DOCUMENT: 95-14402.TXT
U N I T E D N A T I O N S
Economic and Social Council ENGLISH
Distr. Original: ENGLISH/FRENCH/
GENERAL SPANISH
E/CN.4/1995/WG.15/2/Add.1 GE. 95-14402 (E)
13 November 1995
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Open-ended inter-sessional working group
on a draft United Nations declaration
on the rights of indigenous peoples
First session
20 November - 1 December 1995
CONSIDERATION OF A DRAFT UNITED NATIONS DECLARATION
ON THE RIGHTS OF INDIGENOUS PEOPLES
Information received from Governments
ADDENDUM
CONTENTS
PAGE
Japan . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Morocco . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States of America . . . . . . . . . . . . . . . . . 6
E/CN.4/1995/WG.15/2/Add.1
page 2
JAPAN
[Original: English]
[17 October 1995]
1. In this draft declaration, concrete provisions are given
on issues that are critical for national legal systems on
lands, natural resources, education, election, and so on.
However, those provisions should be practical and flexible,
since the historical and social contexts which surround
indigenous people differ, and so do the legislative and
judicial systems of each State. In particular, where those
systems are founded on the principle of freedom and
equality, the relation between the principle and the
provisions in this declaration should be clearly identified
and compatible.
2. The declaration drafted by the United Nations or its
specialized agencies should not be understood as legally
binding. Thus, it is inappropriate to call upon States, or
to bear legal obligations on States to take effective
measures, as this draft declaration says.
3. International instruments prescribing rights should be
drafted in such a way that the subjects, objects, extent to
be covered, requisites and effects are clearly recognized
and should use accurately selected language. Nevertheless,
this draft declaration contains too much unclear wording and
ambiguous language as a platform for an international
instrument. In addition, when words are quoted from the
existing body of international instruments, care should be
taken not to twist their meaning.
4. "Collective rights" stipulated in this declaration (in
arts. 6, 7, 8, 34, etc.) cannot be found in international
instruments drafted and adopted by the United Nations in the
past. This concept is not yet firmly established. Therefore,
we should be careful when introducing these rights.
Moreover, the rights that can be adopted in the catalogue of
human rights in declarations of United Nations human rights
forums are fundamental human rights for individuals.
Introducing "A new category of rights" would be overstepping
the mandates of the Commission on Human Rights by broadening
the scope of the rights proclaimed.
5. As recognized in General Assembly resolution 41/120,
which calls for new international instruments in the field
of human rights to be consistent with the existing
international human rights laws, the consistency between the
rights and duties listed in this draft declaration and the
existing human rights conventions should be thoroughly
examined.
6. It cannot be meaningful to draft this declaration without
clearly defining the term "indigenous populations" who are
to be entitled to the rights listed in this instrument.
Furthermore, using the term "indigenous populations" without
establishing objective definitions would cause arbitrary
interpretation and end up with confusion.
E/CN.4/1995/WG.15/2/Add.1
page 3
MEXICO
[Original: Spanish]
[12 September 1995]
1. The Government of Mexico appreciates that one of the
wishes shared by numerous Governments and indigenous peoples
is that during the International Decade of the World's
Indigenous People, a declaration on the rights of indigenous
peoples should be proclaimed on the basis of the draft
submitted by the Working Group on Indigenous Populations,
contained in the annex to resolution 1994/45 of the Sub-
Commission on Prevention of Discrimination and Protection of
Minorities.
2. Accordingly, the Government of Mexico believes that
analysis of the draft declaration provides an excellent
opportunity to debate a number of important issues, such as
the definition of "indigenous peoples". In this connection,
the Government of Mexico fully concurs with the opinion of
the Chairperson-Rapporteur of the Working Group on
Indigenous Populations, Ms. Erica-Irene Daes, that "an
important first question to be addressed by the Working
Group is the desirability of developing a definition of
indigenous peoples" (see, document E/CN.4/Sub.2/AC.4/1995/3,
para. 4). The Government of Mexico also shares the view that
a clear distinction has to be made between the concepts of
"indigenous peoples" and "minorities".
3. Regarding the definition of "indigenous peoples", the
Government of Mexico believes that the definition contained
in article 1 of ILO Convention No. 169 of 1989, concerning
indigenous and tribal peoples in independent countries, to
which Mexico is a party, constitutes the foundation for any
future international instrument relating to the rights of
indigenous peoples.
