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The UN Declaration on the Rights of Indigenous Peoples - A Commentary edited by Hohmann, Jessie; Weller, Marc (22nd March 2018)

Part I The UNDRIP’s Relationship to Existing International Law, Ch.2 The Making of the UNDRIP

S James Anaya, Luis Rodríguez-Piñero

From: The UN Declaration on the Rights of Indigenous Peoples: A Commentary

Edited By: Jessie Hohmann, Marc Weller

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 15 December 2018

Subject(s):
Indigenous peoples

(p. 38) Chapter 2.  The Making of the UNDRIP

1.  Introduction

The articulation and recognition of Indigenous peoples’ rights in the last three decades represents one of the most astonishing developments in the history of modern international human rights law. The adoption of the UN Declaration on the Rights of Indigenous Peoples (Declaration),1 along with the development of other relevant international instruments and the gradual recognition of Indigenous rights in the jurisprudence and practice of international human rights bodies and mechanisms, have introduced lasting changes in the conceptual, political, and moral underpinnings of international human rights law and policy.

The development of Indigenous rights standards at the turn of the twenty-first century, including the affirmation of Indigenous peoples’ right to self-determination, self-government and jurisdiction, reinforced participatory rights, as well as collective rights over lands and natural resources, has boosted the accommodation of multicultural models within the rigid dichotomy of individual and State rights prevailing in international law until only a few decades ago.2 As an urgent response to the serious abuses endured by Indigenous groups all over the world, the affirmation of Indigenous rights has further contributed to a drastic redefinition of the dominant development model in a way that seeks to incorporate the rights of local communities to maintain their traditional ways of life and decide their own priorities over the development process.3 Moreover, the unprecedented involvement of Indigenous peoples and organizations in the actual drafting of Indigenous rights instruments and in other international decision-making fora has decidedly contributed to a participatory culture in the international human rights system.4

While rooted in centuries-long dynamics of colonial dispossession and normative debates in Western legal thought, the development of the international Indigenous rights regime is an historically recent process catalysed by the emergence of Indigenous peoples as political actors in the international area, and the successful re-articulation of their historical demands and strategies to fit, while creatively transforming, the logics and mechanisms of the late-twentieth-century human rights machinery. The achievements of this process, as well as the tensions inherent in it, are present in a new generation (p. 39) of international standards, now authoritatively captured in the UN Declaration on the Rights of Indigenous Peoples.

2.  Background

2.1  Historical Antecedents

Debates on the legal status of Indigenous peoples are as old as international law itself. Indeed, as modern researchers have aptly demonstrated, colonization and imperialism were some of the most powerful forces for the historical articulation of standards for the conduct among nations. From the debates of the Spanish school of international law to the Grotian natural law model, from Hobbes’s and Locke’s classical contract tradition to Vattel’s reconfiguration of the law of nations, the status of Indigenous peoples in the face of the colonial encounter has been a central topic of international legal theory through history.5

Despite its remote origins, the first distinct international legal regime regarding Indigenous peoples started to take shape only by the second half of the nineteenth century, when the efforts of the positivist school of international law for the codification of international standards collided with the interests of colonial empires.6 The international approach to Indigenous peoples under the positivist school was expressed in two interwoven doctrines. On the one hand, the trusteeship doctrine (‘the sacred trust of civilization’, as famously put in the League of Nations’s covenant in relation to mandated territories) advocated the protection of the native populations of the territories conquered by Western powers, amalgamating humanitarian concerns emanating from metropolitan civil societies with arguments favouring colonial and religious expansion.7 The trusteeship doctrine’s protective thrust operated against the backdrop of the ‘standard of civilization’ which, based on the prevailing assumptions of the time, reserved all rights and privileges under international law to the members of the ‘family of civilized nations’.8 The standard deprived Indigenous peoples, deemed as ‘savages’ or ‘uncivilized’, of any entitlements in the face of the forceful dispossession of their traditional territories, considered by international operators as ‘terra nullius’ until recent times.9 Within the Eurocentric and racist assumptions underpinning these legal constructions, the actual international status of the countries in which Indigenous peoples were found—be it the formal status of colonial territories or postcolonial independent States—bore little significance.10

(p. 40) The League’s trusteeship approach proved inhospitable to efforts by Indigenous peoples to assert robust rights of sovereignty or self-government within the international system that was taking shape in the early twentieth century. In the most well-known of these efforts, Deskaheh, speaker of the Grand Council of the Iroquois Confederacy, led an attempt to have the League of Nations recognize his people’s right to live by their own laws within their own lands, free from interference by Canada. Although Deskaheh found sympathy among some League members, the League ultimately closed its door to the Iroquois, yielding to the position that the Iroquois’s claims were not a matter of its concern, but rather a matter to be addressed by Canada within the exercise of its presumed trusteeship over the Iroquois.11

The trusteeship doctrine constituted the normative entry point for the adoption of the first international instruments specifically dealing with ‘Indigenous’ groups. Established under the League of Nations, the International Labour Organization (ILO) was the locus for these initial developments, in the context of the international efforts to proscribe slavery and analogous practices. In 1926, the ILO established a Committee of Experts on Native Labour, whose work led to the adoption of the Forced Labour Convention.12 Adopted in 1936, the ILO Recruiting of Indigenous Workers Convention was the first international treaty to specifically address the situation of ‘Indigenous’ groups.13 It was followed by an important number of international labour conventions and recommendations that gradually shaped the ILO’s ‘Colonial Code’, a set of norms that ran parallel to the emerging international labour code and lowered the applicable standards to meet the conditions of the colonial workforce.14 The English neologism ‘Indigenous’ replaced ‘native’ under the influence of French, the prevailing diplomatic language of the time.15

The norms enshrined in the ILO’s ‘Colonial Code’ were primarily aimed at disciplining the living and working conditions of the local workforce in colonial territories under European control. With the end of World War II, however, attempts to discipline colonial practice were gradually, but decisively, replaced by the project of ending colonialism itself. The principles underpinning the decolonization process implied the exclusion of Indigenous peoples clustered within independent States’ boundaries from the scope of application of the principle of self-determination of peoples as affirmed in the UN Charter. Notably, the ‘blue water’ or ‘salt water’ doctrine, codified in the UN decolonization documents, formally linked self-determination to Western overseas colonial dominions.16 This exclusion lies at the heart of Indigenous peoples’ expression of their demands in terms of self-determination, the normative cornerstone of the modern international Indigenous rights regime. Moreover, from a wider historical perspective, decolonization transformed the earlier international regime on Indigenous peoples that was developed during the late nineteenth and early twentieth centuries. This transformation affected the implications of the term ‘Indigenous’, which definitively came to refer to the descendants of the early inhabitants of a territory before foreign conquest or colonial (p. 41) settlement and now living within the boundaries of an independent State.17 Due to its historical mandate concerning the protection of ‘Indigenous workers’, the ILO became the institutional setting for this transformation, leading the process towards the adoption of the first international standards on Indigenous groups ‘in independent countries’.

2.2  Convention 107 and the Birth of the Modern Indigenous Peoples’ Regime

Against the backdrop of the evolution of post-war international law, the emergence of the international regime on Indigenous peoples—in the modern sense—is inextricably connected to one international organization, the ILO, and to one region, the Americas. This connection was facilitated by the so-called ‘indigenist’ movement, a political, cultural, and social science movement that transformed State legal and policy approaches to Indigenous peoples in the Americas during the 1920s and 1930s.18 Inspired by theoretical developments of applied anthropology and the policies of the ‘Indian New Deal’ in the United States, indigenism conceptualized the existence of an ‘Indian problem’ and advocated for a comprehensive, ‘scientific’ solution to this problem through the ‘integration’ of Indigenous groups within ‘national society’.19

Embracing the indigenist agenda, the ILO built upon its existing programming concerning Indigenous groups to eventually develop its Convention 107 concerning Indigenous and Tribal Populations in Independent Countries, along with its accompanying Recommendation 104 on the same subject.20 Adopted in 1957, Convention 107 reflects the premise of assimilation operative among dominant actors at the national and international levels at the time of the Convention’s adoption. Consistent with mid-twentieth-century indigenist thinking, the thrust of Convention 107 was to promote improved social and economic conditions for Indigenous populations generally, but within a perceptual scheme that did not envisage a place in the long term for robust, politically significant cultural and associational patterns of Indigenous groups.21 Convention 107, (p. 42) which remains in force for a number of countries that ratified it, eventually came to be maligned for its assimilationist elements, just as the indigenist movement with which it is associated fell out of favour. Nonetheless, the Convention consolidated a foothold for the ‘Indigenous’ rubric within the international system and in particular within the burgeoning international machinery for the protection of human rights.

2.3  The Indigenous Rights Movement and Its Inclusion on the UN Human Rights Agenda

The international legal and policy framework as it now concerns Indigenous peoples began to take shape as Indigenous peoples themselves inserted their own voices into relevant international processes and as the UN human rights machinery beyond the ILO widened its concern for the modern-day manifestations of racial discrimination.

As the international human rights agenda began to take hold in the middle part of the twentieth century, Indigenous peoples ceased to be mere objects of the discussion of their rights and became effective protagonists in those discussions. By the 1960s, armed with a new generation of men and women educated in the ways of the societies that encroached upon them, Indigenous peoples in various parts of the Americas and elsewhere were drawing increased attention to demands for their continued survival as distinct communities with historically based cultures, political institutions, and entitlements to lands, along with attention to their disadvantaged social and economic conditions. In the 1970s, they extended their efforts internationally through a series of international conferences and direct appeals to UN and regional intergovernmental institutions. These efforts coalesced into a quickly broadening and ever-more discernible and influential social movement constituted by groups identifying as Indigenous, aided by concerned international non-governmental organizations and a growing body of supportive scholarly and popular literature.

While Indigenous peoples articulated their aspirations in terms quite different from the assimilationist paradigm previously advanced and acted upon by dominant actors, their demands resonated within what had become a central component of the UN human rights agenda, the campaign against racial discrimination in all its forms. The anti-discrimination focus was the grounding for the 1971 Resolution of the UN Economic and Social Council (ECOSOC) authorizing a study on the ‘Problem of Discrimination against Indigenous Populations’.22 The resulting multi-volume work by Special Rapporteur José Martínez Cobo was originally issued as a series of partial reports from 1981 to 1983. It compiled extensive information on Indigenous peoples worldwide and made a series of findings and recommendations generally supportive of Indigenous peoples’ demands.

