Indigenous
Nationhood and Self Determination
The Legacies of Colonialism
and the 1999 Treaty Study by Miguel Alfonso
Martinez
January 31, 2022
Original Nations of Indigenous Peoples of Mother Earth
In consideration of the adoption of Resolution 48/7 “Negative impact of the legacies of colonialism on the enjoyment of human rights” by the UN Human Rights Council (UNHRC) on 8 October 2021, and the call for input by the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) as a subsidiary body to the UNCHR for a study whose purpose is to assess the extent to which article 37 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) has been and is being implemented or considered nationally, we submit the following:
Background
The call for input by EMRIP is pursuant to Human Rights Council resolution 33/25 (2016) which reaffirmed General Assembly resolution 69/2 of 22 September 2014, in which the Assembly adopted the outcome document of the high-level plenary meeting of the Assembly, titled in dispute as the World Conference on Indigenous Peoples, and also amended the original mandate of EMRIP to include the preparation an annual study on the status of the rights of indigenous peoples worldwide in the achievement of the ends of UNDRIP, focusing on one or more interrelated articles of the Declaration.
During its fourteenth session in 2021, the Expert Mechanism decided to prepare a study on "Treaties, agreements and other constructive arrangements, between indigenous peoples and States, including peace accords and reconciliation initiatives, and their constitutional recognition" invoking UNDRIP Article 37 in the concept note as the singular reference for comment and submissions. The purpose of this Study is to assess the extent to which article 37 of the UN Declaration on the Rights of Indigenous Peoples has been and is being implemented or considered nationally.
The Expert Mechanism held a closed virtual seminar, on 29 and 30 November and 1 December 2021, on the theme this study, which is to serve as the basis of draft study will be introduced by the Expert Mechanism at its annual session, due to take place from 11 to 15 July 2022, after which it will be finalized and presented to the Human Rights Council at its fifty-first session in September 2022.
Clarifications
Colonialism is not a “negative” impact. Colonialism is a crime in international law. The legacies of colonialism are not just “negative impacts” on the enjoyment of human rights. Colonialism in any form or manifestation, including economic exploitation, is incompatible with the UN Charter, the Declaration on the Granting of Independence to Colonial Countries and Peoples (UNGA 1514) and the Universal Declaration of Human Rights. Colonialism and genocide against Indigenous Peoples is a crime in progress against humanity and although colonialism did not become illegal in the International Westphalian System of state sovereignty (Treaty of Westphalia 1648 - AKA the UN system) until UNGA 1514 in 1960, according to the Traditional International Law of the Original Nations of Indigenous Peoples, colonization has always been not only a violation of the common spirit of humanity, but also a crime against the natural world and Mother Earth.
Only since the UN Declaration on the Rights of Indigenous Peoples (2007), with recognition of Indigenous Peoples as peoples equal to all other peoples have the decolonization procedures of UN 1514 and UN 1541 been available to be invoked on behalf of the right of Indigenous Self Determination. Yet, the Original Nations of Indigenous Peoples of Mother Earth have yet to make a formal intervention much less be integrated onto the agenda of the UN Decolonization Committee. This is the hard evidence of the institutionalized colonial legacy in the UN system.
As Original Nations of Indigenous Peoples of Mother Earth, as Nican Tlacah Cemanahuac – we hereby affirm our inherent Human Responsibility and corresponding Human Right of self-determination beyond the conceptual and procedural constraints of the geopolitical architecture of the member states UN system, and call upon our allies and Traditional Confederacies of Indigenous Nations to engage in a multilateral commitment with each other towards the dual goals of World Peace-Peace with Mother Earth as the foundation for our priority work in the international arena. Today we reemerge from our ancestral territories in the age of planetary climate crisis and invoke the Mandate of the Indigenous Peoples, calling upon all nations large and small to recognize, respect, and honor the Territorial Integrity of Mother Earth.
Indigenous People - Indigenous Peoples: International Standard - International Standards
The historical development of the International legal system of the UN as exists today is to a large extent an extrapolation of the nationalism and international protocols which derive from the political premises of Christendom. One feature of these protocols, vis-a-vi the Original Nations of Indigenous Peoples has been the technique of reductions, perfected by the Spanish empire under the colonial policy of las reducciones. In 2010, the UN Permanent Forum on Indigenous Issues addressed this in the Preliminary Study on the Impact of the Doctrine of Discovery. Nevertheless, in spite of the calls by the UNPFII to repudiate and dismantle the colonial Doctrine of Discovery as a “nefarious” and pervasive element of colonialism in today’s world, the logical and necessary connection to the procedures and appropriate protocols for decolonization under UN 1514 and UN 1541 were never made and the 2010 UNPFII study has stagnated in a political “preliminary” purgatory.
