The United Nations Declaration on the Rights of Indigenous Peoples and the Development of International Law

62 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

FABIANA DE OLIVEIRA GODINHO*

Resumo

O presente artigo tem como objetivo analisar a Declaração das Nações Unidas sobre os Direitos dos Indígenas e o desenvolvimento do Direito Internacional, especiﬁcamente os direitos dos indígenas.

Abstract

The present article has as objective the analysis of the United Nations Declaration on the Rights of Indigenous Peoples and the development of International Law, speciﬁcally the rights of indigenous peoples.

Table of Contents

I - Introduction and Historical Background II - Conceptual Framework A - Indigenous’ Status of “Peoples” B - Individual and Collective Rights III - The Contents of the Declaration: an Overview IV - A delicate balance between indigenous’ demands and States’ integrity in the Declaration: indigenous peoples’ right to self-determination A - Right to Autonomy or Self-government B - Right to Political Participation V - The Declaration on Indigenous Peoples’ Rights and International Law VI - Conclusion

I - Introduction and Historical Background

After more than 20 years of intensive discussions and drafting works1, the United Nations General Assembly adopted the UN Declaration on the Rights of Indigenous

* Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, and Doctoral Candidate at the Ruprecht-Karls-Universität Heidelberg, Germany. 1 For an overview of the drafting works and the positions of the various States about the different issues see R. L. Barsch, “Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force”. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 63 International Law

Peoples (hereinafter the Declaration) on the 13th of September 20072. The Declaration is intended to summarize the minimum standard of rights and principles, which are necessary to provide for indigenous peoples worldwide a life with dignity and cultural autonomy. The first significant step within the United Nations concerning the specific issue of indigenous’ rights goes back to an expert study on the problem of discrimination faced by indigenous persons3. This study was conducted for more than 10 years by a Special Rapporteur (Mr. Jose R. Martinez Cobo) nominated by the Human Rights Sub- Commission on Prevention of Discrimination and Protection of Minorities4 (hereinafter Sub-Commission). Its findings were documented in a broad report5 which led to the establishment of a Working Group on Indigenous Populations6 (hereinafter Working Group). This Working Group was especially mandated to “review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations”, by means of analyzing information collected by the UN Secretary-General, and considering “both similarities and the differences in the situations and aspirations of indigenous populations throughout the world”7. The Working Group activities can be summarized as a large forum where representatives of the various interested parties, including States, intergovernmental and non-governmental organizations, and different indigenous communities could express their concerns8. The decision on the necessity of elaborating a declaration on indigenous rights was taken in 1985 and some leading principles were then formulated in preliminary wording. At its 11th session, in July 1993, the Working Group agreed on a final text for the so-called “Draft UN-Declaration on the Rights of Indigenous Peoples”, which was composed of 45 operational articles9. This draft was then submitted to the Sub-Commission for its adoption, which happened in 199410. A significant event regarding the growing focus on indigenous issues within the United Nations was the declaration of the decade 1994-2004 as the first “World Decade on the Rights of Indigenous Peoples”11. The goal of the decade was defined as “the strengthening of international cooperation for the solution of problems faced by indigenous in such areas as human rights, the environment, development, education and health”12. In the context of this decade, the (former) Commission on Human Rights established another working group – the so-called “Working Group on the Draft Declaration” – with the attribution to review the text of the draft declaration

2 GA Resolution 61/295, 13 September 2007. 3 This study was authorized by the UN Economic and Social Council in 1971. See ECOSOC Resolution 1589, 21 May 1971. 4 See Resolution 8 (XXIV) of the Sub-Commission, 18 August 1971. 5 See Study of the problem of discrimination against indigenous populations, Jose R. Martinez Cobo, E/CN.4/Sub.2/1986/7. 6 See Resolution 1982/34 of the Economic and Social Council, 7 May 1982. 7 Ibidem. 8 Further information on participation in the Working Group of the Commission, see R.L. Barsch, “Indigenous Peoples and the UN Commis- sion on Human Rights: A Case of the Immovable Object and the Irresistible Force”, p. 783-786. 9 Report of the WGIP on its 11th session (E/CN.4/Sub.2/1993/29). 10 Resolution 1994/45, 26 August 1994. 11 GA Resolution 48/163, 21 December 1993. After the ﬁrst decade, the second decade was also declared, comprehending the years of 2005- 2015 – See GA Resolution 59/174 (2005). 12 Ibidem, Paragraph 2. 64 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