Marking a major UN programmatic priority was the UN General Assembly’s designation of a Decade to Combat Racism and Racial Discrimination beginning in 1973.23 Among the activities that the Decade helped to generate was the International Non-Governmental Organization Conference on Discrimination against Indigenous Populations in the Americas, which was held at the United Nations’ Palais des Nations in Geneva in 1977. This conference, attended by Indigenous peoples’ representatives from throughout the Western Hemisphere, contributed to forging a transnational Indigenous (p. 43) identity that would later expand to embrace Indigenous peoples from other parts of the world. Moreover, the 1977 conference, along with the Martínez Cobo study, would serve to ensure specific and sustained attention within the UN human rights machinery on Indigenous peoples’ concerns.

A singularly significant catalyst for the Indigenous rights movement and for consolidating its place on the UN human rights agenda was the creation of the UN Working Group on Indigenous Populations (WGIP). Upon recommendation of the Martínez Cobo study and representatives of Indigenous groups, the UN Commission on Human Rights and the UN Economic and Social Council approved in 1982 the establishment of the WGIP as a five-member expert body within the Commission’s Sub-Commission on Prevention of Discrimination and Protection of Minorities. The mandate established for the Working Group upon its creation was twofold: ‘(a) to review developments pertaining to the promotion and protection of the human rights and fundamental freedoms of indigenous populations … [and] (b) give special attention to the evolution of standards concerning the rights of indigenous populations’.24 The standard-setting mandate provided an effective conduit for Indigenous peoples to advance their initiatives for a new international instrument that would affirm and protect their rights, and responding to these initiatives the Working Group went about producing a draft of what would eventually develop into the UN Declaration.25

Through its standard-setting work and review of development, the WGIP, meeting annually in Geneva in one- or two-week sessions, engaged Indigenous peoples, States, and others in an extended multilateral dialogue on the specific concerns of Indigenous peoples and on the content of their rights. The Working Group broke new ground within the UN system when it opened its sessions to and allowed oral and written submissions by all Indigenous peoples and organizations, without the formal UN accreditation usually required for non-governmental organizations or other non-State actors to participate in official meetings of UN organs. By the late 1980s, the Working Group had become a major platform for Indigenous peoples from across the globe to forge and express common positions, and a major factor in establishing crucial momentum for the international Indigenous rights movement.

2.4  ILO Convention 169

As the Indigenous rights movement began to gain momentum in the mid-1980s, its goals came into ever-greater contrast with ILO Convention 107, the most significant international instrument specifically concerning Indigenous peoples at the time. This contrast was marked by a growing condemnation of the early ILO Indigenous peoples regime, which had an ironic impact on this organization. By the point in time that Indigenous issues had started to pave its way through the UN human rights machinery, Convention 107—foreign as it was to the organization’s traditional mandate, expertise, and operational activities—had long fallen out from the ILO’s priorities.26

The ILO’s lack of interest on Indigenous issues changed drastically at the moment in which it became apparent that the UN Working Group on Indigenous Populations was moving the United Nations towards the adoption of new international standards. Craftily (p. 44) orchestrated by the ILO’s secretariat, the revision of Convention 107 was undertaken by the International Labour Conference in the biennium 1988–1989. It ended up with the adoption of a whole new instrument, with the formal denomination of the ILO Convention on Indigenous Peoples and Tribal Peoples in Independent Countries 169.27

The fact that the revision of Convention 107 responded more to the secretariat’s initiative than to a genuine thrust from the organization’s constituents (States, employers, and workers), with little or no initial involvement from the international Indigenous rights movement and other actors active in the UN discussion, coupled with the hasty pace imposed on the revision process, left a decisive imprint on the final outcome of the process. The dominant posture of representatives and advocates of Indigenous groups active at the international level was initially one of rejection of the new ILO Convention 169, and this would contribute to a dynamic by which ratifications of the Convention would be slow and few to come for some time. Indigenous representatives expressed dissatisfaction with the ILO procedures that precluded them from fully participating in the development of the new text and were critical of the content of the text.28

Whatever the shortcomings in the process for the adoption of Convention 169 or in the content of its text, it is undeniable that the Convention represents a marked departure from the philosophy reflected in the earlier Convention 107 of promoting the assimilation of Indigenous peoples into majority societies. This paradigm shift, no doubt influenced by the Indigenous rights movement and the contemporaneous UN developments, is indicated by the Convention’s Preamble, which recognizes ‘the aspirations of [indigenous] peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live’.29 Upon this premise, the Convention includes provisions advancing Indigenous cultural integrity, land and resource rights, and non-discrimination in social welfare spheres; and it generally enjoins States to respect Indigenous peoples’ aspirations in all decisions affecting them.

Given this reality, it is not surprising that Indigenous peoples and organizations increasingly have taken a pragmatic view and expressed support for the ratification of Convention 169. Indigenous peoples’ organizations from Latin America have been especially active in pressing for ratification, such that most of the countries in that region are now parties to the Convention, in addition to two Nordic countries with Indigenous Sami or Inuit populations.30 The Convention’s impact was particularly tangible in the wave of legal and constitutional reform that led to the recognition of Indigenous peoples in Latin America through the 1990s and early 2000s.31

(p. 45) In the end, Convention 169 can be seen as one of the single most influential events in the process of drafting and leading to the eventual adoption of the UN Declaration. The relatively short time frame for the negotiation and adoption of the text of the Convention accelerated the discussion among States about Indigenous peoples’ rights within a reformed frame of thinking influenced by the Indigenous rights movement, and set a minimum set of standards below which the proposed UN Declaration could not go.

The content of the UN Declaration is replete with textual evidence of the influence from various provisions of Convention 169. Even the scope of both instruments is remarkably similar, with the exception of a handful of key Articles of the Convention concerning labour conditions for Indigenous workers. But, most importantly, Convention 169 proved to be, despite the initial reaction from the Indigenous rights movement, absolutely crucial in the crystallization of baseline normative consensus that drove discussions towards the adoption of the UN Declaration.

2.5  The Mainstreaming of Indigenous Peoples’ Rights in International Human Rights Law and Practice

As discussion about Indigenous peoples and their rights proceeded within the UN Working Group on Indigenous Populations, that discussion spilled over into other UN processes related to human rights. Several written instruments that were developed within these other processes prior to the adoption of the Declaration on the Rights of Indigenous Peoples include specific provisions addressing Indigenous issues. Among these instruments are Resolutions adopted at the 1992 UN Conference on Environment and Development in Rio de Janeiro. The Rio Declaration,32 and the more detailed environmental programme and policy statement known as Agenda 21,33 reiterate precepts of Indigenous peoples’ rights and seek to incorporate them within the larger agenda of global environmentalism and sustainable development.34 In the same vein, Article 8(j) of the 1992 Convention on Biodiversity affirms the value of traditional Indigenous knowledge in connection with conservation, sustainable development, and intellectual property regimes.35

Resolutions adopted at subsequent major UN conferences prior to the Declaration’s adoption—the 1993 World Conference on Human Rights, the 1994 UN Conference (p. 46) on Population and Development, the World Summit on Social Development of 1995, the Fourth World Conference on Women of 1995, and the World Conference Against Racism of 2001—similarly include provisions that affirm or are consistent with prevailing normative assumptions in this regard.36 Further still, the 1989 Convention on the Rights of the Child, a UN-sponsored treaty that has been ratified by almost all of the world’s States, affirms in Article 30 the right of Indigenous children to culture, religion, and language.37

A new generation of international standards concerning Indigenous peoples also came to be reflected prior to the Declaration’s adoption in the interpretation and application of already existing, widely ratified human rights treaties of general applicability. The work of the UN treaty-monitoring bodies, especially that of the Human Rights Committee and the Committee on the Elimination of Racial Discrimination (CERD), is especially noteworthy in this regard. The Human Rights Committee, which is charged with monitoring the International Covenant on Civil and Political Rights, began addressing Indigenous peoples’ concerns mostly through its application of the Covenant’s Article 27, which affirms the right of minorities to culture, religion, and language. While linking Indigenous peoples with the rubric of minorities, the Committee identified Indigenous peoples as having a distinct set of characteristics and rights arising from those characteristics. In its General Comment on Article 27 of 1994, the Committee held this provision of the Covenant to establish affirmative obligations on the part of States with regard to Indigenous peoples in particular, and it interpreted Article 27 as covering all aspects of an Indigenous group’s survival as a distinct culture, understanding culture to include economic or political institutions and land-use patterns, as well as language and religious practices.38 This interpretation of Article 27 was confirmed in the Committee’s adjudication of complaints submitted to it by representatives of Indigenous groups pursuant to the Optional Protocol to the Covenant.39

The Committee also began addressing Indigenous peoples’ concerns in connection with the right of self-determination, which is affirmed for ‘All peoples’ in Article 1 of the Covenant. It did this initially in commenting upon Canada’s 1999 report (p. 47) under the Covenant, stating that the right of self-determination of Article 1 protects Indigenous peoples, inter alia, in their enjoyment of rights over traditional lands, and it recommended that, in relation to the aboriginal people of Canada, ‘the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with Article 1 of the Covenant’.40 Other provisions of the Covenant applied by the Committee to address Indigenous issues include Articles 17 (privacy), 23 (integrity of the family), and 25 (political participation).

