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Preliminary Observations on the Draft Declaration as Tabled by the Nordic Countries, New Zealand and Switzerland
September 11, 2004
 
 
This revised draft declaration makes a number of relatively moderate changes to the Sub-Commission draft, with no truly enormous changes.  However, some of the changes included in this draft are very significant and negative, mainly in the areas of land rights and on the matter of indigenous legal systems.  Many of the proposed changes would improve or strengthen the draft in terms of indigenous rights.  Several articles are left without any changes.
 
Following is a point by point discussion or comment on the draft, including the commentary that the sponsoring states submitted with the draft.  The states’ commentary is shown in italics.
 
Bear in mind that this is only a preliminary review of the draft.  Further analysis could reveal additional problems or questions.
 
Preambular Paragraphs. 
 
The first five paragraphs are unchanged from the Sub-Commission draft.
 
Preambular Paragraph 6 is changed by adding one additional source of right of indigenous peoples, namely, “arrangements with States.”  This apparently refers to agreements, treaties or other such agreed-upon arrangements.  This is implied in the phrase “with states.”  This change does not appear to have any significant consequences, as it merely describes one of the sources of the rights of indigenous peoples.  However, it seems contradictory to say that “inherent” rights can arise from arrangements with states.  Some correction appears to be needed. 
 
[Addition of the rights derived from arrangements with States.]
 
Preambular Paragraphs 7, 8, and 9 are unchanged.
 

 
Preambular Paragraph 10 is changed to remove the idea that there is a “need” to demilitarize indigenous territories and lands and that doing so “will” contribute to peace and economic development.  The sponsors’ comment is probably not a full explanation.  More likely, this paragraph was seen as a politically motivated statement aimed at certain countries where armed conflict existed in the 1970's and 1980's when the original draft was prepared.  There is no major practical significance to the change.
 
 [Demilitarisation might not automatically contribute.]
 
Preambular Paragraph 11 is changed to explicitly protect the rights of children, as required by the Convention on the Rights of the Child – signed by all countries except the United States.  This does not create any practical change in the meaning of the paragraph.
 
             [Concept from Convention on the Rights of the Child added to emphasise international human rights context.]
 
Preambular Paragraph 12 is unchanged.
 
Preambular Paragraph 13 concerns the question whether treaties between states and indigenous peoples give rise to legal obligations under international law.  The change removes any implication that international law obligations are involved.  This is unfortunate, because in the case of some treaties with indigenous peoples, there should be international legal obligations.  This is not true for every agreement or arrangement between states and indigenous peoples.  It is not possible to generalize.  Nevertheless, it is a loss to omit all reference to international legal responsibility in the case of treaties that were entered into on an international basis.  The paragraph could include the phrase “and in some situations, international responsibility.”  This might restore the point.
 
[International interest in these matters is positive.]
 
Preambular Paragraph 14 is unchanged.
 
Preambular Paragraph 15 is changed by adding language that would undermine or severely limit the right of self-determination set out in Article 3.  The language added requires that self-determination be exercised in conformity with existing principles of international law including the existing principles contained in the declaration.  These existing principles do not now allow for a distinct right of self-determination for indigenous peoples within countries – only for the right to participate in self-determination as part of the whole people of the country.  This is not at all what indigenous leaders have been seeking.  Some advocates have proposed this language in the belief that existing international law provides for or recognizes a distinct right of self-determination for indigenous peoples within states.  If international law already provided such a right, our battle would be easy.  Sadly it does not, and as a result this new language would limit indigenous peoples to only the very limited right of self-determination as part of the whole people of the country.  
 
The reason why some indigenous participants and Guatemala proposed this language was to serve as a substitute for the territorial integrity language proposed by Norway last year as a preambular paragraph.  That territorial integrity language is now proposed to be included as part of Article 3.  Therefore, there does not seem to be a strong reason for including this provision in preambular paragraph 15.
 

 
[Change reflects emerging consensus in the working group.]
 
Preambular Paragraphs 16, 17, and 18 are unchanged.
 
Preambular Paragraph 19 makes a very general and possibly very significant change by stating that the Declaration is a “standard of achievement to be pursued ...”  It is not clear what a “standard of achievement” is.  This needs clarification by the proposing states.  It appears to mean something other than a declaration of human rights.  It is apparently something to be “pursued” and not necessarily promoted and respected.  Without question, all human rights must be promoted and respected by States – not merely “pursued.”  This change seems connected to the idea proposed by several states that the declaration should be a set of goals and aspirations that need not be actually reached or achieved.  This seems to be inconsistent with the concept of human rights as something that must be respected by states.  Thus, this change may be inconsistent with the whole aim of producing a declaration of human rights. Though the amended language may have been inspired by the Universal Declaration, it is not the same.  The language of the Universal Declaration leaves no doubt that the rights declared are to be promoted, respected and achieved.
 
