HR/CN/603
25 August 1994
HUMAN RIGHTS SUBCOMMISSION DEBATES INDIGENOUS RIGHTS DRAFT,
RIGHTS OF DETAINEES
GENEVA, 22 August (UN Information Service) -- The Subcommission on
Prevention of Discrimination and Protection of Minorities this afternoon
continued its debate on a draft universal declaration on indigenous rights,
with some government representatives calling for its adoption and others
expressing reservations about some of its language. A decision on the draft
is expected later this week, when the Subcommission votes on a number of
drafts recommending action to the Commission.
The observer for Australia said the draft was a comprehensive and fair
reflection of the aspirations of the world's indigenous peoples and provided
an excellent basis for further work. The time was ripe for the text to be
considered by Governments. That was also the view of the representative of
Canada, who said the draft would only come to life when it had been adopted by
States. Canada supported the full participation of indigenous representatives
in the review of the draft declaration.
According to the observer for Chile, an excessive delay in the
consideration of the draft would not send a good political signal, as it would
not meet the expectations of indigenous peoples for quick approval of a
universal declaration. A frank and realistic analysis of the draft, based on
the principle of self-determination, elicited reservations in Governments,
which saw in the exercise of that right a potential threat to sovereignty.
The observer for Brazil expressed reservations about references to
self-determination, as well as about the use of such terms as "land",
"territories" and "resources". He added that some provisions "might be
interpreted as recognizing indigenous communities as subjects of international
law, thus exempting them from the jurisdiction of the State where they lived.
The observer for India said one way the draft could be improved was by
having a clear-cut and rigorous definition of what precisely was meant by
"indigenous people" and its applicability. The term should not be applied
mechanically as a sweeping generalization to all parts of the world. The term
(more)
- 2 - Press Release HR/CN/603
25 August 1994
was not applicable to India or indeed to many Asian and African countries
whose entire populations had been living on their lands for the past several
millennia, he said.
The Grand Council of the Crees, a non-governmental organization, called
on the Subcommission to discuss the draft more thoroughly, rather than
forwarding it immediately to the Commission on Human Rights, as had been
suggested earlier by some Subcommission members. In the rush to send it to
the Commission, there would be no time to prepare the necessary supporting
documentation that would place the draft declaration within the juridical
framework of United Nations human rights instruments.
Also taking part in the debate were the Subcommission experts from Greece
and Cameroon, as well as observers for the following Governments: Denmark,
United States, Pakistan, Finland and Malaysia. Bangladesh exercised its right
of reply.
The Subcommission resumed its discussion of the question of the rights of
detainees, with statements from the following non-governmental organizations:
International Human Rights Association of American Minorities, Pax Christi,
International Association against Torture, World Muslim Congress,
International League for Human Rights, International Educational Development,
Inc., Andean Commission of Jurists, Liberation, World Federation of Democratic
Youth, International Federation of University Women, and Service, Peace and
Justice in Latin America.
Statements on Draft Declaration
CHRISTIAN LOTZ (Denmark) said he supported the text of the draft
Declaration in its entirety, including the paragraphs on the right to
self-determination of indigenous peoples. That right must be recognized
without reservations and according to established international law.
Furthermore, Denmark approved of the recommendation of the Working Group to
the Subcommission that the draft declaration be submitted to the Human Rights
Commission as quickly as possible. Should the text be opened for further
discussion by the Subcommission, or by its parent body, indigenous
representatives should be able to participate fully in those discussions as
they had done in the Working Group. His Government and the Greenland Home
Rule administration had promoted the idea of a permanent forum for indigenous
peoples in the United Nations since it was first taken up at the meeting of
experts in Greenland in 1991.
LUIS LILLO (Chile) said the International Decade for the World's
Indigenous People (1994-2004) offered an opportunity for action that could not
be missed. In the field of standard-setting, the draft declaration marked the
culmination of a very important era. The Subcommission faced a very delicate
task for, in addition to analysing both the contents of the document and the
modifications that could be incorporated in it, it was the last forum of
discussion before the declaration was submitted to Governments.
