- STATEMENTS ON
SELF-DETERMINATION
ARTICLE 3
Plenary Session
November 29, 2004
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Ms. DALEE SAMBO DOROUGH
INUIT CIRCUMPOLAR CONFERENCE
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Thank you, Mr. Chairman.
Quickly, first of all the Inuit Circumpolar Conference would like to express
our support and respect for those Indigenous individuals and organizations
that have declared a hunger strike. We completely understand and appreciate
the message given because we too, as the Inuit Circumpolar Conference, since
the inception of the UN Working Group on Indigenous Populations have
contributed and influenced the text that the Sub-Commission ultimately
adopted. So in this way we respect their expressions.
I am glad that Mikhail Todyshev (Association of Indigenous Peoples of the
North, Siberia and Far East of the Russian Federation, RAIPON) has brought
to the floor the proposal that was made in 2003, namely the AILA-Guatemala
proposal, as it is being referred to for preambular paragraph 14. Also he
reiterated the proposal that the Indigenous Peoples made in September,
namely the introduction of a new preambular paragraph being referred to and
reflected in crp4 as pp15bis. When I spoke to this proposal in September and
was asked further for the explanatory note, I have to underscore the fact
that it was regarded as a package proposal or a proposal that must be read
together and in context with the whole of the Declaration so that the
linkage between the new preambular paragraph and an unencumbered Article 3
is critical to understanding the proposal.
What I would like to do now is elaborate a bit more. There were some
comments after the proposal was made, namely by the government of New
Zealand who stated that "the new preambular paragraph doesn't meet our
concerns. It doesn't create the comfort that is needed". And I guess in part
that is what we are endeavouring to do, is to allay the concerns of states,
respond to what I would call unfounded fears about the notion and concept of
territorial integrity and create the comfort and the security that is really
needed for us to actually achieve substantial progress in the context of the
whole Declaration on the Rights of Indigenous Peoples. I will try to do this
very briefly.
I beg your indulgence because as I understand it, this is one of the few
times in which we will be able to address the right of self- determination
in the context of the Declaration, before we go into informal consultation.
The first comments that I would like to make relate to the notion of
equality and hence the reference in the AILA-Guatemala proposal to
preambular paragraph 14. As it is reflected in crp4, the language for pp14
in the AILA-Guatemala proposal was to include the language at the end of the
paragraph "and that this right applies equally to Indigenous Peoples." This
somewhat echoes what the French government representative just said earlier
this morning that the notion of equality is critical and in this context the
reference in pp14 of the equal application of the right of
self-determination to Indigenous Peoples ensures and reaffirms a preemptory
norm of international law, namely that there should be an absolute
prohibition of racial discrimination and that the principle of equality is
in fact, universal. It applies in every context, but especially in this
context in terms of the equal application of the right of self-determination
to Indigenous Peoples, without any qualification, without any double
standards, without any limitation.
Now we advanced the proposal to ensure again, that in the context of the
Declaration, there would not be any double standards put forward and the
proposal made in September was again to ensure that the existing principles
of international law, not only in relation to the principle of equality, but
all other existing principles of international law are accessible to states
under any circumstances.
The need to ensure respect for the right of self-determination in the
Declaration is critical. It is fully consistent with the principle of equal
and inalienable rights of all members of the human family which are
recognized repeatedly in the International Bill of Human Rights as the
foundation of freedom, justice and peace. I don't want to hound on this
point, but that is the whole effort of the amendment to pp14, is to ensure
equality. I am convinced that every state member represented and engaged in
this process doesn't disagree with that principle. That in fact, you all in
your efforts, whether it is here in the halls of the United Nations or
within your own home communities and capitals engage in dialogue with
Indigenous Peoples based on the principle of equality. I would be shocked to
find out otherwise.
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In regard to the issue of territorial integrity, I am very concerned that
the positive momentum that we intended to help generate and in fact felt
that we linked arms with a number of governments in generating, in
September, with the proposal for a new preambular paragraph and our
explanatory note. At least I noted after the presentation of the proposal,
at least eight governments responded and supported the proposal. What I am
concerned about at this stage, if there is an insistence on the part of some
states for an explicit reference to territorial integrity in the Declaration
that that could actually impede our progress and divide not only states but
also Indigenous Peoples and I would prefer that we tackle this issue of
territorial integrity and have the dialogue that we need to create the
comfort and the security amongst states as well as Indigenous Peoples over
the fact that you presently have full and complete access to the existing
principles of international law that would ensure your territorial
integrity, that would ensure that there is no dismemberment of nation states
as we know it. All of those principles exist in international law. You have
full access to them at present. Therefore the right of self-determination of
Indigenous Peoples shouldn't pose a threat. The explicit recognition of the
right of self-determination of Indigenous Peoples in the Declaration should
not pose a threat. The preambular paragraphs and Article 3 and all the other
references to the existing principles of international law, the references
to the United Nations Charter and other language contained in the
Declaration create double and triple assurances from our point of view.
