The Grand Council of the Crees

Invoking International Law

"Invoking International Law" Ted Moses

Posted: 0000-00-00

(on accepting honorary doctorate at University of Saskatchewan, June 27, 1996).

I would like to reflect today on the international recognition of the rights of the world's indigenous peoples.

The interests of the international community are somehow thought to transcend the interests of individual States. We stand in some awe when we think of the United Nations and other international bodies, because what these organizations decide and do, must reflect some basic and ultimate standard of right and wrong, not just the national interests of their States' members.How is it, we have to ask, that in all these years, of guardianship of the ultimate standards of justice --- of right and wrong --- that the international community did not speak out on the issue of the rights of the world's indigenous peoples? What took them so long? Why have we indigenous peoples been invisible?We all wish for the concept of an international community whose interests transcend the interests of its member States. That certainly was the concept when the United Nations was formed. The world had suffered two world wars. We had witnessed the establishment and normalization of genocide and torture within the municipal laws of States --- the legalization of murder as policy protected by the international standard of State security, and the principle of non-interference --- the line that the international community never deems to cross.But the principle of non-interference in the internal affairs of States led to the massive human rights violations of the Nazi era, and the world still feels the effects today.The United Nations was founded on the principle that the interests of the international community would not be bound up in the lowest common denominator of the legal systems of its member States. There would be a higher standard. States would have to acquiesce to the principle that the rights of human beings inhere in themselves, and not in the State.Unfortunately, the international community has not been completely successful in leaving behind the special interests of its members. Diplomats regularly receive instructions to vote in the United Nations so as to preserve the legal status quo of the States they represent. Then they proceed to dress this crude obedience to their ministers in a fabric of fine words expounding rights and precedents in international law.When I first went to the United Nations, it took me a while to realize that this was how things worked. We explained the situations in our communities, and we appeared to be having discussions based on mutual understanding. However, when resolutions were to be drafted by diplomats, somehow none of this mattered. We were dealing with officials, I discovered, who had little serious concern with human rights. The officials and ministers who were making the decisions and formulating policy were not even in the room.The Grand Council of the Crees first went to the United Nations in 1981. Tommy Wapachee, a Cree infant from Nemaska, had died on 11 August 1980. An epidemic of measles, gastroenteritis, and tuberculosis took the lives of eight Cree children before the end of that year.It was not the first time disease had killed our children, but circumstances had changed. The James Bay and Northern Quebec Agreement, our treaty with Canada and Quebec, had promised clean water, sanitation, medical services, and clinics; and none of these had been put in place. The sad fact was that the children need not have died if the governments had kept their promises and respected their own laws.We went to the international community because after five years, using every means to enforce and implement the treaty, we had essentially exhausted our remedies in Canada. We went to the courts, we lobbied, we spoke to the media, we brought in engineers and doctors; but the governments waited us out. By 1981 we had nowhere to turn, except to the international community.Some of the people here in this room today were at that meeting in Geneva in 1981. There was no working group on indigenous populations, no Martinez-Cobo Report on discrimination against indigenous peoples.In Geneva we described our situation in Canada. Others described terrible atrocities in their own lands. Some who went to that meeting were never seen again after they went home. They were punished for telling us about their world.Some of our Cree delegates were told: You are lucky you live in Canada where it is not that bad. I took no comfort in that. That was before Oka, and I think before Restigouche. I was not going to let Canada off of the hook because it was worse somewhere else. What logic supports that kind of thinking?I knew also, that if the Government of Canada could be persuaded to support the recognition of strong international standards to protect the rights of indigenous peoples, then not only would our lives be improved in Canada, but we would have a means to address the terrible situations in other countries.The 1981 meeting was one of the events that led to the eventual establishment of the Working Group on Indigenous Populations in 1983. This and International Labour Office, Convention 107 on Indigenous and Tribal Populations, were the only visible evidence that the United Nations had finally recognized our existence.That recognition was minimal. The working group was established in a far corner of the United Nations system. People would laugh when I described where indigenous peoples are at the United Nations. I would explain the General Assembly, the Security Council, ECOSOC, the Commission on Human Rights, the Sub-Commission on Prevention of Discrimination and Protection of Minorities, and finally that the Sub-Commission has a working group; and that that is where the indigenous peoples can be discussed. I also explained that the words "indigenous peoples" can not be used because certain States --- Canada among them --- are fearful of recognizing our rights. As a result the working group is designated as the Working Group on Indigenous Populations..Nevertheless, we viewed the opportunity to bring the concerns of the indigenous peoples to the United Nations very seriously, for it offered the hope of a brand new, and badly needed means of redress for our