(more)
- 3 - Press Release HR/CN/603
25 August 1994
He said realistic analysis of the draft, elaborated on the principle of
self-determination, elicited reservations in Governments which saw in the
exercise of that right a potential threat to sovereignty. Chile's actions on
behalf of its indigenous peoples sought to reverse and correct the policies of
assimilation applied to those communities for a long time. The
self-determination of indigenous peoples had as its only aim the strengthening
of their right to affirm themselves as culturally different. Chile supported
the establishment of a permanent forum for indigenous peoples.
JOHN CROOK (United States) said it was time to move the draft declaration
along on the road towards adoption by the General Assembly. It might prove
possible to adopt the declaration during the early years of the International
Decade of the World's Indigenous People. Nevertheless, certain provisions of
the draft appeared to be potentially problematic. Those issues should be
discussed, and they could be resolved; none of them appeared insurmountable.
Since the 1970s, the Government had supported the concept of
self-determination for Indian tribes and Alaska natives within the United
States. In the domestic context, "self-determination" meant recognizing
tribal self-governance and autonomy over a broad range of issues. It was time
to move the draft declaration to the level of consideration by Governments.
SATISH CHANDRA, from India, said that the draft declaration constituted a
solid foundation addressing the problems of indigenous peoples and protecting
their human rights. The draft could be improved by having a clear-cut and
rigorous definition of what precisely was meant by "indigenous people" and its
applicability. In his view, the term applied to specific populations and
communities in certain parts of the world. It should not be applied
mechanically as a sweeping generalization to all parts of the world. The term
was not applicable to India or indeed to many Asian countries and Africa
because the entire population of those countries had been living on its lands
for the past several millennia.
All those people were indigenous to the country, he continued, and any
attempt to make a distinction between indigenous and non-indigenous would be
artificial. Questions of the degree of autonomy which could be availed of by
indigenous people were directly connected to what was necessary to maintain
their beliefs and their customs so that there was no assimilation and, at the
same time, the human rights of the segments of the population were not
affected.
GILBERTO VERGNE SABOIA, from Brazil, said some articles in the draft
declaration gave rise to concerns and in their present formulation would
encounter difficulty in being accepted by many Governments, including Brazil.
Some of the provisions by virtue of which indigenous populations would be
attributed the right to self-determination as defined by international law,
tended to incorporate new and insufficiently matured concepts which were not,
in their present formulation, consistent with constitutional and international
law. Other provisions might be interpreted as recognizing indigenous
communities as subjects of international law and thus exempting them from the
jurisdiction of the State where they lived. Further clarification was also
required on the meaning and extent of the principles of indigenous people's
(more)
- 4 - Press Release HR/CN/603
25 August 1994
autonomy and self-government in matters relating to their internal and local
affairs.
Other controversial concepts, he said, included use of the expression
"land, territories and resources". That should be replaced by the words
"lands and natural resources" to better reflect the diversity of situations
and indigenous land tenure regimes throughout the world. The notion of
"territories" should not be interpreted as a distinct political entity from
the national territory to which it belonged.
FAUZIA ABBAS (Pakistan) said her Government fully supported indigenous
people in achieving their rights. Self-determination was the cornerstone of
national and international society. It was a continuum and lasting right of
peoples and had to be protected. The original concept enshrined in Articles
1 and 55 of the United Nations Charter was recognized as a generally binding
principle of international law. It was exercised initially by those under
colonial or alien domination. Recently, several multi-ethnic States had
collapsed. In some cases the process had been peaceful, and in others it had
been violent. Self-determination must be a free exercise of the will of the
people without any coercion. In multiracial, multi-ethnic States, autonomy
could be a useful mechanism for overcoming differences, but that should not
call into question the territory of autonomous States. There was a potential
for abuse in that approach.
