, on the one hand, the right of indigenous groups to exist and to be protected from every kind of discrimination or physical or cultural violence, and, on the other hand, addressing their right to self-determination. The Declaration reflects thus an approach of equality that values the differences in the societies and encompasses “cultural integrity as well as individual integrity”25 of indigenous.
As a product of real debate amongst the various interested parties, the Declaration is also determined to “enhance harmonious and cooperative relation between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith”26. The attempt to establish a reasonable balance between States powers and indigenous peoples’ autonomy is also a pivotal notion that characterizes the various provisions in the Declaration.
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Although the Declaration clearly recognizes indigenous groups as peoples, who are equal to all other peoples, it does not offer a definition of the term “indigenous peoples” under its content27. The question has been indeed a contentious issue during the drafting of the text. The absence of a definition reflects on the one hand the difficulties met in formulating a common, far-reaching and flexible notion, suitable to the different realities of the most various indigenous communities throughout the world, and at once capable of expressing their identity features without weakening or diluting the issue28. On the other hand, the silence of the Declaration in this regard can be interpreted as an option and respect for the criteria of self-identification29 “as an essential aspect of individual and group freedom”30, an aspect of their self-determination.
The self-identification perspective is expressed in the...
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