My main concern for those who are trying to insist that there is an explicit
reference would introduce the potential, maybe not the potential, but
actually the probability of abuses of the concept or the principle of
territorial integrity. Presently under international law, the principle of
territorial integrity does not apply to internal units, such as states or
provinces or to the administrative boundaries within a state. However if it
is introduced, states could raise new questions and uncertainties in this
regard that have far-reaching and potentially very abusive consequences. The
language could invite such abuses, again in those areas where there are
internal states or provinces within federations, such as the US, Canada,
Mexico, Australia, India and Russia. But equally, it could create abuses in
other states where you don't have such political sub-divisions.
The fact that there is existing evidence of serious misuse of the principle
of territorial integrity against Indigenous Peoples is apparent. I don't
want to belabor the point and draw upon numerous examples, but in fact they
do exist and we can't pretend in this forum that abuses of the current
principle of territorial integrity as understood in international law, don't
exist. They in fact do exist. My concern is that if we attach it or we make
reference in the Declaration that that will only create a carte blanche for
states to continue abusing the principle and the concept.
Finally I would like to say we had a good and constructive exchange when I
made the proposal in September. We had some dialogue in the context of this
session. For example, the government of Brazil raised some very pointed
questions about the notion of territorial integrity. I, myself, was hoping
that states would in fact respond to this issue. As you know, we have
substantiated our arguments on this point. We have been intellectually
honest on this point. We have drawn upon the principles of international
law, demonstrated how they would in fact take effect in this context. We
have put forward and advanced as many arguments as we possibility can and
substantiated them. In our private discussions with some states, we have
asked them to substantiate their positions. Most recently, at the September
session, we sat down with the government representative of the United
Kingdom asking them to substantiate their views and their positions. Thus
far, we have yet to hear an explanation from states as to their position on
territorial integrity and their understanding of territorial integrity in
the context of the Declaration. We again are seeking to gain progress here
and we would like to hear from States, their explanations so that we can
advance the text that does in fact, uphold the principles of international
law, all of them, equality, respect for the rule of law, democracy, all of
the existing principles of international law and I would urge states to
respond in a substantive fashion in this session now, as well as in the
informal consultations. The idea that this principle in its necessity for
inclusion in the declaration, the argument that has been made and so far
unfounded, would in our view create a hierarchy of principles in
international law. And again, we have made those arguments. What it appears
to be doing is taking the principle of territorial integrity and creating it
as an untouchable principle in international law, thereby making all of our
rights as Indigenous Peoples, whether it is the right of self-determination,
our rights to lands, territories and resources, the rights to protect and
promote our distinct cultures, the right to education.
If you set it out as a somehow supreme principle in international law in the
context of the Declaration, all of our rights would be subject to this
principle and you could see how abuses could arise from establishing it as
somehow as a supreme principle, or a primary principle. There is no
hierarchy of principles of international law. All of them can be invoked and
accessed based on a given circumstance on a given situation, on a given
historical, political or legal context. There is not a hierarchy and we
should avoid that. In fact it would be wrong for state members to do so in
the context of the Declaration.
Finally I want to make a point about the language found in pp15. The
government of New Zealand at the September sessions stated "that this
doesn't respond to our concerns, this doesn't add anything new, it doesn't
create the comfort that is needed." I am paraphrasing their statements. I
don't have in front of me what they stated verbatim, but the new preambular
paragraph was inserted to engender the possibility for the
reconceptualization, the possible reconfiguration, the redefining of
indigenous-state relationships, allowing for harmonious relations, allowing
for an atmosphere, or an ambience to negotiate the terms of self-government
or self-determination between Indigenous Peoples and state governments,
The term "democracy" and an Indigenous person spoke to this in September,
that they have some concerns about the term "democracy". And here on this
point, I simply want to say that democracy has a fundamental value in the
international system. It means participation and ensuring participation of
all cultural groups, including Indigenous Peoples. It allows for cultural
and group identity. It is an important element or value of the notion of
democracy and it is profoundly related to the rule of law. The notion of
equality and democracy and the rule of law. All three of those are
interdependent and linked and in this way we have used the term democracy.
It is not meant to impose a certain political system on a peoples but rather
to ensure your participation within a society that is not tyrannical or run
by a dictatorship.
