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Davis, Megan --- "The United Nations Declaration on the Rights of Indigenous Peoples" [2007] IndigLawB 50; (2007) 6(30) Indigenous Law Bulletin 6

The United Nations Declaration on the Rights of Indigenous Peoples

by Megan Davis

On 13 September 2007, the General Assembly adopted the United Nations (‘UN’) Declaration on the Rights of Indigenous Peoples (‘DRIP’).[1] The Declaration, elaborating the rights of Indigenous peoples, was 20 years in the making. It was originally conceived of in the Working Group on Indigenous Populations (‘WGIP’) in 1985 to fulfil a standard setting mandate.[2] The WGIP members drafted the text in consultation with indigenous peoples who participated fully in the development of the text.[3] During the eleventh session of the WGIP, a final text of the Draft Declaration on the Rights of Indigenous Peoples was agreed upon.[4] The WGIP submitted the Draft Declaration to the Sub-Commission on Prevention of Discrimination and Protection of Minorities who adopted the text in 1994 and submitted it to its parent body, the Commission on Human Rights (‘CHR’). The CHR established an open-ended inter-sessional working group to elaborate on the Draft Declaration on the Rights of Indigenous People (‘the Working Group’) in 1995 where it took over a decade to debate and discuss the legal issues raised by the Declaration.[5] The General Assembly’s adoption of the DRIP is an important development for indigenous peoples globally and particularly for Aboriginal and Torres Strait Islander peoples. This paper seeks to explain the purpose of the Declaration, its significance for Aboriginal and Torres Strait Islander peoples in Australia and explain what rights are elaborated in the text.

The Purpose of a United Nations Declaration on the Rights of Indigenous Peoples

The momentum toward the elaboration of a Declaration on the Rights of Indigenous Peoples was because of the absence of international human rights law pertaining to the rights of indigenous peoples. The DRIP fills that gap by providing a document that indigenous peoples can use in their political advocacy and in their discussions with all levels of government. This fulfilled the mandate of the WGIP to ‘give special attention to the evolution of standards concerning the rights of such populations’.[6]

The Declaration is a non-binding, aspirational document of the developing standards relating to indigenous peoples in international law. The text creates no new rights in international law. It is possible that eventually the Declaration would have some effect in law – if those rights contained in the Declaration were used by enough states that they became elevated to the level of customary law or indeed if the Declaration became a convention in which signatory states become legally bound by the instrument. It can be said that some articles in the DRIP contribute to a growing body of customary law of indigenous peoples rights, however it cannot be said that the entire text does so. It provides a framework for human rights based dialogue between indigenous peoples and states.

Controversies

There were a number of controversies with the Declaration during its 20-year passage through the UN system. One of the main objections of some states was the recognition of the right to self-determination for indigenous peoples. The objection was based on the fact that the right to self-determination is an individual right that cannot be extended to a group like indigenous peoples. Western human rights discourse has promoted the individual as being paramount within the system yet this is at odds with indigenous communal and collective cultural practices. Some states have argued that recognising the right of self-determination of indigenous peoples would give rise to movements for secession and threaten the territorial integrity of the state. To counter secession arguments, indigenous peoples frequently referred to the safeguard clause from the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States:

Nothing in the foregoing paragraphs shall be 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.[7]

Even though international law provides that the Declaration would be subject to all existing international law, to pacify those obstructive states explicit reference was made in Article 46 of the final text of the Declaration to the safeguard clause to confirm the territorial integrity of states.

Indigenous peoples also countered the objections to recognising the right of self-determination of indigenous peoples with reference to putative international law standards of democratic governance.[8] In international law today, the notion of self-determination is inextricably linked with democratic participation:

[T]he denial of self-determination is essentially incompatible with true democracy. Only if the people’s right to self-determination is respected can a democratic society flourish.[9]

The importance of self-determination can be best illustrated with reference to Australian democracy. In Australia, our democratic system is a minimalist form of participation that compulsorily requires us to attend a ballot box every three or four years. It is a fact that minority interests are dwarfed by the needs and aspirations of the majority. This reality makes weak the argument that citizens have resort to the ballot box if they don’t like government policy. It is difficult for minorities to register their dislike for government policy at the ballot box because it has no impact, and the majority do not have any self-interest in the concerns of any particular minority. The growing link between self-determination and democracy in international law clearly cogitates for greater control by Indigenous Australians over the decision-making and management of our own affairs and greater participation in Australian democracy. Historically, the interests of indigenous peoples have not been included in the development of international law and legal institutions. In terms of collective rights, their belated recognition allows some of the imbalance and injustice to be addressed.

Finally, it is important to emphasise that the Declaration in no way places customary law above domestic law in Australia. It is not possible for this to occur because the DRIP is a non-binding declaration of the General Assembly. Article 46 of the Declaration painstakingly ensures that all of the principles within the Declaration are interpreted in accordance with the rule of law and democracy:

The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.

Summary of the Text of the United Nations Declaration on the Rights of Indigenous Peoples

Articles 1-6 recognise general principles and rights to nationality, self-determination, equality and freedom from adverse discrimination. Article 3 of the DRIP recognises the indigenous right to self-determination, consistent with common Article 1 of the International Covenant on Civil and Political Rights[10] (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights[11] (‘ICESCR’):

Indigenous peoples have the right to self-determination. By virtue of this right they freely determine their political status and freely pursue their economic, social and cultural development.