For its part the CERD, the treaty-monitoring body that promotes compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, began regularly considering issues of Indigenous peoples within the general framework of the non-discrimination norm running throughout that Convention, rather than in connection with any particular Article of the Convention, which like other relevant human rights treaties nowhere specifically mentions Indigenous groups or individuals. In 1997, the CERD issued its General Recommendation on Indigenous Peoples, which identifies Indigenous peoples as vulnerable to patterns of discrimination that have deprived them, as groups, of the enjoyment of their property and distinct ways of life, and hence calls upon State Parties to take special measures to protect Indigenous cultural patterns and traditional land tenure.41 The CERD applied its understanding of the non-discrimination norm in examining a number of cases involving Indigenous peoples’ claims over land and resources, under its ‘early warning/urgent action’ procedure.42

At the regional level, the 2001 decision by the Inter-American Court of Human Rights in the Awas Tingni case was a watershed in the process of normative construction around Indigenous peoples’ demands and its linkage to human rights principles of general applicability.43 This case, which marked the definitive assumption of the modern Indigenous rights discourse within the inter-American human rights system, was the first legally binding decision by an international tribunal upholding Indigenous collective rights, and it became a model for strategic litigation in favour of Indigenous peoples in the American region and even beyond. But surely the most influential dimension of the Awas Tingni decision was the Court’s international legal construction by which it accepted that Indigenous peoples’ traditional land tenure constitutes property that is protected by Article 21 of the American Convention on Human Rights, which protects private property generally. According to the Court’s ‘evolutionary’ interpretation in Awas Tingni of the scope of right to property, ‘[i]ndigenous groups, by the fact of their very existence, have the right to live freely on their own territory; the close ties of Indigenous people with the land must be recognized’.44

(p. 48) Building on the Awas Tingni precedent, the inter-American human rights bodies pioneered, in the early 2000s, a rich body of jurisprudence that defined the contours of Indigenous land and resource rights, and other rights of Indigenous peoples protected under the American Convention.45 This jurisprudence relied widely on a perceived normative consensus on the content of Indigenous peoples’ rights in the Americas and beyond, and was clearly informed by the provisions of ILO Convention 169 (even in relation to countries that were not a party to the Convention), the draft of the UN Declaration that had been developed by the Working Group on Indigenous Populations, and the practice of UN human rights bodies and mechanisms.46

The influential jurisprudence of the inter-American human rights system, along with the other developments just described, placed Indigenous issues within the mainstream of the international human rights agenda, advanced the understanding that the specific rights of Indigenous peoples being articulated are derivative of human rights principles of general applicability, and catalysed the ongoing discussions on a UN Declaration that would proclaim standards to uphold those specific rights.

3.  The UN Declaration: Drafting and Negotiation

The progressive affirmation of Indigenous rights in international instruments, including notably ILO Convention 169, as well as in the evolving interpretation of existing standards of general applicability by international and regional human rights bodies and mechanisms, constituted the normative and political context in which the Declaration was initially framed, negotiated, and, eventually, adopted.

This context influenced the drafting of the Declaration in at least two fundamental ways. First, the label of ‘Indigenous’ had already become a distinctive item on the human rights agenda, precluding (at least to the very last phase of the debate) any substantive discussion regarding the desirability or justification of specific Indigenous rights standards. By the late 1990s, Indigenous peoples had become naturalized in international law and practice, and so implicitly had the need for adopting an international instrument affirming the rights of these peoples—as constantly reaffirmed by international fora and mechanisms. Second, the actual content of the Declaration was ‘tested’ in the practice of international human rights bodies and mechanisms, with the text of the draft Declaration (already in circulation since 1994) playing an influential role in this regard. As a result, some of the most controversial issues tackled in the negotiations concerning the text of the Declaration, from Indigenous peoples’ self-determination to collective land and resource rights, had already been affirmed by authoritative voices such as the Human Rights Committee.47 The normative convergence between the text of the draft Declaration and that of ILO Convention 169 further facilitated the Declaration’s drafting process, at least (p. 49) in relation to Latin American countries, where the ILO convention had proved to be particularly influential.48

The direct involvement of Indigenous peoples was an undeniable driving force in all phases of the drafting process. The early experience of the Working Group on Indigenous Populations, which actually contributed to changing the conventional rules of participation by non-governmental entities in UN human rights bodies, became a precedent for subsequent negotiations. By the late 1990s, when the Human Rights Commission decided to establish an ad hoc working group to formally open up negotiations regarding the Declaration’s text, it was already evident that Indigenous peoples’ organizations ought to be somehow represented in that working group, which subsequently started to operate as a de facto bipartite body. Moreover, individual Indigenous leaders and experts, together with Indigenous peoples’ advocates, became ingrained in the work of UN bodies and inter-State political negotiations, and their influence was key in specific conjunctures—from the composition of the Declaration’s first draft to the last-minute negotiations within the General Assembly. While the assertion that the UN Declaration was the outcome of equal negotiations between States and Indigenous peoples—or even an ‘international treaty’ between them—is surely an exaggeration,49 neither the Declaration nor its actual contents could be explained without Indigenous peoples’ participation in the international arena.50

The drafting history of the Declaration can be traced back to as early as 1982, with the establishment of the Working Group on Indigenous Populations. From this moment to its final adoption by the General Assembly in 2007, the debates about the text of the Declaration elapsed for a period of almost a quarter of a century, and the process faced breakdown in several phases. The unprecedented length of the debates, which exceeds by far that of any other previous UN human rights standard-setting process, is in itself telling of the deeply entrenched normative and political tensions arising from the recognition of Indigenous peoples’ rights.

3.1.  Early Debates at the Working Group on Indigenous Populations

Adopted by the ECOSOC in 1982, the original mandate of the Working Group on Indigenous Populations requested the Working Group to give ‘special attention to the evolution of standards concerning the rights of indigenous populations’.51 This willingly ambiguous phrasing was a reflection of already existing demands within the emerging international Indigenous movement for the international affirmation of Indigenous (p. 50) peoples’ rights. In 1983, when the final part of the Martínez Cobo report was issued, it recommended the Working Group to ‘formulate a body of basic principles, based on those to be duly formulated in the text of a draft Declaration, and propose in due course a draft convention’.52

Specific texts came also originally from the Indigenous movement. The land mark 1977 non-governmental organization (NGO) meeting on discrimination against Indigenous peoples in the Americas concluded with the adoption of a ‘Declaration of Principles for the Defense of the Indigenous Nations and Peoples of the Western Hemisphere’.53 The first proposal for a comprehensive instrumental instrument—initially conceived as a draft convention—on the rights of Indigenous peoples has been attributed to the World Council of Indigenous Peoples (WCIP), one of the most influential international Indigenous organizations at that time, as early as 1981.54 A revised version of this document was adopted by the fourth general assembly of the WCIP in 1984, in the form of seventeen principles constituting the ‘minimum standards which States shall respect and implement’ regarding the rights of Indigenous peoples.55 This influential document set the basis for a proposed ‘Declaration of Principles’, which galvanized the consensus of the major Indigenous organizations participating in the Working Group’s early phases.56

These early initiatives were decisive in the Working Group’s decision, in 1985, to embark on the drafting of a new international instrument in accordance with its standard-setting mandate.57 The idea of a draft Declaration, to be eventually adopted by the General Assembly as an initial step towards a future binding instrument, was also strategically decided at that moment.58 In this decision, as well as in the future standard-setting process, the Working Group’s chairperson, Erica-Irene Daes, took an influential leadership role, and her work was permeated by the influence of Indigenous representatives, individual experts, and the UN Secretariat.59

(p. 51) From that moment until 1993, when the first draft of the Declaration was adopted, the Working Group became the locus of international debates regarding the scope of Indigenous peoples’ rights, involving an ever-growing number of observer States, Indigenous representatives, and individual experts.60 The thematic discussions in the Working Group’s annual sessions, along with the myriad of studies prepared by Working Group members, Indigenous organizations, and NGOs, further fuelled those debates and anchored them in the wider context of the international human rights regime.

In the context of the heightened international political environment of the late Cold War,61 the first decade of discussions around the content of the future Declaration was characterized by deeply entrenched controversies around some of the key demands for recognition voiced by the Indigenous movement. The debates around the Declaration tackled, in a single package: basic notions of State sovereignty (eg sovereignty over lands and natural resources); structural principles of international law (eg self-determination); and even basic assumptions of the modern international human rights regime (eg individual versus collective human rights).62

Under the headship of the Working Group’s chairperson, the draft Declaration was prepared in three main steps. In 1985, Daes tabled a preliminary version of seven draft principles, built up around the protection of cultural identity and collective existence.63 In 1988, Daes presented to the WGIP a first draft of the instrument, entitled ‘Draft Universal Declaration on Indigenous Rights’, which used, for the first time, the term ‘peoples’, and affirmed collective autonomy rights.64 After several rounds of consultations, a new version of this document was debated by the Working Group in 1992,65 and eventually adopted in 1993.66 In line with Indigenous peoples’ demands, this last draft expressly affirmed Indigenous peoples’ unqualified right to self-determination. The Draft Declaration, as adopted by the Working Group on Indigenous Populations, was (p. 52) endorsed by its parent body, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, in 1994.67

The text of the 1994 draft was the essence, both in terms of content and in terms of form, of the future Declaration. The actual involvement of Indigenous representatives in the Working Group’s debates on the Draft Declaration—whose enthusiasm surely silenced States’ initial reservations to the text—granted the text with a quasi-mystical aura. Moreover, during the lengthy period in which it lingered unaltered until its formal adoption, the Draft Declaration became the authoritative expression of the emerging international consensus on the rights of Indigenous peoples and, as such, contributed to the mainstreaming of Indigenous rights through international law and practice.68

3.2.  Negotiations at the Working Group on the Draft Declaration

Following the pattern of previous standard-setting processes, the UN Commission on Human Rights remitted the text of the Draft Declaration to an ad hoc working group for inter-State negotiations: an ‘open-ended inter-sessional’ working group ‘with the sole purpose of elaborating a draft declaration’.69 The Commission identified the end of the International Decade on Indigenous People (2004) as the symbolic deadline for the negotiations.70

The Commission’s Working Group on the Draft Declaration departed from previous standard-setting experiences in its flexibility regarding the participation of Indigenous peoples as observer organizations, which followed the pattern of open participation already in operation at the Sub-Commission’s Working Group. While the Working Group on the Draft Declaration never formally evolved into anything but a UN official intergovernmental negotiation roundtable, the influence of Indigenous organizations and advocacy NGOs in the Working Group’s discussions was remarkable, and became somewhat institutionalized through informal consultations between the Indigenous caucus and key governments and other informal procedural agreements.71

The drafting process of the Declaration within the Working Group on the Draft Declaration can be divided into phases. During the first phase, ranging from the Working Group’s First Session in late 1995 to 2005, the process was characterized by the stalemate in the negotiations. In the Working Group’s First Session, the Indigenous caucus called for the outright adoption of the text of the Declaration adopted by the Sub-Commission, based on the argument that ‘as such’, the text ‘reflected minimum standards for the survival of indigenous peoples’;72 this would later become known as the ‘no-change’ position.73 The Working Group’s annual sessions, coupled with a number of special sessions and expert seminars, witnessed the constant reopening of the normative and political (p. 53) debates around key aspects of the Draft Declaration. While very few States were ready to adopt the Sub-Commission’s text,74 a number of key States, particularly from the American and Asian regions, consistently opposed essential aspects and provisions of the Draft Declaration, including its lack of definition of Indigenous peoples and the collective character of Indigenous rights, as well as its specific provisions regarding self-determination and land and resources.75