submitted to it by the Sub-Commission13. One of the noteworthy results of the decade was the establishment of a Permanent Forum on Indigenous Issues as a subsidiary organ of the Economic and Social Council, in July 200014. The forum’s mandate is defined as to “discuss indigenous issues within the mandate of the Council relating to the economic and social development, culture, the environment, education, health and human rights15”. A final agreement on the text of the draft declaration was only reached in 200616. The draft was one of the first instruments then adopted by the newly established Human Rights Council, by 30 votes to 2 (Canada and Russian Federation), and 12 abstentions, in June 200617. Following this event, the draft was brought before the UN General Assembly for its consideration and adoption, but a final decision on this respect was first postponed in order to “allow time for further consultations thereon”18. One year later, the UN Declaration on the Rights of Indigenous Peoples was finally adopted with 143 votes in favour, 4 votes against (Australia, Canada, New Zealand and United States of America) and 11 abstentions19. This long process reflects the difficulties in overcoming the historical neglect of indigenous interests and in reconciling these peoples’ claims with the interests of the various States. The main obstacles to an agreement were set by the issues of indigenous peoples’ collective rights, the right to self-determination and land rights. The question of a reasonable and far reaching definition for the term “indigenous peoples” also raised strong discussion and represented a stumbling block20. Bearing in mind this difficult and long evolution, the intention of this essay is not to provide a full commentary on the Declaration. It is, rather, to take a closer look into the final UN document, enlightening its content and scope, as well as appointing its controversial issues, and thereby to highlight the potential significance of the Declaration by the development of an international body of rights for the peoples concerned. For that purpose, the document’s conceptual framework (II) will be analyzed at first as it provides the background, which is reflected in the various provisions of the Declaration. In particular, the indigenous communities’ status of “peoples” (A) and their entitlement to collective rights (B) are the main issues to be contemplated in this context. The article will also provide an overview of the concrete provisions of the document and the themes embraced therein (III). Following, the analysis shall focus on the right to self-determination of indigenous peoples established in the Declaration (IV). The agreement reached between representatives

13 ECOSOC Resolution 1995/32, 25 July 1995. 14 ECOSOC Resolution 2000/22, 28 July 2000. 15 Ibidem, Paragraph 2. 16 UN Doc. E/CN.4/2006/79, 22 March 2006. 17 Further details in UN Doc. A/HRC/1/L.10, 30 June 2006. 18 GA Resolution 61/178, 20 December 2006. 19 GA Resolution 61/295, 13 September 2007. Abstentions: Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa, Ukraine. Absent States: Chad, Côte d’Ivoire, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gambia, Grenada, Gui- nea-Bissau, Israel, Kiribati, Kyrgyzstan, Marshall Islands, Mauritania, Montenegro, Morocco, Nauru, Palau, Papua New Guinea, Romania, Rwanda, Saint Kitts and Nevis, Sao Tome and Principe, Seychelles, Solomon Islands, Somalia, Tajikistan, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan and Vanuatu. 20 See comments in part II, A, of this essay. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 65 International Law

of indigenous communities and of States depended much on the conﬁguration of this speciﬁc issue, which is delineated by different articles of the document. The main elements of the exercise of indigenous peoples’ self-determination, i.e. the right to autonomy or self-government (A) and the right to political participation (B) will be concerned. Finally, an attempt will be made in order to highlight the meaning of the UN Declaration to the whole corpus of international law by establishing innovative international legal standards on the rights of indigenous peoples (V).

II - Conceptual Framework The UN Declaration on the Rights of Indigenous Peoples is better understood as an instrument which combines the most developed standards of international law, especially the ones related to human rights, and to the rights of groups and minorities, to new formulas regarding the specific rights of indigenous peoples. As such, the Declaration calls upon States to comply with the various existing international instruments and, in this context, to consider the new document as a “further important step forward for the recognition, promotion and protection of the rights and freedoms of indigenous peoples”21. Bearing in mind the “historic injustices”22 suffered by these peoples, the States have accorded in the Declaration a set of rights which delineate a “standard of achievement to be pursued in a spirit of partnership and mutual respect”23. A leading notion in the Declaration that also defines the desirable status of indigenous peoples could be expressed as equality in the diversity. That means, the Declaration goes from the assumption that all peoples have the right to be different, to consider themselves different and to be respected as such. Under this premise, it affirms that indigenous peoples are “equal to all other peoples”24. Many of the operational provisions in the Declaration go back to this central notion, reinforcing, on the one hand, the right of indigenous groups to exist and to be protected from every kind of discrimination or physical or cultural violence, and, on the other hand, addressing their right to self-determination. The Declaration reflects thus an approach of equality that values the differences in the societies and encompasses “cultural integrity as well as individual integrity”25 of indigenous. As a product of real debate amongst the various interested parties, the Declaration is also determined to “enhance harmonious and cooperative relation between the State and indigenous peoples, based on principles of justice, democracy, respect for human rights, non-discrimination and good faith”26. The attempt to establish a reasonable balance between States powers and indigenous peoples’ autonomy is also a pivotal notion that characterizes the various provisions in the Declaration.

21 Paragraph 11 of the Preamble. 22 Paragraph 6 of the Preamble. 23 Paragraph 24 of the Preamble. 24 Paragraph 2 of the Preamble. 25 Anaya confronts the notions of equality meaning “diversity” vs. equality meaning “sameness” when analyzing the 2006 Shoshone decision of the Committee on the Elimination of Racial Discrimination (CERD). See S. James Anaya, “Keynote Address: Indigenous Peoples and their Mark on the International Legal System”, p. 269. 26 Paragraph 18 of the Preamble. 66 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

