UNWGIP 14th Session Document 96-12980 - Working Paper by the Chairperson-Rapporteur, Mrs. Erica-Irene A. Daes, on the Concept of "Indigenous People" - 10 June 1996
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DOCUMENT: 96-12980.TXT


                     U N I T E D    N A T I O N S

     Economic and Social Council            ENGLISH
     Distr.                                 Original: ENGLISH
     GENERAL
     E/CN.4/Sub.2/AC.4/1996/2               GE. 96-12980 (E)
     10 June 1996


     COMMISSION ON HUMAN RIGHTS
     Sub-Commission on Prevention of
     Discrimination and Protection of Minorities
     Working Group on Indigenous Populations

     Fourteenth session
     29 July - 2 August 1996
     Item 4 of the provisional agenda

     
     
          STANDARD-SETTING ACTIVITIES: EVOLUTION OF STANDARDS
              CONCERNING THE RIGHTS OF INDIGENOUS PEOPLE
     
       Working Paper by the Chairperson-Rapporteur, Mrs. Erica-
         Irene A. Daes. On the concept of "indigenous people" 
     
     
                               CONTENTS

                                                PARAGRAPHS   PAGE

     Introduction . . . . . . . . . . . . . . .    1 - 9       3

     I. HISTORICAL REVIEW OF INTERNATIONAL 
        PRACTICE  . . . . . . . . . . . . . . .   10 - 41      5
     A. League of Nations . . . . . . . . . . .   12 - 14      6
     B. Pan-American Union. . . . . . . . . . .   15 - 16      6
     C. Charter of the United Nations . . . . .   17 - 20      7
     D. International Labour Organization
        Convention No. 107  . . . . . . . . . .   21 - 23      8

     E/CN.4/Sub.2/AC.4/1996/2 
     page 2  

                         CONTENTS (continued)

                                                PARAGRAPHS   PAGE

     E. Study of the Problem of Discrimination
        against Indigenous Populations  . . . .   24 - 27      9
     F. International Labour Organization
        Convention No. 169  . . . . . . . . . .   28 - 34     10
     G. Indigenous peoples' point of view . . .   35 - 38     12
     H. Views expressed by Governments  . . . .      39       14
     I. Views expressed by members of 
        the Working Group . . . . . . . . . . .   40 - 41     14
     
     II. CRITICAL LEGAL ANALYSIS  . . . . . . .   42 - 65     15
     A. Comparison with "Non-Self-Governing
        Territories"  . . . . . . . . . . . . .   42 - 46     15
     B. Comparison with "minorities"  . . . . .   47 - 59     16
     C. The search for factors specific 
        to "indigenous" . . . . . . . . . . . .   60 - 65     19
     
     III. CONCLUSIONS AND RECOMMENDATIONS . . .   66 - 74     21

     E/CN.4/Sub.2/AC.4/1996/2
     page 3

                             INTRODUCTION

     1. At its thirteenth session, the Working Group on 
     Indigenous Populations decided to recommend to the Sub-
     Commission on Prevention of Discrimination and Protection of 
     Minorities that the Chairperson-Rapporteur, Mrs. Erica-Irene 
     A. Daes, be entrusted with the preparation of a note on 
     criteria for the definition of indigenous peoples based on 
     information which might be submitted to her by Governments, 
     intergovernmental organizations and indigenous peoples' 
     organizations. 1/ 

     2. The recommendation of the Working Group was subsequently 
     approved by the Sub-Commission in paragraph 3 of its 
     resolution 1995/38 of 24 August 1995. 

     3. In paragraph 7 of its resolution 1996/40 of 19 April 
     1996, the Commission on Human Rights took note of the 
     recommendation of the Working Group that the Chairperson-
     Rapporteur address the concept of "indigenous people" and 
     noted that any work should take into account the views of 
     Governments and organizations of indigenous people. The 
     Commission furthermore requested that the discussion of this 
     issue take place during the fourteenth session of the 
     Working Group, and that the report of the Working Group be 
     transmitted to Governments and organizations of indigenous 
     people prior to the next session of the open-ended inter-
     sessional Working Group of the Commission established in 
     accordance with resolution 1995/32 to elaborate a draft 
     declaration on the rights of indigenous people. 