By the early 2000s, it had become crystal clear that the negotiations on the Declaration had led to a point of total blockage. When the First International Decade on Indigenous Populations came to a formal end in 2004, only two of the forty-five provisions included in the Draft Declaration had been provisionally adopted.76 This lack of progress generated a general sense of frustration among all actors concerned, including Indigenous organizations, and some started to forecast the ending of the process. Writing in that mood, an Indigenous observer described the Working Group to be ‘as alive as a fossil’.77

The appalling failure of the negotiations of the Declaration contrasted with the momentum gained by Indigenous issues in the wider human rights framework. This period was also concomitant to the definitive institutional backing of Indigenous issues within the United Nations, with the almost simultaneous establishment of the Permanent Forum on Indigenous Issues, subsidiary to the ECOSOC,78 and of the mandate of the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous people, as part of the special procedures machinery of the Commission on Human Rights.79 Both the Permanent Forum and the Special Rapporteur added to other voices calling in favour of the rapid conclusion of the negotiations on the Declaration.80 In a context of generalized exhaustion of all actors involved, a second phase in the negotiations starting, however, can be discerned from the mid-2000s, leading to an eventual breakthrough in the process. The change in the dynamics can be partly explained, on the one hand, by the changes in the negotiation strategies of the Indigenous movement, which slowly started to depart from the previously uncontested ‘no-change position’.81 (p. 54) Gradually, a number of key Indigenous organizations and actors started to approach supportive governments expressing their willingness to agree to changes to the Declaration’s text in exchange for their political support.82

In parallel to the abandonment of the ‘no-change position’, a number of governments started to step forward with more or less open positions in favour of the adoption of the Draft Declaration. Norway broke the ice in the first instance,83 soon joined by other Nordic States.84 The initial group of ‘friends of the Declaration’ succeeded in having Mexico and Guatemala play a renovated, constructive role in the negotiations,85 paving the way to Latin American support.

Crystallized by the pressure of time, the change in the negotiations’ dynamics became evident during the Working Group’s Tenth Session (2004), which, based on the engagement between governments and Indigenous organizations, witnessed tangible progress in the negotiations.86 This paved the way for a second, clearly differentiated phase of the process.

(p. 55) In March 2005, the Commission on Human Rights authorized yet another session of the Working Group, as it had already met its initial deadline—the end of the International Decade on the World’s Indigenous Peoples.87 In September that year, the Mexican government gathered together in Pátzcuaro (Michoacán) more than ninety Indigenous and government representatives, along with international experts, aiming at overcoming the ‘perceived atmosphere of lethargy and blockage’.88 The Pátzcuaro meeting possibly constituted the single most influential breakthrough in the Declaration’s drafting process. It concluded with the expression of the commitment to accommodate ‘both the concerns of States and indigenous peoples without holding back the development of international law’.89

This pledge for accommodation materialized in the Working Group’s Eleventh (and last) Session, held between December 2005 and January 2006. Building on the existing consensus regarding the unqualified affirmation of Indigenous peoples’ right to self-determination, and with only a few outstanding issues, the session concluded with an unprecedented level of consensus, and the Working Group was able to preliminarily adopt twenty-five preambular paragraphs and thirty-five Articles of the Declaration.90

The Working Group’s chairperson, Peruvian ambassador Luis Enrique Chávez, subsequently recaptured these agreements in a new draft to be presented to the Commission on Human Rights ‘with the hope that it would be considered as a final compromise text’.91 The final text, which incorporated the basic provisional agreements reached during the second phase of the negotiations, departed from the original Sub-Commission’s text in ‘more than the details’.92 The text affirmed Indigenous self-determination, made no reference to the principle of territorial integrity, and, in spite of some governments’ concerns, managed to preserve strong provisions regarding Indigenous land and resource rights. It also excluded an earlier provision concerning Indigenous peoples’ self-identification, thus leaving the text with no criteria for the definition of its personal scope of application.93

(p. 56) 4.  The UN Declaration: Final Adoption

4.1  Adoption by the Human Rights Council

Notwithstanding the important and rapid progress made in the last few years of the negotiation process, the history of the Declaration was decisively influenced by the reform of the UN human rights structure, which transcended the limits of the Indigenous rights agenda. In April 2006, building on a number of long-standing proposals for reform, the General Assembly formally decided to terminate the Commission on Human Rights, substituting it by a new-fangled Human Rights Council.94 A process of ‘institution-building’ ensued, which reviewed the former Commission’s structure and standard-setting processes.95

The transformation of the UN human rights system subjected the future of the Declaration to a high level of uncertainty. The Sixty-Second (and last) Session of the Commission on Human Rights, which was supposed to consider the proposed draft Declaration elaborated by the chair of the Working Group on the Draft Declaration, was initiated in March 2006 without a clear sense of purpose, and subject to ongoing negotiations concerning the new UN human rights machinery.96 The Commission’s last session ended up being a modest and symbolic session which lasted less than three hours and bore no substantive output.97 The dismantling of the Commission on Human Rights involved the formal ending of the Working Group on the Draft Declaration. The old Working Group on Indigenous Populations was also called to an end, holding its Twenty-Fourth (and last) Session in May 2006.98 It was eventually substituted by a new Expert Mechanism on the Rights of Indigenous Peoples, whose mandate was severely curtailed in relation to that of the Working Group.99

The transition from the Commission to the Council proved to be beneficial for advancing towards the adoption of the Declaration, which became intertwined with wider political negotiations concerning the Council’s future structure and methods of work. Mexico, joined by the GRULAC (the UN Latin American and Caribbean regional group) and the Nordic States, led the support for the Declaration, on the basis of the Working Group Chairperson’s proposal, thus preventing any further consideration of the text.100 Mexico was successful in connecting the future of the Draft Declaration with that of the draft UN Convention on Enforced Disappearances, gaining the European Union’s support in exchange.101 The appointment of the skillful Mexican ambassador, Luis Alfonso de Alba, as the first president of the Human Rights Council was surely a key factor in this regard.

(p. 57) In preparation for the First Session of the Human Rights Council in June 2006, Peru—as chair of the late Working Group—submitted a Draft Resolution for approval of the Working Group’s text and organized informal consultation in the search for co-sponsors.102 The opposition towards the adoption of the Declaration was led by Australia, New Zeland, and the United States, joined at the last minute by Canada.103 The vote of the Peruvian proposal eventually took place on 28 June 2006, and the text of the Declaration was adopted by a large majority of the members of the Human Rights Council (only two States, Canada and Russia, voted against), being referred to the General Assembly for its final adoption.104

The text of the Working Group’s Chairperson did not surely convince all States, and even some of those that voted in favour of its final adoption had remaining concerns about the wording of some of its provisions. The text did not have unanimous support from the international Indigenous movement either: content-wise, the Working Group’s text—circulated only a few months after its final adoption—never actually went through a thorough editing by the UN Secretariat, and was plagued with many inconsistencies and duplications, many of which are still discernable in the final text.

4.2  The Impasse at the General Assembly

Concealed under the climate of general exaltation after the adoption of the text of the Declaration by the Council, there were, from the onset, glooming signs that the States opposing the text would try to exert all their influence to block its passage at the General Assembly. Despite diplomatic efforts to prevent it, these signs proved to be right.

In November 2006, the Draft Declaration, along with the rest of the Resolutions adopted by the Human Rights Council, was to be considered by the General Assembly’s Third Committee (Social, Humanitarian, and Cultural Affairs) prior to the plenary. A few days before the scheduled date for the discussions, Namibia, on behalf of the African Group, addressed the President of the General Assembly showing concern on a number of key provisions of the Declaration and requesting the deferral of its consideration in order to allow for negotiations ‘in greater depth’.105 Botswana followed suit, and circulated an aide memoire which elaborated in detail the concerns of the African Group.106 Despite the fact that the African Group had not objected to the adoption of the Declaration at the Human Rights Council,107 and that some African States still expressed their support for it,108 the African Group formalized its position at the Third Committee, succeeding to defer the consideration of the Declaration to the next session of the General (p. 58) Assembly.109 The general sentiment was that the motion of deferral effectively put the future of the Declaration at risk.

The reasons behind the last-minute African opposition to the Declaration are manifold. Some participants in the process pointed at the direct influence of some of the main countries opposing the Declaration (particularly Australia, Canada, New Zealand, and the United States).110 Moreover, the debate on the adoption of the Declaration continued to fluctuate in the uncertainties of the makeover of the UN human rights machinery, where the relation between the Human Rights Council and the Third Committee was still under dispute.111 Beyond these circumstantial factors, the late reaction by the African Group contrasted with the lack of meaningful involvement of African countries in the previous debates on Indigenous issues—and specifically in the negotiation at the Working Group on the Draft Declaration—and of the ambiguities surrounding the notion of Indigeneity in the African context.112

The referral in the consideration of the Declaration confirmed the anxiety by the majority of the African Group regarding key provisions of the draft instrument. In January 2007, the Assembly of the African Union adopted an atypical Resolution against the Declaration, citing in particular concerns regarding ‘national and territorial integrity’.113 Despite the eleventh-hour mobilization of the African Commission on Human and Peoples’ Rights (ACommHPR, or the African Commission) and other actors in favour of the Declaration,114 the African Group clearly favoured a reopening of the text for (p. 59) complete renegotiation. Up to thirty-seven amendments were finally proposed by this group.115

4.3  Final Negotiations and Adoption by the General Assembly

During the last year of negotiations before its final adoption by the General Assembly, the group of States friends of the Declaration, with the support of the international Indigenous caucus, deployed additional efforts to have the text of the Declaration passed as adopted by the Human Rights Council, in an effort to prevent the opening of new negotiations.116