A - Indigenous’ Status of “Peoples” Although the Declaration clearly recognizes indigenous groups as peoples, who are equal to all other peoples, it does not offer a definition of the term “indigenous peoples” under its content27. The question has been indeed a contentious issue during the drafting of the text. The absence of a definition reflects on the one hand the difficulties met in formulating a common, far-reaching and flexible notion, suitable to the different realities of the most various indigenous communities throughout the world, and at once capable of expressing their identity features without weakening or diluting the issue28. On the other hand, the silence of the Declaration in this regard can be interpreted as an option and respect for the criteria of self-identification29 “as an essential aspect of individual and group freedom”30, an aspect of their self-determination. The self-identification perspective is expressed in the Declaration by the right of indigenous individuals and peoples to belong to an indigenous community31 and the paralell right of indigenous peoples to determine their own identity or membership, according to their customs and traditions32. Together, these provisions lead to the conclusion that the Declaration, when stressing the self-identification criteria, places the individual choice under the condition of a collective element, namely the necessary recognition of the individual membership by the generality of the community. At this point, one could criticize the excessive collective approach of the Declaration, in the sense that it could weaken the self-identification freedom of an individual and open the possibility of group pressures or denial of rights33. Nevertheless, Article 1 of the Declaration34 represents a general guarantee for the respect of the rights and freedoms established in the international human rights documents and therefore it should offer the necessary protection of individuals against collectivities abuses. While the openness of the document in regard to the definition of “indigenous peoples” could raise the possibility of a variety of peoples benefiting from its provisions35, it can be inferred from the text that this document embraces the

27 In contrast, the ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries contains a definition of both tribal and indigenous peoples. According to it, tribal peoples are: “peoples whose social, cultural and economic conditions distinguish them from other sectors of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations” (Article 1,1,(a)). Indigenous peoples are defined as “peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographic region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their social, economic, cultural and political institutions” (Article 1,1,(b)). 28 See B. Kingsbury, “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy”. See also the Working Paper prepared by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the concept of ‘indigenous peoples’, E/CN.4/Sub.2/ AC.4/1996/2 paragraphs 9 and 72. 29 The self-identification criteria has also been addressed in the ILO Convention 169 concerning Indigenous and Tribal Peoples in Indepen- dent Countries (Article 1,2) and also in different discussions within the Committee on the Elimination of Racial Discrimination (CERD). 30 See P. Thornberry, Indigenous Peoples and Human Rights, p. 15. 31 Art. 9 of the Declaration. 32 Art. 33, 1 of the Declaration. 33 A. Xanthaki points out, that arguments regarding this concern have been put forward by the States. See Indigenous Rights and UN Stan- dards, p. 105. 34 Article 1 says: “Indigenous peoples have the right of full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law”. 35 See P. Thornberry Indigenous Peoples and Human Rights, p. 376. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 67 International Law protection “of groups displaying specific features as to their organization, political and economic institutions, culture, beliefs, customs and language, other than those of dominant society, and further sharing a common experience of marginalization and discrimination deeply rooted in historical events”36. Considering these guidelines and the strong link between indigenous peoples’ rights and their traditional experiences and traditional resources and lands, which is a fundamental notion in the Declaration, the next question would be the sufficiency of the self-identification criteria for the inclusion under the remits of the Declaration of those individuals and groups who have undergone cultural developments or processes of deviation from their original cultural backgrounds37. An answer to this question can be provided by two aspects of the framework rights established in the Declaration38. First, the clear recognition of a right of indigenous peoples to development, according to their own needs and interests39. Second, the parallel establishment of minimum standards for the exercise of ordinary extra- communal activities, which are also open to indigenous’ choice40. These statements extend the scope of the Declaration to encompass and provide guarantees also for those indigenous groups and individuals who, for some reason, do not share the traditional life anymore41.

B - Individual and Collective Rights Another central concept in the Declaration is the indigenous communities’ entitlement to collective rights. This issue was also heavily debated during the drafting works and strong rejected by some State’s representatives42. Nevertheless, the final text of the document places the indigenous groups’ rights in a very central position, following from the recognition of their status of “peoples”. The very first articles of the Declaration reveal significant general principles in this regards. In Article 2, it becomes clear that indigenous peoples are, along with individuals, also bearer of rights43. According to this provision, indigenous groups may exercise their rights in a free and non-discriminatory manner.

36 See S. Errico, “The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview”, p. 746. 37 Amongst these individuals and groups, one can mention “groups undergoing processes of cultural adaptation or development” or others “who suffered cultural diffusion, acculturation, depletion on resources and habitat and who therefore may feel indigenous by self-identiﬁ- cation rather than through attachment to a traditional community”. See P. Thornberry, Indigenous Peoples and Human Rights, p. 377. 38 See P. Thornberry, Indigenous Peoples and Human Rights, p. 377. See also Xanthaki, Indigenous Rights and United Nations Standards, p. 106. 39 This right can be recognized mostly in Art. 3, which comprehends the indigenous peoples’ right to “freely determine their political status and freely pursue their economic, social and cultural development”. Similar provisions are found in articles 11 (“past, present and future manifestations of their cultures”), 23 (“right to determine and develop priorities and strategies for exercising their right to development”), 34 (right to “promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions”), inter alia. 40 For example, in article 15 (indigenous peoples’ right of dignity and diversity in the State’s education and public information system); article 17 (indigenous individuals’ right to enjoy the rights established under domestic labour law); article 21 (indigenous peoples’ right to the improvement of their economic and social conditions, in the areas of education, employment, (…) health and social security); article 33 (indigenous individual’s right to obtain citizenship of the States in which they live), inter alia. 41 See on this topic P. Thornberry, Indigenous Peoples and Human Rights. United States: Juris Publishing, Manchester, 2002, p. 376-378. 42 Some States, like France and Japan even denied the existence of collective rights in international law. See UN Doc. E/CN.4/1997/102, paragraphs 108-113. Like this document shows, many other States were concerned with the proper protection of individual rights vis-à-vis the group rights. 43 This view is shared by Gayim, S. 9. Article 2 says: “Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity”. 68 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

