Nations and States Will be Tested

Reflections on the World Conference on Indigenous Peoples Draft Outcome Statement
By , and on September 3, 2014

Preparations are nearly complete for the United Nations World Conference on Indigenous Peoples (WCIP) to convene this month in New York City. All 193 Member State delegations to the United Nations are expected to participate, joined by 200 individuals from indigenous communities and organizations who will observe the daylong proceedings. The expected result of the Conference is an Outcome Statement drafted by the UN General Assembly President, revised after indigenous nation and state representatives suggested changes and then sent as a draft this week for states’ governments to negotiate final language. This initial conversation in text between Fourth World nations and UN Member States may result in actual dialogue and direct negotiations between individual nations and states in years to come. The draft Outcome Document before the states’ representatives lacks the most important language: Commitment by the states to direct the United Nations to prepare a protocol to implement the UN Declaration on the Rights of Indigenous Peoples and the WCIP Outcome Statement. We discuss the draft now proceeding to the states and we propose an outline and preliminary language for a Draft Protocol on Intergovernmental Mechanisms to Implement the UN Declaration on the Rights of Indigenous Peoples at the end of this article. We argue that a protocol is the next logical step in the process of formalizing relations between Fourth World nations and UN Member States.

On August 26, United Nations General Assembly President, Ambassador John W. Ashe of Antigua and Barbuda, released a thirty-six paragraph “Draft Outcome Document to be adopted by the General Assembly”. In his accompanying letter, Ambassador Ashe writes that the document is “reflective of written and oral submissions of interested parties to the Informal Consultations on the 18th and 19th of August, in which there was active participation of Member States and Indigenous Peoples.” During those two days (as with an earlier draft receiving comments on July 16th), indigenous nations and states’ representatives poured over the language and syntax of the document—originally generated by the Ambassador, with the assistance of Ambassador Crispin Gregoire of Dominica, Dr. Myrna Cunningham of Nicaragua, Mr. Remongar Dennis, Liberia’s Deputy Permanent Representative to the UN, and their staff members. After two consultations involving Fourth World representatives and UN Member States, the iterative process produced a final 1,888 word long Draft Outcome Document.

Fourth World nations have been infected with disease, warred, enslaved, colonized, and swallowed by rising and falling empires, kingdoms, states, and emirates for at least six thousand years. Yet the resilience of these bedrock nations—communities of self-identifying people who have a common culture and a historically common territory—remain undeterred for those that survive in the 21st century. It is true that many Fourth World nations historically engaged in conflict with neighboring nations, and in some instances destroyed them. But, it has been political societies constructed out of ethos, and not culture that have built their wealth and power on attacks and manipulations of the world’s original nations.

Human political societies must not always be seen as victors or victims. Indeed, nations and invented political societies such as states have been victims and victors at different times throughout history. The current test for humanity, therefore, is whether different political societies can commit to comity, mutual respect for political equality and change the climate of contention.

Since 1967, Fourth World nations and UN Member States have engaged in “preliminary conversations,” ultimately resulting in the UN General Assembly adopting the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007—the first official commitment to achieving comity. A new test for humanity will be working towards mutual respect for different interests and requirements, and decisions in good faith. This challenge will determine whether nations and states find sufficient common ground on which to construct a new era in which Fourth World nations and UN Member States coexist as political equals with respect and the recognition of their mutual interdependence.

The beginning of such dialogue will be inaugurated by the World Conference on Indigenous Peoples, whose intent is to consider and approve an “Action Oriented Outcome Statement” concerning implementation of the United Nations Declaration on the Rights of Indigenous Peoples. Parties in the dialogue will need to exercise respect for the difficult process of balancing the interests of Fourth World nations against the interests UN Member States, as each nation and each state claims for itself the prerogatives of governance over territories, resources, people, taxation, knowledge, and regulation of economics, health, and many other matters in the sphere of government.

The Unspoken Challenge: Competing Sovereignties

The central unspoken challenge posed by the United Nations Declaration on the Rights of Indigenous Peoples (about which this Action Oriented Outcome Statement is concerned) has to do with the competing claims of sovereignty, political authority, and how decisions are made. The Draft Outcome Statement for the UN General Assembly to consider touches on virtually all the topics and themes adopted in the UNDRIP and declared by indigenous representatives to the June 2013 World Indigenous Preparatory Meeting in Alta, Norway. It does so by suggesting in less than active phrases that UN Member States commit to “initiate processes,” “give effect,” “develop in conjunction with indigenous peoples,” “support the empowerment of ….,” “acknowledge,” “respect,” “give due consideration,” and “address” various topics and concerns of Fourth World nations.

