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Presentation to the Twenty Second session of the Working Group on Indigenous Populations

presented by Andy Whitmore

Presentation on Agenda Item 6e, “The Draft Declaration on the Rights of Indigenous Peoples”

Joint Statement on behalf of FAIRA, Forest Peoples Programme, Innu Council of Nitassinan, Ogiek Cultural Initiatives Programme, and Philippine Indigenous Peoples Links

23 July 2004 - Mr Chairman, with reference to the difficulties currently being experienced in finalising the text of the draft Declaration on the Rights of Indigenous Peoples, we would like to make specific reference to the position of the United Kingdom on collective human rights.

As UK or Commonwealth-based organisations we condemn the position stated by the UK government that collective human rights for indigenous peoples do not exist.

The position of the UK is basically that, with the exception of the right to self-determination (in article 1 of the Covenants), collective human rights are not recognized in international law, at least in the six core human rights instruments. The government states that for this reason, it cannot accept the use of the term rights of indigenous peoples in a human rights context.

Interventions by the UK Government upholding this position threaten to undermine many of the carefully and long argued points within the declaration. It also reverses the historical position of the UK Government, which has of course recognised collective rights going back centuries. The British Crown signed hundreds of treaties with North American Indians, many African peoples and the Maori. They may have been rarely honoured, but they did at least acknowledge collective rights.

This position is not only retrograde, but it lacks logic as a matter of fact, law and principle for the following reasons;

• first, it is incorrect to state that collective rights are not recognized in international law: they are, including under at least one of the core instruments, the Genocide Convention, and in norms of customary international law;
• second, the jurisprudence of intergovernmental human rights bodies overseeing universal and regional human rights instruments routinely uses the term indigenous peoples;
• third, notwithstanding the objections of a minority of states, state practice indicates that there is international consensus on collective rights in the case of indigenous peoples, in particular as evidenced by domestic laws, policy and practice;
• fourth, the UK position fails to recognise that the Draft Declaration elaborates the rights of Indigenous Peoples as peoples, by definition an elaboration of collective rights, and seeks to ensure that Indigenous Peoples can exercise and enjoy the same rights as other peoples in international law;
• finally, restricting an analysis of human rights to the six ‘core’ instruments dismisses a large body of binding and persuasive sources of law that are very relevant to the issue of collective rights and the present state and emerging nature of human rights law. In particular, it ignores the two and presently only binding instruments exclusively focused on indigenous peoples’ rights - ILO Convention Nos. 107 and 169 - which clearly demonstrate that the international community has recognized the applicability, relevance and importance of collective rights in the case of indigenous peoples. The UK did not oppose collective rights when either ILO 107 or ILO 169 were accepted.

We therefore recommend that the UK Government:-

• review its position on collective human rights. In order to correctly review and inform on the position, the groups supporting this statement offer to cooperate to host a workshop or roundtable at which UK government decision makers and lawyers can meet together with international legal experts and indigenous delegates to debate this position. If possible it could be timed to take advantage of indigenous delegates being present in Geneva at the next Working Group to elaborate the draft Declaration on the Rights of Indigenous Peoples in September this year;
• refrain from intervening in international fora where indigenous issues and collective rights are discussed until it has reviewed its position on this issue.

Thank you Mr. Chairman

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