|
COMMISSION ON HUMAN RIGHTS
Sixty-second session
Working group established in accordance
with Commission on Human Rights
resolution 1995/32
Eleventh session
Geneva, 5 – 16 December 2005
Urgent Need to Improve the U.N. Standard-Setting Process
Importance of Criteria of “Consistent with International
Law and its Progressive Development”
Joint submission of the Grand Council of the Crees (Eeyou Istchee), Inuit Circumpolar
Conference (ICC), Na Koa Ikaika Kalahui Hawai’i, Indigenous Peoples of
Africa Co-ordinating Committee (IPACC), Centro de Asistencia Legal Popular (CEALP)
Programa de Pueblos Indígenas de Panamá, Saami Council, Taungya
(Bangladesh), International Organization of Indigenous Resource Development
(IOIRD), Foundation for Aboriginal and Islander Research Action (FAIRA), Mainyoito
Pastoralist Integrated Development Organisation (MPIDO-Kenya), Tebtebba Foundation,
First Peoples Human Rights Coalition, Organisation africaine des femmes autochtones
(OAFA)/TIN HINAN, Native Women’s Association of Canada (NWAC), Servicios
del Pueblo Mixe (SER) México, Kus Kura Sociedad Civil (Costa Rica), Assembly
of First Nations, Comisión de Juristas Indígenas en la Republica
Argentina (CJIRA), American Indian Law Alliance (AILA), Indigenous World Association,
Communauté des Autochtones Rwandais (CAURWA), Warã Instituto Indígena
Brasileiro, Maasai Civil Society Forum (MCSF), ECUARUNARI, CONAIE (Ecuador),
Caribbean Antilles Indigenous Peoples Caucus & the Diaspora (CAIPCD), Nepal
Indigenous Peoples Development and Information Service Centre (NIPDISC), United
Confederation of Taino Peoples, YABOA Native Women's Coalition, Traditional
Kirati Peoples' Alliance (Nepal), Consejo General de Taino Boricanos, South
African First Indigenous and Human Rights Organization (SAFIHRO), Rights and
Democracy, Canadian Friends Service Committee, Netherlands Centre for Indigenous
Peoples (NCIV), KAIROS: Canadian Ecumenical Justice Initiatives.
Urgent Need to Improve the U.N. Standard-Setting Process
Importance of Criteria of “Consistent with International
Law and its Progressive Development”
Introduction
During the past few years, it has become increasingly clear
that there is an urgent need to improve the current U.N. standard-setting process
on the rights of Indigenous peoples. Of particular concern is the intersessional
Working Group (WGDD) that is presently considering the draft U.N. Declaration
on the Rights of Indigenous Peoples.
The need for positive changes has been increasingly emphasized
by many Indigenous peoples and organizations, as well as non-Indigenous human
rights organizations. For example, in March 2004, this was a central theme of
a Joint Submission that was made to the Office of the High Commissioner for
Human Rights.(i) Again, in May 2005, Indigenous and non-Indigenous organizations
raised this same concern in a Joint Statement to the U.N. Permanent Forum on
Indigenous Issues in New York.(ii)
A principal reason for introducing improvements to the process
is that participants at the WGDD are not explicitly required to meet any criteria
in proposing changes to the draft U.N. Declaration. As a result, some States
are seeking amendments to the existing text that would create discriminatory
double standards and violate the Purposes and Principles of the U.N. Charter.
This is especially evident in relation to such core Indigenous issues as the
right of self-determination and rights to lands, territories and resources.(iii)
One need not consume excessive amounts of time in ensuring
that improvements are implemented in the Working Group. However, if reasonable
criteria are not introduced, much-needed progress in the WGDD will continue
to be impeded by certain States. In other words, lack of attention to such procedural
aspects can serve to prevent consensus from being reached on crucial substantive
provisions in the draft U.N. Declaration.
At the U.N. Permanent Forum in May 2005, numerous Indigenous
and non-Indigenous organizations jointly recommended three major improvements.
