CONSEJO INTERNACIONAL DE TRATADOS INDIOS

DRAFT

Summary of the Informal Intersessional Consultations: Geneva 16-19 September 2002

Informal Intersessional Consultations were held in Geneva from 16 to 20 September 2002. The consultations, envisaged in Commission of Human Rights (CHR) Resolution 2001/58, were held in preparation for the next session of the Working group on a Draft Declaration on the Rights of Indigenous People (WGDD), which will take place in Geneva from 2 to 13 December, 2002. Numerous states, representing all regional groups, came prepared to engage actively in discussions. The Chairman-Rapporteur of the Working Group, Luis Enrique Chavez attended in his capacity as member of the Peruvian delegation. The consultations were chaired by Canada.

The Chairman of the intersessional meeting welcomed participants and encouraged them to ask themselves what they were trying to achieve in this session. He reminded delegates that there was an objective of elaborating a Declaration before the end of the International Decade for the World's Indigenous Peoples. Eventually the Working Group will have to report to the Commission on Human Rights, ECOSOC, and the General Assembly. The meeting Chairman briefly highlighted the articles to be addressed during the consultations (3, 31, 36, 25-30, 7- 8,11) and noted that this is not a negotiation session but an informal discussion with the objective of encouraging dialogue, developing common understanding and of bringing positions closer together. He encouraged states to make clear why they agreed or disagreed with certain articles. Canada agreed to act as rapporteur. No attributions to individual states would be made in the report. Any proposals for which states wished to have attributions should be submitted in writing and would then be attached to the report. The report will be provided to the Chairman-Rapporteur of the Working Group. It was agreed that process issues/working methods for the next session of the Working Group would be discussed at the end of the session.

General Comments

Some states noted that they could accept the Declaration as it currently stands and they gave various reasons, though most acknowledged that the text could be improved. One state noted that its acceptance of the Declaration was facilitated by the separate geographic location of its indigenous population. That state understood that the situation was different for other states.

Article 3 and 31

One state stated that it would be ready to accept Article 3 as it stands on the basis that it would make a statement at the time of adoption to explain its understanding of the implications. Another state declared its acceptance of Article 3, noting that it was in line with domestic legislation and would not run counter to the UN Charter.

Widely accepted was a proposal to consider clustering some articles together to capture certain themes. (Such clusters were raised in the 1994 technical review.) For example, the principle of self-determination could be linked with related articles on self-government, autonomy and other issues flowing from it. Article 3 could become the general heading for a cluster of related articles. There was a proposal to cluster articles around the concept of a right to participate freely in civil and political processes (Articles 3, 19, 20, 21, 30 and 31). Another state proposed that Articles 3 and 31 should be compressed into one article, arguing that they go hand in hand. Some other states agreed to consider this proposal. Another state said that they could accept Article 3 when read with Article 31.

Several states expressed their opposition to the current draft of Article 3 because it could entail a right to secession. It was also noted that the current text could involve immunity from national laws. Several states opposed the current draft of Article 3 noting that as drafted it has potential for conflict with existing domestic constitutional, legal, territorial arrangements or recognized human rights. One alternative proposal was the addition of the word “internal” before self-determination, but then questions were raised about the definitions of “internal self-determination” and “external self-determination.” One state noted that the notion of internal and external self-determination is not recognized in any international instrument, rather it is a theoretical analysis. Others noted that, if the term “internal” self-determination is accepted, Article 35 (cross border aspects) may become obsolete. This Article is important to some states whose indigenous peoples traditionally cross international borders. Another alternative was to add to the text wording to address the expression of self-determination within existing democratic states and the development of harmonized arrangements. A reference to the Declaration of Friendly Relations and Cooperation of States could be added to prevent construing the Declaration as an impairment of the territorial integrity of states. Other suggestions were to use the notion of “freely determined” or “self-management” rather than “self-determination.”

Suggestions were made that the right of self-determination (and other rights) should be addressed in the preamble. By restating rights as they currently exist in international law (e.g. Covenants) the problem of articulating specific indigenous (qualified) rights could be avoided.

A proposal was made to reflect the language of the Declaration on Friendly Relations in Preambular Paragraph 15 of the Draft Declaration (see attached).