     4. To date, the Chairperson-Rapporteur has received no 
     comments from Governments or organizations of indigenous 
     people regarding the issue of definition. She has been 
     guided, however, in particular by the rich relevant 
     discussions on this conceptual question at previous sessions 
     of the Working Group, and has taken careful note of the 
     extensive edge of views between Governments and indigenous 
     people at the first session of the open-ended inter-
     sessional Working Group of the Commission established An 
     accordance with the above-mentioned resolution, which took 
     place An Geneva from 20 November-1 December 1995. 2/  The 
     Chairperson-Rapporteur was fortunately able to participate 
     in the deliberations and to address this Working Group, as 
     an observer and An her capacity as Chairperson-Rapporteur of 
     the Working Group on Indigenous Populations. 

     5. It should also be noted that the Chairperson-Rapporteur 
     prepared a comprehensive note (E/CN.4/Sub.2/AC.4/1995/3) on 
     criteria which might be applied when considering the concept 
     of indigenous peoples which was submitted 

     E/CN.4/Sub.2/AC.4/1996/2 
     page 4  

     to the Working Group on Indigenous Populations at its 
     thirteenth session. The basic criteria identified in the 
     note included questions relating to historical continuity, 
     distinctive cultural characteristics, traditional lands, 
     non-dominance, pelf-identification and group consciousness. 
     The Chairperson-Rapporteur also mentioned in the note para. 
     7) that the attendance at the Working Group of certain 
     persons describing themselves as "indigenous peoples" had 
     been challenged by other indigenous peoples' representatives 
     in the Working Group. 

     6. The Chairperson-Rapporteur also raised the question of 
     the desirability of a definition of the concept "indigenous 
     people". She, and others, pointed out that the Working Group 
     itself had been a success despite not having adopted any 
     formal definition of "indigenous people". That forum had 
     none the less become, in the view of almost all the 
     participants, the major meeting point in the united Nations 
     system for representatives of observer Governments, 
     indigenous peoples intergovernmental and non-governmental 
     organizations and other interested individuals, in 
     particular members of the academic family - a real 
     "community of peoples", as the Chairperson-Rapporteur called 
     it. It was also contributing, systematically and 
     constructively, to the promotion, protection and realization 
     of the rights of the world's indigenous peoples. 

     7. Notwithstanding these observations, the Chairperson-
     Rapporteur expressed, inter alia, the view that some 
     discussions regarding in particular a further analysis of 
     the concept of "indigenous people" might be desirable both 
     as a response to the growing interest of Governments and 
     indigenous peoples themselves and as a "guide" for the 
     United Nations system, in particular in the field of the 
     implementation of international instruments relating to the 
     promotion and protection of the rights of indigenous 
     peoples. 

     8. In elaborating the present working paper the Chairperson-
     Rapporteur also took into consideration the examination of 
     this question by the Special Rapporteur of the Sub-
     Commission, Mr. M. Alfonso Martinez, in his second progress 
     report on the study on treaties, agreements and other 
     constructive arrangements between States and indigenous 
     populations (E/CN.4/Sub.2/1995/27, paras 48-129). 

