Determined to Get Consensus
A friend recently gave me a copy of a letter submitted to Indian Country Today attacking statements that I made in an article in this paper [“Indigenous Rights Declaration moves to Human Rights Council” by Valerie Taliman, Vol. 25, Iss. 42] on March 31 about the draft U.N. Declaration on the Rights of Indigenous Peoples.
The writers urge that the draft declaration be adopted by majority vote rather than by consensus, as human rights instruments are usually adopted.
It is disappointing that some indigenous participants are giving up the fight to get a better and more effective Declaration on the Rights of Indigenous Peoples. I am determined, along with other indigenous leaders and advocates, to carry on the fight to get all states to accept the declaration, because only then will we have a strong and effective statement of our rights.
The letter being circulated in opposition to the Indian Law Resource Center’s position is based on misstatements of our position and misstatements of international law. I have never argued that the objecting states should be “accommodated.” On the contrary, we demand that these states support a strong and effective declaration.
The letter claims that the rights in the draft declaration are already legally binding on all countries. Some of the rights are already well established in international law, but the very reason we have been working to achieve a strong declaration is that international law today is not adequate, is not clear and does not presently protect the rights of indigenous peoples as it should.
Can any indigenous leader
really believe that we already have the legal rights we are fighting for? Obviously we do not, and that is why we are fighting. That is why we need a serious and effective declaration, not one adopted by a vote that will be little more than a “benchmark” and an “aspirational document.” (An “aspirational document” is one that merely expresses our wishes.) We must not settle for such puny, halfway measures. We have the oppor-tunity to create real legal rights that will be binding on states, and we should not give that up.
It is completely false to claim that I have said indigenous peoples do not have a right of self-determination in international law. I have always said that we do have that right, and we have said it as recently as our submission to the Human Rights Committee in March of this year. What I have said is that we want a right of self-determination that goes beyond present understandings of the right in international law.
In addition to our existing right of self-determination, we want this right as distinct peoples
within countries. Practically all legal authorities agree that such a right of self-determination has not in the past been recognized for any distinct people within a country – only as part of the whole people of the country.
But indigenous peoples have fought successfully to develop and assert our rights to self-determination. I believe it is time for states to declare this right forthrightly and establish it clearly in international law. This cannot be done by simply voting on the declaration.
Further discussion will not endanger anything. We have made steady progress over the years, and there is no reason to stop now out of fear. Further work on the declaration will give us the chance to get greater support from states – especially those large states that have large numbers of indigenous peoples.
The past year has shown that states can and will do much
better if we press them and if we demand it. States achieved consensus on a majority of the provisions in the draft declaration already. And those provisions are good, strong provisions that have the support of indigenous participants as well.
It is defeatist to assume that further work will make things worse. There is no evidence
of that. Naturally, we would
all oppose a declaration that
was unprincipled and failed
to include strong and effective provisions.
Of course, there are other human rights bodies that can be addressed, as the writers say, but none is in a position to create customary international law. No other process will have or can have the potential legal impact of a consensus declaration on the creation of customary law.
Once this declaration is
adopted by majority vote, there will be no more debate, and countries can simply forget about it. They will never have to debate it or worry about it again.
The countries that vote for it can hypocritically claim to have done something for indigenous peoples, but they know they will probably never have to live up to the declaration because it will probably never become customary international law. The countries that vote against it will be let off free and clear. Even if it became customary international law, it would not bind those countries that have persistently objected. I do not want to let countries off so easily. I think we must demand serious and meaningful action from countries, not a feeble and ineffective voted-on declaration.
I have never stated that a
consensus declaration will “automatically” become customary international law. I have carefully explained that a consensus
declaration must be followed by a period of consistent state practice before customary law is created. Where the declaration is by consensus, that period of state practice can be quite short. That is not true for a declaration that is opposed by a number of states.
As long as most of those states object, the declaration cannot become binding as part of customary law. This is a very basic and widely accepted principle in international law. The writers deny this but do not support their position with any legal authority.
The writers argue that a declaration adopted by majority vote will nevertheless contribute to the development of customary law generally.
This is true, but that is a sad and weak substitute for a declaration that is agreed to by all states and is itself established as customary law. We don’t really need a mere “benchmark” or an “aspirational document,” as the writers say. We need serious legal rights that can readily be made binding on states. That is what I and many other indigenous leaders want to achieve by demanding consensus.
Asking for a majority vote now is just giving up on our long
battle to win real rights in international law. It is a way to get a shallow and cheap “victory” instead of the genuine legal rights that are needed.
A point-by-point response, along with references to legal authorities supporting our position, is posted on our Web site at www.indianlaw.org.
Robert T. Coulter, Citizen Potawatomi Nation, is the executive director of the Indian Law Resource Center, which has offices in Helena, Mont., and Washington, D.C.