A number of states welcomed this proposal indicating they could support it. Others indicated that they would give it serious consideration. In the discussion that followed, one state suggested that the full text of the Article in the Declaration on Friendly Relations should be included. Others agreed. One state noted that is preference would be to include such a reference in the operative portion of the Declaration. Another state suggested that Article 8(4) of the Declaration on the Rights of Minorities, which affirms the sovereign equality, territorial integrity and political independence of States, could usefully be reflected in the Declaration.

A few states reiterated concern that recognition of the right of self-determination for indigenous peoples could endorse secession, and could also have implications for minorities. They felt that, if included in the Declaration, the right of self-determination must be carefully worded so that it does not have implications for ethnic minorities. It was noted that the purpose of the Declaration is to promote harmonious arrangements, not to promote secession.

A state noted that it believed the right of self-determination, if applied to indigenous people, would be distinct from the right of self-determination as contained in Article 1. It suggested that there is no common understanding of the right of self-determination shared by scholars and governments, in fact perhaps each scholar and each state has a unique understanding of the right. One state responded that in its opinion the right of self-determination is one right and in the context of colonial situations may lead to secession. However, in context of non-colonial democratic states the right is exercised through local autonomy and self-government. This state noted it could accept the text of Article 3 as is, however they also could accept a safeguard clause that would include reference to the Declaration on Friendly Relations in Preambular Paragraph 15.

A state said that if the right of self-determination is included in the draft declaration there must also be a clear enumeration of the right and the manner in which it is to be implemented. They suggested this could be achieved through combining Articles 3 and 31. They referred to the attached proposal on this point. A number of states found the proposal as drafted too narrow for their national circumstances, and disagreed with such an approach. One state reiterated their support for an approach of negotiated arrangements.

Some states expressed a concern about the possibility of having a multiplicity of rights to self-determination i.e. one right for one group and a different right for another group. Such an approach would be discriminatory. How can the right of self-determination be different for indigenous peoples compared to that of other peoples? How can indigenous peoples have a right to self-determination which is qualified when other peoples have an unqualified right?

Another difficulty raised was the definition of an indigenous people. If such status is merely based on self-identification, as currently drafted, the principle of self-determination would become a blank cheque. If the recognition of an indigenous people can be qualified, e.g. by some form of international recognition, the principle may be acceptable.

There was a call for more clarity in terms of legal implications, principles and purpose of Article 3. Courts may take notice of declarations even if they are not legally binding. There should also be clarity so that the Declaration does not become a source of conflict between governments and indigenous peoples.

There was some discussion of Article 31 and whether a listing of powers was appropriate.

The question was asked whether all articles in the Declaration flow from Article 3 or whether the Declaration consists of a compilation of indigenous rights, minority rights, individual rights, and already existing sovereignty rights. Several states expressed the view that self-determination maybe the source of some, but not all of the rights in the Declaration. Other states expressed the view that the other rights could stand independent of the right to self-determination. Other states noted that the source of human rights was the inherent dignity of the human person. A further question was whether self-determination can be exercised in the absence of a land base. Another state described some of the complexities associated with implementing self-determination for indigenous people who do not live on indigenous lands but are integrated with the general population.

There were suggestions by some states to add phrases like “in accordance with national and international laws ...” to Article 3. Others stressed the need to improve the status quo.

A state noted that to reach consensus, those states that can accept the current draft Declaration need to make concessions to those states that cannot accept the Declaration without rendering the Declaration meaningless. The options are 1) qualifying contents of articles i.e. a minute description of self-determination; or 2) leaving articles as they are and then adding safeguards to specify what the articles do not mean; or, 3) if we assume that there is already a set of universally recognized principles (e.g. self-determination already recognized - Covenant), these rights could already be applied. Yet for other aspects not yet covered by international law; there may be a requirement for creating a legal framework.

Article 34

One state noted that Article 34 is based on Article 29 of the Universal Declaration but that there is no equivalent to Article 30 of the Universal Declaration, which limits rights (e.g. prohibition of the destruction of other rights). Perhaps Article 30 of the Universal Declaration should also be included.

Article 36

There was general acceptance of the principle underlying Article 36 that states should honour treaties, agreements and other constructive arrangements. Some states noted that they had concerns with the specific language. For example, the definition of “original spirit and intent” is often differently interpreted by states and indigenous peoples (original text v. oral tradition).