In addition (and in an innovative manner), Article 1 suggests the indigenous peoples’ entitlement to the collective exercise of the rights and fundamental freedoms prescribed in the international human rights instruments44. Especially this latter provision advances the wide extent of the collective approach in the Declaration. The document not only opens to the collectivity, in line with Article 2, the enjoyment of proper collective rights, but also apparently extends to them, as collective entities, the international framework of individual human rights45. These notions are supported by a series of speciﬁc indigenous collective rights explicitly recognized in the Declaration46. Amongst them, the right “to live in freedom, peace and security as distinct peoples”47, the right “to practice and revitalize their cultural traditions and customs”48, the right “to the lands, territories and resources which they have traditionally owned or otherwise occupied”49, the right to determine their own identity or membership in accordance with their customs and traditions”50 and the broad and controversy right to self-determination51. Other provisions follow the formulation from Article 2 and encompass rights which are at the same time individual and collective, such as the right “not to be subjected to forced assimilation or destruction of their culture”52, the right “to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned”53, and the right “to enjoy fully all rights established under applicable international and domestic labour law”54. The recognition of this broad spectrum of collective rights represents indeed a further step in the protection and promotion of indigenous peoples’ interests and existence under international documents55. It carries, however, a challenge, namely the question of how to conciliate group rights with the individual rights of the communal members which are proclaimed in the various international human rights instruments and in the Declaration itself.

44 Article 1: „Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law“. 45 Wenzel calls it a „Kollektivierung der Individualrechte der menschenrechtlichen Instrumente“ (a “collectivization” of the individual rights in the human rights instruments). See Das Spannungsverhältnisse zwischen Gruppenschutz und Individualschutz im Völkerrecht, p. 88. This view is also supported by Gayim, The UN Draft Declaration on Indigenous Peoples: Assessment of the Draft Prepared by the Working Group on Indigenous Populations, p. 9. According to them, indigenous peoples would be able to invoke, as a collective, those individual rights, insofar as their nature allows their application to groups. Although Thornberry agrees, that “it is ‘indigenous peoples’ who are recognized as holding rights under the UN Charter, the UDHR, and international human rights law”, he does not go so far and concludes that “what the text perhaps tries to say or should say is that nothing therein should be interpreted to lower existing standards on the rights of peoples and individuals”. See Indigenous Peoples and Human Rights, p. 380. 46 See an overview of the content of the Declaration in part III of this essay. 47 Article 7, 2 of the Declaration. 48 Article 11, 1 of the Declaration. 49 Article 26 of the Declaration 50 Article 33, 1 of the Declaration. 51 Article 3 of the Declaration. 52 Article 8, 1 of the Declaration. 53 Article 9 of the Declaration. 54 Article 17 of the Declaration. 55 Speciﬁc indigenous groups’ rights were also established in the ILO Convention 169 (1989). However, they were set in a much narrower scope and grade of consent (the Convention was only ratiﬁed by 17 States) than the Declaration. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 69 International Law

The problem of balancing collective and individual rights is a well-known issue among scholars56 and international bodies57 and was also addressed by many States during the debates58. The excessive collective weight of some provisions of the Declaration caused concern among them59. Nevertheless, the Declaration itself contains guidelines which help reconciling these categories of rights. First of all, the already mentioned article 1 of the Declaration invokes the individual rights established in the international human rights instruments, which may be enjoyed by all indigenous peoples and individuals in a full, free and non- discriminatory manner. The international human rights framework constitutes then a clear state of dignity and freedom that every indigenous individual (and collectivity) must enjoy and therefore may not be disrespected by communal practices. Article 34 sets another boundary to the outcomes of indigenous peoples’ powers by expressly binding the exercise of their communal traditions and practices, and the development of their own institutions, to the international human rights standards60. Although the real scope of the provision is still unclear61, one cannot deny its potential value for the protection of individual rights62. Finally, Article 22 calls upon States to take measures, together with indigenous peoples, to guarantee the protection of indigenous women and children against violence and discrimination63. This provision is a clear attempt to ensure protection to women and children against offending communal practices. All these provisions in the Declaration are still formulated in a vague and limited wording. Further interpretive and implementing developments are necessary to clarify the constellation drawn in the document regarding the harmonization of indigenous’ collective and individual rights64.

III - The Contents of the Declaration: An Overview The UN Declaration is an instrument of wide scope, which goes further than former international documents regarding indigenous rights by embracing a great variety of issues and merging their different aspects.

