POINT OF VIEW

“TERRITORIAL INTEGRITY”AND “SOVEREIGNTY” OF STATES:
BASIC CONCERNS FOR INDIGENOUS RIGHTS

American Indian Law Alliance
and
Grand Council of the Crees (Eeyou Istchee)

December 22, 2003

I. Background


At the Organization of American States’ “Initial Meeting of Negotiations in the Quest for Points of Consensus” regarding the draft American Declaration on the Rights of Indigenous Peoples (Washington, D.C., 10-12 November 2003), a Proposal relating to “territorial integrity” and other principles was jointly made by several Indigenous organizations and nations from North America (see Annex I). Since the proposal was presented orally to the OAS Working Group by the Metis Nation representative, we will refer to it in this analysis as the “Metis Nation et al. Proposal”. The suggested text seeks to revise Article IV of the OAS Working Group Chair’s Consolidated Text, as follows:

Nothing in this Declaration shall be construed so as to authorize or foster any action aimed at breaking up or diminishing, fully or in part, the territorial integrity, sovereignty, and political independence of the States, conducting themselves in compliance with the principle of equal rights and self-determination of people, and thus possessed of a government representing the peoples belonging to the territory without distinction of any kind. [proposed revisions in bold]

If included in the manner proposed, “territorial integrity”, “sovereignty” and “political independence” of States could have far-reaching implications for Indigenous peoples’ right of self-determination and other human rights. In addition, such potentially adverse consequences could serve as a harmful precedent for the draft U.N. Declaration on the Rights of Indigenous Peoples that is currently being considered at the United Nations. In this way, not only Indigenous peoples in the Americas but also those in every other region of the globe could be gravely affected.

The “Metis Nation et al. Proposal” caught most Indigenous representatives at the Washington meeting by surprise. The Proposal was formally presented and tabled at the Working Group meeting on November 10. There was no prior notice or discussion of this Proposal at the meeting of the Indigenous Caucus (Nov. 9-10). Therefore, we now wish to take the opportunity to outline the potential problems with this Proposal.

We are providing this analysis in order to encourage reflection and debate among Indigenous peoples throughout the Americas and elsewhere, prior to the next meeting of the OAS Working Group in January 2004. We warmly welcome and invite other Indigenous nations and organizations to share with us their perspectives and response.


II. Analysis of “Metis Nation et al. Proposal”


1. Concerns relating to “Nothing in this Declaration …”

The first fundamental concern is that the Proposal supports the Chair’s Text, in applying in an overriding manner the notions of “territorial integrity”, “sovereignty” and “political independence” of States to all of the human rights of Indigenous peoples and individuals referred to in the draft Declaration (i.e. “Nothing in this Declaration shall be construed …”). The Proposal claims that this language “is from the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (1970); Vienna Declaration (1993); and the Declaration on the Occasion of the 50th Anniversary of the United Nations (1995)” (see excerpts of these instruments in Annex II). It is added that the proposed text “mirrors” language contained in these three international instruments.

These explanations in the Proposal are simply not accurate. None of the three instruments explicitly subordinate all of the human rights of Indigenous peoples and individuals – or any other peoples and individuals – to the “territorial integrity”, “sovereignty” and “political independence” of States. In the context of “territorial integrity” or “political unity”, all three instruments refer to the right of peoples to self-determination and not to any or all of the other human rights of peoples or individuals.

In regard to the “self-determination” and “territorial integrity”, the most significant instrument of the three is the 1970 Declaration on Friendly Relations. The Vienna Declaration adds little to this discussion, since it explicitly states that “territorial integrity” should be applied “in accordance with” the 1970 Declaration on Friendly Relations. It is worth noting that, while the 1970 Declaration prohibits “distinction as to race, creed or colour”, the Vienna Declaration and the Declaration on the Occasion of the 50th Anniversary of the United Nations broadens the phrase in the same context to “distinction of any kind”.

Language similar to that in the “Metis Nation et al. Proposal”, i.e., “Nothing in this Declaration shall be construed …” is found in the 1992 Minorities Rights Declaration:

Nothing in the present Declaration may be construed as permitting any activity contrary to the purposes and principles of the United Nations, including sovereign equality, territorial integrity and political independence of States.