Consistent with the proposals of the High Commissioner for Human Rights,(iv)
they recommended the adoption of “new and dynamic methods of work, with
particular regard for the full and effective participation of Indigenous peoples”.
This should mean, for example, that the informal consultations that have been
held within the WGDD be limited to a reasonable number. They should also not
function at the same time, so that Indigenous representatives are able to effectively
defend and promote their positions in all such discussions.
Further, it was jointly recommended that the “Special
Rapporteur on the situation of human rights and fundamental freedoms of indigenous
people, as well as other experts on Indigenous peoples’ human rights,
[be invited] to attend and contribute to the formal or informal sessions of
the Working Group”.(vi) This would help to ensure a more focussed and
balanced dialogue in the standard-setting process.
In addition, Indigenous peoples and human rights organizations
jointly proposed to the Permanent Forum that the Working Group be urged to:
carry out its mandate, at all times, in a manner that fully
upholds the purposes and principles of the Charter of the United Nations and
is wholly consistent with international law and its progressive development.(vii)
Since this latter recommendation would benefit from further
substantiation, it is the primary focus of this paper.
I. Obligations of U.N. and member States to respect the U.N. Charter
As confirmed in the 1993 Vienna Declaration, the “promotion
and protection of all human rights … must be considered as a priority
objective of the United Nations in accordance with its purposes and principles”.
(viii) In this regard, the U.N. Charter is clear. An explicit Purpose of the
United Nations is … to “achieve international cooperation …
in promoting and encouraging respect for human rights … for all without
distinction as to race, sex, language, or religion”.(xi)
Further, this obligation of the U.N. to promote “universal
respect for, and observance of, human rights” is to be “based on
respect for the principle of equal rights and self-determination of peoples”.
All member States “pledge themselves to take joint and separate action
in co-operation with the Organization” to achieve this central purpose.(xi)
The international obligation to promote and respect human rights
and adhere to other Purposes and Principles in the U.N. Charter has been proclaimed
at the regional level.(xii) Also, in the Millennium Declaration, Heads of State
and Government reaffirmed their commitment to the Purposes and Principles, declaring
that these have “proved timeless and universal. Indeed, their relevance
and capacity to inspire have increased.”(xiii) The duty to strictly comply
with the Purposes and Principles has also been repeatedly confirmed and elaborated
upon by the U.N. General Assembly.
For example, in a 2000 General Assembly resolution, it was
made clear that U.N. action in the field [of human rights] “should be
based not only on a profound understanding of the broad range of problems existing
in all societies but also on full respect for the political, economic and social
realities of each of them, in strict compliance with the purposes and principles
of the Charter”.(xiv) In particular, the General Assembly requested “all
human rights bodies within the United Nations system, as well as the special
rapporteurs …, independent experts and working groups, to take duly into
account the contents of the present resolution in carrying out their mandates”.
(xv)
The WGDD has ignored this resolution of the General Assembly.
For the past five years, the Chair of the WGDD has rejected all requests by
Indigenous peoples and organizations to introduce criteria that would ensure
that its mandate is carried out in a manner that fully upholds the Purposes
and Principles of the U.N. Charter. Since other related criteria have also been
ignored, these will be described under the next heading.
II. Importance of criteria “consistent with international law
and its progressive development
Aside from conforming to the Purposes and Principles of the
U.N. Charter, any proposals to alter the draft U.N. Declaration should be “consistent
with international law and its progressive development”. These latter
criteria are well-established in international law.
As recently as April 2005, the U.N. Commission on Human Rights
has specifically underlined that “processes of promoting and protecting
human rights should be conducted in conformity with the purposes and principles
of the Charter of the United Nations and international law”. (xvi) In
the WGDD, States should not be proposing norms that fit their domestic situations
but which are not consistent with international law.(vxii) As confirmed by the
International Court of Justice, “the fundamental principle of international
law [is] that it prevails over domestic law”. (xviii)
States participating in the WGDD cannot invoke their constitutions
or other domestic laws in order to avoid including human rights norms in a U.N.