EERO J. AARNIO (Finland) said he hoped the Subcommission could complete
its consideration of the draft declaration at that session and submit it to
the Commission on Human Rights for consideration at its next session. He was
in favour of the use of the concept of indigenous peoples in the plural, so as
to meet the request of indigenous peoples themselves. He also supported the
use of the concept of self-determination of the indigenous peoples in matters
relating to their internal and local affairs, particularly in the cultural
field in the wide meaning of that concept.
His Government, in cooperation with the Sami Parliament, was preparing a
bill on the cultural autonomy of the Sami in Finland, he continued. The bill
was intended to pass early next year. Finland's main concern in the draft
declaration concerned the formulation of land rights. The final text of
article 26 of the draft was quite far-reaching, even in comparison to article
14 of the International Labour Organisation (ILO) Convention No. 169. That
Convention made a distinction between lands traditionally occupied by
indigenous peoples and lands not exclusively occupied by them.
JANICE MULLENEUX (Australia) said that the draft was a comprehensive and
fair reflection of the aspirations of the world's indigenous peoples and
provided an excellent basis for further work. The time was now ripe for the
text to be considered by Governments. Valuable though the contents of the
draft declaration might be, until it was adopted by the General Assembly, it
would have little influence on the policies of Governments. Australia shared
the concerns of members of the Working Group and of indigenous organizations
that the representatives of indigenous peoples should continue to be involved
in the drafting of the declaration once it left the Subcommission. Australia
(more)
- 5 - Press Release HR/CN/603
25 August 1994
would be proposing at the Commission on Human Rights that the normal rules
regarding non-governmental organization participation in the deliberations of
Working Groups of the Commission be modified in this instance to ensure the
participation of indigenous peoples' organizations.
ANNE PARK (Canada) said Canada supported the objectives of most
provisions in the present draft declaration. Where it had expressed concerns
with certain provisions, that had been for the purpose of ensuring that the
principles were clear and easily understood and that they could accommodate
the diverse circumstances of indigenous people worldwide. Canada supported
the full participation of indigenous representatives in the review of the
draft declaration by member States. Also, Canada supported the proposal that
a working group of the Commission on Human Rights, composed of Government
representatives, be constituted to meet in Geneva just before the annual
sessions of the Working Group on Indigenous Populations to facilitate the
attendance of as many indigenous representatives as possible.
She said officials of the Government of Canada had an initial meeting on
21 April with Canadian aboriginal representatives to discuss with them the
concerns Governments had regarding certain provisions of the draft
declaration. They ,in turn, explained why the positions they had taken were
important from their perspective. From that promising start, Canada hoped to
address all of the issues of the draft declaration in meetings designed to
develop a consensus within Canada.
ROHANA RAMLI (Malaysia) referred to the document entitled "Transnational
investments and operations on the lands of indigenous peoples" and said she
had a number of comments to make, specifically with regard to paragraph 16 of
the document. Allegations made against South-east Asian transnational
corporations operating on indigenous peoples' lands in Asia and some parts of
Africa were sweeping statements that were not substantiated by facts. The
allegations that the conduct of South-east Asian transnational corporations
resulted in more negative socio-cultural impacts than those transnational
corporations headquartered in the North, simply because the latter were more
likely to be scrutinized by their shareholders and the media, was not only
biased and patronizing, it also cast aspersions on the institutions of the
South. That part of the report was less than objective as it reflected the
bias of the North against the South.
BRIAN LEE and WILTON J. LITTLECHILD, of the International Organization of
Indigenous Resource Development/Grand Council of the Crees, said the
organizations they represented wanted more than anyone else to see the
declaration adopted by the General Assembly. However, they did not feel that
that would be accomplished most quickly by simply forwarding the draft
immediately to the Commission. In the rush to send it to the Commission,
there had been no time to prepare the necessary supporting documentation that
would place the draft declaration within a juridical framework of United
Nations human rights instruments. Furthermore, the relevant information on
the situation of the world's indigenous peoples had not been integrated into a
support document. Preparation of those two documents had been requested. The
drafting work had been done, and done well. But the necessary work had to be
(more)
- 6 - Press Release HR/CN/603
25 August 1994
done to prepare the ground in the Commission so that the declaration could be
fairly and reasonably considered.