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities, approved by the General Assembly on December 18, 1992, G.A. res. 47/135, annex, 47 U.N. GAOR Supp. (No. 49) at 210, U.N. Doc. A/47/49 (1993), Art. 8, para. 4.

However, even the Minorities Rights Declaration does not refer in the above Article to the “sovereignty” of States (but to the different principle of “sovereign equality” of all Member States of the U.N.). Moreover, minorities are generally considered not to have the right of self-determination. Indigenous peoples, on the other hand, are "peoples" with the right of self-determination. Any approach that relies upon the 1992 Minorities Rights Declaration could severely alter the status and human rights of Indigenous peoples. It would be erroneous, unjust and totally unacceptable.

By applying notions of “territorial integrity”, “sovereignty” and “political independence” of States to all of the human rights of Indigenous peoples and individuals in the draft OAS Declaration, the “Metis Nation et al. Proposal” would greatly expand the application of such terms in uncertain and unprecedented ways. States could acquire new rationales for dominating Indigenous peoples and overriding or circumscribing the valid exercise of our basic rights. Similar proposals on “territorial integrity” by the Nordic States were rejected in September 2003 by a substantial majority of Indigenous representatives participating in the standard-setting process at the United Nations.

By invoking the principle of ‘territorial integrity”, etc. in a wide range of situations that have nothing to do with “secession”, States would be better positioned to perpetuate the legacy of colonialism and impoverishment suffered by Indigenous peoples in the Americas. New and unjustified limitations on the interpretations of Indigenous peoples’ treaties and treaty rights could also be the result. Such new problems are likely, since our treaties often address political, economic, social, etc. dimensions of our human rights.

As indicated at the UNCHR Working Group meeting (Geneva, Sept. 24, 2003) by Aqqaluk Lynge, ICC President (Greenland) and Member of the Greenland Home Rule Government, simply highlighting the principle of “territorial integrity” and not the numerous other relevant international law principles would likely invite “abuses” or “distortions”:

… the ICC would like to appeal to the state government members of the Commission on Human Rights and the observer governments present to shift your focus away from the unnecessary fixation on the principle of territorial integrity that has hindered the progress of the Declaration. … [T]here is no question in our minds that the nation state members of the UN know the underlying principles of international law which continue to be the framework for the maintenance of peace and security, and international cooperation. These principles include far more than the principle of territorial integrity and by singling this concept out in the Declaration, it is likely to invite abuses or distortions of our right to self-determination. [emphasis added]

States are free to invoke “territorial integrity” and other international principles, if and when justifiable circumstances arise. Therefore, there is no need to highlight such principles in the draft Declaration so as to possibly imply that these principles have some kind of overriding or special status.

Based on the above, the “Metis Nation et al. Proposal” would in effect create discriminatory double standards. In regard to Indigenous peoples, the interrelationship between the human right of self-determination and the principle of territorial integrity under international law would be significantly altered to our detriment. Our other human rights could also be severely undermined, in ways not yet fully determined. These conclusions are further reinforced below.



2. Inappropriate reference to “sovereignty” and “political independence” of States

The second fundamental concern is that the “Metis Nation et al. Proposal” would in effect accept that all of the human rights of Indigenous peoples be construed, so as not to “diminish” the “sovereignty” and “political independence” of States. The Proposal would endorse this restrictive interpretive rule, so long as the States concerned were “conducting themselves in compliance with the principle of equal rights and self-determination of people, and thus possessed of a government representing the peoples belonging to the territory without distinction of any kind”.

Contrary to what the “Metis Nation et al. Proposal” suggests, none of the three international instruments it refers to includes any reference to the terms “sovereignty” and “political independence” of States. It is simply not true to declare that such language in the Proposal “is from” or “mirrors” these three other instruments. See excerpts in Annex II of the 1970 Declaration on Friendly Relations; 1993 Vienna Declaration; and the 1995 Declaration on the Occasion of the 50th Anniversary of the United Nations.

In uncertain and unprecedented ways, the “Metis Nation et al. Proposal” would in effect legitimize subordination of the human rights of Indigenous peoples and individuals to the “sovereignty” of States. Why would we reinforce State sovereignty? Indigenous peoples should be concerned about safeguarding our own sovereignty and guaranteeing full respect for our fundamental rights.