Declaration consistent with their international obligations.(xix) Rather, in
the standard-setting process relating to Indigenous peoples, it was authorized
from the outset in 1982 by the Economic and Social Council that “special
attention [be given] to the evolution of standards concerning the rights of
indigenous peoples, taking account of both the similarities and the differences
in the situations and aspirations of indigenous peoples throughout the world.”(xx)
This specific approach is entirely consistent with international law and its
progressive development.
The notion of “progressive development” is an essential and long-standing
standard. It serves to ensure that international and national legal systems
remain dynamic and forward-looking. “Progressive development” is
especially crucial in the context of human rights standard-setting. Through
this approach, new and changing circumstances, values, perspectives and principles
– as well as ongoing injustices – can all be effectively addressed.
This notion is used in diverse ways in the U.N. Charter.(xxi)
For example, in its studies and recommendations, the U.N. General Assembly,
which includes all Member States, is required under Article 13(1)(a) to encourage
the “progressive development of international law and its codification”.
A similar affirmation is found in the 1969 Vienna Convention on the Law of Treaties.(xxii)
In addition, the Statute of the International Law Commission,
established by the U.N. General Assembly in 1947, declares that the “Commission
shall have for its object the promotion of the progressive development of international
law and its codification”.(xxiii) Further, when the U.N. General Assembly
declared the United Nations Decade of International Law (1990-1999), a main
purpose of the Decade was to “encourage the progressive development of
international law and its codification”.(xxiv) A similar approach is also
found in the 1970 U.N. Declaration on Friendly Relations, in connection to the
principle of equal rights and self-determination of peoples and other international
principles. (xxv)
Within the Inter-American legal system, the 1996 Declaration
of Panama on the Inter-American Contribution to the Development and Codification
of International Law emphasizes that “it is necessary for the member states
to reaffirm their full support for the progressive development and codification
of international law”.(xxvi) The 2001 Inter-American Democratic Charter
also refers to the “progressive development of international law”.
(xxvii)
In relation to environmental protection, the 1975 Final Act
of the Conference on Security and Co-operation in Europe (Helsinki Final Act)
declares that participating States are committed to “promoting the progressive
development, codification and implementation of international law”.(xxviii)
With regard to the African Commission on Human and Peoples’ Rights, a
progressive and dynamic approach (xxix)is authorized in carrying out its diverse
mandate. The Commission’s mandate includes both standard-setting and interpretive
aspects.(xxx)
Conclusions
Based on all of the above, in relation to the standard-setting
process concerning Indigenous peoples’ rights, there can be no justification
whatsoever for the U.N. and its member States to refuse to explicitly affirm,
and adhere to, the Purposes and Principles of the U.N. Charter. This is one
of the most basic imperatives in international law and is demanded of all States
who are members of the U.N. In relation to the human rights of Indigenous peoples,
it is unconscionable for some States to apply a different and lesser standard.
Similarly, it would be a discriminatory double standard to
refuse to ensure that the norms in the draft U.N. Declaration are “consistent
with international law and its progressive development”. As has been demonstrated
in this paper, this is the approach that institutions, such as the U.N., and
their member States have embraced at the international and regional level. Moreover,
most States accommodate in diverse ways the notion of progressive development
within their national legal systems. In this way, new and changing circumstances,
ongoing injustices and other challenges can be readily taken into account.
After a decade of effort in the WGDD, it has now become critical
that such fundamental criteria be a specific requirement in its normative process.
The same is equally true in relation to the OAS standard-setting process concerning
Indigenous peoples’ rights.
---------------------
(i) Grand Council of the Crees (Eeyou Istchee)
et al., “Assessing the International Decade: Urgent Need to Renew Mandate
and Improve the U.N. Standard-Setting Process on Indigenous Peoples’ Human
Rights”, Joint Submission to the Office of the High Commissioner for Human
Rights, Geneva, March 2004.