ERIKA-IRENE A. DAES, expert from Greece, thanked all those who had
contributed to the realization of the draft declaration. Like many other
United Nations documents, the document might not be perfect. Many
controversial opinions were expressed during the elaboration of the text,
including, for example, the positions of certain Governments concerning the
article on the question of self-determination. Although there were differing
viewpoints, the text could not be kept in the Subcommission without sending it
to the political body. The points contained in the document were already
discussed by indigenous and non-governmental organization representatives
before it took the present shape.
JOSE AUGUSTO LINDGREN ALVES, expert from Brazil, said it was a pity such
a short time was available for discussion of the draft declaration, especially
as he and several others were new this year to the Subcommission. It seemed
clear that the draft would not be accepted by countries as it stood -- hence,
the many references to the forming of a working group by the Commission.
Would it not be better to keep it a little longer for a more thorough
consideration, taking stock of the opinions expressed by different
Governments? The draft needed, at the least, something specifically on
protecting the rights of indigenous women. After the last session of the
Working Group, a group of women had approached a Central American delegation,
seeking support. They explained they were afraid to raise their concern in
the Working Group out of fear of reprisals from the men in their groups.
A new preambular paragraph should reaffirm that the rights of women were
inalienable and universal and that no traditional custom could prevail over
the rights of women in the various instruments of the United Nations. Another
preambular paragraph, he continued, could say that despite the various
prohibitions against discrimination against women, indigenous women continued
to be subject to practices that hurt and marginalized them because of their
sex and race. If the territorial integrity of States were clearly stated in
the draft, some countries' strongest misgivings might disappear and the whole
work done by the Working Group would receive more sympathetic consideration by
higher bodies of the United Nations.
LUCY GWAMNESIA, expert from Cameroon, said that if indigenous women were
being discriminated against by non-indigenous men, that was covered by the
draft declaration. If it were indigenous men, then the issue became very
complicated. It was tantamount to a house fighting itself.
Right of Reply
NAZMUL QUAUNINE (Bangladesh) said he must set the record right in
response to the intervention of Anti-Slavery International. The people who
constituted modern-day Bangladesh had lived in that land since time
immemorial, tribals and non-tribals alike. The people of Bangladesh, the
plains people and the hill people were equally indigenous to the land. Hill
and plains dichotomy was perhaps inappropriate because there were as many as
(more)
- 7 - Press Release HR/CN/603
25 August 1994
13 distinctive tribes in the Chittagong hill tracts and 13 more tribals living
outside the tracts. There was no Jumma denomination. Indeed, what was touted
as the Jumma nation could very well be the imposition of an alien identity on
those groups. However, the Government, committed to finding a peaceful
political solution, had engaged in a dialogue with a group calling itself
Jumma group. There had been progress in substantive matters, as well as in
the repatriation of tribal refugees from India.
Statements on Rights of Detainees
THEODORE EAGANS, of the International Human Rights Association of
American Minorities, said discrimination against American minorities had led
to judicial and penal ramifications. There had been trumped-up cases and
unfair trials against Black Panthers, for example, resulting in unfair
convictions. One had been sentenced to life imprisonment on a false murder
charge. African-American male members of the Nation of Islam experienced
denial of human rights while in correctional institutions of the United
States. Some were denied the right to practise Islam. The death penalty was
unfairly applied -- it almost always was applied to minority persons.
Homelessness in the United States was also especially common among people of
colour. A study should be performed by the Special Rapporteur on racism
concerning administration of justice in the United States.
