Dialogue Between Nations

Statement of the Haudenosaunee, the Citizen Potawatomi Nation,
and the Indian Law Resource Center

Concerning the Proposals Relating to Self-Determination

September 20, 2004

This statement is made on behalf of the Haudenosaunee or Six Nations Confederacy, the Citizen Potawatomi Nation, and the Indian Law Resource Center. We appreciate very much the efforts of the CRP 1 sponsors and the efforts of the group of indigenous participants who made a proposal on Friday, all aimed at achieving consensus on the provisions in the declaration relating to self-determination.

We cannot support the proposal made last Friday, because, without intending to, it would nullify or undermine the efforts of indigenous peoples and many states to secure a real right of self-determination for indigenous peoples as distinct peoples located within countries. We have an amendment to propose that could allow us to support the proposal.

What we seek and what other indigenous participants seek is the genuine right of indigenous peoples, as distinct collectivities, to be self-determining and self-governing in their own right and not only as part of the whole people of the countries where they are located. This right of self-determination for indigenous peoples as distinct peoples is not yet clearly expressed, nor fully protected in international law, though many countries acknowledge it and respect it in practice and although many authorities have pointed out the tremendous value such a right would have as a part of international law.

The relevant international law is made up of customary law and treaty law.

The customary law of self-determination, embodied mainly in three General Assembly resolutions, provides detailed rules regarding self-determination for colonial peoples and peoples of non-self-governing territories, not for distinct peoples located within existing countries.

Customary law provides, for example, that peoples in separate colonial territories are entitled to freely determine their political status and to control their own lands and natural resources, and it provides that the whole people of a state or territory has the right to be free from alien or foreign military occupation. Sadly, these rules have not in the past protected groups such as indigenous peoples as distinct groups within countries. But we believe that state practice and states’ understanding of the principles of self-determination have evolved greatly in recent years and that customary international law should now clearly express such a right in this declaration.

The reason for the limit on self-determination for groups within countries is the principle of territorial integrity. Virtually every pronouncement of the right of self-determination in the United Nations has been accompanied by a forceful statement on territorial integrity.

International treaty law on self-determination is found in common Article 1 of the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, providing that, “All peoples have the right of self-determination ... .” However, the entire history of the negotiation of Article 1 and the text of the Article itself make it clear that the phrase “All peoples” does not mean that indigenous peoples located within countries are accorded any distinct right of self-determination. The overwhelming preponderance of states and legal authorities agree with this conclusion. Indigenous individuals and peoples certainly have a right under the Covenants to self-determination in the sense of meaningful access to government and participating in political life as part of the whole people of the state, but not a distinct right as indigenous peoples to their own self-determination.

We believe that the principles of law, of justice and of logic all command that indigenous peoples located within countries must have a right of self-determination as distinct peoples, and we all fervently advocate this. But, nearly all legal authorities agree that, regrettably, international law has not yet expressly and clearly recognized such a right for indigenous peoples located within countries. This is so despite that fact that many countries accord various forms of self-determination to indigenous peoples, many more countries believe such a right to be desirable and required by principles of democracy, equality and justice, and many eminent legal authorities believe the lack of such a right to be a major flaw in international law today.

It is one of the primary purposes of this declaration to move the law forward by clearly expressing and recognizing the emergence of the modern concept that indigenous peoples have the right of self-determination as distinct peoples located within states, without in any way changing the established rules of territorial integrity. It is the proper function of declarations such as this to clarify and express contemporary understanding of the law, to crystalize the emergence of a right in customary law, and to move ahead in the progressive development of international law. It is not the purpose of a declaration to merely reaffirm present law and prior expressions of the law. We are concerned that this would be the effect of the proposal made on Friday and in CRP 1 concerning preambular paragraph 15.

Article 3, as it stands, would not be contrary to present international law, but it would move us forward by expressing a right which is clearly emerging but which has not been clearly stated or articulated in international law previously. Our concern with the proposals on preambular paragraph 15 is that this clear expression of our emerging right would be substantially nullified by saying it must be exercised in conformity with principles that have existed in the past, principles that do not recognize this right as a distinct right of peoples located within states.

The phrase “including the principles in this declaration” does not solve the problem, because the principles in the declaration that are not already international law would not be included. Stating a principle or a right in the declaration does not actually make it a principle of international law.

In our view, states that wish to deny or severely limit our right of self-determination will seize upon the proposed language for preambular paragraph 15. They will assert that the right stated in Article 3 is nothing more than what has been recognized in the past – mainly a right to participate as part of the whole people of the state.

Many forward-looking states have said in these meetings and in the OAS that they do indeed recognize or are prepared to recognize a distinct right of indigenous peoples located within countries to self-determination, provided it does not mean a right to secede. The proposal to change preambular paragraph 15 will mean that what they have said they are willing to do, will not after all be accomplished.

What will be lost if the proposed change is made will be the general right of self-determination for indigenous peoples as distinct peoples within countries. This is the general right of indigenous peoples to determine their own destinies free from the domination and unjust interference of others. It is this general right that gives context and direction to the more specific and detailed rights in articles, 4, 21, 25, 26, 27, 31 and others. For the many aspects of self-determination that are not spelled out in the declaration, we must rely upon the general right in Article 3.

For example, if the proposal were accepted, the autonomy provided for in Article 31 would no longer be just one possible form for exercising the right of self-determination, it would be the only one. This is because the principles of international law do not clearly provide for any distinct right for indigenous peoples – only the right to participate as part of the whole people of the state. Thus, there would be no right to other forms of self-determination such as arrangements negotiated in a compact or treaty, or a form of self-government within the constitutional framework of the state. Unless there is a general right of self-determination going somewhat beyond previous understandings of international law, there would be no right for indigenous peoples to pursue these or other healthy and positive options for self-determination.

Without a general right of self-determination going slightly beyond previous law, there would be no distinct right of indigenous peoples to “freely pursue their economic, social and cultural development” (Article 3), only the right to participate in the total political, economic and cultural life of the state.


Our proposal is that the proposed change to preambular paragraph 15 be amended to read: “exercised in conformity with principles of international law as interpreted and declared in this Declaration.”

With such an amendment, we could consider supporting the proposal made last Friday and the proposal in CRP 1. We are looking forward to hearing from the Government of Canada its views about the meaning and significance of the new preambular paragraph proposed last Friday.

Thank you Mr. Chairman.