(ii) Grand Council of the Crees (Eeyou Istchee)
et al., “Urgent Need to Improve the U.N. Standard-Setting Process on Indigenous
Peoples’ Human Rights”, Joint Statement (signed by 53 Indigenous
peoples and organizations and non-Indigenous organizations), U.N. Permanent
Forum on Indigenous Issues, Fourth sess., 23 May 2005.
(iii) See, for example, Grand Council of the
Crees (Eeyou Istchee) et al., “Towards a U.N. Declaration on the Rights
of Indigenous Peoples: Injustices and Contradictions in the Positions of the
United Kingdom”, Joint Submission to Prime Minister Tony Blair, United
Kingdom of Great Britain and Northern Ireland, September 10, 2004.
(iv) U.N. Commission on Human Rights, Final
report of the United Nations High Commissioner for Human Rights reviewing the
activities within the United Nations system under the programme for the International
Decade of the World's Indigenous People, 61st sess., E/CN.4/2005/87, 4 January
2005, p. 8, para. 32.
(v) Grand Council of the Crees (Eeyou Istchee)
et al., “Urgent Need to Improve the U.N. Standard-Setting Process on Indigenous
Peoples’ Human Rights”, Joint Statement, note 2, supra, para. 10,
recommendation ii).
See also Permanent Forum on Indigenous Issues,
Report on the fourth session (16-27 May 2005), Economic and Social Council,
Official Records, Supplement No. 23, United Nations, New York, E/2005/43, E/C.19/2005/9,
p. 12, para. 59:
The Forum further takes note of the firm belief that the rapid conclusion of
a strong declaration on the rights of indigenous peoples is imperative and that
new and dynamic methods of work inside the United Nations should be explored
by those working on indigenous issues.
And at p. 14, para. 74:
The Permanent Forum recommends that the Commission on Human Rights adopt creative
methods of work, with particular regard for the full and effective participation
of indigenous peoples, including the appointment of an indigenous Co- Chair
of the working group …
(vi) Grand Council of the Crees (Eeyou Istchee)
et al., “Urgent Need to Improve the U.N. Standard-Setting Process on Indigenous
Peoples’ Human Rights”, Joint Statement, note 2, supra, para. 10,
recommendation iii).
(vii) Id., para. 10, recommendation i).
(viii) United Nations World Conference on Human
Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N.
Doc. A/CONF.157/24 (Part I) at 20 (1993), reprinted in (1993) 32 I.L.M. 1661,
Part I, para. 4.
(ix) U.N. Charter, Art. 1, para. 3.
(x) Id., Art. 55, para. c.
(xi) Id., Art. 56.
(xii) See, for example, Charter of the Organization
of American States, 119 U.N.T.S. 3, entered into force December 13, 1951, amended
721 U.N.T.S. 324, entered into force Feb. 27, 1990, preamble: “Resolved
to persevere in the noble undertaking that humanity has conferred upon the United
Nations, whose principles and purposes they solemnly reaffirm”.
African Charter of Human and Peoples’
Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982),
entered into force Oct. 21, 1986, preamble: “Reaffirming their adherence
to the principles of human and peoples' rights and freedoms contained in the
declarations, conventions and other instruments adopted by the Organization
of African Unity … and the United Nations”.
Charter of Paris for a New Europe, A New Era
of Democracy, Peace and Unity, November 21, 1990, reprinted in (1991) 30 I.L.M.
190, (“Friendly Relations among Participating States”): “We
recall that non-compliance with obligations under the Charter of the United
Nations constitutes a violation of international law.”
(xiii)) United Nations Millennium Declaration,
U.N. Doc. A/RES/55/2, 8 September 2000, para. 3.
(xiv) U.N. General Assembly, Strengthening United
Nations action in the field of human rights through the promotion of international
cooperation and the importance of non-selectivity, impartiality and objectivity,
A/RES/54/174, 15 February 2000, preamble.
(xv) Id., para. 6.
(xvi) U.N. Commission on Human Rights, Human
rights and international solidarity, Res. 2005/55, 20 April 2005, preamble.