In addition, it would be inaccurate and unjust to suggest that the human rights of Indigenous peoples and individuals could not be construed in the future so as to “diminish” the sovereignty of States. In international and domestic law, it is well established that the sovereignty of States is not absolute. Rather obligations to respect human rights necessarily serve to significantly limit the sovereignty of States. See, for example, International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background, Supplementary Volume to the Report of the International Commission on Intervention and State Sovereignty, (Ottawa: Int’l Development Research Centre, 2001), at pp. 7-8:

There are important and widely accepted limits to state sovereignty and to domestic jurisdiction in international law. … [S]tate sovereignty may be limited by customary and treaty obligations in international relations and law. States are legally responsible for the performance of their international obligations, and state sovereignty therefore cannot be an excuse for their nonperformance. Obligations assumed by states by virtue of their membership in the UN and the corresponding powers of the world organization presuppose a restriction of the sovereignty of member states to the extent of their obligations under the Charter.

Further, under certain national legal systems (e.g., United States and Canada), it is recognized that both Indigenous peoples and States exercise sovereignty in varying ways. The exercise of Indigenous sovereignty necessarily entails the collective exercise of our inherent human rights. For all of these reasons, it would be highly prejudicial and regressive to now suggest that none of the human rights of Indigenous peoples could be interpreted as “diminishing” the sovereignty of States.

Even if States “conduct themselves in compliance with the principle of equal rights and self-determination of peoples”, the human rights of Indigenous or any other peoples must not be automatically subordinated to the sovereignty of States. In this regard, there should not be any rigid hierarchy unjustifiably favoring States.

It is also important to underline that principles, such as “political independence”, arose in the context of creating obligations between Member States of the United Nations. As stated in the Principles of the Charter of the United Nations (Art. 2, para. 4), principles such as “political independence” are intended to bind Member States in their international relations:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It would be extremely imprudent for the “Metis Nation et al. Proposal” to accept expanding this principle of political independence of States. What would be the rationale of applying this principle to our human rights? There is simply no justification for limiting the human rights of Indigenous peoples in potentially far-reaching and uncertain ways.


3. Inaccurate use of the principle of “territorial integrity” in the Proposal

In its “accompanying explanation” (see Annex I), the “Metis Nation et al. Proposal” highlights the role of the principle of territorial integrity in international law as follows:

We acknowledge the role that the principle of territorial integrity plays within the framework of international law. The OAS Charter, the Inter-American Democratic Charter and the recent Declaration on Security in the Americas each affirm this principle.

This statement does not clearly inform us of the nature of the “role” of territorial integrity. Yet in examining the three instruments referred to, one may gain certain insights. First, the Proposal incorrectly states that the principle of territorial integrity is affirmed in the Inter-American Democratic Charter. The Charter makes no mention whatsoever of this principle.

Second, the Charter of the Organization of American States and the 2003 Declaration on Security in the Americas affirm explicitly the principle of territorial integrity, but do so basically in the context of collective security. These references cannot serve to justify the expansive nature and scope of the “Metis Nation et al. Proposal”.

For example, in the case of the OAS Charter, it is said that acts of aggression by any State against the territorial integrity of an American State “shall be considered an act of aggression against the other American States” (Art. 28). It is also provided that if the integrity of the territory of an American State is affected “by any … situation that might endanger the peace of America, the American States, in furtherance of the principles of continental solidarity or collective self-defense, shall apply the measures and procedures established in the special treaties on the subject” (Art. 29). How do these references to “territorial integrity” support the position taken in the “Metis Nation et al. Proposal”?