Many states had serious difficulties with the notion that disputes should be submitted to international bodies. While many states conclude treaties with indigenous peoples, these treaties are of a domestic rather than international nature and therefore subject to domestic constitutional and legal regimes. Domestic courts as well as tribunals have competency and appropriate historical, political and cultural knowledge of the issues and there should be no need to burden international jurisprudence with these issues. Many of these issues are already before domestic courts. Submission of a dispute to an international body should take place only if in conformity with the national legal regime. One state suggested, however, that Article 36 was acceptable because it was implicit in Article 36 that a submission of a dispute to an international body would require agreement of all parties. There was general support for the principle that states should be held to their obligations. It was also noted that indigenous peoples, like others, are not prevented from making use of existing international mechanisms.

Articles 25-30

States generally recognized that the lands and resources provisions of the Declaration are critical. There was support by several states for the reflecting in the Declaration of the principle recognizing the special connection between indigenous peoples and their land.

However, there was concern about the lack of definition of some terms e.g. which lands/territories? What resources? What rights? There was considerable opposition to the prescriptive nature of many of the articles in this cluster and its impact on third parties and other collective and individual interests such as environmental protection or property rights. In some states, mineral rights are exclusively reserved for the state. Other states provide for co-management of resources or private property by indigenous peoples. Crown and third party rights may be affected and disputes are currently before national, regional, and international treaty bodies.

There was a suggestion to include safeguards such as Article 17 of the Universal Declaration of Human Rights (right to property). References could also be made to the need for compliance with domestic legislation.

Many states deplored a lack of flexibility in the language of the Declaration. The articles take a static approach, e.g. by not allowing for the voluntary alienation of indigenous property rights or by ignoring the need of governments to provide for the good of all (conservation, sustainable development, expropriation for public good, etc.). There is a need to deal with evolving relationships and situations. The current draft text does not reflect that there are rights which are existing legal rights, there are claimed but not established rights, and there are past rights which no longer exist. The Declaration provides little room for alternative arrangements which may suit both parties e.g. where land ownership remains with the state but the decision making process is shared or a situation where ownership and spiritual rights and customs are exercised at the same time by different parties over the same land or territories.

One state reminded participants that some of these rights, e.g. genetic resources, are being discussed in other international fora.

Article 25

There was general recognition of the principle of a special relationship between indigenous peoples and their land. One state suggested as an alternate approach that there should be reference to the “principle that indigenous peoples have a right of recognition of their distinctive relationship with their land.” A number of states expressed interest in this approach.

There were questions about the definition of “material relationship” B would it be the exclusive use of land or would it also include the use of resources? What does “strengthen” mean? What about the rights of third parties (e.g. fishing, innocent passage) Should the Declaration be retrospective? How far back in time should one go when declarations are generally prospective?

One state suggested that the language of Article 25 was so vague that it may not be enforceable juridically and only useful politically.

One state proposed to insert after the word “used”, the text “except where those lands and resources have been alienated voluntarily or through valid acts of governance.”

It may be possible to delete Article 25 and recognize the special relationship between aboriginal peoples and their land in the preamble. It was also noted that there are two rights in this article: relationships and the duty to uphold their responsibility to future generations. It is unclear how the latter can find its source in an international instrument when it is something that flows from the indigenous society.

One state suggested to move the material relationship element of Article 25 to other articles and keep the important aspect of the “distinctive spiritual relationship”.

Article 26

Two states expressed their acceptance of the article in its current draft.

One state pointed out that indigenous peoples were not permitted to own or control territories in its domestic legal system. It was suggested that instead of creating a right for indigenous peoples, there could be a positive obligation imposed on the state. There should be room to have rights and obligations by various parties.

Some states noted that the current draft Article 26 was extremely broad and did not recognize the rights of other parties. It could subject their whole national territory to indigenous claims. The rights stated in Article 26 are unilateral and unfettered. It would be extremely difficult to implement given other state obligations e.g. sustainable development, protection of wildlife. It represents a snapshot but not an evolving partnership. There was a suggestion to insert the word “unwarranted” before the word “interference”. There was also a proposal to change the tense of the Article from past to present tense, noting international instruments are generally prospective in nature. Another suggestion was to add the phrase “in accordance with relevant laws or regulations.”