An “action oriented statement” that “commits” the United Nations and its Member States to various actions has its doubters. The representative of New Zealand remarked about the Outcome Document during the August 18th consultation: “This is not a binding document.” The New Zealand statement remained unchallenged by states’ representatives, non-governmental organization representatives or indigenous representatives. And given the conditional nature of the commitments in the draft, it is clear that while the UN General Assembly is intoning the importance of Member States acting to implement the UN Declaration on the Rights of Indigenous Peoples, the Draft Outcome Statement places the burden for UNDRIP implementation on the United Nations Organization and only in some instances on Member States and no burden on Fourth World nations. No actual mechanism for implementation of the Declaration has been defined for the UN Member States and Fourth World nations.

Will decisions about territory, the use of non-renewable energy resources, climate change, regulation of corporations, and legal rights to genetic materials be made by individual Fourth World nations or by individual international states? Which governments—Fourth World or UN Member States’—will determine how sacred sites, violence against women, the highest Fourth World standards of physical, mental, and spiritual health attained will be achieved and protected? Which governments will ensure that Fourth World judicial institutions conduct their role as mediators in a manner consistent with international human rights, norms, standards, and principles? Which governments will determine how a decision-making mechanism will be created to adjudicate Fourth World peoples’ territorial, land, and resource rights?

UN Member States Will Now Negotiate

It must be recognized that the Draft Outcome Statement is merely a draft. Indeed, according to Ambassador Ashe, over a ten-day period in the first weeks of September “given the intergovernmental character of the next negotiations, consideration of the Outcome Document will be undertaken by Member States.” This statement alone speaks volumes. Despite the existence of Fourth World governments, it will be the states’ governments that determine the final shape of what was a collaborative document. This circumstance is not surprising since the UN is a “state” organization. Yet, for years, Fourth World nations, their governments, their organizations, and their experts have served as advisors on the Statement’s language. And now the states will meet to negotiate the final language.

Since there is no equivalent international body of Fourth World governments to negotiate acceptance or rejection of clauses, phrases, or words in the present draft, there is no clear statement of acceptance or rejection by the Fourth World. Either states will act unilaterally or they will work in concert with Fourth World nations. If they work in concert, nations and states’ governments will need to form a new mechanism for dialogue and direct negotiations between each Fourth World government and relevant states’ governments to engage after the World Conference of Indigenous Peoples—a framework agreement for government-to-government relations. If the states act unilaterally and nations do not take steps to engage states on a government-to-government basis there will be no dialogue.

Will Fourth World Nations and States Eventually Meet?

Democratic dialogue is inherent in the UNDRIP, where it affirms the importance of Fourth World nations exercising their “free, prior and informed consent” in advance of any actions by states’ governments enacting policies or laws that affect each nation. The UN Declaration is silent on just how “free, prior and informed consent” is to be acquired and confirmed. Clearly what must occur are negotiations. Following negotiations of an agreement, ratification by each Fourth World government and each relevant state in the form of a treaty, compact, covenant, or intergovernmental agreement must necessarily follow. To ensure enforcement of the agreement, a third party mediator—mutually agreed to by both governments—must be part of the negotiations and agreement process.

Neither the UN Declaration nor the Draft Outcome Statement contains provisions for actually implementing anything except unilateral action by states’ governments in “consultation” with “indigenous peoples.” Who determines the process of consultations? And, who exactly will the state consult with? “Indigenous peoples,” as an expression for forty years, was useful for general discussions and conversation, but when focusing on the details of implementation there must be parties on both sides of the table who can “implement.” If states’ governments are unilaterally “implementing” then there is a high probability for conflict with Fourth World governments that have interests to protect and people to represent. If states and nations meet on an equal plane to mutually decide the future of their relations, the chances for a more peaceful world will be more likely.