56 For a complete study on this issue, see N. Wenzel, Das Spannungsverhältnis zwischen Gruppenschutz und Individualschutz im Völkerre- cht. 57 See, for example, the Lovelace case under the ICCPR in UN Doc. CCPR/C/OP/1 - 1988. 58 See Report of the 1996 session in UN Doc.E/CN.4/1997/102, paragraphs 108-113. 59 One example is article 35: “Indigenous peoples have the right to determine the responsibilities of individuals to their communities”. Article 33, which declares indigenous peoples’ right to “determine the structures and to select the membership of their institutions in accordance with their own procedures” is another example. On this topic, see A. Xanthaki, Indigenous Rights and United Nations Standards, p. 108. 60 Art. 34: “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” 61 Wenzel questions the scope of this provision, especially when confronted to the next article in the Declaration. Article 35 determines: “Indigenous peoples have the right to determine the responsibilities of individuals to their communities”. See N. Wenzel, Das Spannungs- verhältnis zwischen Gruppenschutz und Individualschutz im Völkerrecht, p. 476. 62 Thornberry even remind us that this provision has been opposed by representatives of indigenous peoples who feared a wider limitation to their exercise of self-determination. See Indigenous Peoples and Human Rights, p. 380. 63 Article 22, 2 reads: “States shall take measures, in conjunction with indigenous peoples, to ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination”. 64 Further discussion on this topic in S. J. Anaya, Indigenous Peoples in International Law, p. 133. See also A. Xanthaki, Indigenous Rights and United Nations Standards, p. 107-109; see also P. Thornberry, Indigenous Peoples and Human Rights, p. 378-381. Both mention the Lovelace case under the ICCPR and the employment of the principles of necessity and proportionality, equity and balance of rights to the relationship between collective and individual rights (UN Doc. CCPR/C/OP/1 - 1988). 70 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

Following the establishment of the already mentioned general principles in articles 1 and 2, the Declaration stipulates: a) A wide protection against physical and cultural forms of violence and against discrimination and the corresponding right to live in freedom, peace and security (Arts. 7-10); b) Cultural rights, including the right to manifest, practice, develop, revitalize and teach their traditions and customs (Arts. 11–14), and the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions (Art. 31); c) Right to dignity and diversity in education, public information/media and labour and non-discriminatory access to these areas (Arts. 15-17); d) Economic rights, which comprehend the right to the improvement of their economic and social conditions (Art. 21), and the right to development, including active involvement in developing and determining health, housing and other economic and social programmes affecting them (Art. 23), non-discriminatory access to all social and health services, as well as the employment of their traditional medicines and practices (Art. 24); e) Land rights, encompassing the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use (Arts. 25-29)65. These rights also include the prohibition of military activities in the lands or territories of indigenous peoples (Art. 30). f) The right to the recognition, observance and enforcement of treaties and agreements concluded with States (Art. 37); g) And last but not least, the right to self-determination (Art. 3), which shall be considered in conjunction with two further different but at the same time complementary groups of rights: the participation rights (Art. 18-20) and the autonomy rights (Arts. 32-36)66. The Declaration also incorporates remedies for violations of rights67 and provisions regarding the text interpretation and implementation by the States (Arts. 38-46).

IV - The delicate balance between indigenous’ demands and States’ integrity in the Declaration: indigenous peoples’ right to self-determination One of the most signiﬁcant outcomes of granting indigenous communities the status of “peoples” in the Declaration is the recognition of their right to self-determination68. The inclusion or not of an express provision on this issue in the document was one

65 An interesting aspect of the Declaration regarding land rights is the close link made between indigenous culture and possession of their lands. Article 8 aims to protecting indigenous peoples from acts leading to “forced assimilation” and “destruction of their culture”, including “any action which has the aim or effect of dispossessing them of their lands, territories or resources” (Paragraph 2,(b)). 66 Amongst these rights, it is interesting to note the protection provided to nomadic peoples in Article 36. 67 It establishes, for example, the right to redress (Art. 8, 2; Art. 28, 1), the right to just and equitable compensation (Art. 28, 1 and 2), the right to restitution (Art 28, 1), and the right to restoration (Art. 29, 3). 68 In contrast, the ILO Convention 169 rejects any link between the expression “indigenous peoples” and any implications under international law. See article 1. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 71 International Law of the main controversial items during the drafting debates69, as it touches very fundamental concepts for both indigenous communities and States70. Nevertheless, the final text of the Declaration assembles a variety of provisions, which, directly and indirectly, declare the indigenous peoples’ right to self-determination and also delineate its scope. The primary provision on this right - Article 371 – offers just the starting point for the comprehension of the content of “self-determination” under the Declaration. It establishes an “unqualified” right at first sight, which makes no reference to the principle of State’s territorial integrity or political unity, in contrast to other international instruments dealing with the same issue72. The wording used can be understood as a reflex from the fact, that the Declaration is the first UN document of this nature, which was formulated with active participation of the peoples concerned. That might explain why the central provision on self-determination is presented (and was agreed) in a stronger, supportive, and apparently unilateral formulation. Any uncertainty that could have been caused by the wording of article 3 was, however, dissipated after the insertion of some last amendments to the text on the level of the UN General Assembly73. After various proposals were made, the final text of the Declaration was adopted with a very significant sentence in Art. 46, paragraph 1. Besides determining, as a general interpretation principle, that “nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United nations”, this provision further rejects interpretations “construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States”. The rationale of this provision is also expressed in the Preamble which reinforces the link between the right to self-determination in the Declaration and the framework of international law74. Irrespective of these clear statements, a systematical analysis of the Declaration would lead to one same conclusion: the exercise of indigenous peoples’ right to self-determination, in the manner described in the document, presupposes