In regard to the Declaration on Security in the Americas, adopted at the third plenary session of October 28, 2003, Special Conference on Security, Mexico City, OEA/Ser.K/XXXVIII, CES/DEC. 1/03 rev.1, 28 October 2003, para. 4r includes the sole reference to “territorial integrity”. However, the principle is invoked in a context of security, where the “States of the Americas” are committed to cooperation and to “refrain from the threat or use of force against the territorial integrity or political independence of any state”:

4. We [the States of the Americas] affirm that our cooperation in addressing traditional threats and new threats, concerns, and other challenges to security is also based on shared values and common approaches recognized in the Hemisphere.
…

r. Full respect for the integrity of the national territory and for the sovereignty and political independence of each state in the region constitutes an essential basis for peaceful coexistence and security in the Hemisphere. We reaffirm the inherent right of all states to individual or collective self-defense and our commitment to refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Charter of the United Nations and the OAS Charter. [emphasis added]

In contrast to the “Metis Nation et al. Proposal”, this Declaration on Security does not seek to override human rights with the principle of territorial integrity. Rather, in this Declaration, the approach to security and cooperation includes a new concept of security in the Hemisphere that is multidimensional in scope (para. 2) and is based on a wide range of “shared values and common approaches” (para. 4). These include “territorial integrity” as only one of at least 26 highly diverse aspects.

Other “salient” values and approaches in the Declaration on Security in the Americas include: respect for fundamental rights and freedoms (para. 4c); improved human security “through full respect for people’s dignity, human rights, and fundamental freedoms, as well as the promotion of social and economic development, social inclusion, and education and the fight against poverty, disease, and hunger” (para. 4e); promotion of a democratic culture (para. 4f); social justice and human development (para. 4g); enhancing the participatory and decision-making role of women (para. 4h); in regard to persistent controversies, the need to reach negotiated agreements based on justice and full respect for international law and treaties in force (para. 4t); and solidarity expressed through economic, technical, political, legal, environmental, social, and security and defense cooperation (para. 4x).

These examples serve to reinforce a key point that we wish to make. The principle of territorial integrity should not be used to override or restrict in uncertain ways the human rights of Indigenous peoples. Rather, where applicable, the principle should only be invoked in a contextual manner along with numerous other international law principles, values and approaches. In this regard, the diverse values and approaches that are integrated in the Declaration on Security in the Americas appear to be much more balanced, relevant and appropriate to meet the many challenges of the new Millennium than the narrow and erroneous perspective taken in the “Metis Nation et al. Proposal”.



4. Inaccurate description of Indigenous Caucus’ position

In regard to Art. IV (territorial integrity, etc.) of the Chair’s Consolidated Text, the “Metis Nation et al. Proposal” states:

As the Indigenous Caucus has made clear, this provision should be part of Section VI, General Provisions, rather than Section I on Scope of Application.

There were discussions in the Caucus regarding the moving of Art. IV to the “General Provisions” Section of the Text. However, in the Caucus meeting, some representatives expressed concern that to only suggest moving Art. IV to another Section could imply that Indigenous representatives agree with the content of the Article. There was no agreement reached in the Caucus that “this provision should be part of Section VI”.


Conclusions

It is respectfully concluded that the “Metis Nation et al. Proposal”, if adopted, would create a discriminatory double standard that would be highly disadvantageous to Indigenous peoples. It would reinforce the legal position of States, at the expense of Indigenous peoples and our human rights. Clearly, our collective focus should be on safeguarding the integrity of Indigenous territories and resources. This is an essential aspect towards the full affirmation and exercise of our right to self-determination. To date, there is no certainty that States will unequivocally affirm in any OAS Declaration that the right of self-determination under Article 1 of the Covenants applies without discrimination to Indigenous peoples in the Americas.

In the current OAS standard-setting process, it is strategically unwise and dangerous for the “Metis Nation et al. Proposal” to potentially expand the scope and application of the principles of “territorial integrity”, “sovereignty” and “political independence” of States. Our collective purpose is not to strengthen State domination or control over our fundamental rights.

In addition, the Proposal is replete with errors, inaccuracies and misleading statements. We have been informed that at least two Indigenous organization that initially endorsed the “Metis Nation et al. Proposal” have now formally requested that their name not be associated in any way with the suggested text.

In order to encourage dialogue and strengthen understanding, we would hope that in the future any potentially far-reaching proposals that impact on the human rights of Indigenous peoples, especially on our right of self-determination, be shared with other Indigenous representatives. This vital dialogue and exchange of views should take place prior to formally tabling a proposal in the Working Group meeting.

Clearly a common and unifying objective among all Indigenous peoples and organizations is the adoption of a strong Declaration on the Rights of Indigenous Peoples. In both the U.N. and OAS versions, the minimum human rights standards in both instruments should be consistent and uplifting.