In countries where Fourth World nations are essentially at war with states’ governments (e.g., Pakistan and the Pashtun, India and the Naga, Indonesia and the Papuans, Burma and the Rohingya, Israel and Palestinians, Russia and the Chechens, China and the Uyghurs and Tibet), unilateral actions by states’ governments will only further exacerbate the conflict. Unilateral state actions have long been the thorn in the side of Fourth World nations’ and states’ relations. The UNDRIP contains language to suggest an opening for real dialogue and negotiations between Fourth World nation and UN Member State governing authorities. Democratic dialogue and negotiations will test their ability to establish mutually respectful political equality. New agreements monitored and enforced will add to new international law and the basis for reducing conflict and increasing mutual cooperation within the international system of nations and states.

The Draft Statement Opens the Possibility for Dialogue

The Draft Outcome Statement for the World Conference on Indigenous Peoples offers glimmers of potential, if they are retained by UN Members States after their negotiations. Paragraph 3 reads: “In adopting this outcome document, we reaffirm our commitment to consult and cooperate in good faith with indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent, prior to the approval of any project affecting their lands, territories and resources or before adopting and implementing legislative or administrative measures that may affect them.” This statement alone opens the possibility for serious intergovernmental dialogue between Fourth World nations and states.

Statements in paragraph 17 offer real opportunities for nations and states to engage directly: In conjunction with indigenous peoples concerned, fair, independent, impartial, open and transparent mechanisms to acknowledge, advance and adjudicate the rights of indigenous peoples pertaining to lands, territories and resources. and Such mechanisms will be culturally appropriate and flexible, and competent to safeguard free, prior and informed consent by indigenous peoples prior to development or use of lands, territories and resources. constitute the basis for intelligent and mutually beneficial dialogue and negotiations.

After the Outcome Statement, and then a Protocol

The Draft Outcome Statement for the World Conference on Indigenous Peoples could provide guidance to states and Fourth World nations in a real demonstration of an “action oriented statement” with a paragraph calling for a Protocol—an instrument to bind parties who have adopted an original agreement to procedures and actions for implementing that agreement. The UN General Assembly could consider as part of this outcome statement authorization to the United Nations to draft a “Protocol on Intergovernmental Mechanisms to Implement the UN Declaration on the Rights of Indigenous Peoples” and open the protocol for ratification by Member States’ governments AND Fourth World governments.

A sample Protocol may be viewed at the end of this article.

Ratification or other forms of approving a United Nations-originated Protocol on Intergovernmental Mechanisms to Implement the UN Declaration on the Rights of Indigenous Peoples would accomplish the needed task for implementing the Declaration. And, the Protocol would provide the opportunity for states’ governments and nations’ governments to establish a permanent structure for dialogue and negotiations suitable for resolving many disputes around the world. Of course, states and nations will both have to approve the new international Protocol for it to come into force as an instrument for peaceful and constructive dialogue.

The UN could designate the Expert Mechanism on the Rights of Indigenous Peoples now comprised of five independent experts of indigenous origin, gender balance, and geographic representation appointed by the Human Rights Council and five independent experts from states to draft the above Protocol and present it to the United Nations 3rd Committee for authorization for distribution. The result could be a permanent system of intergovernmental mechanisms between Fourth World nations and States capable of addressing the UNDRIP and critical conflict matters as well.

Such a system may be developing. The Draft Outcome Document constitutes a potential for states’ governments to contribute with Fourth World governments to the emergence of a 21st century international system that is democratic, inclusive, and accountable. The lives and future of 18% of the world human family (1.3 billion people in 6,000 nations) depend on states’ coming to recognize their own self-interest in elevating Fourth World nations to a position of political equality. The failed states of Somalia, Yemen, Afghanistan, Burma, Russia, Central African Republic, Libya, Syria, and Iraq are testimony to the importance of formalizing government-to-government relations between Fourth World nations and states’ governments. Their failures are directly connected to the failure to engage in working mechanisms of dialogue and negotiations.

The Draft Outcome Statement in its current form is not as “action-oriented” as the UN General Assembly resolution originally proclaimed, nor is it a model that can deliver working relations between states and indigenous nations. There are significant disconnections between it and the Alta Declaration of June 2013, such as its silence on the creation of a mechanism for implementing the UN Declaration. The Draft also fails to directly refer to indigenous “governments,” despite efforts by proponents to include such language. It would, however, be a mistake to throw out the proverbial baby with the bath water by dismissing the Draft Outcome Statement altogether as some indigenous groups and individuals will undoubtedly urge. The Draft’s affirmation of “free, prior, and informed consent” is in keeping with the spirit of UNDRIP, and the acknowledgement of indigenous nations’ “representative institutions” could be a precursor to the eventual incorporation of stronger language such as “indigenous governments.” Such a commitment would naturally lead to the development of a binding Protocol for both states and nations. This will be possible if the language survives the “text negotiations” between UN Member States that begin this week.