[Inspiration from the Universal Declaration of Human Rights.]
 
Operative Articles
 
The proposed change in Article 1 is apparently a mistake in language.  This change is apparently intended to make the article apply to individual indigenous persons.  It does not do so.  It makes the article apply to “individual” indigenous peoples.  This needs a good edit in English.  It presents no problem otherwise.  However, Article 2 does all that appears necessary to protect individual rights generally.  There is no clear reason to make the change in Article 1.
 
[Clarification that rights apply to both collective and individuals.]
 
Article 2 is unchanged.
 
Article 3 is changed by adding extensive language from the Vienna Declaration adopted in 1993, the latest general and universal statement on the law of self-determination.  The effect of adding this language appears to be only to assure that the right of self-determination accorded by this article to indigenous peoples is not used to secede from or break-up existing states.  This is not a change from existing law, but the first part of Article 3 would recognize for the first time a distinct right of self-determination for indigenous peoples within existing states.  This proposed inclusion of language in Article 3 overcomes some of the objections that were raised by some indigenous participants to the Norway territorial integrity provision last year.
 
[Based on A2 of the 1993 Vienna Declaration and Programme of Action.  Reflects latest developments in the Working Group.] 
 

 
Article 4 is changed to remove reference to indigenous peoples’ legal systems.  This would be a serious set back.  The revised language would refer only to “legal characteristics” of indigenous peoples.  The power and right of indigenous peoples to govern their own affairs is essentially meaningless if indigenous legal systems are not recognized.  It is unclear why there is a problem on this point.  Further discussion with the sponsoring states is called for.  This same problem exists in regard to Article 33.
 
[Recognises legal characteristics of indigenous societies but not separate legal systems, especially as many do not have separate legal systems.]
 
Article 5 is unchanged.
 
Article 6 has been edited to clean up the language.  This needs to be carefully compared to the original.  This article appears to be slightly –  not greatly – weaker because of the omission of “under any pretext.”
 
[Paragraph reordered to distinguish between individual rights and collective rights (genocide applicable to collective not individuals).  Amendment based on A2(e) of the Genocide Convention.]
 
Article 7, also needs a careful comparison.  This version appears to be generally good and appears to cover the same ground without relying on the words “ethnocide” and “cultural genocide.”  Sub-paragraph c is written in a way that would appear to allow some “forced” populations transfers.  This is a problem, but maybe only a small one.
 
[“and individuals” for consistency.  Amendment to clarify intention, as no agreed international definition exists for “ethnocide” or “cultural genocide.”  Genocide covered in A6.  A right to redress does not exist in international law but States should be obliged to provide effective mechanisms for obtaining redress.  In ‘c’ and ‘d’, addition of word “forced” for clarity.  In ‘e’, additional text (from CERD) to clarify meaning of propaganda.]
 
Article 8 is unchanged.
 
Article 9 is changed to avoid some possible misunderstanding.  This appears to be a reasonable change.
 
[“Disadvantage” too broad – e.g. fewer services in extremely rural settings.  “adverse discrimination” from CERD.]
 
Article 10 is not changed.
 
Article 11 removes the concept of “special  protection and security” for indigenous peoples in times of armed conflict.  It is not clear what the original meaning was.  The change does not appear to have major consequences.  The change in the second paragraph seems to be an improvement.  However there is a major change in the provision that originally forbad countries to draft indigenous persons into the military.  Certain restrictions are retained concerning military service.

 
[The Geneva conventions use “times” rather than “periods”.  While an unqualified right to special protection is not supported, it is recognised that special protection may be appropriate in some circumstances.  Strengthen text by reference to all relevant international standards (language as recommended in the 1994 technical review).  Indigenous peoples should be treated equally with all other citizens (eg conscription applies to all citizens).  Some indigenous peoples have argued that the scope should be broadened to prevent direct use against own peoples.  Consistent with international law (language from UNGASS para 44.22)]
 
Article 12 is changed to require “redress” rather than “restitution” concerning cultural and religious property.  This is an improvement if “redress” includes restitution as well as other remedies – as I believe it does.
 