In June 2007, the President of the General Assembly appointed the Permanent Representative of the Philippines, Ambassador Hilario Davide, as facilitator, in order to broker informal consultations on the Declaration.117 A month later, Davide presented a number of proposals which anticipated different scenarios for breaking the impasse, all of which envisaged the at least limited reopening of key provisions to further negotiation.118 A number of States continued to oppose all proposed solutions.119

After last-minute negotiations, an agreement was directly reached between the African Group and the friends of the Declaration in August 2007, only a few weeks before the General Assembly’s vote.120 This final agreement incorporated the most important set of amendments to the Draft Declaration since its adoption by the WGIP in 1994. This included, inter alia, the affirmation, as a qualifier of Indigenous self-determination, of the (p. 60) principles of territorial integrity and political unity of independent States.121 Moreover, the final agreement incorporated, in response to the African States’ concerns, specific wording acknowledging regional and country specificities.122

On the basis of this agreement, Peru formally submitted a Draft Resolution to the General Assembly’s plenary. The Declaration was formally adopted by the General Assembly on 13 September 2007, with the positive votes of an overwhelming majority of UN Member States, 143, with only 4 against and 11 abstaining. While the explanatory statements of the four States that voted against adoption of the Declaration (Australia, Canada, New Zealand, and the United States of America) showed disagreement with the wording of specific Articles or concerns with the process of adoption, they also expressed a general acceptance of the core principles and values advanced by the Declaration. And, eventually, each of these States reversed their position and formally endorsed the Declaration.123

5.  Conclusion: The Declaration as Part of Modern International Human Rights Law

The UN Declaration on the Rights of Indigenous Peoples stands today as a major landmark in the development of international human rights law. In its content, the Declaration is at the forefront of some of the most significant transformations in the modern human rights regime, with its move beyond the classic individualist paradigm and its embrace of collective human rights, and the vision it projects of restorative justice that canalizes social change away from the legacies of historical patterns of oppression.

During the last three decades, the demands for recognition of Indigenous peoples across the world have led to the gradual emergence of a common body of opinion regarding the content of the rights of these peoples on the basis of long-standing principles of international human rights law and policy. This common normative understanding has been advanced by multiple developments that have extended into the practice of international human rights bodies. The Declaration on the Rights of Indigenous Peoples is the most important of these developments globally, encapsulating as it does the widely shared understanding about the rights of Indigenous peoples that has been building over decades on a foundation of previously existing sources of international human rights law.

(p. 61) The Declaration affirms in its Article 3 the right of Indigenous peoples to self-determination, in terms that restate the widely ratified, common provisions of Article 1 of the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. On this grounding, the Declaration provides a detailed list of rights that constitute ‘the minimum standards for the survival, dignity and well-being of Indigenous peoples of the world’ (Article 43). The Declaration reaffirms basic individual rights to equality and non-discrimination, life and personal integrity and freedom, and nationality and access to justice; and it calls for special attention to specific rights and needs of Indigenous elders, women, youth, children, and persons with disabilities. At the same time, the Declaration affirms rights of a collective character in relation to self-government and autonomous political, legal, social, and cultural institutions; cultural integrity, including cultural and spiritual objects, languages, and other cultural expressions; lands, territories, and natural resources; social services and development; treaties, agreements, and other constructive arrangements; and cross-border cooperation.

Together with affirming the aspects of self-determination related to maintaining spheres of autonomy, the Declaration also reflects the common understanding that Indigenous peoples’ self-determination at the same time involves a participatory engagement and interaction with the larger societal structures in the countries in which they live. In this connection, the Declaration affirms Indigenous peoples’ right ‘to participate fully, if they so choose, in the political, economic, social and cultural life of the State,’124 and to be consulted in relation to decisions affecting them, with the objective of obtaining their prior, free, and informed consent.125

The basic normative justification of the Declaration is stated in the sixth paragraph of the Preamble, which acknowledges that ‘indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests’. The Declaration’s Preamble thus stresses the essentially remedial purpose of the instrument. It aims at repairing the ongoing consequences of the historical denial of the right to self-determination and other basic human rights affirmed in international instruments of general applicability.

With its essentially remedial character, the Declaration does not affirm or create special rights separate from the fundamental human rights that are deemed of universal application, but rather elaborates upon these fundamental rights within a new generation of thinking about the specific cultural, historical, social, and economic circumstances of Indigenous peoples. Basic norms of equality and non-discrimination, as well as other generally applicable human rights in areas such as culture, health, or property, which are recognized in other international instruments and are universally applicable, ground the contemporary Indigenous rights regime that is represented by the Declaration.

(p. 62) Given its character and background, the Declaration has significant normative weight. Albeit clearly not binding in the same way that a treaty is, the Declaration relates to already existing human rights obligations of States, as demonstrated by the work of UN Treaty Bodies and other human rights mechanisms, and hence can be seen as embodying to some extent general principles of international law. In addition, insofar as they connect with a pattern of consistent international and State practice, some aspects of the provisions of the Declaration can also be considered as a reflection of norms of customary international law.126 Furthermore, as a Resolution adopted by the General Assembly with the approval of an overwhelming majority of Member States, the Declaration represents a commitment on the part of the United Nations and Member States to its provisions, within the framework of the obligations established by the UN Charter, to promote and protect human rights on a non-discriminatory basis.

Whatever its precise legal significance, the Declaration is a monument to the survival and struggles of Indigenous peoples, an understanding they share with the broader global community about a dignified future for them, and a beacon of hope for realization of that future beyond the daunting challenges that persist.

Footnotes:

1  UN Declaration on the Rights of Indigenous Peoples, GA Res 61-295, Annex, 17 September 2004, 61 UN GAOR 16, UN Doc A/61/49 (2007) vol III.

2  See SJ Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’ (2004) 21 Az J Int’l Comp L 13; W Kymlicka, Multicultural Odysseys: Navigating the New International Politics of Diversity (Oxford University Press 2009) 27–60.

3  See L Rodríguez-Piñero, ‘Las agresiones del desarrollo pueblos indígenas, industrias extractivas y derechos humanos’ (2009) 11 Relaciones Internacionales, <http://www.relacionesinternacionales.info/ojs/article/view/156.html> accessed 10 October 2017.

4  See L Rodríguez-Piñero, ‘La participation internacional de los pueblos indígenas: una lectura crítica’ in F Gómez Isa and S Ardanaz Iriarte (eds), La plasmación política de la diversidad: autonomía y participación política indígena en América Latina (Universidad de Deusto 2013).

5  For an analysis of the status of Indigenous peoples’ international legal history, see generally B Clavero, Derecho indígena y cultura constitucional en América (Siglo XXI Editores 1993); P Keal, The European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (Cambridge University Press 2003); R Williams Jr, The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford University Press 1992).

6  SJ Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) 26–48; L Rodríguez-Piñero, Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (Oxford University Press 2005) 18–22.

7  ibid.

8  GW Gong, The Standard of Civilization in International Society (Oxford University Press 1984).

9  See LG Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (Oxford University Press 2007); R Miller Jr, J Ruru, and T Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford University Press 2012); Williams (n 5).

10  Rodríguez-Piñero (n 6) 38–52.

11  Anaya (n 6) 57.

12  International Labour Convention (ILO), Convention concerning Forced or Compulsory Labour, 1930 (ILO No 29), 39 UNTS 55 (entered into force 1 May 1932).

13  ILO, Convention concerning the Regulation of Certain Special Systems of Recruiting Workers (ILO No 50), 40 UNTS 109 (entered into force 8 September 1939).

14  L Rodríguez-Piñero, ‘El Código Colonial: La Organización Internacional del Trabajo y los “Trabajadores Indígenas” (1919–1957)’ (2004–2005) 33–34 Quaderni Fiorentini per la Storia del Pensiero Giuridico 259.

15  Rodríguez-Piñero (n 6) 30.

16  Anaya (n 6) 54–55.

17  Rodríguez-Piñero (n 6) 50–52. On the changing definition of Indigenous peoples in modern international law, see A Erueti, ‘The International Labour Organisation and the Internationalisation of the Concept of Indigenous Peoples’ in S Allen and A Xanthaki (eds), Reflections of the UN Declaration on Indigenous Peoples (Hart 2009) 934. The ‘modern’ definition of Indigenousness was authoritatively captured in the Martínez Cobo report, in the following terms:

… indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal system.

Study of the Problem of Discrimination against Indigenous Populations. Final Report presented by the Special Rapportreur, José R Martínez Cobo, UN Doc E./CN.4/Sub.2/1986/7/Add.4 (1986) para 379.

18  Rodríguez-Piñero (n 6) 50–52.

19  See C Sánchez, Pueblos indígenas en México: del indigenismo a la autonomía (Siglo XXI Editores 1999); MM Marzal, Historia de la antropología indigenista: México y Perú (Anthropos 1993); L Villoro, Los grandes momentos del indigenismo en México (Fondo de Cultura Económica 1997).

20  ILO, Convention concerning the Protection and Integration of Indigenous and other, Tribal and Semi-Tribal Populations in Independent Countries (ILO No 107) (1957), 328 UNTS 247 (entered into force 2 June 1959); ILO, Recommendation concerning the Protection and Integration of Indigenous, Tribal and Semi-Tribal Populations in Independent Countries (ILO No 104) (1957), International Labour Conference, 26 June 1957.

21  For legal analyses of the Convention, see Anaya (n 6) 41–44; Rodríguez-Piñero (n 6) 173–213. For an analysis of the implementation of the Convention, see ibid 215–56.

22  UN ECOSOC Res 1589(L) (21 May 1971) UN Doc E/5044.

23  See A/RES/2919 (XXVII) (15 November 1972).

24  ESC Res 1982/34 (7 May 1982).

25  See Section 3, below.

26  The context that gave rise to the revision of Convention 107 is explored in Rodríguez-Piñero (n 6) 264–90.

27  ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (ILO No 169), 72 ILO Official Bull 59; 28 ILM 1382 (1989) (entered into force 5 September 1991).

28  Anaya (n 6) 58–61; Rodríguez-Piñero (n 6) 291–331; L Swepston, ‘New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989’ (1990) 15 Okla City UL Rev 677; A Yupsanis, ‘ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview’ (2010) 79 Nordic J Int’l L 433–56.

29  ILO Convention 169 (n 27) preambular para 5.

30  As of 2016, the parties to the Convention include Argentina, Bolivia, Brazil, Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela.