One state said that it could accept the following three elements: 1) The article should apply to certain lands where aboriginal peoples currently have ownership or occupancy rights but not all traditionally owned lands. 2) in relationship to those lands there should be right of consultation or participation in decision-making; and 3) there should be an obligation on the state to prevent alienation or encroachment on those lands by unauthorized parties. Other states expressed interest in this approach.

Some states expressed concern over recognition of collective (rather than individual) rights to land.

There could be a general safeguard clause to ensure other rights are respected. Another state suggested that a safeguard clause is useful but only if the principle itself is correct, otherwise the safeguard would have to be very broad.

Many states noted that the challenge is to find a formula which provides sufficient flexibility since one size does not seem to fit all situations. Some regional solutions may be possible.

Article 27

Several states expressed concerns about the restitution of lands as a result of past wrongs, reaching back to colonial or pre-colonial times. An alternative proposal was to deal with the consequences of past events. Where indigenous peoples suffer continuing socio-economic hardships as a result of past loss of land special   programmes and measures should

be land that past acts could be addressed in the preamble.

Several states were more comfortable with the forward looking aspects of Article 27 which would address any future acts that would deny indigenous peoples their current land holdings. In such a case fair and reasonable compensation should be available.

Some states had concerns about the requirement that free and informed consent would always be required before indigenous lands could be alienated. This requirement may not always be met in the case of a lawful taking of property for the public good. A proposal was made that states should take measures to address the consequences of past dispossession; including restitution or increasing access to land, and to recognize the entitlement of indigenous peoples to fair and just compensation and due process in case of future deprivation of land.

States were also concerned about the prescriptive nature of Article 27. There should be room for settlements by negotiation and mutual agreement without the requirement of full restitution. The right should not be absolute but the settlement should be fair and just. A settlement may also depend on the type of land in question (public v. private) and on the interests of third parties. Limitations are also set by a state's ability to finance restitution. A suggestion was made to replace the word “compensation” with the word “redress”.

Article 28

There was widespread agreement among states that aboriginal lands need to be protected. Yet, concerns were expressed about the breadth of the Article. It was noted that the Article went further than existing instruments such as the Rio Declaration, the Biodiversity Convention or Agenda 21. While some states wanted the Declaration to reflect higher levels of protection, others wanted to afford indigenous and non-indigenous lands the same level of protection. One state also remarked that there would be limitations on a state's ability to restore lands to their original (pre-colonial) state.

Some states wanted a role for indigenous peoples as stewards of their lands. They wished to see a balance between the responsibilities of states and those of indigenous peoples. There could not be unfettered indigenous rights given that a state has responsibility for the good of all. If indigenous peoples are to have increased control over their lands, they also need to accept the corresponding level of responsibility for environmental protection.

A suggestion was made to deal with military activities on indigenous lands separately. A number of states expressed their acceptance of this part of Article 28 (conform with national laws), while others thought that indigenous lands should receive the same protection as any other lands.

Some states did not agree with the absolute prohibition of storing or disposing hazardous materials on indigenous lands. Such a prohibition could eliminate economic opportunities for indigenous collectivities and the possibility of consent. A suggestion was made to add the phrase “unless freely agreed upon by the peoples concerned.” Another state also noted that a state must have the option of expropriating land provided that just and fair compensation is paid. It was suggested that health issues should be addressed in a separate article.

Another state suggested that the principle of non-discrimination should be the thrust of the article. Indigenous peoples should enjoy equal protection regarding the application of environmental laws; they should have non-discriminatory access to information and public participation in environmental policy; and the ability to regulate the environmental conditions on lands consistent with applicable laws.

Other states felt that the objective of the Declaration is to give a higher level of protection to vulnerable groups. Imposing obligations on states cannot replace the rights of peoples. States must implement the Declaration but the starting point must be the rights of indigenous peoples.

