The Declaration on the Rights of Indigenous Peoples (UNDRIP), also referred to as the Declaration, was first drafted by the then Sub Commission on Prevention of Discrimination and Protection of Minorities of the Human Right Commission, composed of 12 members representing different geographical distributions. It began its work in 1942, under the very able leadership of Madame Irene Daes of Greece. Indigenous Peoples have had no greater friend.
The Declaration had its origins in a study on migrant workers conducted by the International Labour Organization (ILO) that had concluded that an independent study was required due to reports of severe acts of discrimination being carried out against Indigenous Peoples. This further study was conducted by Special Rapporteur, Mr. Jose Martinez Cobo. Many of the concepts incorporated into the Declaration, such as the right of Self-Determination and Free, Prior and Informed Consent arose from his conclusions. ILO Convention No. 169 on Indigenous and Tribal Peoples (1989) “establishes self-identification as a fundamental criterion for determining groups that are to be identified as Indigenous ‘Peoples’.” Whereas, Convention No. 107 identified Indigenous Peoples as ‘populations.’
The draft Declaration was sent to the Human Rights Commission in 1994, and debate began in the Commission. At first, Indigenous Peoples were able to attend but were allowed only to address the Commission for two minutes at the beginning and at the end of each day’s discussions (if time permitted). In 1995, an open-ended inter-sessional working group to consider and elaborate on the 1994 draft declaration was established by the Sub Commission.
Indigenous Peoples walked out of the Working Group around 1996 in protest that they were excluded from negotiations. We began our campaigns, insisting that the “s” in peoples was secured, as even the name of the Declaration was at issue. Many States, including the United States were insisting that it be called the Declaration on the Rights of Indigenous “People.” The word “Peoples” has international implications including the right of Self-Determination. There were unfounded fears, among others, that this would lead to independence from colonial States.
The Chairman of the Working Group, Ambassador Chavez from Peru, found that the Economic and Social Council (ECOSOC) rules, although addressing the participation of States in UN working groups, did not prohibit the participation of non-Parties in negotiations. Establishing a non-negotiating working group allowed Indigenous Peoples to participate fully and effectively in negotiations. It was the first time that the subjects of standard setting were allowed to negotiate their own human rights.
The open-ended working group hoped that the instrument would be adopted by the General Assembly within the International Decade of the World’s Indigenous People (1995-2004). Since this did not take place, the mandate of the working group was extended by the U.N. Commission on Human Rights into the Second International Decade of the World’s Indigenous Peoples (2005-2015).
Many states objected to the Declaration’s recognition of the Rights of Indigenous Peoples, particularly their right to Self-Determination. But during the decades of negotiation, international jurisprudence, particularly General Comments by the International Covenant on Civil and Political Rights’ (ICCPR) Human Rights Committee and notably the ICERD (International Convention on the Elimination of all Forms of Racial Discrimination), adopted the Rights of Indigenous Peoples to Self-Determination. The ICERD also called for the return of land taken without the consent of Indigenous Peoples affected, as did ILO 169.
Indigenous Peoples introduced a resolution from the Commission describing standard setting, and once the ICERD and ICCPR’s Human Rights Committee recognized the right to Self Determination, all the conditions for standard setting were met, except the final requirement that it achieve consensus. Indigenous Peoples received much support from the Latin American States, and Mexico in particular throughout the negotiations.
There was a great deal of confusion when the Working Group reported out the Draft Declaration in 2006. Previously, in the reorganization of the UN by Kofi Anan, the Commission became the Human Right Council, reporting directly to the General Assembly. The Commission had previously reported to the 3rd Committee of the Economic and Social Council that could have made amendments to the Declaration. The newly created Human Rights Council adopted the UN Declaration and referred it to the General Assembly.
But the General Assembly referred it to the 3rd Committee anyway. Ambassador de Alba, from México and Mr. Chavez from Peru exerted laudable efforts and the Declaration was finally sent back to the General Assembly.
On 13 September 2007, the Declaration on the Rights of Indigenous Peoples was adopted by a majority of 144 states in favor, 4 votes against (Australia, Canada, New Zealand, and the United States) and 11 abstentions (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine). Most of these abstaining States, particularly Colombia and Samoa have also now endorsed the Declaration.
And again, another first, the Declaration on the Rights of Indigenous Peoples was adopted by vote and not consensus, with Australia, New Zealand, United States and Canada voting against its adoption.
According to the United Nations, the Declaration establishes “a universal framework of minimum standards for the survival, dignity and well-being of the Indigenous Peoples of the world and it elaborates on existing human rights standards and fundamental freedoms as they apply to the specific situation of Indigenous Peoples.”
It is said that these States have all reversed their positions and expressed support for the Declaration. But, as an example, the United States continues to take the position internally that consent is not required. The State can act as it wants, without regard to our consent. In fact, in many countries Free, Prior and Informed Consent is only given lip service internally.
There also continues to be resistance to the Declaration. Although it is said that these western States, whose precursor is the United Kingdom, do not recognize collective rights as human rights. Their view is that only individual rights are human rights. They do recognize that collective rights are rights, but not human rights. Accordingly, Indigenous Peoples have adopted the position that when we speak of human rights we also speak of human rights and the collective rights of Indigenous Peoples as recognized by the Declaration.
Another first: although declarations are only aspirational and not legally binding, the Declaration is recognized as a legally binding standard as Covenants, conventions and protocols. The Declaration is serving as a legally binding instrument and is being observed and respected by the UNFCCC COP (Conference of Parties), the Kyoto protocol (CMP) and the Paris Agreement (CMA). Its importance in UNFCCC Climate Change negotiations cannot be underestimated. It will serve not only Indigenous Peoples but all humanity and all living beings in our web of life.