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Friday, 5 September 2008

The Unites Nations Declaration on the Rights of Indigenous Peoples, one year later

Students

Through these few paragraphs, I would like to open the debate on the first year after the adoption of the Declaration and have a productive exchange with all of you at the starting point of this new academic year. This considering arises from one main questioning, which is: where are we now, after the enactment of the Declaration?
On Thursday September the 13, 2007 and after more than 20 years of negotiation, the Resolution 61/295, better known under the heading United Nations Declaration on the Rights of Indigenous Peoples, was adopted by the General Assembly of the U.N. and by 144 States. 
This recommendation is a “soft law” document. It means that its legal and obligatory strengths are limited. It has a political binding nature but not a legal one. However, it establishes an international framework of minimal norms in terms of indigenous peoples’ Rights. Beside, it corroborates certain norms already integrated to the international legal order, either by the International Labour Organisation’s Convention 169 on Indigenous and Tribal Peoples, adopted in 1989, or by the International Covenants adopted in 1966 by the U.N. to protect civil and political rights and economic, social and cultural rights. Therefore, the Declaration could emphasize the existence of a process of crystallization and could convey emerging customary norms. This document is innovative too, because it recognizes, in an extended way, collective rights as well as individual rights. It consecrates also the right to self-determination to indigenous peoples and set the duty to consult internationally.
Without coming back in detail on the content of that already known document, I would rather outline a retrospective of the memorable events of this year. We remember that 11 States had refrained from voting for the Declaration and 4 States had voted against, the United-States, Australia, New-Zealand and Canada.
However, at the end of the year 2007, a Labour Government has been elected in Australia, better conscious of indigenous issues. It has asserted that it will sign the Declaration. This commitment has been reiterated on April the 24, 2008, by Bernie Yates, Deputy Secretary to the Indigenous affairs in the new Australian Government ; that is during the 2008 meeting of the U.N. Permanent Forum on indigenous Issues.
Moreover, the Canadian House of Commons adopted, on April the 08, 2008, a motion in favor of the Declaration’s adoption.
Furthermore, two States which had already adopted the document, decided to implement it in their domestic legal order. I am talking about Bolivia and Equator.
Finally, several specialized institutions of the U.N., like U.N.E.S.C.O., as well as Ban Ki-moon, the General Secretary of the Organization, have claimed their support to the enforcement of the document, in order to change it into “living instrument”. This was during the 7^th session of the U.N. Permanent Forum on Indigenous Issues too, which demonstrate that it was definitely a fundamental meeting.
Nonetheless, despite the promises and statements, the impacts of the adoption are still unclear. The United States and New-Zealand are sticking to their former position and are always opposed to sign the Declaration, complaining for the recognition of the right to self-determination to indigenous peoples and of the duty to consult. Although Australia and Canada have undertaken significant steps, they did not have signed the document yet. In addition to that, we keep in mind that they did not have either ratified the I.L.O.’s Convention.
Thus, several issues remain dangling. First, do these States authorities willing to reserve the issue of indigenous rights to the domestic legal system, in order to preserve for themselves a wider scope of action? Second, what should be the favored approach if we want these States to modify their former position? How indigenous and non-indigenous actors should involve themselves in order to overthrow the existing tendency? Do the pressures and claims by N.G.Os and indigenous representatives efficient? How should we proceed to awake the political consciences of our countries, presently shapeless and self-obsessed, in order for the majority to take position on a reformulated living together acceptable for everyone?

More information about the Declaration:

The text of the Declaration:

http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement

The Indigenous World 2008 p. 526: www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousWorld/IW%202008/THE%20INDIGENOUS%20WORLD-2008.pdf

On the process of adoption and the legal status of the Declaration: http://www.galdu.org/govat/doc/galdu_4_07_eng_web.pdf

Statement of Bernie Yates 24.04.08, Indigenous affairs in Australia:

www.docip.org/gsdl/collect/cendocdo/index/assoc/HASH77f0.dir/PF08bernie087.pdf#search="Bernie YATES"

Canadien House of Commons’ motion:

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