people. The working group had two essential mandates: to review current developments concerning our peoples, and to draft international standards to protect the rights of indigenous peoples.The members of the working group were cautioned not to hear complaints from the hundreds of indigenous representatives who attend its five-day yearly sessions. That, of course, is difficult. How does one review current developments in communities whose members are being systematically murdered without appearing to make complaints? How does one describe dispossession of lands without appearing to be grieved? How do you describe your rivers being dammed, communities being flooded, burial grounds beneath reservoirs, hunting territories denuded of trees --- how do you describe these things and not object? How do you tell this story without demanding that the international community act to protect the indigenous peoples?But the States that were behind these situations were sensitive about complaints being made before the United Nations. The working group was carefully and intentionally mandated so that it could not properly hear complaints. That was the rule. The Chairman, Dr. Erica-Irene Daes, who is here with us today, would be obliged to caution the indigenous representatives who were telling their story, "This is not a chamber of complaints", she would say. She would, nevertheless, hear the grievances, because it was impossible not to hear them in the context of current developments. Dr. Daes would be obliged to appeal to the room, "This is not a chamber of complaints!" The working group would go on for another year, having survived the threat of being shut down by States that did not want the world to know what they were doing.The work of standard-setting commenced. First there were only five paragraphs of a declaration. Our work was blocked for a few years at that stage, while States argued that no declaration was necessary because the indigenous "populations" were already protected by international standards concerned with cultural, religious and linguistic minorities.Several years were taken to convince the members of the Sub-Commission that the indigenous peoples were not necessarily minorities. Imagine the reaction when diplomats actually learned that in some States the indigenous peoples constituted the majority of the population? Even in these places, the indigenous peoples were dispossessed, their rights were abused, and of course, they did not have a voice in government.The working group's mandate to review developments served to contribute directly and substantively to the work of standard-setting. It is important that this be understood. We did not work from theory or hypothesis about international law and international rights. There was nothing abstract about our work.Indigenous people brought their experiences, their grievances, the history of their lives and peoples to the working group. These experiences formed the basis for the proposals that eventually became the draft text.I have said this many times, but it bears repeating: Every paragraph of the Declaration on the Rights of Indigenous Peoples is based on an abuse of human rights that the indigenous peoples have experienced. The Declaration proposes remedies in the form of human rights standards.These are not theoretical. We knew from bitter experience what needed to be in the draft. This is the unfortunate truth. And yes, every paragraph is also a demonstration that existing human rights law is not well respected.The Declaration on the Rights of Indigenous Peoples is essentially an instrument which attaches the indigenous peoples to the basic human rights instruments which already exist. This should not be necessary. It has become necessary because certain States --- Canada, one of the most insistent --- propose that the international recognition of the status and rights of the indigenous peoples be contingent upon the effect this recognition would have on municipal law.In other words States such as Canada deny our status in international law in order to avoid the recognition of the rights that status would confer upon the indigenous peoples. This is in itself the most blatant form of racial discrimination, yet it is put forward as government policy without the least embarrassment.Thus when the indigenous peoples proclaim themselves to be "peoples" who are subjects of international law, there is a chorus of objections from the States --- Canada, France, Brazil, India, to name a few --- who believe their interests would be adversely affected by the recognition of our status.The high-minded sentiments and objectives of the Universal Declaration and the Charter of the United Nations, which expound the rights of peoples and nations, simply vanish. Diplomats tell us: If we recognized your rights, you would declare independence, you would want your lands back, you would prevent development, you would ask for compensation, you would want to have your own laws. Where would it end?Some States do not acknowledge this reasoning and resort instead to other strategies. Some argue that the indigenous peoples are attempting to obtain special rights in international law. We are accused of seeking privileged status.The Government of Canada put this idea forward with considerable effect two years ago at the Commission on Human Rights. Others, like France, argue that it is against their constitution to grant separate status to a nation within a nation.When the French Ambassador stated this position in Geneva last year, I asked him how France could recognize the right of Quebec to leave Canada, and yet not recognize that the indigenous peoples in Quebec have the same right if that is their choice to remain in Canada. He dismissed the objection, "You must understand, Quebec is a special situation. France is a unitary and indivisible State, and it would be contrary to our constitution to recognize the self-determination of the indigenous populations".How should we respond to such reasoning when it negatively influences the setting of international standards which are in themselves intended to eliminate racial discrimination and prejudice? It seems that certain States are imbued with such pervasive belief in their own superiority and supremacy, that they fail to recognize the clearly racial basis for their international policies. They