[emphasis added]
(xvii) F. MacKay, “Report on the Organisation
of American States’ Working Group on the Proposed Inter-American Declaration
on the Rights of Indigenous Peoples”, Forest Peoples Programme, Washington,
D.C., 8-12 November 1999, Conclusion: “… ensuring compatibility
with domestic legislation is not a fundamental, or even a relevant, part of
setting standards in the field of international human rights; if it were, the
Universal Declaration of Human Rights and its progeny would not exist today.”
(xviii) Applicability of the Obligation to Arbitrate
under Section 21 of the United Nations Headquarters Agreement of 26 June 1947,
[1988] I.C.J. 12 (Advisory Opinion of April 26), at p. 34, para. 57.
(xix) A. Cassese, International Law (Oxford/N.Y.:
Oxford University Press, 2001), at p. 166: “International law provides
that States cannot invoke the legal procedures of their municipal system as
a justification for not complying with international rules.”
See also Vienna Convention on the Law of Treaties,
U.N. Doc. A/CONF.39/27 at 289 (1969), 1155 U.N.T.S. 331, reprinted in 8 I.L.M.
679 (1969), Art. 27 : “A party [to a treaty] may not invoke the provisions
of its internal law as justification for its failure to perform a treaty.”
(xx) U.N. Sub-Commission on Prevention of Discrimination
and Protection of Minorities, Report of the Working Group on Indigenous Populations
on its eleventh session (Chairperson/Rapporteur E.-I. Daes), U.N. Doc. E/CN.4/Sub.2/1993/29,
23 August 1993, p. 4, para. 1.
(xxi) See Arts. 13(1)(a), 73(b) and 76(b).
(xxii) Vienna Convention on the Law of Treaties,
note 19, supra, preamble: “Believing that the codification and progressive
development of the law of treaties achieved in the present Convention will promote
the purposes of the United Nations set forth in the Charter …”.
(xxiii) Statute of the International Law Commission,
established by the U.N. General Assembly, Res. 174(II), 21 November 1947, Art.
1(1).
(xxix) U.N. General Assembly, United Nations
Decade of International Law, A/RES/44/23, 17 November 1989, para. 2(c).
(xxv) Declaration on Principles of International
Law Concerning Friendly Relations and Cooperation Among States in Accordance
with the Charter of the United Nations, UNGA Res. 2625 (XXV), 25 U.N. GAOR,
Supp. (No. 28) 121, U.N. Doc. A/8028 (1971). Reprinted in (1970) 9 I.L.M. 1292,
preamble.
(xxvi) Declaration of Panama on the Inter-American
Contribution to the Development and Codification of International Law, AG/DEC.
12 (XXVI-O/96), adopted at the sixth plenary session, held on June 5, 1996,
preamble.
(xxvii) Inter-American Democratic Charter, adopted
by acclamation by the Hemisphere’s Foreign Ministers and signed by the
34 countries of the Americas at the 28th special session of the OAS General
Assembly, Lima, Peru, September 11, 2001, preamble.
(xxviii) Final Act of the Conference on Security
and Co-operation in Europe (Helsinki Final Act), signed by 35 states (including
Canada and the United States) on August 1, 1975, reprinted in (1975) 14 I.L.M.
1295, Co-operation in the Field of Economics, of Science and Technology and
of the Environment (Part 5. Environment): “The participating States will
further develop such co-operation by … promoting the progressive development,
codification and implementation of international law as one means of preserving
and enhancing the human environment”.
(xxix) African Charter of Human and Peoples’
Rights, note 12, supra, Arts. 60 and 61. The Commission must not only “draw
inspiration” from existing human rights instruments (Art. 60). It must
also:
take into consideration, as subsidiary measures to determine the principles
of law, other general or special international conventions, laying down rules
expressly recognized by member states of the Organization of African Unity,
African practices consistent with international norms on human and people's
rights, customs generally accepted as law, general principles of law recognized
by African states as well as legal precedents and doctrine. (Art. 61)
(xxx)Id., Art. 45. |