     9. The following analysis of the concept of "indigenous 
     people" is of a preliminary nature, and has the principal 
     aim of promoting a more focused discussion of this question 
     by the interested parties at the 

     E/CN.4/Sub.2/AC.4/1996/2 
     page 5  

     fourteenth session of the Working Group, an well as at the 
     open-ended working group of the Commission. As further 
     explained below, it is the considered opinion of the 
     Chairperson-Rapporteur that the concept of "indigenous'. is 
     not capable of a precise, inclusive definition which can be 
     applied in the same manner to all regions of the world. 
     However, greater agreement may be achieved with respect to 
     identifying the principal factors which have distinguished 
     "indigenous peoples" from other groups in the practice of 
     the United Nations system and regional intergovernmental 
     organizations. The Chairperson-Rapporteur has accordingly 
     devoted a part of this working paper to a historical review 
     of international practice, in an attempt to extract, inter 
     alia, recurring conceptual elements or themes.  

     I. HISTORICAL REVIEW OF INTERNATIONAL PRACTICE 

     10. It should be acknowledged at the outset that the 
     international discussion of the concept of  "indigenous" 
     evolved, from the late nineteenth century until the 
     establishment of the Working Group in 1982, 3/ within the 
     framework of European languages, notably English, Spanish, 
     and German. English and Spanish share a common root in the 
     Latin term indigenae, which was used to distinguish between 
     persons who were born in a particular place and those who 
     arrived from elsewhere (advenae). The French term autochtone 
     has, by comparison, Greek roots and, like the German term 
     Ursprung, suggests that the group to which it refers was the 
     first to exist in the particular location. Hence, the 
     semantic roots of the terms historically used in modern 
     international law share a single conceptual element: 
     priority in time. 

     11. A fruitful starting point for the consideration of 
     international practice is the Berlin Africa Conference of 
     1884-1885, convened by the Great Powers with the aim of 
     agreeing on principles for the assertion and recognition of 
     their territorial claims in Africa. In article 6 of the 
     Final Act of the Conference, the Great Powers made a 
     commitment to the "protection of indigenous populations" of 
     Africa. In this legal context, the term "indigenous" was 
     meant to distinguish between citizens of nationals of the 
     Great Powers and those persons in Africa who were under the 
     colonial domination of the Great Powers. It should be born 
     in mind that there was an implicit element of race in the 
     use of the term "indigenous", as well. When the British 
     Empire subjected the Dutch settlers in South Africa to 
     British rule following the Boer War, for example, it was 
     never conceived that article 6 of the Final Act was 
     applicable to them.  

     E/CN.4/Sub.2/AC.4/1996/2 
     page 6  

     
     A. LEAGUE OF NATIONS 

     12. In accordance with Article 22 of the Covenant of the 
     League of Nations the Members of the League accepted as a 
     "sacred trust of civilization" the duty of promoting the 
     well-being and development of the "indigenous population" of 
     those "colonies and territories" which remained under their 
     control. Hence, the Covenant of the League of Nations also 
     used the term "indigenous" to distinguish between colonial 
     powers and peoples who were living under colonial 
     domination. The Covenant added a second level of 
     qualification, however, characterizing "indigenous 
     populations" as "peoples not yet able to stand by themselves 
     under the strenuous conditions of the modern world", as 
     contrasted to more "advanced" societies. Both factors (that 
     is, colonial domination and institutional capacity) were to 
     be considered, under Article 22 of the Covenant, in 
     determining the degree of supervision that was appropriate 
     to particular territories and peoples. 

     13. The case of South Africa illustrates the meaning which 
     attached to Article 22 of the Covenant, in the practice of 
     the League. In 1919, South Africa was not yet an independent 
     State. It was still a part of the British Empire and, albeit 
     self-governing in its local or internal affairs, subordinate 
     to the British Parliament in London. Nevertheless, the 
     League entrusted South Africa with a mandate, under Article 
     22, over the territory and population of Namibia. Within the 
     conceptual framework of the Covenant, Namibia was 
     "indigenous", in contradistinction to the "advanced" 
     character of South Africa. The League did not conceive, 
     however, that the African population of South Africa itself 
     was "indigenous" in relation to recent Dutch and British 
     settlers. 