There was general recognition of the vulnerability of indigenous peoples. That is why special programmes for indigenous peoples exist in most states. For one state, the solution to this vulnerability was to empower indigenous peoples to take care of themselves. Another state noted that a new approach must be found. There should be an additional measure of protection afforded to indigenous peoples but it needs to fall short of the unrealistic formulation of Article 28. A practical alternative must be found to the current sweeping language. Others agreed that there could not be a black v. white solution to the problem. Rights entail obligations which must be implementable by states. Otherwise, the Declaration would not be a useful tool but become a source of conflict between states and indigenous peoples.

Another state questioned the appropriateness of overemphasising state obligations. It noted that some developing countries have already a very limited margin of maneuvre. It would not be practicable for them to have to reach higher standards. It is difficult enough for them to live up to existing obligations. The purpose of the Declaration is new standard setting.

One state noted that the intent of Articles 27 and 28 was to provide for non-discrimination and that it would not be able to agree with the provision of special rights. The situation of indigenous peoples is rather unique in that state. Since there was never a period of colonization in that state, it is difficult to identify who exactly is an indigenous person.

There then followed a general discussion on the legal implications of the Declaration:

Some states expressed concern that the Declaration could be interpreted by some national or international commissions or tribunals as representing customary international law. The Inter-American Commission of Human Rights was cited as an example of an international body which cited the Draft Declaration as customary international law. Some states noted that the instrument is not binding and that its use by tribunals as a statement of customary law was inappropriate (without appropriate state practice and opinio juris). Some noted that the findings of human rights commissions do not have the weight of decisions of tribunals/courts. They are merely recommendations. A ruling of the Inter-American Court on Human Rights would be more significant in international legal terms than the recommendations of the Inter-American Commission on Human Rights. One state noted that it could be used to interpret existing treaty obligations.

One state reported that its domestic courts make use of international declarations whether they are binding at international law or not. Others agreed that this may be the case in states with Anglo-Saxon legal systems, it is not the case in all states. Some states with continental (civil) legal systems stated that the Declaration would not be admissible before their courts. In addition, the point was made that the Declaration as well as the findings of international bodies would raise expectations among indigenous peoples that states would take the necessary actions to comply for legal or moral or political reasons. This Declaration is very prescriptive and it will have an influence on other instruments (environment, children, development, etc.).

Other states emphasized the aspirational and inspirational aspect of the Declaration. They saw the Declaration as a good beginning which must start with the recognition of the identity of indigenous peoples and their rights. The Declaration should go beyond the compilation of existing rights.

A few state argued that one cannot have rights without obligations and but noted that there may be different interpretations. A state underlined that this Declaration should comply with existing international law and that it should be a tool which can be used to hold states accountable even if it is not intended to be a new binding instrument.

The question was then asked whether the obligations which flow out of such a prescriptive document need to be stated or whether they will flow naturally from the right granted. The Declaration is often very unilateral in granting rights without considering the obligations which indigenous peoples may have in relation to each other.

One state stated that the political aspect of the Declaration is more important than the legal aspect. States are sovereign to agree or not to agree with the Declaration and domestically the Declaration cannot be invoked before courts. If the Declaration is viewed as a legal document then the standards need to be lowered to comply with existing laws which then will become a political problem. Another state said that the approach should be prospective and implementation issues can be dealt with progressively.

Another state said that obligations need to be considered but that they will differ in each country because the situation is different in each country. It is easier to name the rights to be granted than to specify obligations. The Declaration is about establishing new standards and not about compiling existing standards.

The question was then asked whether the progressive implementation of obligations should be addressed in the Declaration. Should there be one article dealing specifically with implementation of obligations and refer to “best efforts”, “as appropriate”? Should the obligations of indigenous peoples be stated?

Article 30

Several states expressed their support for the principle addressed in Article 30. One state suggested that the level of consent depends on the nature of the right affected (e.g. ownership v. use right). It noted that the text was rather prescriptive and that the issue of compensation was addressed in other parts of the Declaration (danger of overlap and contradiction). It also noted that compensation for cultural and spiritual rights could be difficult to quantify. The state said that its legal system recognized several types of rights, including a collective right of ownership of land as well as certain rights to use land for the conduct of traditional practices in a non-exclusive way. Also other states noted that the nature of indigenous ownership and interests varies depending on the land in question (from a fee simple, statutory provisions, coexisting rights with rights of third parties e.g. hunting and fishing). These land rights are issues which are not standard for human rights instruments but key to the Declaration,

One state stated that the purpose of Article 30 is to increase the say of indigenous peoples regarding environmental and resource issues. The problem, however, is that there are many different owners of the land. Other states noted that there should be no rights which would create a veto over development. The requirement to have free and informed consent of indigenous peoples before lands can be affected by any project posed a problem, particularly when covering such a wide range interests of land, Article 30 could be reformulated to acknowledge a right for indigenous peoples to participate in decision-making concerning the use of their land. Another state, however, objected to the idea that a right should be reduced to the level of participation.