Articles 6-10 deal with rights to life, integrity and security; sections 11-13 are rights pertaining to culture, spirituality and linguistic identity; and sections 14-18 deal with specific rights pertaining to education, information and labour rights. Articles 18-23 are participatory rights elaborating development and other economic and social rights. DRIP also provides that states shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination. Articles 24-30 deal with lands, territories and resources. Articles 31- 36 explain how the right to self-determination can be exercised, including matters relating to internal local affairs such as culture, education, information, media, housing, employment, social welfare, economic activities, land and resources, and the environment. Article 37 is the right to conclude treaties, agreements or other constructive arrangements with states. Article 38 provides that the state, in cooperation with Indigenous peoples, shall take appropriate measures including legislative measures to achieve the ends of the Declaration and Article 39 states that Indigenous peoples have the right of access to financial and technical assistance from states for the enjoyment of rights in the Declaration. Articles 40-46 are implementation rights expounding the role of the state and international organisations in recognising the rights provided in the DRIP.

Australia’s Position

The adoption of the DRIP by the General Assembly was conducted by a vote of 143 in favour, four against and 11 abstentions. Australia voted against the Declaration. Initially the Australian Government was in favour of the DRIP and the right to self-determination for indigenous peoples. At the first Working Group, the Australian Government argued that:

Since 1991, we have made statements in the WGIP in favour of the use of the term self-determination in the Draft Declaration. We have done so on the basis that the principles of territorial integrity of states is sufficiently enshrined internationally that a reference to self-determination in the Draft Declaration would not imply a right of secession.[12]

This statement is in stark contrast to the current Australian position at the Working Group that expresses concern of a secessionist movement in Australia arising out of any acknowledgment of the right of self-determination and also asserts that the Declaration will elevate customary law above that of domestic law. In 1998, Foreign Minister Alexander Downer stated that it was better to use the word ‘self-management’ rather than self-determination as the latter left ‘an impression that we are prepared to have a separate indigenous state’.[13] The Foreign Minister’s comment followed earlier speculation about the Draft Declaration by Pauline Hanson in Federal Parliament on 2 June 1998 who asked:

What exactly does self-determination mean? Does it mean self-government? Does it mean dedicated Aboriginal seats in parliament, as suggested recently by some prominent New South Wales state politicians? The fact is that native title is just a precursor to the establishment of a taxpayer funded Aboriginal state. Will other Australians have to seek permission or pay to enter?[14]

Since it came to office, the Howard Government has maintained a strict alliance with Canada, New Zealand and the United States in opposing the Declaration and this was reflected in its vote against the Declaration. The Labor Opposition has indicated that it would support the DRIP if elected to Federal Government in late 2007.

Conclusion

The adoption of the United Nations Declaration on the Rights of Indigenous Peoples by the General Assembly was a momentous occasion for Indigenous peoples. It is an important document of developing standards that Aboriginal and Torres Strait Islanders in Australia can use in their day-to-day relationships with all levels of government. It was a long struggle to draft the document and to have it move through the UN hierarchy to adoption by the General Assembly. The UN human rights system confirmed that it is indeed capable of faithfully facilitating substantive standard setting activities for the collective rights of indigenous peoples. The DRIP symbolises goodwill on the part of states in acknowledging the historical injustice toward indigenous peoples. The Declaration will also go some way to delivering justice to those first peoples whose deprivation of human rights is the very cornerstone of the sovereignty, wealth and power of the most obstructive and argumentative states who voted against the declaration in the General Assembly.

Megan Davis is Director of the Indigenous Law Centre and Senior Lecturer, Faculty of Law, University of New South Wales. She is a member of the International Law Association’s Indigenous Rights Committee.


[1] Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, UN Doc A/RES/47/1 (2007).

[2] See UN Doc E/CN.4/Sub.2/1985/2.Ann II.

[3] For history see Julian Burger, ‘The United Nations Draft Declaration on the Rights of Indigenous Peoples’ (1996) 9 St Thomas Law Review 209.

[4] UN Doc E/CN.4/Sub.2/1993/26.

[5] Declaration on the Rights of Indigenous Peoples, above n 1.

[6] United Nations Economic and Social Council resolution 1982/34, 7 May 1982; See generally, Sarah Pritchard, ‘Working Group on Indigenous Populations: mandate, standard-setting activities and future perspectives’ in Sarah Pritchard (ed), Indigenous Peoples, United Nations and Human Rights (1998) 40, 50.

[7] Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, Adopted 24 October 1970, GA Res 2625 (XXV).

[8] Thomas Franck ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46.

[9] Rodolfo Stavenhagen, ‘Self-determination: Right or Demon?’ in D Clark and R Williamson (eds), Self-Determination: International Perspectives (1996) 8.

[10] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976).

[11] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, (entered into force 3 January 1976).

[12] Statement by Mr Bill Barker on Behalf of the Australian Delegation Geneva 21 November 1995 cited in Sarah Pritchard ‘Setting International Standards: An Analysis of the United Nations Draft Declaration on the rights of Indigenous Peoples’ ATSIC (3rd ed); see also UN DOC E/CN 4/1995/WG15/2/Add 2.

[13] ‘Downer fears phrase will split Australia’, The Age (Melbourne, 22 August 1998) 7.

[14] Commonwealth, Pauline Hanson Appropriation Bill (No 1) 1998-99 Second Reading, 2 June 1998, (Pauline Hanson).


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