A speaker from Pax Christi said he had been a political prisoner in
Morocco. He wanted to testify about the suffering of several hundred of his
compatriots in secret Moroccan jails. If he was still alive to appear before
the Subcommission, it was thanks to the untiring efforts and perseverance of
several non-governmental organizations in investigating the fate of
disappeared Saharawi and Moroccan detainees. He had been held in solitary
confinement four months and 16 days, during which time he had been tortured.
His health had deteriorated to the point where he could no longer stand.
After that period in solitary confinement, he had been moved to a cell where
other Saharawis were being held. There, he had spent four years and two
months. In total, he had been held over 16 years, although he had never been
tried. He had not received any compensation.
YVES JOSEFOVSKI, of the International Association against Torture, said
that a recent report by the United States Justice Department had indicated the
presence of 1 million inmates currently in federal and state prisons. A
disproportionate percentage of those prisoners were African-Americans and
Hispanics. Despite the plethora of legislation which existed, the United
States violated the human rights of both categories of prisoners. While the
rest of the world, in adherence to international norms, retreated from its
use, the death penalty was being increasingly carried out in the United
States. Its determination to defend its retrograde position on the death
penalty was embodied in its refusal to retract the reservation it made on
article 6 of the International Covenant on Civil and Political Rights which
preserved its right to execute juvenile offenders, he said.
MAQBOOL AHMAD, of the World Muslim Congress, said the massive violation
of human rights was often justified in the name of national security. No
(more)
- 8 - Press Release HR/CN/603
25 August 1994
trial was fair if conducted in situations where laws were tailored to favour
States and under emergency situations. Under the laws in force in
India-occupied Kashmir, usual conditions were reversed -- torture was allowed
to extract evidence, questionable witnesses were accepted, suspects had no
right to counsel, were not allowed to confront witnesses, could be detained
without trial for long periods, and generally were considered guilty unless
proved innocent. Other laws in the region allowed firing on crowds by
security forces, arrests without warrants, and entering of premises without
search warrants. The right to a fair trial was non-derogable and such laws as
these precluded any chance of a fair trial.
XIAO QIANG, of the International League for Human Rights, said five years
after the brutal military suppression of peaceful demonstrators in Beijing in
June 1989, human rights non-governmental organizations had documented the
cases of over 220 previously unknown prisoners arrested in the crackdown and
still imprisoned. They performed hard labour and some had suffered torture
and serious abuses. The League doubted whether any of those inmates had
received a fair trial. He requested the Subcommission to adopt measures to
encourage the Government of China to end its political control over the legal
system.
KAREN PARKER, of the International Educational Development, Inc., said
that the representatives of the Kashmiri people and the Government of Pakistan
had agreed to participate in discussions under the auspices of the
Secretary-General to resolve the Kashmir dispute. She hoped that India would
join in as soon as possible so that the necessary arrangements could be made.
She urged the Subcommission to seize that historic opportunity to make a
positive contribution to human rights. From 1942 to 1945, the United States
had seized 2,264 men, women and children of Japanese ancestry from
12 countries in Latin America, of whom 80 per cent were Peruvian, she went
on. And they were shipped to detention and hard labour in camps in Panama and
the United states. Some were exchanged for Japanese-held prisoners of war.
Most surviving Latin American Japanese were excluded from the United States
programme to compensate American Japanese for their internment. The fiftieth
anniversary of the end of the Second World War was the time for all parties to
that conflict to provide full apology, release of all information and provide
meaningful compensation for all persons whose rights were violated.
CARLOS RODRIGUEZ-MEJIA, of the Andean Commission of Jurists, said the
administration of justice in the Andes was undergoing a crisis owing to such
factors as political pressure and interference, limited resources, corruption
and intimidation from politicians and drug traffickers. Political influence
over the nomination of judges to the Supreme Court in Ecuador continued,
despite the judicial reform implemented in 1993. That problem was also
evident in Venezuela, while in Bolivia, bribes and reprisals affected judges,
lawyers and the police, thus leading to a loss of legitimacy.