69 For an overview on this debate, see the Reports of the Commission Working Group at UN Doc. E/CN.4/year/ (for example, UN Doc. E/ CN.4/2000/84). See also P. Thornberry, Indigenous Peoples and Human Rights, p. 382-385. 70 Indigenous representatives considered the right to self-determination to be “the heart and soul” of the declaration. On the other hand, States were from the beginning concerned with the impacts of this right on their territorial integrity. See, for example, discussions on Article 3 within the Working Group on the Draft Declaration, UN Doc. E/CN.4/2004/81. 71 Article 3: “Indigenous 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”. 72 Article 3 repeats the same wording of common article 1 of the UN Human Rights Covenants (International Covenant on Civil and Political Rights, 1966, and International Covenant on Economic, Social and Cultural Rights, 1966). Nevertheless, the provisions in the Covenants expressly bind this right to the framework of international law and especially to the framework of the United Nations Charter, where State territorial integrity is promoted. 73 The President of the 61st session of the UN GA appointed a “facilitator” (the Permanent Representative of the Philippines to the United Nations in New York, H.E. Hilario G. Davide Jr.) entitled to conduce further consultations on the draft Declaration (June 2007). 74 The Preamble reads as following: “Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural rights and the International Covenant on Civil and Political Rights as well as the Vienna Declaration and Programme of Ac- tion, affirm the fundamental importance of the right to self-determination of all peoples,…”. Further: “Bearing in mind that nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law” (Paragraphs 16 and 17, respectively). 72 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2 the context of a life within the framework of a State75. There is nothing in the declaration that could imply a right to secession, or the so-called right to external self-determination. In this context, it seems correct to affirm that once indigenous communities are “peoples”, who are “equal to all other peoples”, they may also make use of the secession mechanism in the strict cases allowed by international law if they find themselves in the contexts contemplated by these cases76. The Declaration is intended, in the first instance, to respect and preserve the international (human) rights standards that might concern indigenous life, never diminishing or extinguishing them77. On the other hand, however, the Declaration intends to go further, establishing a specific international framework for indigenous peoples78. That means the Declaration sets the specific indigenous peoples’ right to self- determination79. This specific right does not comprehend sovereignty; considering the indigenous peculiar cultural identity, it establishes, first, “qualitative standards”80 to be achieved under two premises: indigenous peoples’ self-government and political participation. These are the notions that merge indigenous’ and States’ concerns into one convergent notion of self-determination, better apprehended against the background-problematic of internal governance and coexistence of various (but equal) groups within the State.

A - Right to Autonomy or Self-Government The ﬁrst facet of the exercise of self-determination in the Declaration is the indigenous peoples’ right to autonomy or self-government expressly established in Article 481. The wording of this provision is not so enlightening. Nevertheless, other provisions in the Declaration clarify the content of this right. According to them, the right to autonomy entitles indigenous peoples to maintain, develop and exercise the various features, which form their cultural identity, “in matters relating to their internal and local affairs”82. For that purposes, indigenous peoples have the right to develop and enjoy their own political, legal, economic, social and cultural

75 Article 33 even stresses the idea of “citizenship” of the States in which the indigenous peoples live. It reads: “Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live”. According to S. Errico, the right to self-determination would imply a “constitutional formulae” to accommodate indigenous aspirations. See “The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview”, p. 749. 76 It would be especially the case of indigenous peoples living under colonial and alien domination or under racist oppression. See C. E. Foster, “Articulating Self-Determination in the Draft Declaration on the Rights of Indigenous Peoples” about the development of Self- Determination in International Law and its relation to indigenous peoples – p. 143-150. 77 Article 37, 2 even declares that “Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained in treaties, agreements and other constructive arrangements”. 78 Article 43 states that “the rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world”. 79 See S.J. Anaya, Indigenous Peoples in International Law, p. 97-128. See also J. Gilbert, “Indigenous Rights in the Making: the United Nations Declaration on the Rights of Indigenous Peoples”, p. 219-220. 80 See A. Quentin-Baxter’s commentary on S. J. Anaya’s position in “The UN Draft Declaration on the Rights of Indigenous Peoples – The International and Constitutional Law Contexts”, p. 91. 81 Article 4: “Indigenous peoples in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for ﬁnancing their autonomous functions”. 82 Article 4 of the Declaration. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 73 International Law institutions83, and “ways and means for ﬁnancing their autonomous functions”84, always “in accordance with international human rights standards”85. In particular, this right embraces, for example, the right “to establish and control their (indigenous) educational systems”86, the right “to maintain their health practices”87, the right “to maintain and develop their political, economic and social systems or institutions, to be secure in the enjoyment of their own means of subsistence and development”88, inter alia89. Practiced under these terms, indigenous peoples’ autonomy is to be possible in the context of a “multicultural State”, where dialogue and negotiation, also required by the Declaration, would offer the solid ground for its development90.

B - Right to Political Participation The right to autonomy, as mentioned above, is just one outcome of the right to self-determination in the Declaration. In the document, however, autonomy is not intended to place indigenous peoples in social or political isolation and in consequent vulnerability91. On the contrary, besides being entitled to self-government, indigenous peoples enjoy the right to participate “fully” in the “political, economic, social and cultural life of the State”92. It has been stressed that the wording of the Declaration, as establishing for indigenous communities the possibility to participate in the framework of the State “if they so choose” is weak and could give this right a second role93. The “choice approach”, however, could be simply interpreted as an implication of the self-determination right in the sense that the self-government is not an imposition. Indigenous communities might also determine the grade of their integration in the life of the State, taking into account the wish or necessity of preservation of their own cultural identity. This approach can play a signiﬁcant role in countries like Brazil, where indigenous groups still choose to live in isolation94.