Article 29

A Canadian government intellectual property lawyer, Mr. Jeff Richstone, appearing as a guest expert, summarized current activities in international fora on the issues addressed in Article 29.

He noted that much activity is taking place in various international fora on the issue of the protection of indigenous traditional knowledge and indigenous intellectual property and cultural property. World Intellectual Property Organization (WIPO) is the principal forum for the interface between protection of indigenous traditional knowledge and cultural property, and intellectual property rights. WIPO established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This committee has held three of six scheduled meetings. The next meeting will be held December 9-17 in Geneva. The committee is considering 1) access to genetic resources, and benefit sharing; 2) protection of traditional knowledge; and 3) protection of folklore.

Other fora include: the Convention on Biological Diversity, the World Trade Organization (WTO) in the context of the Doha Declaration and the WTO's Council for Trade-Related Intellectual Property Rights (TRIPS), the UN Committee on Trade and Development (UNCTAD); and UNESCO.

WIPO is the most logical forum for these discussions. The process is open to member states, and accredited NGO's and Indigenous organizations.

He noted Articles 29. 24, 12, 13, and 14 raise significant issues such as how to balance the rights of individuals and the collectivities (indigenous and national). As well, the world's intellectual property regime gives rights' holders a monopoly for a limited time, whereas the approach to indigenous traditional knowledge has argued in favour of exclusive and unlimited (in time) rights for the rights holders. Existing intellectual property law has yet to find a balance between the goals expressed by those who seek intellectual property protection for the traditional knowledge and indigenous culture, yet these challenges must be met if there are to be meaningful results.

He suggested that in drafting language for these paragraphs it should be kept in mind that at this point it is still unclear to governments, intellectual property experts and Indigenous peoples, whether a sui generis system of protection, or integration of protection into the existing intellectual property regime would be most beneficial to Indigenous peoples. This very fact argues for caution in adopting language that may be too prescriptive. As well, standard setting exercises must take into account existing international treaty norms, and obligations, in order that States are not brought into conflict with their existing international obligations.

A state asked whether inclusion of a provision on intellectual property rights would not be static, prematurely fixing the standard. The Expert responded that there are good arguments to exercise caution; our understanding of the interface between intellectual property rights and indigenous traditional knowledge and cultural property is as yet, still unclear.

A state asked the expert to elaborate on the issues of individual and collective rights, and of sui generis systems. The Expert advised that at present the intellectual property regime is generally grounded in the rights of the individual creator. Perhaps reflecting individual rights first, and then addressing collective rights, would be appropriate. It must be remembered that even a sui generis system will have to co-exist along side the existing intellectual property regime. Countries cannot derogate from the existing international regimes; as well both criminal and civil laws provide strong protections to intellectual property holders that must be considered. The TRIPS agreement has proven itself effective, and might be useful if accessed by Indigenous peoples.

One State noted that Article 29 seems very general, and should not pose obstacles if adopted as is, to activities in other fora such as WIPO and TRIPS. It is aspirational. The first sentence refers to recognition, without prescribing the nature of that recognition, the second talks of measures, without prescribing what kind of measures.

The Expert noted that the language of AMI ownership, control and protection”, and of collective interest are somewhat problematic to an intellectual property lawyer.

Another State noted that the text of the draft generally is aspirational, however we also should be practical, and recognize that the text must be implementable. Perhaps this is an area where we should be careful about undertaking to change the existing regime. The Expert acknowledged there is no existing international norm on the recognition of special rights for a group other than for fields such as “writers”, “broadcasters”, or “inventors” but the rights themselves are individual.