In Chile, he continued, most of the judges in the Supreme Court had been
designated by the military regime of Pinochet. In Peru, the loss of
independence and autonomy of the judicial power had been aggravated following
the coup d'etat of 5 April 1992. Due process was fundamental to a democratic
(more)
- 9 - Press Release HR/CN/603
25 August 1994
State. Unfortunately, the weakening of that right was common practice in the
Andean region. Particularly grave was the existence of special jurisdictions
and legislation of exception. That was a problem in Colombia and Peru, while
in those two countries and in Chile and Venezuela, military tribunals were
competent to hear cases of human rights violations committed by members of the
armed forces. Military jurisdiction, when it existed, should only apply to
military crimes. Common crimes committed by the military should be tried by
civilian courts.
SANJOY BARUA and COKI NAIPOSPOS, of the Liberation organization, said
that the very heavy militarization of the Chittagong hill tracts region had
led to a record high increase in arbitrary arrests and detention, torture and
deaths in custody. The Special Power Act enacted in 1974 and empowering the
Government to speed up trials, arrest people on suspicion of endangering
public safety, and give "effective punishment" was in flagrant violation of
the Constitution of Bangladesh. The Working Group on Detention must put
pressure on that Government so that all the human rights of the Jumma people
were recognized and respected.
There were also many hundreds of political prisoners in Indonesia and in
East Timor, he went on, with many Muslims, Acehnese and West Papuans serving
sentences on political charges. Indonesia was a major international Power.
It occupied the presidency of the Non-Aligned Movement and exerted great
influence over the countries of South-east Asia. Could the Subcommission
allow a country with such a high international profile to set an example of
authoritarianism and grave human rights abuses? The misdeeds of the
Indonesian regime were so diverse and unrelenting that it was high time for
the United Nations to appoint a special rapporteur on Indonesia.
MOHAMMAD ANWAR, of the World Federation of Democratic Youth, said that in
some countries people were unfairly charged or imprisoned because of their
religion or beliefs, or because normal laws had been suspended through
militarization or operations by security forces. Pakistan provided an example
where religious discrimination against Christians and other non-Muslims had
led to army "clean-ups" of prisoners of conscience. There had been some
extrajudicial executions. Torture in the custody of the army and police had
been widespread and often led to death. Flagrant abuses also included the
abduction of women for purposes of rape, he said. Sometimes corpses were
mutilated. It was fashionable to accuse people of being terrorists when
States did not want to grant people their human rights.
MARIA-ESPERANZA FURTER, of the International Federation of University
Women, said the preliminary report by Special Rapporteurs Guisse and Joinet
did not make any reference to the rights of the child. The final report of
Mr. Van Boven on compensation against gross violations of human rights did not
give any emphasis to the consequences of the violations against women and
children. Women played the important role in transmitting the values of
family and society to their descendants. With regard to the Working Group on
Detention, nothing was mentioned about the rights of children in preventive
detention. Children could not be deprived of their rights illegally.
(more)
- 10 - Press Release HR/CN/603
25 August 1994
RICARDO CHANGALA, of the organization Service, Peace and Justice in Latin
America, said many prisoners were being improperly held in Latin American
prisons. In Uruguay, for example, 85 per cent of those in prison had not been
sentenced. In Argentina, the situation was the same -- sometimes it took six
months before a case came up. The accused deserved trial without unreasonable
delay. After this period of being deprived of freedom, sadly, often the
person came out with no possibility of being rehabilitated. Other problem
areas in the region involved the human rights of detained minors. In some
situations, minors in prison received no education; there was only
repression. As for military tribunals, there should be no situations, no
matter how small, where they had jurisdiction over civilians. Unfortunately,
in almost all Latin American countries, military tribunals were used in trials
involving civilians. That was true in Peru, for example, he stated.
* *** *