31  On the constitutional recognition of Indigenous peoples’ rights in Latin America, see B Clavero, Geografía jurídica de América Latina: pueblos indígenas entre constituciones mestizas (Siglo XXI Editores 2008); CG Barié, Pueblos Indígenas y derechos constitucionales en América Latina: un panorama (2nd edn, Comisión Nacional de Desarrollo de los Pueblos Indígenas 2003); R Sieder, Multiculturalism in Latin America: Indigenous Peoples, Diversity and Democracy (Palgrave MacMillan 2002); DL van Cott, The Friendly Liquidation of the Past: The Politics of Diversity in Latin America (University of Pittsburgh Press 2000).

32  Rio Declaration on Environment and Development, UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc A/CONF.151/26 (1992) vol 1, Annex 1, Principle 22.

33  Agenda 21, UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc A/CONF.151/26 (1992) vols 1, 2, 3, Annex 2.

34  Especially pertinent is Chapter 26 of Agenda 21, ibid vol 3, 16. Chapter 26 is phrased in non-mandatory terms; nonetheless, it carries forward normative precepts concerning Indigenous peoples and hence contributes to the crystallization of consensus on Indigenous peoples’ rights. Chapter 26 emphasizes Indigenous peoples’ ‘historical relationship with their lands’ and advocates international and national efforts to ‘recognize, accommodate, promote and strengthen’ the role of Indigenous peoples in development activities (ibid Art 26(1)).

35  Convention on Biological Diversity, 5 June 1992, UN Doc UNEP/BIO.Div/N7-INC.5/4 (1992) 31 ILM 818, Art 8(j). Implementation of the Convention includes periodic meetings of State Parties (Conferences of the Parties), and a number of technical committees and working groups on specific issues covered by the Convention. The issue of Indigenous traditional knowledge has been the object of a specific focus by the Conference of the Parties. See, eg, Decision III/14 (Implementation of Article 8(j), Report of the Third Meeting of Conference of the Parties to the Convention on Biological Diversity, UN Doc UNEP/CBD/COP/3/38 (1997) Annex 2, 90–93).

36  See, eg, UN General Assembly, Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993) paras 20 (Declaration) and 28–32 (programme of action); Programme of Action adopted at the International Conference on Population and Development (Cairo, 5–13 September 1994), UN Doc ST/ESA/SER.A/149 (1995) paras 6.21–6.27, UN Sales No E.95.XIII.7; Copenhagen Declaration on Social Development, in Report of the World Summit for Social Development (Copenhagen, 6–12 March 1995), UN Doc A/CONF.166/9 (1995) ch 1, Res 1, Annex I, paras 26(m), 29, commitments 5(b), 4(f ), 6(g); Programme of Action of the World Summit for Social Development, ibid Annex II, paras 12(i), 19, 26(m), 32(f) and (h), 35(e), 38(g), 54(c), 61, 67, 74(h), 75(g); Beijing Declaration, in Report of the Fourth World Conference on Women (Beijing, 4–15 September 1995), UN Doc A/CONF.177/20 (1985) ch 1, Res 1, Annex I, para 32; Platform of Action, ibid Annex II, paras 8, 32, 34, 58(q), 60(a), 61(c), 83(m), (n), and (o), 89, 106(c) and (y), 109(b) and (j), 116, 167(c), 175(f). It should be noted that, from the point of view of the Indigenous representatives participating in these conferences, the provisions of these Resolutions have not provided sufficient affirmation of rights of the Indigenous people.

37  Convention on the Rights of the Child, GA Res 44/25, Annex, 44 UN GAOR Supp (No 49) at 167, UN Doc A/44/49 (1989) (entered into force 2 September 1990). For a discussion of the Convention and relevant UN procedures, see P Thornberry, Indigenous Peoples and Human Rights (Manchester University Press 2002) 225–41.

38  ICCPR, General Comment 23: Article 27: The Rights of Minorities, UN Doc A/49/40 (Fiftieth Session, 1994) vol I, 107, para 7.

39  Optional Protocol to the International Covenant on Civil and Political Rights, 999 UNTS 302 (entered into force 23 March 1976).

40  Concluding Observations and Recommendations of the Human Rights Committee: Canada, UN Doc CCPR/C/79/Add.105 (7 April 1999) para 8.

41  CERD, General Recommendation 23: Indigenous Peoples, UN Doc A/52/18 (18 August 1997).

42  For an explanation of the function and procedures of the early-warning measures of the CERD, see A Tanaka with Y Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs (IMA and Minority Rights Group 2001) 364–66.

43  Awas Tingni Mayagna (Sumo) Indigenous Community v Nicaragua (Merits, Reparations, and Costs), Judgment (31 August 2001), IACtHR Series C No 79 (2001).

44  ibid para 149. For analyses of the case, see SJ Anaya and C Grossman, ‘Case of Awas Tingni v. Nicaragua: A Step in the International Law of Indigenous Peoples’ (2002) 19 Ariz J Int’l & Comp L 1; SJ Anaya and M Campbell, ‘Gaining Legal Recognition of Indigenous Land Rights: The Story of the Awas Tingni Case in Nicaragua’ in DR Hurwitz and ML Satterthwaite (eds), Human Rights Advocacy Stories (Thomson Reuters/Foundation Press 2009) 117–53.

45  On the normative practice of the inter-American human rights system, see J Pasqualucci, ‘The Evolution of International Indigenous Rights in the Inter-American Human Rights System’ (2006) 6(2) Human Rights LJ 281.

46  See L Rodríguez-Piñero, ‘The Inter-American System and the UN Declaration on the Rights of Indigenous Peoples: Mutual Reinforcement’ in S Allen and A Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) 457–83.

47  B Kingsbury, ‘Reconstructing Self-Determination: A Relational Approach’ in P Aikio and M Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self Determination (Åbo Akademi University 2000) 19–37, 31–33.

48  On the impact and relevance of the international Indigenous rights regime in the Latin American region, particularly with regard to ILO Convention 169, see L Rodríguez-Piñero, ‘La internacionalización de los derechos indígenas en América Latina: ¿el fin de un ciclo?’ in S Martí (ed), Pueblos indígenas y política en América Latina: el reconocimiento de sus derechos y el impacto de sus demandas a inicios del siglo XXI (Fundación CIDOB 2007) 181–99.

49  For an authoritative statement of this position, see B Clavero, ‘Cometido del Foro Permanente para las Cuestiones Indígenas a la Luz del Valor Vinculante y con Vistas a la Mayor Eficacia del Derecho Internacional de los Derechos Humanos’, International Expert Group Meeting on the Role of the United Nations Permanent Forum on Indigenous Issues in the Implementation of Article 42 of the United Nations Declaration on the Rights of Indigenous Peoples (New York, 14–16 January 2009), UN Doc PFII/2009/EGM1/4 (2009).

50  On an analysis of the participatory dynamics of the international Indigenous movement, see LA Miranda, ‘Indigenous Peoples as International Law Makers’ (2010) 32(1) U Pa J Int’l L 203; A Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in Latin America (Stanford University Press 2009).

51  ECOSOC Res 1982-34 on the Study of the Problem of Discrimination against Indigenous Populations (7 May 1982) UN Doc E/Res/1982/34 (1982) para 2.

52  Third Part of the United Nations Economic and Social Council Study of the Problem of Discrimination against Indigenous Populations, UN Doc E/CN.4/Sub.2/1983/21/Add.8 (30 September 1983) para 312.

53  See RT Coulter, ‘Commentary on the UN Draft Declaration on the Rights of Indigenous Peoples’ (1994) 18(1) Cultural Survival Quarterly Magazine, <http://www.culturalsurvival.org/publications/cultural-survival-quarterly/united-states/commentary-un-draft-declaration-rights-indige> accessed 10 October 2017 (Coulter is considered to be the author of the 1977 Declaration of Principles).

54  The origins of the Principles are to be traced to a proposal prepared in 1981 by Douglas Sanders, special adviser for the WCIP, for an international covenant on the rights of Indigenous peoples. See H Minde, ‘The Destination and the Journey, Indigenous Peoples and the United Nations from the 1960s through 1985’ (2007) 4 Gáldu Čála—J Indigenous Peoples’ Rights 10, 27–28.

55  World Council of Indigenous Peoples, ‘Declaration of Principles’, ratified by the IV General Assembly of the World Council of Indigenous Peoples, Panama, 23–30 September 1984, reproduced in Report of the Working Group on Indigenous Populations on Its Fourth Session, UN Doc E/CN.4/Sub.2/1985/22 (1985) Annex III.

56  Draft Declaration of Principles proposed by the Indian Law Resource Center, Four Directions Council, National Aboriginal and Islander Legal Service, National Indian Youth Council, Inuit Circumpolar Conference, and the International Indian Treaty Council, reproduced in Report of the Working Group, 4th Sess (n 55) Annex IV.

57  Report of the Working Group, 4th Sess (n 55) 57–70. The Working Group’s proposal was subsequently endorsed by its parent bodies. See Sub-Commission on the Prevention of Discrimination and Protection of Minorities Res 1985-22 (1985); Commission on Human Rights Res 1986-27 (1986); Commission on Human Rights Res 1987-34 (1987).

58  See E-I Daes, ‘The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples’ in C Charters and R Stavenhagen, Making the Declaration Work: The United Nations Declartion on the Rights of Indigenous Peoples (IWGIA 2009) 48–76, 59.

59  ibid 63.

60  The open rules for the participation of Indigenous organizations—advanced by the first WGIP chairperson, Asbjørn Eide, beyond conventional ECOSOC rules—as well as the establishment in 1985 of a voluntary fund, multiplied Indigenous participation. See A Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Populations and the Adoption of the UN Declaration on the Rights of Indigenous Peoples’ in Charters and Stavenhagen (n 58) 46, at 34. The open rules for Indigenous participation were agreed by the Working Group on Its First Session, Report of the Working Group on Indigenous Populations on Its First Session, UN Doc E/CN.4/Sub.2/1982/33 (1982) paras 111–12. The Voluntary Fund for Indigenous Populations was originally established to foster the participation of Indigenous representatives at the Working Group’s annual sessions. UNGA Res 40/131 (1985).

61  See SJ Anaya, ‘Superpower Attitudes towards Indigenous Peoples and Group Rights’ (1999) 93 Proceedings of the American Society Int’l L 251.

