Declaration is a historic document,
out of a historic process

Panel Presentation

By Craig Mokhiber
Officer in Charge, New York Office of
the High Commissioner for Human Rights

I will do my best to try to maintain my diplomatic footing and hide my excitement at the moment in which we find ourselves. It is no secret that those of us who make our living in the field of human rights are very excited about the adoption of this instrument by the Human Rights Council and by the impending adoption in the General Assembly. So let me remind you that this is indeed something that has been a very long time coming.

I remember being in Geneva in 1989 when the ILO adopted Convention 169. People were saying we really need to move forward now on the adoption of the Declaration. 1989 seems like such a long time ago. I recall a discussion a few years ago with an Indigenous representative, saying arent you frustrated this is taking so long?. I was corrected and reminded that Indigenous Peoples measure their paths and their politics and their struggles in centuries, and that a delay of a couple of decades is not something to make them lose their patience, as we might.

This is an historic development. The adoption of this instrument represents a lot of years of work, by a lot of people. It has been a process that involved representatives of the indigenous community, delegations of member states and NGOs, all working together - as is often the case in a human rights realm - to bring about some normative clarity on what is required. If you look backwards, at what happened in this process, you may find hope for what is coming in the UN after some difficult years.

Kofi Annan, UN Secretary General, has made a point of his mission in the last two terms, todemocratize the way the UN goes about its work. That is, leadership is firmly in the hands of the member states, as represented by their delegations, and that other voices - non-governmental voices, specialist voices, indigenous voices - also contribute valuable information in the fora of this institution. Here, in the development of this Declaration, is a case in point. We can all use this process as a model.

It is clear that the Declaration is not a treaty. One would be fair in asking the question well if it is not a treaty with binding legal obligations, what is the value of this instrument? and I say these following points.

(1) It is an extremely useful tool for those of us who work in human rights. It is, in many ways, a harvest that has reaped existing fruits from a number of treaties, and declarations, and guidelines, and bodies of principle, but, importantly, also from the jurisprudence of the Human Rights bodies that have been set up by the UN and charged with monitoring the implementation of the various treaties.

(2) The rights contained in the Declaration are not new. There are no new rights in the Declaration from our perspective. They are rights that have been codified by the member states of this organization in countless treaties and have existed for the entire life of this organization since the adoption of the universal declaration of HR. But they are rights that have been violated - if we are to be frank, with impunity - vis-a-vis Indigenous Peoples for as long as these rights have existed. So the Declaration does something that is very useful. It helps us to clarify what are the normative implications and the operational requirements of the existing catalogue of human rights standards that have been adopted by the UN over the years. This clarification occurs in a way that is situation-specific, explaining how these pre-existing rights apply to the very particular case of Indigenous peoples around the world.

(3) The Declaraion is not just a re-statement of existing rights, although it does not create any new rights. It is a remarkably clear articulation of the nature of the obligations and entitlements that attach to those pre-existing rights in the case of Indigenous Peoples. If you look at the instrument you will see the practical value of language that is drawn from the jurisprudence and helps us to understand those rights better, language like free, prior and informed consent, language like just and fair compensation and language like fair and independent process. These are not new concepts but they are very well articulated in the declaration.

(4) The Declaration is a comprehensive standard on human rights. It covers the full range of rights of Indigenous Peoples - in fact, rights of all of us but as they relate to Indigenous Peoples. It catalogues the kinds of violations that have historically plagued and, sadly, continue to plague Indigenous Peoples around the world. In particular, there are attacks upon their culture, their land, their identity, and their own voice. The Declaration has remarkable detail on issues like cross-border relations and discrimination suffered by indigenous groups. In short the Declaration lays out the minimum standards for the survival, dignity and well being of Indigenous Peoples. That, itself, is language taken from the Declaration and is proof enough of the practical value of the instrument.

(5) The Declaration does not take an either/or approach that historically has been forced on Indigenous Peoples around the world. Indigenous Peoples, for example, were forced to either be restricted to reserves or to suffer discrimination before official state institutions. This Declaration incorporates choice as a fundamental element to which we are all entitled. You can see that the declaration looks both at respect for indigenous institutions, on the one hand, but also equality before official institutions on the other hand. It looks at both the recognition of Indigenous identity, on the one hand, but also the right to national citizenship on the other hand. It looks at respect for traditional justice systems, on the one hand, but also requires access to national justice systems on the other hand. This very balanced choice approach to human rights is codified in countless instruments but now we have it very clearly laid out in regard to the long struggles of Indigenous Peoples.

I think it is fair to say that the UN has had a long commitment and engagement in the question of the rights of Indigenous Peoples. I mentioned here:
" ILO Convention 169 and its predecessor instrument;
" the many years of work of the Working Group on Indigenous Populations;
" the excellent work of our own Special Rapporteur, Mr. Stavenhagen, who continues to contribute in very practical ways to the protection of the rights of Indigenous Peoples;
" the Permanent Forum on Indigenous Issues and its excellent secretariat under Elsa Stamatopoulous leadership;
" the countless special rapporteurs and treaty bodies, that, in the context of their non-indigenous specific work, take up questions relating to the protection of the rights of Indigenous Peoples and,
" the Office of the High Commissioner for Human Rights and its programs in support of Indigenous Peoples.

We will now soon have a Declaration that assists us in very practical ways to do the work to which the organization is committed. This is something to be celebrated. Considering the centuries of violations, of dozens of rights, of hundreds of millions of our fellow citizens in this world, it is something long overdue.


General Assembly President, HE Madame Sheika Heya Rashed Al Khalifa, receives greetings from Indigenous delegate, Jose Carlos Morales. The President listened to requests that the Indigenous Peoples be acknowledged in the General Assembly when the Declaration is formally adopted.

for more information
on the Declaration

Permanent Forum on
Indigenous Issues

Office of the High Commissioner
for Human Rights

Documentation Centre
for Indigenous Peoples

Tebtebba Foundation

International Indian Treaty Council

American Indian Law Alliance

International Work Group
for Indigenous Affairs

Rights and Democracy

Amnesty International, Canada

University of Minnesota
Human Rights Library

(Download Kit)

Letter to States by
Special Rapporteur & Chair of PFII

Letter to States by
Indigenous Peoples Caucus

Letter to States by
Ambassadors to UN

Ten Key Points

Declaration (download)

How States voted in the
Human Rights Council