International Law
Supporting First Nation Rights
September 20, 2018

 

Charter of the United Nations (1945)

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• According to Article 1, the UN Charter is purportedly based on “respect for the principle of equal rights and self-determination of peoples”.
   

• There has been some debate as to the status of Indigenous peoples in international law, and whether Indigenous peoples fall under the definition of ‘peoples’ as per the UN Charter. Alfonso Martinez, a Special Rapporteur to the UN in 1997, was of the opinion that Indigenous peoples were entitled to the right to self-determination and that “Article 1 of the Charter of the United Nations gives blanket recognition of this right to all peoples (enshrining it as a principle of contemporary international law).”

 

International Covenant on the Civil and Political Rights & International Covenant on Economic, Social, and Cultural Rights (1966):

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• Similar to the UN Charter, Article 1 of each of the UN covenants stated that, “All peoples have the right of self-determination,” and that, “by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Again, there was debate as to the applicability of these covenants to Indigenous peoples due to the definition of ‘peoples’.
   

International Labour Organization (ILO) Indigenous and Tribal Peoples Convention, 1989 (No. 169)

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• This was the first international human-rights instrument to recognize the rights of indigenous peoples as a distinct concern.  Importantly, article 7 stated that,
  “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy.”

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• However, the convention also stated that, “the use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.” Signatories of the ILO convention did not want the right to self-determination, as outlined in the UN Charter and covenants, to apply to Indigenous peoples.

 

 

United Nations Declaration on the Rights of Indigenous Peoples (2007)

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• Canada has signed on to UNDRIP “without qualification” and yet have made many attempts to circumvent and undermine the declaration, particularly when applying their 10 Principles document.

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• UNDRIP is not legally binding in a way as the treaty is, but nonetheless reflects legal commitments (e.g. customary international law, UN Charter).

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• The UNDRIP preamble affirms that, “indigenous peoples are equal to all other peoples...” This confirms that the UN Charter, Universal Declaration of Human Rights, and UN covenants and conventions are applicable to Indigenous peoples by international legal standards and reinforces Indigenous peoples’ right to self-determination.

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• The floor, not the ceiling

  • Article 43 stated that, “The rights recognized herein constitute the minimum standards for the survival, dignity, and well-being of indigenous peoples of the world.” This has been interpreted as, UNDRIP should not be considered as the culmination of Indigenous rights and that other declarations or sources of international legal principles should provide a higher standard, as these other sources have precedence.

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• A toolbox, not a recipe

  • UNDRIP articles support economic and political rights, including the right to self-determination and the right to lands, territories, and resources which Indigenous peoples have traditionally owned. Further, the 7th preambular paragraph recognized the inherent rights of Indigenous peoples derive from their “political, economic and social structures and from their cultures, spiritual traditions, especially their rights to their lands, territories, and resources.”

  • With regard to consent, article 32 asserted that states must, “obtain their free, prior and informed consent prior to the approval of any project affecting their lands or territories and other resources” and article 19 stated that consent is required before “adopting and implementing legislative or administrative measures that may affect [Indigenous Peoples].”

  • These articles were written to reinforce the inherent and unextinguished rights and jurisdictions of First Nations and provide sources for interpretation of Canadian law.  However, Article 46 posed some problems as it states, “Nothing in this Declaration may be interpreted 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.” As a result of this adopting UNDRIP in full may not be suitable for First Nations and it may be better to simply refer to individual articles that are useful.

 

American Declaration on the Rights of Indigenous Peoples (2016)

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• It is a second declaration signed by Canada that explicitly affirms and elaborates upon the rights of Indigenous peoples and as well as state obligations. The American Declaration includes some provisions that fall below UNDRIP and others that go beyond. In addition, both include provisions that the other does not have. In any specific situation, the minimum standard is the one that is higher in these two human rights instruments.

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• The floor, not the ceiling: The American Declaration includes the same provision on minimum standards as UNDRIP.

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• While UNDRIP stated that Indigenous peoples are equal to all other peoples, article 5 of the American Declaration went further, stating that, “Indigenous peoples and individuals have the right to the full enjoyment of all human rights and fundamental freedoms, as recognized in the Charter of the United Nations, the Charter of the Organization of American States, and international human rights law.”

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• Both UNDRIP and the American Declaration highlighted the “right to the recognition, observance, and enforcement of treaties...concluded with States or their successors...” However, only the American Declaration, in article 24, made mention of dispute resolution through the use of international bodies when arrangements regarding treaties cannot be resolved between the parties. 
   

Vienna Convention on the Law of Treaties (1969)

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• The Vienna convention constitutes customary law and is binding on all nations, including Canada who became a signatory in 1970.

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• Pacta sunt servanda or “agreements must be kept” means that:

  1. States cannot unilaterally make changes to treaties.

  2. Non-fulfillment of obligations constitutes a breach of treaty.

  3. States cannot use domestic law as justification for not meeting treaty requirements.

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• If a state is found to have breached a treaty, the other party is entitled to remedy, which includes the right to reparation and to institute arbitral or judicial proceedings.  

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• First Nations maintain their ability to engage in treaty-making. UN Special Rapporteur Martinez found that states must produce unassailable proof that the Indigenous peoples in question have, of their own free will, renounced their sovereign attributes before their treaties and treaty-making abilities become void. Canada has not at any point been able to provide this proof.

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