[There is support for use of the wider term “redress” in place of “restitution” which may not always be possible.   Obligation placed on States is to provide effective mechanisms for obtaining redress.]
 
Article 13, limiting the rights to “their” cultural objects and human remains, seems to be a useful clarification.
 
 [No opposition to “their” ceremonial objects when proposed for clarity in WGDD9.  “their” added to human remains for consistency.]
 
Article 14 is unchanged.
 
Article 15 is edited for clarity in its first paragraph, without effecting any substantive change.  The addition of references to individuals in the second paragraph and third paragraph seems to be an improvement and a broadening of the right to individuals rather than just children.  However, this is not an absolute right to have the state provide all levels of education free.  The addition of “on the same basis as other members of society” makes this clear.
 
[Emerging consensus on this article as amended.  Education is an individual right which should apply to all individuals, not just children.  Several members of the caucus supported this change.  Indigenous individuals have an equal rather than special right (eg no right to free university education if this is not available to all).]
 
Article 16.  The first paragraph of this article is changed to say that the dignity and diversity of indigenous cultures, traditions, histories and aspirations should be appropriately reflected in education and public information, rather than to state a clear, mandatory duty on the part of the state to assure that this is done.  The second paragraph requires states to combat prejudice and discrimination rather than to actually eliminate it.  Adding the word “other” states or at least implies that indigenous peoples are a “segment” of society.
 
[Near consensus on this amended article.  This article as revised was among those considered for provisional adoption at WGDD9.]
 

 
Article 17 has been redrafted to combine the first two sentences and to make the right of indigenous peoples to establish their own media in their own languages subject to the phrase “on the same basis as other members of society.”  In the Sub-Commission draft the right to establish media was not limited.  The second paragraph has an added provision calling upon states to encourage privately owned media to adequately reflect indigenous “cultural diversity.”  This latter phrase should perhaps be changed to match the analogous expression in Article 16: “cultures, traditions, histories and aspirations.”
 
[Near consensus on this amended article.  This article as revised was among those considered for provisional adoption at WGDD9.]
 
Article 18.  The change of “peoples” to “individuals” is apparently made because individuals rather than  peoples are usually the subject of international labor law or national labor legislation.  This is not always the case, as for example ILO Convention 169.  However, these proposed changes do not appear to have any significant negative effect, and they would clarify the right of indigenous individuals to be protected by applicable law.  The second paragraph is entirely new and is apparently based upon the Convention on the Rights of the Child.  The texts should be compared.  The third paragraph attempts to correct an awkward bit of drafting in the original but adds a new awkwardness in its place.  There appears to be no change in meaning.
 
[Near consensus on this amended article which was set for provisional adoption at WGDD9 as amended.]
 
Article 19 is unchanged.
 
Article 20 has been changed to say that indigenous peoples have the right to be “actively involved” in devising legislation or administrative measures that may affect them.  This is apparently intended to correct what seems to be a typographic error in the original draft.  The original reads “participate fully, if they so choose, through procedures determined by them”.  This was probably intended to be similar to the language in Article 19: “through representatives chosen by them in accordance with their own procedures.”
 
The second paragraph changes the obligation of the state to obtain the consent of indigenous peoples to an obligation to “seek” the consent.  It should be observed that this applies to all legislation and all administrative matters that may affect them.  The original would give indigenous peoples an effective veto power over practically all general legislation of the state.
 
[Reflects reality that procedures may not have been determined by indigenous peoples but reinforces that they should be “actively involved” in legislative or administrative measures effecting them.   “seek” affirms principle of obtaining consent as far as possible.]
 

 
Article 21 is changed in two ways in the second sentence.  The first change to strike “have been” and replace it with “are” appears to make the sentence forward-looking only, that is, applying only to situations where indigenous peoples are deprived of their means of subsistence today or in the future.  However, the words “are deprived” could refer to situations where indigenous peoples are today still deprived of their subsistence even though the situation has existed for a long time.  The second change substituting “effective mechanisms for redress” for “compensation” appears to be an improvement in the text, including compensation as well as other forms of redress or remedy.
 
[A27 deals with past wrongs.  This is forward looking.  There is support for use of the wider term “redress” in place of “restitution” which may not always be possible.   Obligation placed on States is to provide effective mechanisms for obtaining redress.]
 
Article 22 is changed in an important way.  The original draft called upon states to take special measures to overcome the extraordinary conditions of extreme poverty and deprivation that characterize many indigenous communities.  Correcting this grave moral and social wrong was one of the most important reasons for undertaking to define the human rights of indigenous peoples.  The redrafted article would obligate states only to provide equal or non-discriminatory measures to alleviate poverty and improve conditions.  This redraft would be a deeply disturbing step back from one of the most important and fundamental goals of this entire process.
 
