DOCUMENT: MAIVAN.TXT
[Ed. Note: This statement was in response to the statements by
the U.S. and Swedish delegations to the UNWGIP on the definition of
the term "self-determination" in the Universal Declaration.]
U N I T E D N A T I O N S
WORKING GROUP ON INDIGENOUS POPULATIONS
Statement of Maivan C. Lam
Professor, City University of N.Y.
School of Law, 7/21/93
Madam Chairperson,
I. Two years ago, I first assisted at a session of this Working
Group. I considered it an honour to do so then, both because of
the bold ideas on the rights of Indigenous Peoples which your
Working Group uniquely entertained in the U.N. System, and
because of the respectful procedures that your Working Group
adopted to facilitate the participation of all parties, be they
indigenous spokespersons, state representatives, or simple
academics like myself with neither indigenous nor statist
standing. As you may know, I have published my favourable
impressions of that 1991 session, and look forward to being able
to do the same for this session.
With your permission, I would like today to comment briefly on
two matters: the wording of the provision on self-determination
in the Draft Declaration, and its general tenor.
II. I agree with the position of the significant majority of the
Indigenous Groups represented here that the right of self-
determination of Indigenous Peoples must be recognised as
equivalent in all respects with the right of self-determination
of all other peoples, and that the right in fact constitutes a
sine qua non context for the enjoyment of all the other rights
that the Draft Declaration would recognise and enumerate.
I also agree that the best way to assert and preserve the right
to self-determination of Indigenous Peoples is to express it, as
Article I of the Draft Declaration, using the exact language in
which it is expressed in Article I of each of the two
International Covenants on Human Rights.
The reasons for doing so are compelling: The Covenants' language
on self-determination has now been in place some four decades
and remains the classic U.N. statement of the right. In my
opinion, it would be a matter of the utmost shame if this
Working Group, with its admirable record to date, went down in
history as that international body which, for the petty
expediency of a mere moment, set in motion the vandalizing of
this most profound, and universal, of principles of
international law, with consequences injurious not just to
Indigenous Peoples, but to all other peoples as well.
Indeed, so profound and universal is this principle that
international jurists increasingly hold that it has achieved jus
cogens status, such that states are no longer free to derogate
from it.
Furthermore, the I.C.J., in its 1975 Western Sahara decision,
made it clear that the subjects of the right to self-
determination are peoples, not states.
Indeed, it held, in that case, that an essentially nomadic,
tribal people -- defined by their subjective sense of collective
identity, political self-regulation, and traditional area of
economic activity, though not exhibiting evidence of a formal
government, stable population, or clearly demarcated territory --
nevertheless detained self-determination.
I might note that the court made it very clear that it was
talking, in that case, about what some today are calling
external self-determination.
Finally, the Sahara decision not only invalidated Spain's "blue-
water" claim over Western Sahara; it also invalidated the would-
be domination of its peoples asserted by contiguous states.
There is thus, Madam Chairperson, no instrument of international
law that specifically prohibits the recognition of the full
right of self-determination of Indigenous Peoples. Your Working
Group, in this the year and Decade of Indigenous Peoples, should
not now make up such a prohibition. The Declaration on Friendly
Relations and Cooperation among States, for example, prohibits a
state from infringing the territorial integrity of another. It
does not, and could not, without gutting the democratic
political process itself, prohibit peoples who live within a
state from modifying the latter's structures, or even boundaries
as need be. Witness the separation of Bangladesh from Pakistan.
While I sympathise with the desire that some have expressed,
Madam Chairperson. of completing a draft this year that will
receive the General Assembly's approval, I believe that neither
prophecies regarding eventual State behaviour, nor the
artificial constraint of a schedule, should dictate the content
of the Draft Declaration.
For one thing, we all, in our lives, complete the works begun by
our ancestors, and simultaneously launch other works that our
children will complete.
There is honour in both activities.
For another, the Working Group is constituted as a body of
independent experts, not state representatives. As such, it
ought to, and has to date -- in a most admirable manner --
represented the most progressive elements of international civil
and not statist society. That international civil society is now
in the process of fundamentally re-thinking the role of states,
in their internal as well as external aspects.
Internally, this re-thinking is reminding states that they are
nothing more, nor less, than the marriages or partnerships of
their constituent peoples. And as we know, progressive thinking
today clearly admits that divorce and dissolution are legitimate
ways of ending such relationships, when all else fails. The
possibility of divorce and dissolution, however, does not mean
that parties enter into a marriage or a partnership with the
primary goal of ending them. On the contrary -- we all seek
something like permanency in our associations. On the other
hand, it is precisely the right that each spouse or partner
possesses to end a relationship that motivates the other to
accord the first the respect that makes the relationship
mutually beneficial. It goes without saying, of course, that the
modification, or termination, of any relationship needs to
proceed in a fair and orderly manner. This rule should be
observed in the case of the Indigenous/State relationships as
well. But that, Madam Chairperson, belongs in the realm of
procedure, which will have to be worked out in the U.N. system.
It does not belong in the Declaration of Rights which, as you
wisely reminded us earlier this week, should remain simple,
general and principled.
Madam Chairperson, I hear the Indigenous Peoples assembled here
proposing, as Mr Moana Jackson earlier said, a tender yet
serious, thoughtful, respectful and, if we could only recognise
it, most timely new conception of the relationship between
states and their constituent peoples.
This new conception casts states and their constituent peoples
as real, not feigned, partners. It rejects the old conception
that would cast indigenous peoples as the objects, victims, or
at best wards of exploitative paternalistic states.
Madam Chairperson, I implore the Working Group to remain true to
its enlightened record in elaborating International Law in the
progressive direction pointed to us by Indigenous Peoples. If
states insist on remaining backward-looking, let them do that in
their own name in the General Assembly. But let the Draft
Declaration that emanates from this Working Group, instead,
reflect the most generous and forward-looking consensus of those
assembled here, whether they represent Indigenous Peoples,
States, or their own most careful thoughts and sincere
sentiments, as is the situation in my own case.
Thank you Madam Chairperson.
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