4. With regard to the concept of the right of self-
determination, provided for by article 3 of the draft
declaration, the Government of Mexico is concerned that it
might be understood, for the purposes of international law,
in the same way as in the first articles of the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural
Rights. Accordingly, the Government of Mexico supports the
proposal submitted by Chile at the Technical Meeting on the
International Year and the International Decade of the
World's Indigenous People, that a second interpretative
paragraph should be included in article 3 to clarify the
scope of that article, or that the wording proposed should
be amended as follows:
"Indigenous peoples have the right to be recognized and
to define themselves as such, with their differences,
and to pursue their development in accordance with
objectives, aims and methods in keeping with that
definition, as part of the plural society that makes up
the State to which they belong."
5. The draft prepared by independent experts within the
Working Group on Indigenous Populations is a good basis on
which to prepare a declaration. However, the draft should
take into consideration the opinions of Governments, and, of
course, the constitutional and legal precepts that have been
adopted nationally. Where Mexico is concerned, it is
necessary to take into account article 27 of the
Constitution, which organizes the legal regime of property
E/CN.4/1995/WG.15/2/Add.1
page 4
ownership and has considerable social significance, since
private property does not constitute an absolute right as it
is restricted by the public interest.
6. Under article 27 of the Constitution, ownership of land
and water may be characterized as public, private or social.
The Nation transmits title thereof to private persons in
order to constitute private property, and to ejidos and
communities, most of whom belong to indigenous people, in
order to establish social property reserving for itself
ownership and direct title of specific properties, which
form part of public property. Land expropriations may be
made only in the public interest and against compensation.
7. As a contribution to preparing and finalizing the draft
declaration, the Government of Mexico offers the following
specific observations concerning the compatibility of the
proposed text with the provisions of Mexico's Constitution.
(i) Concerning article 7, paragraph (b) of the draft
declaration, which establishes the right of
indigenous peoples to prevention and protection
against "any action which has the aim or effect of
dispossessing them of their lands, territories or
resources", a more precise definition is necessary
of what is meant by "any action", as the current
wording could be set in opposition to the
provisions concerning expropriation in the public
interest provided for by the Constitution.
In this respect, article 27, paragraph 2, section
VI, of the Constitution stipulates that "the laws
of the Federation and of the States ... shall
determine in which cases the occupation of private
property by the State is in the public interest".
Whatever the case, the second paragraph of article
27, section VII, of the Constitution, which states
that "the law shall protect the integrity of the
land of indigenous groups" is applicable.
(ii) Regarding article 21 of the draft declaration, the
Government of Mexico is concerned about the
vagueness of the section relating to the right of
indigenous peoples "to maintain and develop their
political, economic and social systems ...".
Regarding the last part of article 21, relating to
the right of indigenous peoples "who have been
deprived of their means of subsistence and
development" to "just and fair compensation", it
would also be necessary to take into consideration
the provisions relating to the protection of the
integrity of the lands of indigenous groups, the
protection of land for human settlement and the
regulation of land use, laid down in paragraphs 2,
3 and 4 of article 27, section VII referred to
above, and in the often quoted second paragraph of
section VI.
(iii) Regarding article 26 of the draft declaration,
which provides for the right of indigenous peoples
"to own, develop, control and use their lands and
territories ... (including) the right to the full
E/CN.4/1995/WG.15/2/Add.1
page 5
recognition of their laws (of the indigenous
peoples), traditions and customs, land-tenure
systems and institutions for the development and
management of resources", this could conflict with
the provisions of article 27 of the Constitution.
Under the first paragraph of article 27, "ownership
of the lands and waters within the boundaries of
the national territory is vested originally in the
Nation, which has had, and has, the right to
transfer title thereof to private persons, thereby
constituting private property". Under the third
paragraph of article 27, the Nation "shall at all
times have the right to impose on private property
such limitations as the public interest may demand,
... in order to ensure a more equitable
distribution of public wealth".
In the cases referred to by the above two
provisions, Mexico's Constitution stipulates that
"ownership by the Nation is inalienable and
imprescriptible, and the exploitation, use, or
appropriation of the resources concerned may not be
undertaken except through concessions granted by
the Federal Executive, in accordance with rules and
regulations established by law" (section VII, fifth
paragraph).
(iv) Regarding article 27 of the draft declaration,
which stipulates that indigenous peoples "have the
right to the restitution of the lands, territories
and resources which they have traditionally owned
or otherwise occupied or used", the seventh
paragraph of article 27, section VII, states that
the process of restitution of lands, forests and
waters to centres of population shall be carried
out under the terms of the regulating law.