[Can be no special measures (basic criteria is need): indigenous right is equal to that of other citizens.  Focus is on addressing disadvantage – ICESCR grants right to improvement in “living conditions” but not the specific list (eg vocational training) which follows.  Established international language.]
 
Article 23 is changed to provide that indigenous peoples do not have the right to “determine and develop” state economic and social programmes affecting them, but rather have the right to “be actively involved in determining and developing” these programmes.
 
[The right is to be “actively involved” – democratically-elected representatives have the right to make final decisions.]
 
Article 24 is changed to provide that indigenous peoples have a right to “maintain their health practices” rather than a “right to ... their health practices.”  They also have a right to “conservation” rather than “protection” of vital medicinal plants, animals and minerals.  It is not clear whether there is any real significance to these changes.  Likewise the changes in the second paragraph may have little or no effect on the meaning.  The question is whether the proposed phrase “social and health services” has the same meaning as “medical institutions” and “medical care.”  Finally, there is a new paragraph establishing an “equal right to the highest attainable standard of physical and mental health.”
 
[“to maintain” for clarification.  “protection” difficult to define, “conservation” sought by indigenous representatives in previous working group sessions.  Broadening to cover all social and health services.  New paragraph to strengthen equal rights of indigenous individuals for access to health services.  Language draws on ICESCR Article 12.1]
 

 
Article 25 has been changed to remove reference to indigenous peoples’ distinctive spiritual and material relationship to lands, territories and resources they have  traditionally owned, or otherwise occupied or used.”  In the new draft, the special relationship would be recognized with respect to “their” land – whatever that may be.  What is indigenous land would apparently be determined by state law, in conformity with Articles 26 and 27.  A similar change is made in Article 26.  The effect of this change is to defeat one of the most important purposes of the draft declaration: to recognize and protect the ownership rights and distinct relationship of indigenous peoples to the lands, territories and resources that they hold by aboriginal right (long traditional ownership, use and occupancy) but without formal legal title recognized by the state.  It is also defeats the central purpose of assuring that states do not give inferior legal status to indigenous peoples’ aboriginal property rights.  This is an enormous problem in many parts of the world, and Saami participants have informed us that aboriginal rights are a critical issue in Nordic countries.  The importance of this issue was given particular attention in the Working Paper on indigenous peoples and their relationship to land, prepared by Special Rapporteur Eric Daes.  By failing to recognize the obligation of states to recognize and protect indigenous peoples’ rights to their traditionally held lands and resources, this draft would fall below the international law standard established on this matter by the Inter-American Court of Human Rights in the Case of Awas Tingni v. Nicargaua in 1991. 
 
[“their” draws on CERD General Recommendation 23.  Third party rights are addressed in additions elsewhere.  Many countries have difficulty determining what is “traditionally owned, or otherwise occupied or used.”]
 
Article 26 suffers from the same deletion of the material concerning aboriginal rights.  This draft also deletes the long list of the many kinds of lands, territories and resources that must be considered.  While it is not clear that the long list is really necessary, there does not seem to be a sound reason for deleting it.
 
Last year, a number of indigenous participants supported a group of recommendations to improve and strengthen these articles on lands and resources.  These recommendations still appear to be called for.
 
[“their” draws on CERD General Recommendation 23.  Prescriptive lists can be exclusive and limiting.  In discussions on other articles indigenous representatives have repeatedly argued that the Declaration should not cover specific domestic circumstances.]
 
Article 27 is changed to strengthen somewhat the requirement on states to provide effective legal remedies for the loss of indigenous lands, territories and resources.  However, the proposed deletion of the final sentence would mean that indigenous peoples would not necessarily have a right to substitute lands, territories and resources as a remedy.
 
[Use of the wider  term “redress” in place of compensation has been supported by some States and members of the indigenous caucus.  States are obliged to provide effective mechanisms for obtaining redress.]
 

