Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force

We could wait for some angel, but it is we who must act. ¹

I. Introduction

In November 1995, the draft United Nations Declaration on the Rights of Indigenous Peoples (draft Declaration) was subjected to a preliminary political reading by a working group of the Commission on Human Rights (CHR Working Group).

Nine years in the making, the current draft Declaration ² has essentially been the product of a dialogue between indigenous peoples and the five independent legal experts who comprise the Sub-Commission-level Working Group on Indigenous Populations (WGIP). ³ States gradually withdrew from the drafting process, attending in dwindling numbers. However, regrouped at the level of the Commission on Human Rights (Commission or UNCHR), moreover, member states created a new intergovernmental body (the CHR Working Group) with a mandate to “elaborate a draft declaration, considering the draft” which the WGIP group of experts had already prepared and submitted. ⁴

Adoption of a declaration on indigenous peoples is one of the goals of the International Decade of the World’s Indigenous People (1995–2004). ⁵ The General Assembly also emphasized the commitment of member states to “promote and protect the rights of indigenous people” in its declaration on the occasion of the 50th anniversary of the United Nations. ⁶ As the following account of the first Commission-level debate on the substance of indigenous peoples’ rights demonstrates, however, fundamental philosophical issues remain unresolved.

II. Unresolved Issues in the Making of a Declaration on Indigenous Peoples

A. Indigenous Participation

Indigenous people have always enjoyed unrestricted access to meetings of the WGIP, a subsidiary of the UNCHR Sub-Commission on Prevention of Discrimination and Protection of Minorities. Indeed, they have outnumbered government representatives by more than ten to one in recent years, and dominated the public debates. Erica-Irene Daes, chair of the WGIP since 1984, observed that the draft Declaration prepared at these sessions “truly reflects the values, beliefs and aspirations of the peoples concerned” and thus “has come to be regarded, by indigenous peoples themselves, as their own.” ⁷

In contrast, working groups at the level of the Commission on Human Rights customarily do not admit nongovernmental organizations (NGOs) unless the NGOs have obtained consultative status with the Economic and Social Council (ECOSOC), a privilege thus far achieved by only twelve indigenous organizations. ⁸ Although they may participate in public debates, even properly accredited NGOs cannot ordinarily submit formal proposals at drafting sessions, where decisions are taken by a consensus of the participating governments. ⁹ In principal, any state can veto an objectionable element of the draft.

The Commission’s March 1995 decision to divert the draft Declaration to a new, governmental drafting body therefore raised fears about indigenous access and participation. Although the Commission recognized the need to make procedural exceptions, not least in order to legitimize the process, most states were reluctant to open the door quite as wide as WGIP had. As a compromise, the Commission directed interested indigenous peoples to submit special applications to participate in the new drafting body, for screening by the same intergovernmental committee which reviews applications for consultative status with ECOSOC. ¹⁰

The usual administrative delays in notifying indigenous NGOs of the new procedure, together with limitations on the number and variety of NGOs contacted, ¹¹ undoubtedly diminished the number of applications received. In addition, the ECOSOC committee ordinarily does not meet more than once every other year, and its decisions are unavoidably political, since it is comprised of nineteen UN member states. Special provision had to be made to persuade the ECOSOC committee to convene irregular meetings in the summer and fall of 1995, and informal pressure was exerted on the committee by some governments to discourage denials of indigenous applications. ¹²

By November 1995, when the first meeting of the new body was scheduled to take place, the consultative status committee had approved forty-five applications, or about half of those which it received. It deferred action on the application of the Ogoni People of Nigeria...