An obvious consequence of this “negative legacy” of colonialism in the continent of Abya Yala Great Turtle Island [Americas] has been the international impunity allowed to the colonizing successor states of the Americas who derive their purported claims of territorial integrity in the hemisphere to the racist, colonial, and legaloid claims under the Doctrine of Discovery of Christendom, as instituted under the Alexandrian Papal Bulls (1493). Alternately called the “Salt Water” or “Ultramar” doctrine, the colonization, genocide, and territorial dispossession against the Original Nations continues to be thus normalized in the continent by being shielded from the decolonization procedures of UNGA 1514 and UNGA 1541. Today, in collusion with the global apparatus of corporate colonizing consortia, the medieval colony has morphed into the international trade zone, and the Papal Bulls are now written by the international trade representatives at their service. In consequence, the right of the Original Nations of Indigenous Peoples to self-determination is reduced to that of the civil or human rights as ethnic groups or minorities under the colonizer’s settler state constitutional framework.
This is relevant to the issue under consideration, because just as the principle of “Christian Discovery” was used to purportedly claim jurisdiction over the territories and nationality of the non-Christian Indigenous Peoples, today we see that the UN High Level Plenary Meeting of 2014, which is fraudulently called the World Conference on Indigenous Peoples has operated to the same effect at the global level. This is due to the fact that all UN bodies are operating under the System Wide Action Plan which emerged from the outcome document of the 2014 High Level Plenary Meeting, which in turn pivots on the UN Declaration on the Rights of Indigenous Peoples UNDRIP (2007). The net effect is a global reduction system presided over by the UN itself.
In similar manner as there existed the League of Nations before the UN, the UN Human Rights Council was preceded by the UN Human Rights Commission. It was the Sub Commission on Prevention of Discrimination and Protection of Minorities under the UN Human Rights Commission that requested Dr. Miguel Alfonso Martínez to serve as Special Rapporteur and realize the “Study on treaties, agreements and other constructive arrangements between States and indigenous populations” which he presented in final form in 1999. The Martinez study of 1999 was in turn itself rooted in the recommendations of the 1982 Study of the Problem of Discrimination against Indigenous Populations by Sr. Martínez Cobo.
Significantly, the original resolution on this theme in 1987 by the Sub-Commission on Prevention of Discrimination and Protection of Minorities was precise and definitive in identifying the Indigenous Treaty issues with the colonizing states as a category of international importance in its own right, and in its own light of evaluation apart from agreements and other constructive arrangements. The original resolution by the Sub-Commission was titled “Study on treaties concluded between indigenous peoples and States”.
There is no mention of any of this in the call for submissions by EMRIP for the current study. There is no reference to the 1999 Martínez Treaty study at all. It is as if Christopher Columbus is president of the EMRIP and has decided that whatever he sees, he is the first one to see it.
In 1994, the Sub-Commission on the Prevention of Discrimination and Protection of Minorities working on the Draft United Nations declaration on the rights of Indigenous Peoples approved the Original Text of the declaration. This Original Text was the product of many years of deliberation—a process that allowed for a degree of meaningful and decisive participation of Indigenous Peoples from around the world.
That same year, a move was made to redraft the Original Declaration under the Working Group on the Draft Declaration (WGDD). Debate continued for eleven more years. Then, in September 2004, the WGDD’s Chairperson-Rapporteur, Louis Enrique Chavez, announced his intention to present his own version to the Human Rights Commission. This proposal was challenged on November 29, 2004, by a five-day prayer fast/hunger strike by six Indigenous delegates to the WGDD at UN headquarters in Geneva, Switzerland. With the support and solidarity of Indigenous Peoples from around the world, the Indigenous delegates demanded that the Original Text, which the Sub-Commission on the Prevention of Discrimination and Protection of Minorities had approved, be recognized as the only legitimate version of the declaration and be advanced as such on the floor of the UN General Assembly. Representatives of the UN Commission on Human Rights (also called the CHR) made assurances that, if no consensus could be achieved by the end of the 2004 session of the Working Group, the only version of the declaration that would be submitted to the full Commission would be the Sub-Commission Text as approved in 1994. With these assurances, the hunger strike/prayer fast came to an end.