use their enormous power to shape the meaning of international law, placing what I believe is a mistaken view of their own interests above all else.It took me several years, as I have explained, to understand the mechanisms that influenced the elaboration of what we call international law. In part I saw that international law was often just a matter of what a State could do and get away with. But it is obviously more than this.Some States favour the recognition of the rights of indigenous peoples, others oppose recognition entirely. Most States are indifferent on this issue, and take positions on the basis of tradeoffs and alliances with other States. But some, thankfully, have a fundamental belief in the fundamental importance of human rights, international morality and fair play.It is in this context that we have worked to protect the rights of the indigenous peoples during the past fifteen years. I have often been told that the whole effort is useless. I can not agree. I think we have little choice but to continue to defend our rights at the international level.We have also had the opportunity now to see how critical it is that we demand our rights without reservation. The rights of the indigenous peoples in Quebec have become a test case for the whole question of the rights of the world's indigenous peoples.Is it possible for a mixed population of European origin to demand and exercise a right of self-determination, but for the same population to deny that the indigenous peoples have at least the same rights? The Quebec example clearly demonstrates a double-standard based on race. In the separatists' view, Quebecois, whoever they are, have the right; Indians do not.If it had not been for our international work, this issue would likely already have been lost. We raised the question of Cree rights in the context of Quebec secession from Canada, in Geneva in 1991. I was summoned by the Canadian Ambassador in Geneva and reprimanded, as he said, "for bringing a domestic issue to international attention. Separation will never happen, why discuss it here and make it a reality?". That is what he said.We persisted, filing a large brief with the United Nations Commission on Human Rights in February 1992. That brief became the essence of the argument concerning our rights. It helped people understand that indigenous peoples must have the same status and level of recognition as all other peoples. It was no longer acceptable to propose that our right of self-determination be limited only to internal self-determination. Sometimes, and the Quebec situation demonstrates this conclusively, the indigenous peoples may need to be able to exercise an external right of self-determination in order to protect their most fundamental rights.The Draft Declaration on the Rights of Indigenous Peoples reflects this need. The international community can never predict when, and under what circumstances a right will need to be exercised. That is why no conditions may be imposed upon the exercise of the rights of indigenous peoples that do not apply equally to all of the worlds peoples, indigenous or otherwise. The principle is non-discrimination.I said a moment ago that we must continue. I say this only because some people have given us hope, and some people have been responsible for the considerable progress that has already been made.I am extremely pleased to be recognized today and to be honoured in the company of two other individuals: Dr. Erica Irene-Daes and Dr. Augusto Williamsen-Diaz.Let me tell you about our first meeting with Augusto. In 1981 we requested the help of the World Health Organization to stem the epidemic in the Cree communities. We wrote to the WHO, and went to Geneva hoping to obtain that organization's assistance.We telephoned the WHO and asked for a meeting with primary health care officials. Everybody was polite and receptive. But the request for a meeting was unanswered. When we called again, our calls were not returned.Someone suggested that an official at the United Nations Centre for Human Rights might be able to help. We met Augusto in the hallway at the UN. We had no idea of his involvement in the protection of the rights of indigenous peoples, or of the important role he was to have drafting the Martinez-Cobo report. Augusto was a little larger then than he is now. He was imposing. He offered: "Let me find out what is the problem". A day later we met him again. He was angry. He told us: "You have been going to the WHO, entering meetings without permission, barging into offices, etc." We said: "We have never been to the WHO in our lives. We don't even know where it is". "Ahh", he said, "now I know what the problem is".Canada, it turns out was blocking our meeting at the WHO. The Canadian government had started rumors about us. Augusto said: "Ask the Canadian Mission to arrange the meeting. Bring a journalist to observe. You will have your meeting". That evening there was a report on CBC and the BBC on our attempt to meet with the WHO. The next day the Canadian Mission told us there was a meeting scheduled at the WHO.Augusto Williamsen-Diaz is the father of indigenous rights at the UN. He Continues that struggle now in Guatemala. He has dedicated his life to that fight, and what a life it is.Having said that Augusto is the father of indigenous rights, you can all easily imagine who is the mother of our rights at the UN. Erica Irene-Daes has said to me many times, "I love the United Nations". She even bought a blue car, and explained to me that it was blue because that was the colour of the United Nations, "and Greece", she added.Dr. Daes is an internationalist, and she truly does love the United Nations. Her vision of the United Nations brings us back to its original purpose, ~to place respect for human rights above the sovereignty of all States". Dr. Daes says that I am a member of her family. She is really the intelligence, the strategist, the force behind the gradual but significant steps the international community has taken to recognize the rights of the world's indigenous peoples.

I can truly say this: The recognition of our rights at the international level is the dream of Erica Daes. Because she is there she will have her dream, and we will have our freedom. I am patient. I will continue working, knowing that I am in good company. Thank you.