STATEMENTS ON SELF-DETERMINATION
ARTICLE 3
Plenary Session
November 29, 2004
 

Ms. DALEE SAMBO DOROUGH
INUIT CIRCUMPOLAR CONFERENCE

 

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.

Copyright Natalie Drache 1999