The Limitations of the U.N. Declaration on the Rights of Indigenous Peoples

Steven Newcomb

For nations and peoples typically called “Indigenous,” 2014 will be an important year in the international arena. This coming September, the United Nations General Assembly is scheduled to convene a High Level Plenary Meeting (HLPM) regarding the U.N. Declaration on the Rights of Indigenous Peoples. Plans are underway, and the planned event is generating considerable discussion, pro and con, amongst Indigenous Peoples’ representatives.

According to a United Nations resolution, the HLPM is “to be known as” a “World Conference on Indigenous Peoples.” This gives the mistaken impression that it is a UN World Conference. It isn’t. A genuine world conference is usually nine to ten days long, whereas the U.N. High Level Plenary Meeting is going to be about 180 minutes long in its entirety, over a two-day period in New York.

The idea for a UN HLPM was initiated by states, starting with the government of Bolivia. The HLPM has been promoted as a gathering that will work toward implementing the 46 Articles of the UN Declaration on the Rights of Indigenous Peoples. Most importantly, the HLPM will be used as an opportunity for the state governments of the world to draft and adopt an “outcome document.” Evidently, the text of that document will serve as a framework for states to “implement” the declaration. However, while there may be some opportunity for a few Indigenous representatives to make suggestions, Indigenous nations and peoples will have no direct input in the drafting of the outcome document; its contents and interpretation will be determined according to the intentions and dominant prerogatives of states.

This top-down arrangement is entirely consistent with the domination-subordination pattern that Professor Antheny Anghie, in his book Imperialism, Sovereignty, and the Making of International Law, has identified by studying the different eras of international law and the international arena. The pattern is explicitly identified by Professor James Crawford, a mentor of Anghies.

Professor Anghie makes one point in particular that our Indigenous Nations and peoples should take to heart, specifically, that “colonial confrontation was central to the formation of international law and, in particular, its founding concept, sovereignty.” It is within this formative imperial and colonial context of states and international law that the U.N. Declaration on the Rights of Indigenous Peoples was created and is now going to be interpreted by international states. That also will be the context for whatever HLPM outcome document that states end drafting and adopting.

There has been quite a lot of discussion to date about whether the new U.N. General Assembly President John W. Ashe will seat an “indigenous co-facilitator” for the HLPM. Based on a Jan. 28 meeting at U.N. headquarters in New York we now know that Mr. Ashe has declined to make such an appointment. Some lobbying effort by five Indigenous representatives failed to get Mr. Ashe, who is from Antigua/Barbuda, to change his mind. The U.N. resolution that serves as the “modalities” framework for the HLPM does not provide for an Indigenous co-facilitator, and this means that according to U.N. rules Mr. Ashe has no mandate to make such an appointment.

The prospect of the HLPM comes down to one key question: What kind of outcome document are state governments likely to produce? Indigenous Nations and Peoples should pay particular attention to Article 46 of the declaration. It is one of the most pro-state Articles. It gives states an “out” by providing a rationale for limiting the ability of Indigenous Nations and Peoples to exercise “the rights set forth” in the declaration.

Indeed, Article 46 says very specifically that states may place certain limitations on the “exercise of the rights set forth in this Declaration.” However, that article also says that such limitations shall be “determined by law” (does this mean both international law and domestic state law, or perhaps both?) Such limitations may be imposed by states “in accordance with international human rights obligations.” Importantly, international state governments interpret “human rights” as the rights of individuals within the context of “civil society.” Article 46 also says that such “limitations” shall only come into play when they are “strictly necessary solely for the purpose of securing recognition and respect for the rights and freedoms of others.” The word “others” refers to dominant non-Indigenous societies.

Stated differently, limitations on the exercise of the rights set forth in the U.N. Declaration may be imposed by states in order to ‘secure’ “recognition for the rights and freedoms of ”…those defined as non-Indigenous. There is another way of stating this: the exercise of the rights set forth in the declaration shall only be limited if and when states deem such limitations necessary to “secure” and “respect” the rights and freedoms of a given non-Indigenous society.

Furthermore, such state-imposed limitations shall be placed on the exercise of the rights enumerated in the U.N. Declaration when such limitations are deemed by states to be necessary “for meeting the just and most compelling requirements of a democratic society.” It is anybody’s guess what the phrase “just and most compelling requirements of a democratic society” means, or, for that matter, who shall decide what that phrase means.

Interestingly, the word “requirements” in Article 46 of the declaration brings to mind a notorious old Spanish ‘outcome document’ known as “the Requerimiento.” The Requerimiento was a document developed by a Spanish Catholic theologian 500 hundred years ago. The Spanish crown ordered it to be read to Indian villages by Spanish conquistadors. The text was used as a means of communicating the claim to the free and independent Indians that they were “required” to submit themselves to the Spanish crown for just and compelling reasons—such as the biblical creation story, and the chain of command that follows from it.

The main requirement the Indians were informed of, as supposedly mandated by the white man’s Christian “God,” was to make themselves meekly subservient to the imposed rule and authority of the pope and the Catholic Church, to the Catholic monarchs, as well as to the conquistadors who were serving as messengers and enforcers of King Ferdinand and Queen Isabella. The Indians were informed that a failure to submit would result in immediate death or enslavement, and, as those who resisted quickly found out, the Spaniards were deadly serious.

The Requiremento is but one historical example of the domination/subordination origins of what states now euphemistically call “law” and “a democratic society,” relative to our Original Nations and peoples and our traditional territories. The basis of “law” in the Western European tradition has been defined as “the habit of obedience.” Given that tradition, of one thing we can be certain: The States of the world will craft and interpret the HLPM outcome document as a basis of protecting, “for just and compelling reasons,” the dominating prerogatives of states, against nations and peoples the international system of states defines as “sub-order,” or “Indigenous.”

Steven Newcomb (Shawnee, Lenape) has studying U.S. federal Indian law and international law since the early 1980s. He is co-founder and co-direct of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum). He has also published several law review articles.

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Dismantling the Doctrine of the Divine Right of States: The UN High Level Plenary Meeting of the General Assembly (aka World Conference on Indigenous Peoples) and the Rights of Indigenous Peoples to Full, Equal and Effective Participation in the global agenda of International Human Rights, Self Determination, and Decolonization. https://soundcloud.com/huehuecoyotl/coyote-radio-kpfk-aia