83 Article 5: “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic social and cultural life of the State”. 84 Ibidem. Article 34 adds: “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality traditions procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards”. 85 Article 34 of the Declaration. 86 Article 14 of the Declaration. 87 Article 24 of the Declaration. 88 Article 20, 1 of the Declaration. 89 Although the concept of indigenous autonomy is also reﬂected in cultural rights, these rights are better understood in the broader concept of “cultural diversity”. See part V of this essay. 90 S. Errico reminds us that the concrete realization of “autonomy” can only be assessed in a case-by-case perspective. She mentions “the establishment of the Sami Parliaments in the Nordic countries, the arrangement for the comarca in Panama, the creation of the autonomous region of Nunavut in Canada and the self-governing territory of Greenland in Denmark”. See “The Draft UN Declaration on the Rights of Indigenous Peoples: an Overview”, p. 749. See also E. A. Daes, “The Concept of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration on the Rights of Indigenous Peoples”, p. 268. See also S. J. Anaya “International Human Rights and Indigenous Peoples: The Move toward the Multicultural State”. 91 See E. A. Daes, “The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration on the Rights of Indigenous Peoples”. 92 Article 5 of the Declaration. 93 See S. Errico, “The Draft UN Declaration on the Rights of Indigenous Peoples: an Overview”, p. 751. 94 Nowadays there are references of about 63 indigenous groups living in isolation in Brazil. Further information in www.funai.gov.br. 74 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

Indigenous peoples are, at ﬁrst sight, entitled to participate like other peoples and citizens in the economic, social and cultural life of the State95. The Declaration cares for non-discrimination and equality in this respect, and also invokes for the indigenous the standards established by the international human rights instruments. More than being protected from discrimination within the community of a State, however, indigenous peoples may, according to the Declaration, effectively participate in the decision-making process affecting their interests and rights96. This political participation constitutes the second aspect which builds the self-determination right of indigenous peoples. It might be exercised “through representatives chosen by themselves in accordance with their own procedures”97. Moreover, the political participation comprehends the indigenous peoples’ right to “free, informed and prior consent”, to be obtained by States “before adopting and implementing legislative or administrative measures that may affect them”98. Although the participation in the decision-making and the consultation appear in various provisions of the Declaration99, it is controversy if they could really promote indigenous interests. Concern is expressed in relation to States in which decisions are taken by majority (and indigenous peoples constitute a minority), or where decisions are not taken by truly democratic processes100. Nevertheless, the Declaration states clearly that policies or legislation adopted on the basis of mere consultation could not anymore be considered legitimate under the international standards of indigenous peoples’ rights.

V - The Declaration on Indigenous Peoples’ Rights and International Law Regardless of its further concrete impact on the domestic legal systems and policy-making, the UN Declaration must be seen as a leading document that codiﬁes and develops a speciﬁc area of international law: the rights of indigenous peoples101. Whether this development was really needed or not is still a controversy matter102. Nevertheless, one cannot deny that the Declaration cares for a wider scope of protection and better development of the peoples concerned, based on the main framework of collective rights. Furthermore, it establishes guidelines for the relation between indigenous peoples and States by the accommodation of the formers’ rights.

95 It is important to notice that the Declaration is inspired in the assertion that indigenous peoples have suffered many abuses throughout history and still live in disadvantage, which justify the “special” rights established in the document. Therefore, these rights do not intend to place indigenous peoples in a privileged position in the society, but first to guarantee some equality among the different citizens. See S. Errico, “The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview”, p. 745-746. See also A. Quentin-Baxter, “The UN Draft Declaration on the Rights of Indigenous Peoples – The International and Constitutional Law Contexts”, p. 92-95. 96 The issue of indigenous previous consent was also stressed by the Committee on the Elimination of Racial Discrimination in its General Recommendation 23 on indigenous peoples. See UN Doc. CERD/C/365. 97 Article 18 of the Declaration. 98 Article 19 of the Declaration. 99 See Articles 10, 11, 18, 19, 29, 32 of the Declaration. One should note that the majority of these provisions deal with the right to be con- sulted, leaving the right to decide or determine a secondary role. 100 In this regard, see A. Quentin-Baxter, “The UN Draft Declaration on the Rights of Indigenous Peoples – The International and Constitutio- nal Law Contexts”, p. 95. 101 It is important to notice, that the former international binding documents, which provide specific rights for indigenous peoples are the ILO Convention 107 (1957) and the ILO Convention 169 (1989). The former one still reflects the old assimilation approach and the latter one counts on only 17 ratifications. This places the new UN Declaration in a very central position among these documents. 102 About this discussion, see J. Gilbert, “Indigenous Rights in the Making: the United Nations Declaration on the Rights of Indigenous Peo- ples”, especially pages 209-212. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 75 International Law