(v) Article 30 of the draft declaration establishes the
right of indigenous peoples to require that States
"obtain their free and informed consent prior to
the approval of any project affecting their lands,
territories and other resources". This provision
might be at variance with a number of the precepts
of the Constitution already referred to, such as
that which stipulates that expropriations shall be
"only in the public interest and against
compensation", and with the provisions of section
XVII, which states that "the Congress of the Union
and the State legislatures, within their respective
jurisdictions, shall adopt laws to establish
procedure for breaking up and expropriating
estates."
MOROCCO
[Original: French]
[16 October 1995]
1. Article 3 of the draft declaration states that
"indigenous peoples have the right of self-determination. By
virtue of that right they freely determine their political
status and freely pursue their economic, social and cultural
development".
E/CN.4/1995/WG.15/2/Add.1
page 6
2. Article 31 states: "Indigenous peoples, as a specific
form of exercising their right to self-determination, have
the right to autonomy or self-government in matters relating
to their internal and local affairs, including culture,
religion, education, information, media, health, housing,
employment, social welfare, economic activities, land and
resources management, environment and entry by non-members,
as well as ways and means for financing these autonomous
functions".
3. These provisions and many others, in their current form,
appear to be incompatible with existing practice under
international law. Use of the term "indigenous peoples" in
the draft declaration to describe subjects at law might well
lead to an ambiguous interpretation incompatible with
international law. It will be remembered that the
Declaration on the Granting of Independence to Colonial
Countries and Peoples (General Assembly resolution 1514 (XV)
of 14 December 1960) links the question of self-
determination to the principle of territorial integrity.
However, the draft declaration makes no allusion either to
the principle of territorial integrity or to that of
sovereignty.
4. The content and scope of certain notions should be
further clarified. This is the case, inter alia, of the
right of indigenous peoples to self-government in matters
relating to their "internal and local affairs", and to the
"demarcation of indigenous lands" and access by indigenous
peoples to procedures for the resolution of disputes with
States (arts. 31, 32, 35, 37 and 39 of the draft
declaration).
UNITED STATES OF AMERICA
[Original: English]
[30 October 1995]
1. The United States Government is pleased to indicate its
appreciation and support for the Working Group on Indigenous
Populations in preparing the draft entitled "United Nations
Declaration on the Rights of Indigenous Peoples". It is
hoped that the ultimate adoption of a declaration will
succeed in focusing attention on the need to fight
discrimination based on indigenous origin wherever it
occurs, protect indigenous rights, and foster appreciation
for and understanding of the value of indigenous traditions,
cultures and institutions.
2. The United States 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. It is the
goal of the United States to build a relationship with its
own indigenous communities based on recognition of their
cultural identity, and acting in partnership and
consultation with them. In
E/CN.4/1995/WG.15/2/Add.1
page 7
particular United States 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.
3. At the fifty-first session of the Commission on Human
Rights, the United States Government strongly supported the
adoption of resolution 1995/32 which established an open-
ended inter-sessional working group to consider as a matter
of priority the "United Nations Draft Declaration on the
Rights of Indigenous Peoples". It is hoped that the working
group will succeed in negotiating a strong and useful
declaration which reaffirms indigenous rights and is
consistent with international law. The United States stands
ready to work in partnership with tribal governments and
States Members of the United Nations to make the declaration
a reality.
4. Indigenous contributions to the process will be vital to
the successful outcome. The United States fought hard during
the fifty-first session of the Commission to ensure that
indigenous organizations not in consultative status with the
Economic and Social Council, including tribal governments,
would also have an opportunity to contribute to the
negotiation. It is much appreciated that consensus was
achieved on a procedure that will allow "relevant
organizations of indigenous people" to apply to participate
in the process.
5. Below follow several preliminary comments on the draft
declaration. It should be emphasized that these are not
meant to be exhaustive or final. The United States reserves
the right to make additional comments during the course of
negotiations to ensure consistency with international law.
RIGHTS VERSUS GOALS
6. While the United States Government finds itself in
agreement with the basic goals of the draft declaration, it
should be emphasized that a number of provisions in the
current draft refer to "rights" which do not currently exist
under international law. It should not be necessary to
convert aspirations or objectives into "rights" in order to
call attention to them. Rather, the term "rights" should be
reserved for those duties that Governments owe their people,
the breach of which generally gives rise to a legally
enforceable remedy.
