United Nations Committee on the Elimination of Racial Discrimination (CERD)
107th session (08 -30 August 2022)
Office of the High Commissioner for Human Rights
August 9, 2022
Statement of Tupac Enrique Acosta
Continental Commission Abya Yala
Dear Members of the Committee,
This statement is offered on behalf of the Continental Commission Abya Yala in complement to our two previous submissions to the committee which are now available on the CERD website for this session.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) states:
Pending the achievement of the objectives of the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of the 14 December 1960, the provisions of this Convention shall in no way limit the rights of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies.
In regarding the limitations on the
right of petition within the UN system, the time has come to re-evaluate the
methodologies and procedures of remedy for violations of the Human Rights of
the Original Nations of Indigenous Peoples of Abya Yala [Americas] in a
contemporary context of International Law, considered in the light of the
fundamental principle of non-discrimination, and in affirmation of the collective
rights of Indigenous Peoples as “Peoples, equal to all other peoples.”
It is the position of the Continental Commission Abya Yala that the prohibition against discrimination as a preemptive norm in international law, must be applied to the geopolitical relationships among our Original Nations of Indigenous Peoples and the settler state apparatus of the American states. The time has come to supersede the nefarious colonial Doctrine of Discovery of Christendom and to overcome the limitations on petition before the UN Decolonization Committee constrained conceptually but not legally by the “Blue Water Rule” AKA the Salt Water Thesis.
With the passage of Resolution 48/7 by the Human Rights Council on October 8, 2021, entitled "Negative impact of the legacies of colonialism on the enjoyment of human rights" the time has come to address the underlying issues of racial discrimination against Indigenous Peoples which have been normalized by both the domestic and international policies and practices of the states of the Americas under the legaloid tenets of the Doctrine of Discovery.
The Human Rights Council resolution 48/7 in recognizing the continuing consequences of the legacies of colonialism in all their manifestations, such racial discrimination, economic exploitation, inequality within and among States, violations of indigenous peoples’ rights, also called for Member States, relevant United Nations bodies, agencies, and other relevant stakeholders to take concrete steps to address the negative impact of the legacies of colonialism on the enjoyment of human rights.
In the process of review of the combined tenth to twelfth periodic reports submitted by the United States of America during this session, we call upon CERD to give effective substance to this call by expounding on the flaw of the US government’s position in the case of the Western Shoshone when claiming the right of “inverse possession” of Western Shoshone territories recognized in the Treaty of Ruby Valley (1853) through “gradual encroachment”. The predicate to this position is the purported transfer of territorial jurisdiction from Mexico in the Treaty of Guadalupe Hidalgo (1848).
Although CERD expressed concern over this issue in its Decision 1(68) in 2006, and the US government continues to refuse to address the recommendations of the CERD in the Western Shoshone case to this day, the underlying question remains unasked both by CERD and the Inter-American Commission on Human Rights in the case Mary and Carrie Dann versus United States (Case 11.140, 27 December 2002).
The US government’s claim for jurisdiction over Western Shoshone territory via “gradual encroachment” is based on the legaloid, discriminatory, and repudiated Doctrine of Discovery of Christendom, via Mexico and the Treaty of Guadalupe Hidalgo (1848). This dimension of the case has not been addressed by CERD. The only territorial franchise that Mexico may have illegally claimed over Shoshone Nation territory at any time is as a successor state in historical consequence to the purported claims of discovery by Spain under the Papal Bulls of Inter Caetera (1493).
And although the UN Permanent Forum on Indigenous Issues issued a repudiation of the Doctrine of Discovery of Christendom in 2010, the underlying issue of the discrimination and denial of the rights of petition articulated in Article 15 ICERD continues with impunity in the UN decolonization protocols.
This must be corrected.
In his Final Report on Treaties, agreements and other constructive arrangements between States and indigenous populations to the UN Commission on Human Rights - Sub Commission on Prevention of Discrimination and Protection of Minorities (22 June 1999), Special Rapporteur Miguel Alfonso Martínez made the following recommendation:
49.) It follows that the issue of treaties affecting indigenous peoples as third parties may continue to be relevant insofar as they remain in force and insofar as indigenous peoples already participate - or may in the future - in the implementation of their provisions. Among the 10 instruments previously considered for analysis, apart from the Lapp Codicil, several others would warrant further scrutiny, among them the 1794 Jay Treaty and the 1848 Treaty of Guadalupe-Hidalgo, both of apparent special significance for the indigenous nations along the borders of the United States with Canada and Mexico respectively.
Esteemed members of the Committee,
· The CERD should comprehensively address the systematic violation of the Human Rights of Indigenous Peoples under the regimes of the colonizing settler states of the Americas and their international borders, as is exemplified in the Western Shoshone case and the border between US-Mexico established by the Treaty of Guadalupe Hidalgo (1848).
· For the purposes of discussion on this theme, the recommendations of the 1999 UN Treaty Study by Dr. Miguel Alfonso Martinez should be integrated as a substantive foundation for review, discussion, and effective action to address the legacies of institutionalized colonialism in the UN system.