 
Article 28, in the original draft, required the states to conserve, restore and protect the environment and the productive capacity of indigenous lands, territories and resources and to provide assistance for this purpose.  The proposal would provide that indigenous peoples have a right to the conservation and protection of their lands, but not the “restoration” of them.  Indigenous peoples would not necessarily have a right to assistance, only an equal right with others to any available assistance.  This is a substantial reduction in the obligations that would be placed on states.  The final sentence forbidding military activities on indigenous lands without consent is deleted entirely.  However, the right of indigenous peoples to own and occupy their own lands is provided for in Article 26, and this would normally include the right to exclude others, including the military under normal circumstances.  Yet, the added sentence clearly implies that states may use indigenous lands for military purposes, provided only that the indigenous people be consulted.  This does not provide any serious limitations upon the intrusion that states may make on indigenous lands.  This would seem to contradict Article 26.  One might expect that, at a minimum, such use of indigenous lands might be limited to national emergencies and that appropriate compensation be paid.
 
[In some circumstances “restoration” is not possible.  No clarity about meaning of “total” environment.  Indigenous peoples have an equal rather than special right; must be within available resources.  Adds obligation for States to consult.]
 
Article 29 is an entirely new substitute.  One effect of this substitute is to remove the description of some of the forms of intellectual or related forms of property for which indigenous peoples need protection.  The substitute language is fairly broad and covers most but not necessarily all of the forms of property itemized in the original draft.  Some of the items in the original draft may not be covered under the terms “intellectual property and tangible manifestations of their cultural and intellectual property.”
 
[Still under consideration pending discussions in other fora (eg WIPO).]
 
Article 30 has been changed to permit states to develop indigenous peoples’ resources and lands without the consent of the indigenous people.  This is obviously unacceptable and no doubt discriminatory.  This Article, with the proposed amendments, would be directly in conflict with the rights to lands and resources recognized in Articles 25 and 26.  It may be that the drafters did not understand the scope of the change they proposed.  This must be discussed with the sponsoring states.  On the other hand, it may not be necessary to require consent of the indigenous people concerned with respect to all projects that “affect” in any way their lands, territories and resources.  Affecting indigenous land and resources in very insubstantial or trivial ways may not require consent.  This needs some further redrafting.
 
 [“seek” affirms principle of obtaining consent as far as possible (consistent with replacement in A20).  “their” to clarify that the right applies only to resources owned by indigenous peoples. There is support for use of the wider term “redress” in place of “restitution” which may not always be possible.  States are obliged to provide effective mechanisms for obtaining redress.]
 

 
Article 31 is changed by striking out the list of specific subjects that would be within indigenous peoples’ powers of autonomy or self-government.  These items were listed as being included in the terms “internal and local affairs.”  Without this list, there is no definition that would suggest what is included in these terms.  On the other hand, it is true that the original draft should have included the words “among other things” so as to ensure that the list of topics was not exclusive.  Striking the list adds the risk that states may interpret the terms “internal and local affairs” in an unfairly restrictive manner.
 
[List deleted as prescriptive lists can be exclusive and thus limiting.]
 
Article 32 has been changed in a way that confuses the concepts of identity and citizenship.  The original provided that each indigenous people has the right to determine its own “citizenship”, meaning determine who is a citizen or member of the indigenous people concerned.  The proposal substitutes “identity” for “citizenship”, changing the meaning entirely.  The aim of this article is to prevent interference with the power of an indigenous community, society or other group to determine who is a member of the group.  This important right would be entirely lost under the proposed draft.  The sponsors’ comment suggests that this redrafting may have been a mistake.
 
[Distinguishes self-identification and full citizenship, and confirms right to both.]
 
Article 33 is the second article that has been redrafted for the purpose of avoiding the recognition of indigenous legal systems.  Moving the words “juridical customs” has the effect of avoiding the reading that “juridical” would refer to “juridical procedures and practices” as well as customs in the original version.  Requiring that states respect indigenous legal systems, legal practices and legal procedures, that is “juridical” systems, practices and procedures, is one of the central rights sought in this declaration.  This change would not entirely rule out indigenous legal systems but would reduce the right significantly.
 
[“juridical” shifted to clarify that it applies to customs but not to remainder of list (ie “procedures and practises” which could mean a separate legal system).  Change for consistency throughout text (stronger reference).]
 
Article 34 places a certain limit on the powers of indigenous self-government.  When an indigenous people adopts laws governing citizens of the community or people, it must do so in accordance with international human rights standards, just as states must do.  Similar requirements that international law standards be met have been added elsewhere in the draft.
 
There is also a new paragraph that announces two general principles or rules that should be applied by states in situations where there is a conflict or “tension” between collective rights and individual rights or between indigenous rights and the rights of others.  The rules are that in resolving such conflicts states shall take account of the interests protected by each right (and presumably attempt to protect all such interests) and secondly to take account of the responsibility of the government to govern for the good of all.  These are merely general rules, and they are not stated as the only rules to be applied in resolving situations where there is a conflict of rights.  This appears to be a relatively modest approach to dealing with the general problem of conflicts of rights or “third party rights”.
 