This agreement was subsequently violated and then betrayed.
Of the original 45 articles in the Original Text of the declaration approved by the Sub Commission in 1994, only four remained unchanged in the final version of UNDRIP adopted in 2007. Article 37 is not one of them.
The UNDRIP Article 37 which serves as singular reference for the present EMRIP treaty study is based on the wording of the original article 36 as approved by the Sub-Commission and supported by the Indigenous delegations in Geneva.
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Original Sub-Commission Text
Article 36
Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors, according to their original spirit and intent, and to have States honour and respect such treaties, agreements, and other constructive arrangements. Conflicts and disputes which cannot otherwise be settled should be submitted to competent international bodies agreed to by all parties concerned.
Conclusion
Prior to the convening of the General Assembly High Level Plenary Meeting in 2014, a UN Indigenous Preparatory Meeting was held in Alta, Norway from June 10-12, 2013. The following intervention from the floor of the Alta Conference was presented by one of the indigenous delegates:
“We call for the restitution of the primary source materials and testimony that
was lent to the United Nations system as fundamental to the evidence in
document form of the systemic (system to system) nature of the legal
relationships between the Nations of Indigenous Peoples and the member states
of the UN system for the purpose of the Treaty Study conducted by Dr.
Miguel Alfonso Martinez of Cuba.
Such delivery should be initial act of good faith in terms of the continuing process of systemic documentation among the Nations of Indigenous Peoples and the UN system prior to and as a necessary act of condition to allow for the full and effective participation of the Indigenous Peoples in the High-Level Plenary Meeting on an equal basis and without systemic discrimination in the process of producing the Final Outcome Document of the High-Level Plenary Meeting of the General Assembly 2014.”
This intervention was never recorded in the official reports from Alta, much less integrated into the Alta Outcome document, nor considered by the UN member states at their 2014 High Level Plenary Meeting, fraudulently called the World Conference on Indigenous Peoples.
Acknowledging the period 2021–2030 as the Fourth International Decade for the Eradication of Colonialism designated by the General Assembly, we now resubmit the 1999 Miguel Alfonso Martinez Study to the UN Human Rights Commission, in light of the principle that the prohibition against discrimination is a preemptive norm in international law, and that as Indigenous Peoples we are equal in right to all other peoples, including in the right of Self Determination and a clean, healthy, and sustainable environment for the future generations.
We call for the UN Human Rights Commission to review and revamp the UN website
platforms to allow for the 1999 Martinez Treaty Study to be readily accessible
to all, as well as the precursor Cobo Study of 1982.
We commit to continue our international Working Group of Indigenous Peoples, and just as when Special Rapporteur Miguel Alfonso Martinez visited our territories for the purposes of his Treaty Study, we shall not be deterred in our efforts to continue the development of international standards that recognize, respect, and protect our right of self-determination as Original Nations of Indigenous Peoples of Mother Earth. In terms of international standards, in a contemporary plural and multilateral context, we will not be limited to the compromised version of the 2007 UNDRIP, under which EMRIP is bound via the constraints established by the System Wide Action Plan which was dictated and then subscribed by the 2014 High Level Plenary Meeting and their minions.
The original principles of the UN Declaration on the Rights of Indigenous Peoples have been subverted from the trajectory of delivering an International Convention on the Rights of Indigenous Peoples to a global reduction schema, a geopolitical scam that would attempt to domesticate our inherent collective rights as Indigenous Peoples under the state defined systems of jurisprudence and jurisdiction, country by country.
With the intent to ensure accountability and effectiveness in the global struggle to eradicate colonialism, we commit now to the realization of the recommendation made by Special Rapporteur Martinez in his final report to establish a Treaty Registry that would reconstitute the original materials compiled by the Special Rapporteur, and integrate the indigenous geopolitical systems of jurisgenesis, jurisprudence, jurisdiction and judgment.
TONATIERRA
WWW.TONATIERRA.ORG
UN Treaty Study Final Report by Miguel Alfonso Martínez,
Special Rapporteur (1999)
The HLPM 2014 and the Territorial Integrity of Mother Earth
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