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Diplomacy in Action

54. General Comment and Statement on Standard of Review, Michael J. Dennis, U.S. Alternate Head of Delegation to the Working Group on the Draft Declaration on the Rights of Indigenous Peoples (November 1995)


General Comment

United States of America

Draft Declaration on the Rights of Indigenous Peoples

Thank you, Mr. Chairman. Mr. Chairman, my delegation congratulates you on your selection as chairman of this important working group. We are confident that under your effective leadership the working group will make significant progress. We pledge you our cooperation and support.

My government welcomes the opportunity to participate in this working group's consideration of the "United Nations Draft Declaration on the Rights of Indigenous Peoples." The United States hopes that the ultimate adoption of a declaration will succeed in focusing attention on the need to protect indigenous rights, fight discrimination based on indigenous origin wherever it occurs, and foster appreciation for, and understanding of, the value of indigenous traditions, cultures, and institutions.

Establishment of the Working Group

The U.S. Government strongly supported the establishment of this working group. We appreciate the efforts of the Working Group in Indigenous People in preparing the draft declaration. This draft provides a point of departure for the work that lies ahead.

USG Commitment On Indigenous Rights

The U.S. Government remains deeply committed to promoting and protecting indigenous rights throughout the United States, as well as throughout the world. Under the United States Constitution, indigenous individuals and groups are guaranteed protection of their vested property rights and of their basic individual rights, including their right to freely associate, engage in religious practices and maintain distinct social and cultural identities.

We want to build a new partnership with our own indigenous communities, a relationship based on recognition of indigenous culture and strengthened through consultation. U.S. policy continues to support the tribal governments of federally recognized American Indian tribes and Alaska Native villages. Relations between the United States and these tribes have been conducted on a government-to-government basis.

Participation of Indigenous Organizations

The United States fought hard during the UNHRC to ensure that indigenous organizations not in consultative status with the Economic and Social Council, including tribal governments, would have an opportunity to contribute to the negotiation. Consensus was achieved on a procedure that will allow "relevant organizations of indigenous people" to apply to participate in the process. Indigenous contributions to the process will be vital to a successful outcome. We are very concerned that not all organizations wishing to participate have been accredited; we hope that the NGO committee will remedy that situation very soon.

The United States stands ready to work in partnership with tribal governments and U.N. members to make the declaration a reality. The wrongs and abuses committed against "First Americans" in U.S. history, and continuing discrimination around the world based on indigenous origin, demand no less.

My Government is committed to working with other governments to ensure a strong and useful declaration that recognizes the rights of indigenous people, and the communities to which they belong. It should go without saying that these rights are universal. We are also committed to promoting dialogue and cooperation between governments and indigenous communities. As President Clinton stated in a recent letter to indigenous communities in the United States, "working together, we can usher in a new era of understanding, cooperation, and respect, leading the way to a bright future for all of our people."

United States Statement on Standard of Review

And now, Mr. Chairman, I would like to address the question of the Standard of Review. The United States hopes that this working group will succeed in negotiating a strong and useful declaration that reaffirms indigenous rights and is consistent with international law. The starting point in assessing the current draft text of the WGIP is GA Resolution 41/120, which sets agreed guidelines for new human right standard setting. The General Assembly there agreed that new human rights instruments should:

"(a) Be consistent with the existing body of international human rights law;

(b) Be of fundamental character and derive from the inherent dignity and worth of the human person;

(c) Be sufficiently precise to give rise to identifiable and practicable rights and obligations;

(d) Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; and

(e) Attract broad international support."

Elements of the present text need substantial revision to meet these tests.

1. Consistency with Human Rights Law. The new declaration should build upon, and be consistent with, the principles established in basic human rights instruments such as the Universal Declaration, the Covenants, and the 1992 Declaration on the Rights of Persons Belonging to Linguistic Minorities.

Within this framework of existing principles, the focus should be to (1) affirm that persons belonging to indigenous groups are entitled to exercise fully and effectively their human rights and fundamental freedoms without any discrimination and in full equality under the law; (2) make clear their right to preserve and develop their identity and culture, free from threats of involuntary assimilation; and (3) describe steps governments should take to achieve these ends.

In large measure the draft declaration meets these objectives. But it also includes much that is not a reasonable evolution from existing human rights law.

For example, the document refers extensively to the "rights of indigenous peoples," many of which are in fact statements of social or political goals. They are not recognized as rights in existing international instruments, nor in state practice. Accordingly, the pervasive use of the language of "rights" is both inaccurate and misleading. It tends to diminish the credibility of the Declaration and to lessen the likelihood of its broad acceptance.

It should also not be necessary to convert aspirations or objectives into "rights" in order to draw attention to them. Rather, the term "rights" should be reserved in the declaration for those duties that governments owe their people, the breach of which generally gives rise to a legally enforceable remedy.

2. Precision Clarity, and Practicability of Rights and Obligations. The existing text has considerable repetition. Important ideas are repeated in different formulations in many paragraphs. Such overlap must be eliminated to avoid ambiguity in interpretation and inconsistency of application.

The draft also tends to group together important but unrelated ideas in single paragraphs. For clarity, key ideas should be stated separately. More important, some key provisions are written in general and imprecise language. It often would be impossible to ascertain whether particular conduct by a State would or would not satisfy the principles enunciated in the Declaration. Much greater precision is required.

3. Attract Broad International Support. The Declaration must seek to build upon existing international law. At the end of the day, the Declaration's influence will be directly related to its ability to enlist the support of key states - notably those with significant indigenous populations - and to shape their conduct. As the text now reads, a number of its formulations will discourage, not encourage, such support. One way to help ensure that the declaration would receive broad international support would be to include a provision in the declaration recognizing that different governments and indigenous populations may take different approaches to the problems the declaration is designed to address. The declaration should make clear that these governments and indigenous persons have flexibility in interpreting its provisions.

20 November 1995

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