Asian Centre for Human Rights

Dedicated to promotion and protection of human rights in Asia

[The weekly commentary and analysis of the Asian Centre for Human Rights (ACHR) on human rights and governance issues]

Embargoed for: 30 November 2005
Review: 101/05

The WGDD: As alive as fossil

By – Suhas Chakma, Director, ACHR

The eleventh session of the United Nations Inter-sessional Working Group on the draft United Nations Declaration on the Rights of Indigenous Peoples (WGDD) will take place in Geneva from 5 to 16 December 2005. According to an independent indigenous support group activist who has observed all the sessions of the WGDD since 1995, the eleventh session will witness "the big fire works".

For last one decade, the fire works have been eagerly awaited. Since the indigenous representatives walked out of the WGDD in 1996 protesting against insinuations of possible changes to the Draft Declaration as adopted by the Sub-Commission on Human Rights, the proceedings of the WGDD have been like a small ecosystem thrown out of kilter by poisonous waste.

Not a single article has been adopted since then. Yet, the Chairman-Rapporteur of the WGDD optimistically summed up the 10th session by stating that "he was convinced that the Working Group was close to consensus on all other articles". Flexibility by the hardliners - silence of the Asian governments on the definition of indigenous peoples and willingness of the “holier than thou” tribe to consider changes by some indigenous representatives - is cited as progress.

The author of this issue of ACHR REVIEW and a few other indigenous activists repeatedly belted out a message like a gramophone record: that there will be no breakthrough without some genuine, detailed, give and take approach by the States and indigenous representatives. There is no place for infamous "No Change Position" or brawny points to be scored. It may sound like a statement of the obvious - follow the standard setting rules and procedures practiced by the United Nations since its birth, substantive progress will be made. It has not happened so far.

Take out the attritions, melodramas and obsessions as reflected from the way life-and-death questions being made out of the Draft Declaration both by the States and indigenous representatives, the WGDD is as alive as fossil.

i. Historical injustices and international law:

Indigenous peoples across the world have been undoubtedly the worst sufferers of colonisation. Most indigenous nations have been destroyed, many indigenous nations were subsumed by suzerainty of the flawed decolonisation processes and many indigenous peoples were exterminated. There is a historical baggage that both indigenous and governmental representatives must bear in mind. 

Yet, addressing historical injustices has been the most difficult issue for the United Nations. International human rights law never addressed historical injustices. All international human rights standards including 1926 Convention Against Slavery did not address the issue of historical injustices such as slavery and reparation for the same. The Durban Declaration of the Third World Conference Against Racism, Xenophobia and Related Intolerance sought to address the issue of reparation for slavery but abysmally failed at that. It is not simply because of the non-retroactivity of application of international laws alone. No member State of the United Nations has the political will to address complex issues involving historical injustices.

Good, bad or ugly, most historical injustices have been addressed at national level. It does not require a professor of public international law to state that human rights are also implemented at national level and it depends on the political will of the state. The implementation of treaties signed with indigenous peoples is the best example. While the government of New Zealand openly declares that the Watangi Treaty is the basis of its existence, many of the treaties signed by the same colonial Britain across South Asia have been consigned to oblivion.

Unfortunately, the Draft Declaration on the Rights of Indigenous Peoples is viewed more in the context of historical injustices rather than preventing recurrence of similar injustices and the need to promote and protect the rights of indigenous peoples to preserve their distinctiveness. There will be no progress in the WGDD so long some radical indigenous representatives construe the right of self-determination in the Draft Declaration as a license to restore sovereignty of their nations, Chairman/Rapporteur provides more importance to these representatives at the cost of the silent majority and some governmental representatives including the only super power, the United States construe these statements as a threat to their territorial integrity. The WGDD is full of “UN made revolutionary” indigenous representatives and ultra-conservative governmental representatives.

ii. Destructive self-loathing

While semantics have their own importance in the UN system, the WGDD for all practical purposes has no rules of procedures for adoption of any text. This has been the single most obstacle for adoption of any text.