62  Daes (n 58) 60–72.

63  Report of the Working Group, 4th Sess (n 55) paras 71–84.

64  Draft Universal Declaration on Indigenous Rights, reproduced in Report of the Working Group on Its Sixth Session, UN Doc E/CN.4/Sub.2/1988/24 (1988) Annex II.

65  See Draft Declaration on the Rights of Indigenous Peoples, Revised Working Paper submitted by the Chairperson-Rapporteur, Mrs. Erica-Irene Daes, UN Doc E/CN.4/Sub.2/1992/28 (1992). A first set of draft paragraphs were adopted by the Working Group in 1992. See ‘Preambular and operative paragraphs as agreed upon by the members of the Working Group at first reading’, reproduced in Report of the Working Group on Indigenous Populations on Its Tenth Session, UN Doc E/CN.4/Sub.2/1993/33 (1993) Annex I. See also Draft Declaration on the Rights of Indigenous Peoples, Revised Working Paper Submitted by the Chairperson-Rapporteur, Ms. Erica-Irene A. Daes, UN Doc E/CN.4/Sub.2/1993/26 (1993); Explanatory Note Concerning the Draft Declaration by the Chairperson-Rapporteur, UN Doc E/CN.4/Sub.2/1993/26/Add.1 (1993).

66  See Draft Declaration as Agreed upon by the Members of the Working Group at Its Eleventh Session, reproduced in Report of the Working Group on Indigenous Populations on Its Eleventh Session, UN Doc E/CN.4/Sub.2/1993/29 (1993) Annex I. The text was subsequently subject to a technical review by the UN Centre for Human Rights. See Draft United Nations Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/2 (1994) and Add.1.

67  Sub-Commission on the Prevention of Discrimination and Protection of Minorities Res 1994-45 (26 August 1994) Annex.

68  See Section 5, below.

69  Commission on Human Rights Res 1995-32 (3 March 1995).

70  ibid para 2 (‘for consideration and adoption by the General Assembly within the International Decade of the World’s Indigenous People’). The International Decade was launched by the General Assembly for the period 1994–2004. See UNGA Res 48/163 (21 December 1993). The decade followed the celebration of 1993 as International Year of the World’s Indigenous Peoples. See UNGA Res 48/133 (20 December 1993).

71  See JB Henriksen, ‘The UN Declaration on the Rights of Indigenous Peoples: Some Key Issues and Events in the Process’ in Charters and Stavenhagen (n 58) 79.

72  Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995, UN Doc E/CN.4/1996/84 (1996) para 25.

73  Henriksen (n 71) 79.

74  According to Henriksen, only three States supported the adoption of the Sub-Commission’s text: namely, Bolivia, Fiji, and Denmark (ibid).

75  ibid 79–81; M Åhrén, ‘The UN Declaration on the Rights of Indigenous Peoples: How Was It Adopted and Why It Is Significant’ (2007) 4 Gáldu Čala 87; LE Chávez, ‘The Declaration on the Rights of Indigenous Peoples, Breaking the Impasse: The Middle Ground’ in Charters and Stavenhagen (n 58) 96–106, 98–100. On the negotiations regarding the land and resources provisions, see M Åhrén, ‘The Provisions on Lands, Territories and Natural Resources in the UN Declaration on the Rights of Indigenous Peoples: An Introduction’ in Charters and Stavenhagen (n 58) 200–15.

76  See Indigenous Issues, Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, Chairperson’s Summary of Proposals (Mr. Luis-Enrique Chávez), UN Doc E/CN.4/2004/WG.15/CRP.4 (14 October 2004). The two Articles that were formally agreed upon during the Working Group’s first ten years relate to the right to nationality, UN Declaration (n 1) Art 6, and the principle of non-discrimination between Indigenous men and women, ibid Art 44.

77  S Chakma, ‘The WG: As Alive As Fossil’ (2005) 101(5) ACHR Rev.

78  ECOSOC Res 2000-22 on Establishment of a Permanent Forum on Indigenous Issues E/Res/2000 (28 July 2000)

79  Commission on Human Rights Res 2001/57 (24 April 2001).

80  Permanent Forum on Indigenous Issues, Report on the First Session (13–24 May 2002), ECOSOC Official Record Supp (No 23) (2002), UN Docs E/2002/43/Rev.1, E/CN.19/2002/3/Rev.1 (2002) para 18 (calling upon States to ‘adopt the draft United Nations declaration on the rights of Indigenous peoples before the end of the decade’); Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, UN Doc E/CN.4/2002/97 (4 February 2002) para 15 (describing the Draft Declaration as ‘undoubtedly the most important human rights document for indigenous peoples’, and calling for its adoption ‘before the end of the International Decade’).

81  The tensions within the Indigenous movement regarding the ‘no-change position’ started to become evident during the Working Group’s Sixth Session in 2000. Meeting at the Indigenous Caucus during session, two influential Indigenous organizations, the Inuit Circumpolar Conference and the Sami Council, expressed their preparedness to transcend the ‘no-change position’ and negotiate changes to the Sub-Commission’s text. According to one observer, the two organizations were ‘literally attacked by adherents of the no-change position’ and accused of being ‘sell-outs’ (Åhrén (n 75) 88).

82  The evolution in the Indigenous movement’s negotiation strategies consolidated in May 2003, prior to the Working Group’s Ninth Session. That year, the International Work Group for Indigenous Affairs (IWGIA) facilitated a meeting in Copenhagen, which created ‘an informal core group of relatively like-minded Indigenous representatives that would from then on convene, network, consult and strategize on the Declaration process’ (ibid 91). The so-called ‘Copenhagen group’ played a key role in abandoning the ‘no-change position’, approaching specific States for their political support. A similar meeting took place in Montreal, Canada, in 2006, organized by Rights & Democracy (ibid 100). The Copenhagen group gradually gained supporters within the Indigenous Caucus. By the Working Group’s Tenth Session, only a small number of Indigenous representatives—mostly from North America—continued to adhere to the ‘no-change position’ (ibid 97).

83  Åhrén (n 75) 92–93; Henriksen (n 71) 82–83. During the Working Group’s Eighth Session, in 2002, the Norwegian delegation tabled a proposal (the Norwegian proposal) in search of agreement, taking into account States’ concerns, in particular. See ‘Proposal to Arrange the Provisions on Self-Determination, Including Autonomy or Self-Government, Participation, etc, Presented by Norway (16.09.02)’ reproduced in Working Document, Summary of Intercessional [sic.] Consultations, Geneva, 16–19 September 2002, UN Doc E/CN.4/2002/WG.15/WP.4 (2002) Annex 2; and Proposal by Norway: Amendment to the Fifteenth Preambular Paragraph (18.09.02), ibid Annex 3. The Norwegian proposal was the first to combine the unqualified affirmation of the rights to self-determination with the affirmation of the principle of territorial integrity (initially as a preambular paragraph) in terms similar to the final Declaration as adopted by the General Assembly.

84  The Norwegian proposal was the basis for a subsequent proposal jointly tabled by the governments of Nordic countries (the ‘Nordic proposal’) prior to the Working Group’s Ninth Session in 2003. See Working Document, Proposals Submitted by the Nordic Countries (Denmark, Finland, Iceland, Norway and Sweden), UN Doc E/CN.4/2003/WG.15/WP.2 (2003). In order to force the public positioning of a number of dubitative States, Norway called for a vote on the proposal (Åhrén (n 75) 92–93). See Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 on Its Ninth Session, UN Doc E/CN4/2004/81 (2004) paras 18–19. In turn, the Norwegian and Nordic proposals evolved into a third proposal, which, for the first time, sought to rewrite completely the text of the Declaration.

85  Åhrén (n 75) 93; Henriksen (n 71) 83. Reportedly following Norway’s suggestion, the Chairperson appointed Mexico and Guatemala, which until that moment had aligned with the Indigenous movement’s ‘no-change position’, as facilitators of the informal consultations that took place during the Working Group’s Tenth Session in 2004. Their role ended up being crucial in crystallizing a unified position within the Group of Latin American and Carribean Countries (GRULAC). See Åhrén (n 75) 97.

86  The session was divided into meetings (September and November 2004). The session evolved around informal consultations on a whole new text (known as ‘CRP1’, after the document’s UN symbol) which, for the first time, departed completely from the Sub-Commission’s text. See Information provided by States: Draft Declaration on the Rights of Indigenous Peoples, Amended Text (Denmark, Finland, Iceland, New Zealand, Norway, Sweden and Switzerland), UN Doc E/CN.4/2004/WG.15/CRP.1 (2004). New Zealand later retired its support to the text, alleging difficulties with the land and resource provisions (Åhrén (n 75) 97). CRP1, which incorporated the changes proposed by the Norwegian and Nordic proposals (n 85), served as the basis for the Working Group’s negotiation. See Report of the Working Group established in Accordance with Commission on Human Rights Resolution 1995/32 on Its Ninth Session, UN Doc E/CN.4/2005/89 (2005) para 17. At the end of the session, ‘substantive progress had been achieved’ (ibid para 59). By the end of the session, Norway had identified fourteen preambular paragraphs and fourteen Articles ready for adoption, which represented approximately half of the Declaration’s text (Åhrén (n 75) 96).

87  Commission on Human Rights Res 2005-50 (20 April 2005). The renewal of the Working Group’s mandate brought about yet another schism within the Indigenous movement, with a small number of inidgenous organizations calling to bring the process to a halt (Åhrén (n 75) 99–100). In reaction, the world’s Indigenous organizations strongly advocated support for the Working Group. See ‘Statement Submitted by the Undersigned Indigenous Peoples’ Organizations and Support Organizations to the Sixty-First Session of the Commission on Human Rights for the Extension of the CHRWG to Elaborate on a Declaration on the Rights of Indigenous Peoples’ (8 April 2005), <http://www.unpo.org/article/2295> accessed 10 October 2017.

88  Statement of Xóchitl Gálvez Ruiz, Director General of the National Commission for Indigenous Peoples Development, Reproduced in Information Provided by the Government of Mexico, International Workshop on the Draft United Nations Declaration on the Rights of Indigenous Peoples (Patzcuaro, Michoacán, Mexico, 26–30 September 2005), UN Doc E/CN.4/2005/WG.15/CRP.1 (2005) 13.

89  ibid 11.

90  LA de Alba, ‘The Human Rights Council’s Adoption of the United Nations Declaration on the Rights of Indigenous Peoples’ in Charters and Stavenhagen (n 58) 108–37, 113.