 
[Sets primacy of international human rights standards  New paragraph provides mechanism for resolving any tensions between individual/collective and indigenous/third-party rights by balancing the various rights and not holding the whole Declaration hostage to “legitimate third party rights”. With this addition there is no need to qualify several other articles.]
 
Article 35 is redrafted to correct an apparent mistake in the original, which provided that indigenous peoples have the right to maintain contacts and relations with “other peoples across borders.”  The original failed to say that contacts could be maintained with members or citizens of the same group or people across borders.  There is also a change in the second sentence to say that states must “promote” rather than “ensure” that these rights are exercised and implemented.   Again, it was a simple mistake of drafting in the original to suggest that states must ensure that indigenous peoples exercise this right.  “Promote” seems a reasonable substitute. [The third apparent mistake in this article is that it fails to give indigenous individuals the right to maintain contacts across borders with other members of their people or group.  This mistake is not corrected in this proposal.]
 
[Some indigenous peoples spread across boundaries have asked for States to consider this amendment.  State may not be able to “ensure”.]
 
Article 36 is redrafted to call for the submission of conflicts over treaties and other agreements to be submitted first to national bodies or processes for negotiation or resolution, and if these do not operate or are unreasonably slow, then the conflict may be submitted to an international body agreed to by all parties.  This is practically no change at all from the original draft, which stated that such disputes “which cannot otherwise be settled” will be submitted to an agreed-upon international body.  The change makes it clear that a conflict that could be resolved through a national body or process must be submitted there first, unless the process is not working or is unreasonably slow. 
 
[Reference to competent domestic dispute resolution processes in the first instance or, if none operate, to the international sphere.]
 
Article 37 is redrafted to make it somewhat less commanding to states.  As the sponsors’ comment suggests, the last sentence of this article is stricken to make the obligation of states to enact legislation less clear or less mandatory, though it does not remove the obligation altogether.  It is not clear that this change actually makes any substantive change in the meaning and effect of the article.
 
[The intention is that States bring practice and law into line but this is not a Convention which can require States to change national legislation.]
 
Article 38 is redrafted to lessen somewhat the obligation of states to provide financial and technical resources to enable indigenous peoples to pursue their political, economic, social, cultural and spiritual development and for the enjoyment of the rights and freedoms recognized in the declaration.  Under this proposal, indigenous peoples would have the right, not to “adequate resources”, but just to “resources”.  These resources would be not for all that was in the original, but for the enjoyment of the rights contained in this declaration and in other human rights instruments.
 

 
[Indigenous peoples have the right to access assistance but governments retain the right to set fiscal policies (ie the level of assistance).  Sets the right in the context of all international HR instruments.]
 
Article 39 concerns the right to judicial remedies, and the redraft of this article appears to strengthen the right without any negative consequences.  The added reference to third parties provides that remedies must be provided where there are disputes with parties other than the state.  This is an established human right and should have been included in the original draft.  The other change is to provide that the remedy must take into account international human rights standards.  This is also an established right.
 
[Suggestion that this right should apply to disputes with “third parties” as well as States.  Places rights within international human rights standards.]
 
Article 40 is unchanged.
 
Article 41 is redrafted to take account of the creation of the UN Permanent Forum since the original drafting of this article.  There appears to be no significant change in effect, except that the UN bodies concerned include those at the country level.  The Permanent Forum is charged with the duty of following up on the effectiveness of this declaration.  The words “follow up” might well be changed to “monitor and assess” to make the meaning more clear.  That appears to be what is meant by the proposed change.
 
[Updates to recognise establishment of the Permanent Forum for Indigenous Peoples
Not all UN bodies are relevant.  Broadens to include operations at country level.  Adds follow-up clause. This is important to help ensure the Declaration is a living document.]
 
Article 42 is unchanged.
 
Article 43 is unchanged.
 
Article 44 is unchanged.
 
Article 45 is redrafted to expand on and clarify the original meaning and to reduce somewhat the possible limitation on the rights in this declaration.  This change improves and strengthens the rights in the declarations by removing the suggestion that the exercise of the rights might somehow be contrary to the UN Charter in ways other than violating the human rights and freedoms of others.  There does not appear to be any negative aspect to this proposed change.
 
[Near consensus on this amended article which was set for provisional adoption at WGDD9.]
 
 
 

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