Another State acknowledged that this is a complex area that has complex legal aspects. However we are looking at guidelines which define the nature of the problem; there cannot be standard setting if we do not agree on the nature of the problem, and then the solution can be found by the technical bodies such as WTPO and WTO. The State pointed out that there are similarities between the concept of geographical indicators or appellation of origin and traditional knowledge. The Expert acknowledged that this is an important point.

Asked what would be the issues for intellectual property lawyers if the article were accepted as drafted, the expert noted that the terms “entitled to” and “rights” suggest the creation of a collective property right, without guidance as to how to incorporate them into, or coordinate them with, the existing regime.

Finally, the expert pointed out that the objective of Article 29 would appear to have two aspects, active and defensive: active in that the community or individual can exploit the knowledge, defensive in that communities wish to have the capacity to prevent unauthorized use.

A state noted that there have been conflicts between the wishes of individual indigenous creators and the rights asserted by the indigenous collectivity.

A state expressed concern with the prescriptive nature of the Article as it cuts across work in other fora. As well, some terminology, such as “special measures”(which is a defined term in CERD, and limited in time) and “cultural property” are unclear. The underlying principles would appear to be that states can take measures to protect against the unauthorized use of culture, and traditional knowledge, and measures to promote the use and benefits of such knowledge for the benefit of indigenous peoples, rather than specifying the type of measures that should be adopted.

A number of States agreed with the importance of the principles addressed in Article 29, however expressed concern about the broad language, as well as some specific terms. They supported an approach that would address existing rights of indigenous individuals to use the existing intellectual regime, and recognize that States may wish to take measures to address the interests of collectivities.

Articles 7

There was general agreement that indigenous people need to be protected from genocide or racial hatred. History demonstrates that indigenous peoples have suffered genocide and cultural extinction in many regions of the world. A few states stated that they could accept Articles 7 as it is.

Many states suggested that the meaning of some of the terms in Article 7, notably cultural integrity, ethnocide, and cultural genocide, should be clarified. One state suggested that there should be a separate article in the Declaration providing for the definition of certain terms.

There was a proposal for merging Articles 6 and 7. Some disagreed, stating that Article 6 refers to genocide and Article 7 to actions which deprive indigenous peoples of their identity (means, resources, values).

One state suggested to add cultural goods besides cultural values in Article 7 (a).

Some states expressed a preference for a more positive formulation of Article 7 such as through a reference to a right to maintain culture or to a right to protection against threats to ethnicity and cultural heritage.

Several states found paragraph (e) as being in conflict with their domestic legal regimes on freedom of speech, particularly in view of the fact that the sanctions envisaged are criminal rather than civil. It was suggested that qualifiers could be used to give the term propaganda a more precise meaning e.g. denegrating or racist propaganda. Another suggestion was to refer to "incitement of racial disharmony". Some states said that there needs to be a balance between the protection from propaganda and the right to freedom of speech. Particularly where private parties (rather than the state) are concerned, the propaganda in question would have to be sufficiently intense or objectionable - possibly inciting violence-to warrant such a prohibition. One state remarked that, for example, an education campaign against genital mutilation may be prohibited under Article 7.

One state suggested that the term propaganda should also be seen in the context of Article 7 (genocide, etc.) which is certainly not positive in its connotations. In addition, that state said that no criminal sanction was envisaged in the Article and that other international instruments have similarly general clauses. There was also a suggestion to insert a safeguard clause which would make reference to other instruments, such as the Universal Declaration of Human Rights. Another state noted that a safeguard clause may not be sufficient to address subtle forms of discriminatory advertising, while others saw advertising as a different issue from political propaganda.

It was also noted that paragraphs (a) to (d) have an aim or effect while (e) did not. Should it therefore be added?

The question was asked whether paragraphs (a) to (e) are supposed to be the content of "ethnocide and cultural genocide” or whether those are actions or definitions concerning cultural genocide. It was also noted that whenever a list is made, something may be left out and later the assumption is that this was done deliberately.

One state suggested that there should be a possibility for indigenous peoples to alienate their lands voluntarily and that the prohibition against population transfer should not go so far as to exclude forceful evacuation because of a civil emergency. Also the prohibition against assimilation should not preclude the possibility of voluntary assimilation.