The centuries-old conflicts between Fourth World nations and international states requires nothing less than paradigm shift in the way UN Member States see themselves. Will Fourth World nations become full participants in the international space occupied by states? This can only happen through gradual and incremental change. If the Draft Outcome Statement can be seen as one small step on the journey of incremental change, then the possibility exists for the World Conference on Indigenous Peoples and its Outcome Statement to be viewed as a successful beginning of the next test for nations and states.

Rudolph Ryser is the Chairman of the Board of Directors, Dina Gilio-Whitaker is a Research Associate and Heidi Bruce is a Research Associate at the Center for World Indigenous Studies. The Center is dedicated to the advancing the application of traditional knowledge through education, research and policy analysis. You may log on to the Center’s website at www.cwis.org

Append: Sample Protocol

Draft Protocol on Intergovernmental Mechanisms to Implement the UN Declaration on the Rights of Indigenous Peoples

PREAMBLE

States and Fourth World nations Parties to this Protocol

Declaring our solemn commitment to the purposes and principles of the United Nations Charter, and affirming the importance of promoting comity, cooperation and mutual respect for political equality between indigenous nations and states.

Taking into account the UN Human Rights Council’s thorough review of the situation of “indigenous peoples” and the subsequent adoption of the United Nations Declaration on the Rights of Indigenous Peoples and the desire of states and indigenous nations to implement the provisions of the Declaration at the earliest possible date by individual states and individual nations.

Concerned that without a specific instrument to guide the development of effective intergovernmental mechanisms between states and indigenous nations harm will be done to the interests of states and indigenous nations.

Recalling the decision of the High Level Plenary Session of the General Assembly called the World Conference on Indigenous Peoples that adopted the action oriented Outcome Statement of the WCIP on 22 September 2014.

Convinced that supplementing the United Nations Declaration on the Rights of Indigenous Peoples and the Outcome Statement of the WCIP will be useful to implement desirable provisions of these international instruments.

Have agreed as follows:

I. GENERAL PROVISIONS

Article I

  1. This Protocol supplements the United Nations Declaration on the Rights of Indigenous Peoples and the WCIP Outcome Statement of 22 September 2014.
  2. The provisions of the Declaration and the Outcome Statement shall apply, mutatis mutandis, to this Protocol unless otherwise provided herein.

Article 2

Statement of Purpose

The purposes of this Protocol are:

  1. To facilitate bi-directional dialogue and negotiations between states and indigenous nations through effective intergovernmental mechanisms.
  2. To implement at the earliest possible date principles and mandates contained in the Declaration and Outcome Statement by states and indigenous nations.
  3. To promote comity, cooperation, and mutual respect for political equality between governments.

Article 4

Use of Terms

  1. Free, prior and informed consent
  2. Indigenous governments
  3. Consultations

Article 5

Scope of application

II Mechanisms for Dialogue and Negotiations

Article 6

Government-to-Government Dialogue

Article 7

Mutually Determined Intergovernmental Framework

Article 8

Intergovernmental Negotiations

  1. Political equality of parties
  2. Third Party Mediation

Article 9

Information Exchanges and Capacity Building

Article 10

Enforcement of Agreements

  1. Third Party Guarantor
  2. Independent Mediation and Review

 

III FINAL PROVISIONS

Article 11

Savings Clause

Article 12

Settlement of Disputes

Article 13

Signature, ratification, acceptance, approval, and accession

  1. This Protocol shall be open to all States and Indigenous Nations for signature from {day} {Month} to {day} {Month} at {place} and thereafter at the United Nations Headquarters at a date two years from the first ratification.
  2. This Protocol shall be subject to ratification, acceptance or approval. Instruments of ratification shall be deposited with the Secretary General of the United Nations.

Article 14

Entry into Force

  1. This Protocol shall enter into force on the 10th day after the deposit of the {number} instrument of ratification, acceptance, approval or accession ….
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