I hope that, I know that I have taken quite a lot of time here but I hope
that we can come back to some of these issues and I really hope that we can
hear from states in order to move the momentum forward on this critical
issue and not divide Indigenous Peoples but to bring us closer together to
an understanding on the right of self-determination in our particular
context and achieve the Declaration that we want. There is no question that
Article 3 of the Declaration is a prerequisite to the enjoyment to all of
our other fundamental individual and collective human rights. If we begin to
toy with it or diminish it by insistence upon language that would not bring
us closer to consensus, it wouldn't bring us closer to agreement on a strong
and uplifting Declaration.
Thank you.
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CANADA’S POSITION ON
ARTICLE 3
29 November 2004
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- Thank you, Mr. Chairman,
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- In the context of this
discussion of Article 3 on the right to self-determination, Canada would like
to bring us back to a paper read on September 20, 2004 entitled Indigenous
Peoples Proposed Amendments Relating to the Right of Self-Determination. This
was the document alluded to and spoken to by Dalee Sambo and also by the Saami
Council just recently.
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- In that proposal, Mr.
Chairman, it makes it very clear that Article 3 would remain as in the current
draft text given to us by the Sub-Commission and that we would add an
amendment to preambular paragraph 15 and that there would be a new preambular
paragraph.
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- Equally as important Mr.
Chairman, from Canada’s perspective is, there was an explanatory note read out
at the same time which explained that the purposes of these amendments which
are to be read together include:
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achieve consensus among states and Indigenous Peoples by accommodating both
state and Indigenous concerns in regard to the fundamental human right of
self-determination
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retain the original language of Article 3 as provided in the Sub-Commission
text consistent with principles of equality and non-discrimination
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affirm that, to the extent provided in international law, states will continue
to have the freedom to invoke any principle of international law, including
the principle of territorial integrity in relation to the exercise of the
right of self-determination
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avoid any explicit reference to the principle of territorial integrity in the
Draft UN Declaration in view of the growing abuses of this principle in
different regions of the world
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lastly, to encourage harmonious and cooperative relations between states and
Indigenous Peoples based on universal and mutually reinforcing principles and
values of international law
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- In the explanatory note,
Mr. Chairman, there is also a reference to Article 45 of the Sub-Commission
text relating to “nothing in this Declaration may be interpreted as applying
for any state, group or person any right to engage in any activity or to
perform any act contrary to the Charter of the United Nations.
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- Mr. Chairman, at the time
when this was proposed to the group, you will recall, that Canada expressed
it’s support for this proposal by Indigenous Peoples. We would like to
reaffirm our support for that statement and we would also like to associate
ourselves with most of the statements and most of the points made by Dalee
Sambo this morning. We think it is very important Mr. Chairman, if we are
going to make progress, for states to address their concerns and their
interests regarding territorial integrity. From Canada’s perspective, Mr.
Chairman, we feel comfortable with the proposal put forward by the Indigenous
Peoples caucus and I will recall that this was supported by the vast majority
including the African Indigenous Peoples Caucus, the Arctic Indigenous Peoples
Caucus, the Asian Indigenous Peoples Caucus, the Latin American Indigenous
Peoples Caucus, the Pacific Indigenous Peoples Caucus, the Assembly of First
Nations, Congress of Aboriginal Peoples, Grand Council of the Crees, the Innu
Council, the Native Women’s Association of Canada, RAIPON, and others and we
would like to associate ourselves with them.
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- Mr. Chairman, you have
asked me to take on the role of trying to work from a states’ perspective to
try to build consensus. I am fully prepared to do so with the cooperation and
assistance of co-chairs, co-partners from the Indigenous side and perhaps we
could have a short meeting at the end of this session this morning. But if we
are going to make progress, Mr. Chairman, I would ask, and we would like to
echo what Dalee Sambo said is that we are asking states that when the issue
comes to territorial integrity, how can we allay, how can we lower or raise
the comfort level to say it in this most positive way. We would like to
recommend again (that) this document from September 20. We understand your
restraints, Mr. Chairman and the inability when we only get one report to
reflect that, but I would ask the Secretariat if they could make arrangements
to circulate the paper from September 20, because from Canada’ perspective,
Mr. Chairman, what is critical is the statement of understanding, the
explanatory note. We would like to encourage, we would like to hear the views
of states. Is something like an explanatory note which would be read at this
session, but also more importantly at CHR 61 at the time of adoption of a
consensus text where states could make certain, and in coordination and in
cooperation with many other states and Indigenous Peoples that this is how we
understand that the Declaration will operate. I think that that might be a
way forward.
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- Thank you, Mr. Chair
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- Wayne Lord
- Head of Delegation
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