WGDD:
Self-Determination Proposal of Australia, New Zealand and
the United States of America

Explanatory Note

We would like to provide some background to our proposal, so there is a clear understanding, here and in capitals, of what our delegations will require in articulating the right to self-determination for indigenous peoples in this Declaration.

Under international law, the right to self-determination is addressed in Article 1 of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. In both treaties the right is stated as:
All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

This “Common Article 1” right of self-determination is understood in international law, under certain circumstances, to include the right to secession and full independence. The term “self-determination” has a storied history – its implementation in the 1950s, 60s and 70s led to the establishment of many of today’s nation-states.

We do not deny the proposition that some indigenous peoples in the world might qualify for this common Article 1 self-determination. When adopted, this Declaration would not preclude any peoples from claiming that existing right, under appropriate circumstances. No do we seek or wish, in any way, to qualify, limit or diminish this existing right. Moreover, it is not part of the mandates of this Working Group to do that.

The original draft text of this Declaration, as drafted by the Sub-Commission implies that what we are dealing with in this Declaration is different from the existing right. Statements by indigenous representatives from NGO’s and indigenous authorities as well as by participating States have made clear that secession and independence are not the intended outcome of Article 3 of this Declaration. This Working Group is seeking to create a new understanding of self-determination as a right that is to be exercised within an existing nation-state and is not intended to impact in any way on the political unity or territorial integrity of any States.

Since we are discussing a new understanding of the right of self-determination in the context of the nation-state, Article 3 of the Declaration cannot be a note repetition of the common Article 1. This Working Group must explain in this Declaration exactly what is meant by the term self determination that relates to Indigenous Peoples.

Without clarity of meaning for Article 3, the Declaration risks creating confusion, ambiguity and leaving itself open to endless interpretations, which would, in our view, render it meaningless. For example, we have all heard the assertion in this Working Group that the right of self-determination is fully and completely exercised when the whole population expresses itself through periodic elections in a democratic, representative nation.

We have also heard the assertion that the right in Article 3 may include secession or independence, or self-government, or free association, for example. Others seem to be asking for States to sign a “blank check”. In other words, they are saying they want the freedom to exercise the right without any clear or agreed understanding being articulated in the text of the Declaration itself. Our shared objective must be to provide a substantive meaning to Article 3 that does not render it meaningless or beyond the prospect of implementation in democratic States.

After eleven years of negotiations, we believe this Working Group has a duty and responsibility to articulate a meaningful Article 3 definition of self-determination that describes the rights of indigenous peoples, residing within an existing nation-state, in a clear and understandable manner.

That said, we also recognise that both States and indigenous peoples are not uniform in their desires and aspirations. This is well illustrated by our three States. For the United States, for example, it is imperative that the right of indigenous peoples to have autonomy over their local affairs be clearly understood in include the ability to form all of the institutions as a government needs to function – from authority to establish educational systems to the authority to establish legislative, executive and judicial branches of government. For other States one of the main concerns is to prevent discrimination against any of their citizens yet at the same time providing for self management. For this reason, we have provided language in Article 3 that is flexible enough to accommodate all these imperatives.

By defining the Article 3 right and giving it real substance, our hope is that the Declaration has the chance to make a practical and real difference in the everyday lives of indigenous peoples around the globe. An ambiguous Declaration will, in our view, serve no-one’s interest, least of all indigenous peoples.

In our proposal, we provide text that distinguishes the Article 3 right to self-determination from the common Article 1 right. In so doing, it brings both clarity and substance to what this Working Group has been trying to do since its inception: to provide both States and indigenous peoples with a blueprint for a more harmonious and fair relationship. To do otherwise would be failing in our shared commitment to adopt a declaration that will be of real and practical benefit to indigenous peoples.

We want, once and for all, to affirm that indigenous peoples are not only equal in human dignity, but are empowered to chart their own destinies through self management over their local and internal matters in close cooperation with the States in which they reside.

Above all, the governments of Australia, New Zealand and the United Sates of America want a Declaration that is clear, unambiguous, and transparent. And, we want a Declaration that all States can implement in a meaningful way. We are committed to a Declaration that States and the international community as a whole can fully live up to as a new, robust and forward looking standard of achievement.