Annex I

Proposal and Explanatory Text Submitted Jointly by the Metis Nation et al.

[Note: For purposes of our analysis, we refer to it as the “Metis Nation et al. Proposal”. Those Indigenous nations or organizations that have withdrawn their support for this Proposal have been deleted from the list of names below.]


November 10, 2003
Working Group for the Elaboration on the Draft American Declaration on the Rights ofIndigenous Peoples


Section I. Article IV. proposed revision (to be moved to Section VI. General Provision)

Nothing in this Declaration shall be construed so as to authorize or foster any action aimed at breaking up or diminishing, fully or in part, the territorial integrity, sovereignty, and political independence of the States, conducting themselves in compliance with the principle of equal rights and self-determination of people, and thus possessed of a government representing the peoples belonging to the territory without distinction of any kind.

(This language is from the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (1970); Vienna Declaration (1993); and the Declaration on the Occasion of the 50th Anniversary of the United Nations (1995)).

Accompanying explanation:

As the Indigenous Caucus has made clear, this provision should be part of Section VI, General Provisions, rather than Section I on Scope of Application.

We acknowledge the role that the principle of territorial integrity plays within the framework of
international law. The OAS Charter, the Inter-American Democratic Charter and the recent Declaration on Security in the Americas each affirm this principle. However, the principle of territorial integrity must be conditioned on respect for the rights of peoples - both indigenous and nonindigenous - to self-determination This proposal mirrors language adopted by the States of the Americas and the rest of the members of the UN General Assembly in the 1970 Declaration on Friendly Relations, the 1993 Vienna Declaration, and the 1995 Declaration on the Occasion of the 50th Anniversary of the UN and expresses the fact that the principle of territorial integrity cannot be used to violated the rights of peoples to self- determination.

______________

Supported by the Metis Nation, the Haudenosaune, the Navajo Nation, the National Congress of the American Indian, the Native American Rights Fund and the Indian Law Resource Center.

Annex II

Relevant Excerpts of International Instruments

1. 1970 Declaration on Friendly Relations (excerpt)


Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations, UNGA Res. 2625 (XXV), 25 U.N. GAOR, Supp. (No. 28) 121, U.N. Doc. A/8028 (1971). Reprinted in (1970) 9 I.L.M. 1292:

The General Assembly,
…
1. Solemnly proclaims the following principles:
…

The principle of equal rights and self-determination of peoples

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter, and to render assistance to the United Nations in carrying out the responsibilities entrusted to it by the Charter regarding the implementation of the principle, in order:

(a) To promote friendly relations and co-operation among States; and
(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;

and bearing in mind that subjection of peoples to alien subjugation, domination and exploitation constitutes a violation of the principle, as well as a denial of fundamental human rights, and is contrary to the Charter.

Every State has the duty to promote through joint and separate action universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter.

The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.

Every State has the duty to refrain from any forcible action which deprives peoples referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.

The territory of a colony or other Non-Self-Governing Territory has, under the Charter, a status separate and distinct from the territory of the State administering it; and such separate and distinct status under the Charter shall exist until the people of the colony or Non-Self-Governing Territory have exercised their right of self-determination in accordance with the Charter, and particularly its purposes and principles.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Every State shall refrain from any action aimed at the partial or total disruption of the national unity and territorial integrity of any other State or country. [emphasis added]
 

2. Vienna Declaration (excerpt)


United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, adopted June 25, 1993, U.N. Doc. A/CONF.157/24 (Part I) at 20 (1993), reprinted in (1993) 32 I.L.M. 1661, para. 2:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development.

Taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Conference on Human Rights recognizes the right of peoples to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of self-determination. The World Conference on Human Rights considers the denial of the right of self-determination as a violation of human rights and underlines the importance of the effective realization of this right.

In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.

3. 1995 Declaration on the Occasion of the Fiftieth Anniversary of the United Nations (excerpt)


Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, G.A. Res. 50/6, October 24, 1995:

PEACE

1. To meet these challenges, and while recognizing that action to secure global peace, security and stability will be futile unless the economic and social needs of people are addressed, we will:
…
- Continue to reaffirm the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind;

<==