91  Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 on Its Eleventh Session, UN Doc E/CN.4/2006/79 (2006) para 30. See ‘Revised Chairman’s Summary and Proposal, Draft Declaration on the Rights of Indigenous Peoples’, reproduced in ibid Annex I.

92  Åhrén (n 75) 105.

93  ibid 105–06.

94  UNGA Res 60/251 (3 April 2001).

95  ibid para 6. See also ‘United Nations Human Rights Council: Institution-Building’, Human Rights Council Res 5/1, of 18 June 2006 UN Doc A/HRC/Res/5/1 Annex.

96  De Alba (n 90) 118.

97  See Commission on Human Rights Res 2006/1 (27 March 2006) (referring all pending reports to the Human Rights Council for further consideration and formally concluding its work).

98  See Report of the Working Group on Indigenous Populations on Its Twenty-Fourth Session (Geneva, 31 July–4 August 2006), UN Doc A/HRC/Sub.1/58/22 (2006). The Working Group’s last session took place after the adoption of the text of the Declaration by the Human Rights Council in 2006, its historical achievement.

99  See Human Rights Council Res 6/365 of 14 December 2006 UN Doc A/HRC/6/362 (14 December 2006). The Expert Mechanism mandate was couched in terms of ‘thematic expertise’, and circumscribed mainly to ‘studies and reach-based advice’ (ibid para 1(a)).

100  De Alba (n 90) 120–21.

101  ibid

102  Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled ‘Human Rights Council’, UN Doc A/HRC/1/L.3 (23 June 2006).

103  De Alba (n 90) 121.

104  HRC Res 2/1 (29 June 2006). The casted vote was: 30 votes in favour, 12 abstentions, 2 against. Report of the Human Rights Council, First Session (19–30 June 2006), 61 UN GAOR Supp (No 53) 19, UN Doc 61/53 (2006).

105  Quoted in De Alba (n 90) 126.

106  African Group, Aide Memoire: ‘United Nations Declaration on the Rights of Indigenous Peoples’ (New York, 9 November 2006).

107  No African State voted against the Declaration. Cameroon and Mauritius voted in favour, while Algeria, Morocco, Nigeria, and Senegal abstained. See Report of the HRC (n 104) 19.

108  De Alba (n 90) 127 (citing Benin, Cameroon, Congo, and South Africa). According to De Alba, South Africa abandoned its initial support for the Declaration, despite the contrary positions ‘in Geneva and in Pretoria’ (ibid).

109  UNGA Third Committee Resolution 61/57, UN Doc A/C.3/61/L.57/Rev.1 (2007).

110  These countries started to be ironically known as the CANZUS Group, to underline their coherent position against the Declaration. See ‘UN Adopts the Declaration on the Rights of Indigenous Peoples’ (2007) 31(3) Cultural Survival Quarterly Magazine, <http://www.culturalsurvival.org/publications/cultural-survival-quarterly/none/un-adopts-declaration-rights-indigenous-peoples> accessed 10 October 2017.

111  De Alba (n 90) 128.

112  For analysis on the problematic insertion of the concept of ‘Indigenous peoples’ in the African context, see DL Hodgson, ‘Becoming Indigenous in Africa’ (2009) 52(3) Afr Stud Rev 1; W van Genugten, ‘The Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems’ (2010) 104(1) AJIL 29.

113  Decision on the United Nations Declaration on the Rights of Indigenous Peoples, AU Doc Assembly/AU/9 (VIII) Add.6 (2007) para 6.

114  In response to the African Union’s decision, the African Commission produced a detailed advisory opinion which responded, seriatim, to the concerns expressed by African States in the 2006 aide memoire (n 107). See United Nations Declaration on the Rights of Indigenous Peoples, ACHPR 42nd Sess (May 2007). The advisory opinion recalled the commission’s position that the protection of Indigenous rights should take into account a ‘strict respect for the inviolability of borders and the obligation to protect the territorial integrity of State Parties’ (ibid para 6). It further called upon to promote an ‘African common position’ with a view to ensure the ‘speedy adoption of the Declaration’ (ibid paras 44–45).

With the financial and technical support of the Copenhagen-based NGO International Work Group for Indigenous Affairs (IWGIA), the African Commission had embarked on the promotion of Indigenous peoples’ rights in the continent since the early 2000s. In 2000, the African Commission established, as part of its special mechanisms, the Working Group on Indigenous Populations/Communities in Africa (ACommHPR Res 51(XVIII)00 on the Rights of Indigenous Peoples’ Communities in Africa (2000)). In 2006, the working group published a comprehensive report on the rights of Indigenous peoples within the African human rights system. See ‘Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities. Submitted in accordance with the “Resolution on the Rights of Indigenous Populations/Communities in Africa”, Adopted by the African Commission on Human and Peoples’ Rights at Its 28th Ordinary Session’ (IWGIA 2005). For a first-hand narrative of the role of the African Commission in relation to the Declaration, see A Barume, ‘Responding to the Concerns of the African States’ in Charters and Stavenhagen (n 58) 170–82. Albert Barume was the head of a self-fashioned African Group of Experts that liaised with African diplomatic representations missions in New York to address their concerns regarding the Declaration. See African Group of Experts, ‘Response Note to the Draft Aide Memoire of the African Group on the UN Declaration on the Rights of Indigenous Peoples’ (21 March 2007).

115  De Alba (n 90) 129.

116  The main co-sponsors of the Declaration were then Fiji, Germany (holding the EU presidency), Mexico, Norway, and Peru. See De Alba (n 90) 129. For perspectives from Indigenous representatives, see ‘Our Land, Our Identity, Our Freedom: A Roundtable Discussion’, Cultural Survival Quarterly (2007), <http://www.culturalsurvival.org/publications/cultural-survival-quarterly/our-land-our-identity-our-freedom-roundtable-discussion> accessed 5 December 2017 (an interview with Les Malezer, President of the self-fashioned Indigenous Global Caucus, and other international Indigenous leaders).

117  Letter from the President of the General Assembly, HE Haya Rashed al Khalifa, to All Permanent Missions and Observers (New York, 6 June 2007).

118  The facilitator tabled three possible ‘middle-ground’ options. Option A envisaged the addition of a chapeau or foremost preambular paragraph. Option B called for amending Art 46 and addressing the States’ concerns in the accompanying Resolution. Option C, on its part, suggested more in depth-amendments. See Report to the President of the General Assembly on the Consultations on the Draft Declaration on the Rights of Indigenous Peoples (New York, 13 July 2007) Annex II.

119  In a supplement to his report, the facilitator recounted the pending concerns expressed by a group of States (Australia, Canada, Colombia, Guyana, New Zealand, Russian Federation, and Suriname) and their rejection of the facilitator’s proposals. See ‘Non-Paper: United Nations Declaration on the Rights of Indigenous Peoples. Summary of Key Areas of Concern’ (undated), reproduced in Supplement to the Report to the President of the General Assembly on the consultations on the Draft Declaration on the Rights of Indigenous Peoples (New York, 20 July 2007) Annex II. See also ‘Non-Paper: United Nations Draft Declaration on the Rights of Indigenous Peoples, Negotiation Framework to Achieve an Irreducible Number of Amendments’ (28 June 2007) (ibid Annex III). These documents expressed particular concern regarding six areas, which would involve changes to at least sixteen Articles of the Draft Declaration: self-determination, self-government, and Indigenous institutions (Arts 3–5, 33); lands, territories, and resources (Arts 26, 29); redress and restitution (Arts 11, 27–28); free, prior, and informed consent (Arts 19, 32(2)); lack of clarity concerning the definition of ‘Indigenous’ military defence (Arts 10, 30); rights of third parties (Art 46); intellectual property rights (Arts 11, 31); and education (Art 14). See Letter to Hilario G Davide, Permanent Representative of the Republic of the Philippines to the United Nations (18 July 2007), reproduced in ibid Annex III. These concerns were expressed in two documents that were widely circulated among States. Colombia’s last-minute change of position was seen as a ‘desertion’ of the GRULAC ranks. See De Alba (n 90) 129. Colombia eventually abstained in the General Assembly’s vote on the Declaration.

120  De Alba (n 90) 132.

121  UN Declaration (n 1) Art 46(1) (‘Nothing in this Declaration may be … 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’).

122  ibid preambular para 24 (recognizing that ‘the situation of indigenous peoples varies from region to region and from country to country’, as well as ‘national and regional particularities and various historical and cultural backgrounds’).

123  For Australia, see J Macklin, Minister for Families, Housing, Community Services and Indigenous Affairs, ‘Statement on the United Nations Declaration on the Rights of Indigenous Peoples’ (3 April 2009). For Canada, see Ministry of Aboriginal Affairs and Northern Development, ‘Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples’ (12 November 2010). For New Zealand, see P Sharples, Minister of Māori Affairs, ‘Opening Statement’, UN Permanent Forum on Indigenous Issues, Ninth Session (19 April 2010); ‘Ministerial Statements—UN Declaration on the Rights of Indigenous Peoples—Government Support’ (20 April 2010) 662 NZPD 10229. For the United States, see State Department, ‘Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples Initiatives to Promote the Government-to-Government Relationship and Improve the Lives of Indigenous Peoples’ (9 December 2010). See also United Nations, ‘UN Expert Welcomes United States’ Endorsement of the Declaration on the Rights of Indigenous Peoples’, press release (17 December 2010).

124  UN Declaration (n 1) Art 5. See also ibid Art 18 (affirming the right to participate in ‘the decision-making in matters which would affect their rights’).

125  ibid Art 19 (‘States shall consult and cooperate in good faith with the indigenous peoples concerned … in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’). For an analysis of the principle of free, prior, and informed consent under the Declaration, see in particular Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya: Extractive Industries and Indigenous Peoples, UN Doc A/HRC/24/41 (1 July 2013) paras 26–36.

126  See International Law Association (ILA), 75th Conf, Res No 5/2102, para 2 (Sofia, 5 August 2012); ILA, Committee on the Rights of Indigenous Peoples, Final Report (2012) (finding that several core provisions of the Declaration constitute, or are becoming, part of customary international law or are general principles of international law); SJ Anaya and S Wiessner, ‘OP-ED: The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment’, Jurist (3 October 2007).