Global Policy Forum

By Stefania Errico*

On June 29, 2006, the United Nations Human Rights Council [1] adopted the U.N. Declaration on the Rights of Indigenous Peoples. [2] This decision comes as a result of more than twenty years of work by the United Nations system on that subject. Indeed, the efforts to draft a specific instrument dealing with the protection of indigenous peoples worldwide date back to the 1980s.

In 1982 the Economic and Social Council (hereinafter ECOSOC) established the Working Group on Indigenous Populations (hereinafter WGIP) with the mandate to develop a set of minimum standards that would protect those peoples. The decision to set up this institution was made by the ECOSOC in the aftermath of a study by José R. Martinez Cobo [3] on the problem of discrimination faced by indigenous peoples throughout the world. The study shed light on the situation of oppression, marginalization and exploitation suffered by indigenous peoples.

The WGIP – made up of five independent experts coming from different areas of the world – submitted a first draft declaration on the rights of indigenous peoples to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, which approved the draft in 1994 [4] and sent it for consideration to the ex- U.N. Commission on Human Rights. The latter was called to discuss the draft and - had it deemed it to be appropriate - to approve the proposed declaration before its submission to ECOSOC and the U.N. General Assembly.

The process moved slowly because of concerns expressed by States with regard to some of the core provisions of the draft declaration, namely the right to self-determination of indigenous peoples and the control over those natural resources existing in their traditional lands. Subsequently, the need to accommodate these issues led to the creation of a specific working group – the Working Group on the Draft Declaration – where negotiations between States and indigenous representatives could take place.[5]

The Declaration as it was approved in June is the outcome of this process. It is exactly the version proposed by the Chairperson-Rapporteur of the Working Group on the Draft Declaration, Mr. Luis-Enrique Chávez, and included in the annex I to the report of the working group on its 11th session.[6] Due to the opposition of New Zealand, Australia, United States, Canada and Russia, it was not possible for the Council to adopt the declaration by consensus. Thus, it was ultimately adopted by a roll-call vote of 30[7] in favor to 2 against[8] and 12 abstentions[9]. In September the U.N. Declaration on the Rights of Indigenous Peoples will be submitted to the General Assembly for final approval.

As affirmed in article 43, the rights set forth in the Declaration constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. However, the Declaration does not provide any definition of "indigenous peoples." On the contrary, in line with the present trend, in article 33 it recalls the criterion of self-identification.[10] Article 33 states in part, "Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions."

The preamble and article 2 affirm that Indigenous peoples are equal to all other peoples. It follows that they are entitled to the right of self-determination. Indeed, art. 3 quotes common article 1 of the UN Covenants by stating that "Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." The following article clarifies that in exercising their right to self-determination, indigenous peoples have the right to autonomy or self-government in matters relating to their internal and local affairs.

The Declaration ultimately focuses on forms of participation and involvement of indigenous peoples in the national life of the State, while protecting their specific cultural identity. Thus, the rights of indigenous peoples not to be subjected to any act of genocide and not to be subjected to forced assimilation or destruction of their culture are affirmed respectively in articles 7 and 8. Additionally, the Declaration recognizes indigenous peoples' right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions along with the right to practice and revitalize their cultural traditions and customs.[11]

As mentioned above, indigenous peoples' right to participate fully in the political, economic, social and cultural life of the State is also recognized. To this purpose, article 18, for instance, states that indigenous peoples have the right to participate in decision-making in matters which would affect their rights through representatives chosen by themselves in accordance with their own procedures. In the same vein, article 19 provides that States shall consult indigenous peoples' representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. Similarly, indigenous peoples' right to be actively involved in developing and determining health, housing and other economic and social programs affecting them is incorporated in the Declaration.[12]

The particularly sensitive issues of natural resources and development are addressed in articles 26-32. In the first place, the Declaration recognizes indigenous peoples' right to own, use, develop, and control the lands, territories and resources they have traditionally occupied or used. It then adds that, in giving legal recognition to these lands, territories and resources, States shall take into account the customs, traditions and land tenure systems of the indigenous peoples concerned. Moreover, article 28 affirms that indigenous peoples have the right to redress for the traditional lands, territories and resources which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.

Article 32 incorporates the right of indigenous peoples to determine and develop priorities and strategies for the development or use of their lands, territories and resources. Furthermore, States are called to consult and cooperate with these peoples in order to obtain their free, prior and informed consent prior to the approval of any project affecting their lands, in particular with respect to the exploitation of mineral resources as well as water.[13] Additionally, the Declaration requires States to take effective measures in order to mitigate the adverse environmental, economic, social, cultural and spiritual impacts which may flow from the implemented projects.[14]

About the author: Stefania Errico is a 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; collaborator to the project "Identity, Power and Rights: The State, International Institutions and Indigenous Peoples" of the UN Research Institute for Social Development (UNRISD).

1. The Human Rights Council, established by the U.N. General Assembly's Res. A/RES/60/251of 3 April 2006, replaces the former Commission on Human Rights. See also the 2005 Report In larger freedom: towards development, security and human rights for all,U.N. Doc. A/59/2005.

2. See U.N. Doc. A/HRC/1/L.10, 30 June 2006.

3. See José Martinez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, U.N. Doc. E/CN.4/Sub.2/1986.

4. This first Draft Declaration - commonly known as the "original draft" or "Daes's draft" after the name of the Chairperson-Special Rapporteur of the WGIP, Mrs. Erica-Irene A. Daes - is included in U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1.

5. The Working Group on the Draft Declaration was established by the U.N. Commission on Human Rights in 1995 by Res. 1995/32.

6. See Annex I to U.N. Doc. E/CN.4/2006/79, 22 March 2006, Human Rights and Indigenous Issues, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32 of 3 March 1995.

7. Azerbaijan, Brazil, Cameroon, China, Cuba, Czech Republic, Ecuador, Finland, France, Germany, Guatemala, India, Indonesia, Japan, Malaysia, Mauritius, Mexico, Netherlands, Pakistan, Peru, Poland, Republic of Korea, Romania, Saudi Arabia, South Africa, Sri Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, Uruguay, Zambia.

8. Canada and Russian Federation.

9. Algeria, Argentina, Bahrain, Bangladesh, Ghana, Jordan, Morocco, Nigeria, Philippines, Senegal, Tunisia, Ukraine. Djibouti, Gabon and Mali were absent.

10. In the same vein, see the World Bank Operational Policy on Indigenous Peoples, the Asian Development Bank Policy on Indigenous Peoples, the Inter-American Development Bank Operational Policy on Indigenous Peoples and, lastly, the Proposed American Declaration on the Rights of Indigenous Peoples at art. 1. See also art. 1 of ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.

11. See arts. 5 and 11.

12. See art.23.

13. See art. 32, para. 2.

14. See art. 32, para. 3.