7. In a number of situations, the declaration could be made
more consistent with international law if the provision in
question were to call upon States to take certain measures
in appropriate circumstances, rather than purport to create
new rights. For example, article 17, suggesting certain
rights of control over access to and content of media, would
be consistent with international law if reformulated as a
provision calling upon States to take steps to promote
diversity of ownership and programming.
APPLICABLE LAW
8. While certain indigenous communities, such as recognized
tribal governments, may be largely self-governing and
exercise autonomy over a broad range of issues, as they do
in the United States, these powers of self-government are
exercised within the overall domestic legal framework of
E/CN.4/1995/WG.15/2/Add.1
page 8
the State in which they reside. Accordingly, we will need to
find appropriate language to narrow provisions suggesting
that indigenous communities, like recognized tribal
governments, are not also subject to the legal structure of
their State. See, for example, article 20 which seems to
imply that "indigenous peoples" have the unqualified right
to veto legislative or administrative measures affecting
them.
DEFINITION
9. The United States Government notes that although the
draft declaration refers consistently to the term
"indigenous peoples", it does not define it. In principle,
it would seem important to have a universally-accepted
definition of "indigenous" to ensure that the instrument is
"sufficiently precise to give rise to identifiable and
practicable rights and obligations", in the language of
General Assembly resolution 41/120. However, efforts to
define "indigenous" in a way satisfactory to all have so far
been unsuccessful. The United States hopes that failure to
date to resolve the definitional issue will not delay the
Working Group's general discussion of the draft declaration.
COLLECTIVE/INDIVIDUAL RIGHTS
10. In addition, there is need to review carefully the use
of the term "peoples" in the declaration when affirming
individual human rights. Since international law, with few
exceptions, protects and promotes the rights of individuals,
as opposed to groups, it is for the most part inaccurate and
confusing to state that international law accords certain
rights to indigenous "peoples" as such. Thus, in certain
cases, it is entirely appropriate and indeed necessary to
refer to indigenous "people", or members of indigenous
communities or groups, in order to reinforce their civil and
political rights on the basis of full equality and non-
discrimination.
11. Use of the plural "peoples" in the context of
international law generally implies a right of self-
determination and permanent sovereignty over natural
resources, among other collective rights. Such rights may or
may not be accorded by States under their domestic laws to
indigenous communities. At the same time, we understand the
concerns of some indigenous groups that self-identify as a
"people" and for that reason prefer to use the plural when
referring to more than one indigenous group. It should be
clear, however, that use of the term "peoples" in this sense
shall not be construed as having any implications as regards
the rights which may attach to the term under international
law.
12. As a matter of domestic law and policy, not
international law, the United States takes special measures
to protect certain groups beyond ensuring that they enjoy
equal rights on a non-discriminatory basis. However,
endorsement of rights or special measures that States have
taken with respect to their indigenous communities under
domestic law must not overlook or undermine the
internationally-recognized human rights and fundamental
freedoms of the community's members or of members of a
larger society. For example, certain articles that are
designed to protect indigenous cultural rights (see arts.
15, 17, 29 and 30) should be redrafted to ensure that these
measures do not impinge upon the human rights of
individuals.
E/CN.4/1995/WG.15/2/Add.1
page 9
SELF-DETERMINATION
13. The United States strongly supports the principle of
self-determination as set out in the Charter of the United
Nations. From the first days of our republic, the United
States has recognized Indian tribes as political entities,
with powers of self-government. Since the 1960s, there has
been a concerted effort to reaffirm and strengthen this
long-standing principle of domestic law. In the domestic
United States context "self-determination" means promoting
tribal self-government and autonomy over a broad range of
issues. Under contemporary international law, however, the
term "self-determination" is open to varying
interpretations, depending on the specific context. Taken to
its extreme, the term has been interpreted in the context of
colonialism to mean the right to an independent State. While
current views among scholars and Governments may be changing
on the meaning of "self-determination", there may not yet be
an international consensus. Accordingly the explicit and
implicit references to self-determination will have to be
reviewed carefully. The declaration might, for example,
consider increased self-government and autonomy for
indigenous communities in appropriate circumstances, without
necessarily providing an independence option in all
situations and circumstances.
CONCLUSION
14. The United States 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 and that promotes
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 brighter
future for all of our people".
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