An aspect that must be highlighted is that by placing indigenous cultural identity in the foreground and by declaring indigenous communities’ status of “peoples”, the Declaration also offers principles for a more coherent application of other international human rights instruments to the indigenous reality. The human rights general approach, despite its mainly individualistic essence, might be flexible enough to encompass indigenous peoples’ claims; but experience has shown that the development of a specific body of provisions dealing with the indigenous issue builds a substantial ground for the proper interpretation of human rights obligations of States regarding indigenous peoples103. In particular, the UN Declaration on the Rights of Indigenous Peoples enlightens the notion and content of the right to self-determination in international law. The Declaration reinforces the idea that this right serves to a much wider context and purpose than the decolonization and sovereignty one stressed in other documents. It comprehends first an autonomous and participatory way of life in the context of a State. Finally, the Declaration can be defined as the expression of a concept that has characterized the latest debates worldwide and has inspired developments in the interpretation and formulation of international (and also domestic) law: cultural diversity104. This notion is clearly expressed in the Preamble, which recognizes the “right to all peoples to be different” and highlights the “diversity and richness of civilizations and cultures, which constitute the common heritage of mankind”105. Even though they still represent standards of achievement to be pursued, the provisions in the Declaration envisage the constitution of real multicultural States106, grounded on respect, dialogue and cooperation, and free from discrimination. They reflect a highly update human rights approach towards diversity and establish new standards for the treatment of citizens in a State. Although impelling international law developments, the UN Declaration on the Rights of Indigenous Peoples is not legally binding on States, what constitutes maybe its main weakness107. Even though, there might rest few reasons to believe that this document, which is a product of debate and consent on a first level, would not become at least an important guide for international and national courts, human rights treaty bodies and lawmakers worldwide when assessing the indigenous issue.

103 This idea is properly addressed by J. Gilbert, when he comments the strategy used by the Inter-American Court of Human Rights in the Awas Tingni case. He stresses: “Thus, the ‘indigenisation’ of the general right to property was based on more speciﬁc instruments on the rights of indigenous peoples. (…) From the judges’ point of view, there is an emerging corpus of international law on the rights of indigenous peoples and the ‘indigenisation’ of Article 21 of the American Convention was a reﬂection of this development”. See “Indigenous Rights in the Making: the United Nations Declaration on the Rights of Indigenous Peoples”, p. 211. On this decision see also S. J. Anaya, “Keynote Address: Indigenous Peoples and their Mark on the International Legal System”, p. 264-267. 104 See S. J. Anaya, “International Human Rights and Indigenous Peoples: the Move Toward the Multicultural State”. Further on this issue: J. W. Dacyl (ed.) Governance of Cultural Diversity; J. Firestone. “Cultural diversity, human rights and the emergence of indigenous peoples in international and comparative environmental law”; M. Iovane, “The universality of human rights and the international protection of cultural diversity”; D. Kugelmann. “The protection of minorities and indigenous peoples respecting cultural diversity”. 105 Paragraphs 2 and 3 of the Preamble. 106 Article 15 is a good example of provision promoting indigenous peoples “dignity and diversity”. States are called upon to “combat preju- dice and eliminate discrimination, and to promote tolerance” within their society. 107 The Declaration was set by a General Assembly’s resolution. It is well-known that these resolutions are not binding on States. It could be the case if the Declaration would be understood as addressing customary law. However, this discussion does not suit the purposes of this essay. 76 III ANUÁRIO BRASILEIRO DE DIREITO INTERNACIONAL | V. 2

VI - Conclusion

The United Nations Declaration is a milestone document in the development of international law regarding indigenous peoples. It entails, moreover, a further achievement in the development of the international human rights regime grounded on the Universal Declaration of Human Rights. The constitution of an international regime for indigenous groups has gone over a long path, moving along the levels of covert exclusion and punctual protection. The Declaration is the first international document that recognizes to these groups the status of “peoples” and extracts from this statement the entitlement to broad collective rights (as well as to collective exercise of individual rights) and, even further reaching, to a contextualized right to self-determination. This regime celebrates the cultural diversity and systematizes guiding rights and principles for its achievement. Regarding indigenous peoples, who have suffered from years of neglected interests and violated rights, the way towards equality under a diversity approach is set: protection, maintenance and development of their cultural identity, which shall be conducted and supported by their own institutions (Autonomy); participation, free from discrimination, in the public life of a State, mainly, participation in the decision- making processes taken within a State (Political Participation). The potential strength of this document, formulated on intentional basis, should not be underestimated. Other declarations, such as the United Nations Human Rights Declaration and the American Declaration of Human Rights have proved their essential influence on the establishment of international legal regimes. The document on indigenous peoples’ rights is a result of first agreements reached through a broad debate, of no precedents in this context, and shows that conciliation is in some extent possible. The participation of representatives from the most different regions of the world lays the basis for a universal and systematical approach that may now be accessed and further developed by international and national courts, human rights treaty bodies, law- and policy-makers when contemplating the indigenous issue. Actually, the Declaration leaves a trace of unresolved questions and uncertainties. It is, for example, still not clear how the protection of individual rights will be in fact accommodated to the expanded groups power recognized in the document. Another uncertain issue is the implications of the indigenous peoples’ rights for the social cohesion of the community of the State as a whole. One aspect of this question is how to conciliate indigenous peoples’ rights (especially the political ones) and other peoples’ and individuals’ claims within the State. A second aspect would be how to support indigenous autonomy and at the same time provide for their integration in the broader community of the State. All these questions represent a significant challenge for the success of the Declaration. The document sets the leading principles but it is clear that the ways of their implementation will be first established on a case-by-case solution, grounded on dialogue and respect, and, especially, concerning the peculiarities of each region and each indigenous community. The United Nations Declaration on the Rights of Indigenous Peoples and the Development of 77 International Law

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