The status of indigenous representatives in the WGDD has not been made clear. Many indigenous representatives consider their delegation as equivalent of the State representatives. While one understands and appreciates the position taken by the Chairmen/Rapporteurs with regard to indigenous representatives, lately a few “non-indigenous” representatives, who are out to prove more indigenous than the indigenous peoples like neo-converts, have been wrecking the consensus among indigenous peoples both in the formal and informal sessions of the WGDD.

It will not be an understatement to state that by allowing such non-indigenous representatives to speak on behalf of indigenous organisations tantamounts to lapsing into "destructive self-loathing" by indigenous organisations as they have all the necessary capacity and expertise to promote the rights of indigenous peoples at the UN. Certainly, there are many professors of public international law who teach in the universities but many do not necessarily bring the expertise and pragmatism required in the negotiation at the United Nations. Worst, if such academics turn the WGDD into a forum of displaying their academic expertise rather than instilling pragmatism among the indigenous peoples given the political realities of negotiations by the member States at the UN.

One wonders as to why organisations such as Amnesty International, Human Rights Watch, International Commission of Jurists etc which have institutional experiences on standards setting at the United Nations are either not welcomed or do not show interest in the WGDD. May be indigenous support organisations which have been funding participation of indigenous representatives from all over the world and silently observing the processes have more to say with their "silence" to the benefit of indigenous peoples and mainstream human rights organisations.

iii. Does consensus mean unanimity?

Does consensus mean unanimity by each and every indigenous representative or by each and every government representative? In practice, the Chairman/rapporteur has effectively reduced consensus to unanimity. The two articles were adopted by unanimity in 1995.

However, indigenous representatives do not have the mechanisms of the State parties to reach consensus and therefore, peer pressure even in the well-knitted "Asian Caucus" of the indigenous peoples has been not effective. Whenever the opportunity arose to adopt an article such as during the 8th session, Chairman/Rapporteur Luis Chavez ignored consensus as defined in the UN system and provided undue importance to a representative of one particular indigenous organisation to virtually veto consensus.

Will the International Workshop on the Draft Declaration on the Rights of Indigenous Peoples organised by the government of Mexico on 26-30 September 2005 wind some magic? It is unlikely. In the last one decade, there have been workshops and workshops, followed by proposals and proposals, sometimes the text of the Draft Declaration of the Sub-Commission on Human Rights being put across as "new and fresh proposals".

The participants at the WGDD have always been substantially different from the participants of the workshops on the issue. Many participants of the workshops resemble rival footbal fans who having clashed during the game continue to fight outside the stadium. Each year, all proposals mean re-inventing the wheel once again. 

iv. Does the Chairman/Rapporteur have nerdism of a miniaturist?

Since the Chairman/Rapporteur has followed the principles of allowing veto to each and every participant of the WGDD, one wonders how the consensus be reached at the WGDD. Only the Chairman/Rapporteur knows as to how consensus would be achieved.

There are four sets of key proposals at the moment: Chairperson-Rapporteur (E/CN.4/2005/89/Add.2), Nordic countries (E/CN.4/2004/WG.15/CRP.1 & E/CN.4/2004/WG.15/CRP.2), the Saami Council, Tebtebba Foundation and Saami Parliamentarian Council (E/CN.4/2004/WG.15/CRP.5) and of course, the die-hard fans of the Draft Declaration as adopted by the Sub-Commission. In addition, the Mexican government may have its own proposals – the outcome of International Workshop on the Draft Declaration on the Rights of Indigenous Peoples. Most indigenous representatives will have their own proposals. Once the process starts rolling, expect the Asian governments in full numbers.

Adoption of a single article to symbolically break the logjam would require the nerdism of a miniaturist. If indeed Chairman/Rapporteur Luis Chavez is able to break the logjam at the 11th session and if he does not mind, the author would like to present a bouquet. Mr Chavez, after receiving his bouquet, should plan a return to Geneva for adoption of more articles for the session slated for 30 January – 3 February 2006.

That is what most indigenous and governmental representatives hope for!

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