Several states debated the issue of a collective identity/rights v. individual identity/rights. One state expressed general concern with what it called the new concept in international human rights law of collective rights, and stressed that in its view human rights belonged to individuals. In its view, the term "indigenous people" rather than "indigenous peoples" should be used. It had accepted to use "peoples" only in certain contexts including development policy, Durban, and ILO. Other states agreed that the individual should be the focus and principal beneficiary of human rights.

Article 8

Many states supported the principle of indigenous self-identification. However, several states wanted to see some flexibility/limits concerning the guidelines for accessing benefits/funding. Some noted that the status of individuals is also influenced by their relationship to the collectivity who may govern its own membership (self-identification and recognition). Some noted that there was a possibility of abuse, while others stated abuse can be limited at the level of implementation. It was noted that a process of self-identification may have negative consequences in certain circumstances. One state said that self-identification serves to protect persons from being identified by others as indigenous against their will.

While some states saw self-identification as an individual right, others saw it as a collective right. Other states made reference to the increasing intermingling of indigenous populations with other persons (mixed blood) and the resulting difficulties in allocating rights and benefits.

A suggestion was made to combine Articles 8, 4, 21, and 33, which deal with similar issues. Another state suggested that Article 8 needs to be considered together with Article 9.

Article 11

There was general agreement among states that indigenous peoples needed to be protected in periods of armed conflict. States recognized that indigenous peoples often live in areas of conflict and require protection. It was suggested that due account needs to be taken of the vulnerable situation in which indigenous peoples often find themselves so that they can be accorded appropriate protection.

One state pointed out that Article 11 does not differentiate between civilians and combatants, Article 11 would amount to a widening of Article 3 of the Second Optional Protocol to the Geneva Conventions. In addition, only the compulsory recruitment by hostile powers is prohibited in the Fourth Geneva Convention. The Fourth Geneva Convention does not cover emergencies as Article 11 seems to suggest. The question was asked why Article 11 is restricted to indigenous peoples and not applied to all peoples. Several states had problems with the notion of special protection for indigenous peoples.

Some states suggested that there should be references to international humanitarian law in general. Another state suggested that the words "respect and implement" should be used rather than "observe”. Another suggestion was to put the word "applicable” before "international standards”.

One state mentioned that its constitution contained a national defence obligation for all citizens and that indigenous populations and lands were not excluded.

In relation to the recruitment of indigenous children into armed forces, there was a suggestion to make reference to the Optional Protocol to the Convention on the Rights of the Child.

Annex 1: Proposal by the United States for Articles 3 and 31 (16.09.02)

Indigenous peoples have the right to internal self-determination. By virtue of that right, they may negotiate their political status within the framework of the existing nation-state and are free to pursue their economic, social and cultural development. Indigenous peoples in exercising their right of internal self-determination, have the internal right to autonomy or self-government in matters relating to their local affairs, including determination of membership, culture, language religion, education, information, media, health, housing, employment, social welfare, maintenance of community safety, family relations, economic activities, lands and resources management, environment and entry by non-members, as well as ways and means of financing these autonomous functions.

Annex 2: Proposal by Norway to recognize articles on self-determination, including autonomy or self-government, participation, etc. (16.09.02)

PART I bis

Article [3]

Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article [31]

Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as ways and means for financing these autonomous functions.

Article [19]

Indigenous peoples have the right to participate fully, if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.

Article [20]

Indigenous peoples have the right to participate fully, if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them. States shall obtain the free arid informed consent of the peoples concerned before adopting and implementing such measures.

Article [21]

Indigenous peoples have the right to maintain and develop their political, economic and social systems, to be secure in the enjoyment of their own means of subsistence and development, and to engage freely in all their traditional and other economic activities. Indigenous peoples who have been deprived of their means of subsistence and development are entitled to just and fair compensation.

Article [30]

Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands, territories and other resources, including the right to require that States obtain their free and informed consent prior to the approval of any project affecting their lands, territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. Pursuant to agreement with the indigenous peoples concerned, just and fair compensation shall be provided for any such activities and measures taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Annex 3: Proposal by Norway: Amendment to Preambular Paragraph 15 (18.09.02)

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination, yet nothing in this Declaration shall 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples,

Annex 4: List of Participating States

Argentina

Australia,

Austria

Brazil

Canada

Chile

China

Columbia

Cuba

Denmark

Ecuador

Estonia