     14. It is possible to identify one more important element of 
     the evolving concept of "indigenous" in the case of South 
     Africa. Article 22 of the Covenant was applied to 
     TERRITORIES, as demarcated by internationally recognized 
     borders, rather than to peoples who could be distinguished 
     by sociological, historical or political factors. Thus, 
     Namibia, as a territory geographically defined by the Great 
     Powers, was deemed to be "indigenous", while the African 
     population within South Africa was not so considered. 

     B. PAN-AMERICAN ONION 

     15. Meanwhile, however, the Pan-American Onion, as the 
     predecessor of the present-day Organization of American 
     States, had begun to use the "indigenous" 

     E/CN.4/Sub.2/AC.4/1996/2 
     page 7  

     in a rather different manner. In its resolution XI of 21 
     December 1938, the Eighth International Conference of 
     American States declared: 

          "That the indigenous populations, as descendants of the 
          first inhabitants of the lands which today form 
          America, and in order to offset the deficiency in their 
          physical and intellectual development, have a 
          preferential right to the protection of the public 
          authorities". The objective of this preferential 
          treatment was to be their "complete integration into 
          the national life" of existing States. In this and 
          subsequent official documents of the Pan-American 
          Union, it should be noted that the terms "indigenous" 
          and "Indian" were used interchangeably. 
     
     16. As a matter of regional practice in the Americas, 
     therefore, the term "indigenous" was employed to identify 
     marginalized or vulnerable ethnic, cultural, linguistic and 
     racial groups within State borders, rather than the 
     inhabitants of colonial territories that were distinct 
     geographically from the administering Power.  

     C. CHARTER OF THE UNITED NATIONS

     17. The adoption of the Charter of the United Nations in 
     1945 did nothing to reconcile different usages of the term 
     "indigenous" in international law. Article 73 of the Charter 
     refers to "territories whose peoples have not yet attained a 
     full measure of self-government", rather than "indigenous 
     populations" as that term appears in the Covenant of the 
     League of Nations. It was not until 15 December 1960 that 
     the United Nations General Assembly, in resolution 1541 
     (XV), defined a "Non-Self-Governing Territory" for this 
     purpose, using a two-tiered test. A territory which is 
     "geographically separate and is distinct ethnically and/or 
     culturally from the country administering it" falls, prima 
     facie, under Article 73. Evidence that the inhabitants 
     suffer a '"position or status of subordination" may be 
     advanced to support this presumption, but is not required. 

     18. It has generally been presumed that the foregoing 
     definition of a "Non-Self-Governing Territory", in respect 
     to Article 73 of the Charter, is also applicable to the 
     definition of "peoples" who are entitled to the exercise of 
     the right of self-determination under common article 1 of 
     the two International Covenants on Human Rights (hereinafter 
     Covenants). However, the significance of the choice of the 
     term "peoples"', rather than "territories", by the drafters 
     of the two Covenants should not be minimized. The shift from 
     a geographical conception to a sociological one implies a 

     E/CN.4/Sub.2/AC.4/1996/2 
     page 8  

     broadening of the application of the principle of self-
     determination to include non-dominant groups within the 
     boundaries of independent States. 

     19. Consistent with the foregoing analysis of the choice of 
     the term "peoples" in the two Covenants, the 1970 
     Declaration on Principles of International Law concerning 
     Friendly Relations and Cooperation among States in 
     accordance with the Charter of the United Nations 4/ 
     prohibits the dismemberment of 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 as to race, creed or velours. 
     It would have been unnecessary to make such a qualification 
     unless it was understood that the population of a State 
     could consist of a number of "peoples", each possessing the 
     right of self-determination. As the Chairperson-Rapporteur 
     has analysed in her explanatory note concerning the draft 
     declaration on the rights of indigenous peoples, the right 
     of self-determination may be satisfied where a people enjoys 
     an effective voice, through its own representatives, in the 
     governing of a democratic State, and suffers no disadvantage 
     or discrimination (E/CN.4/Sub.2/1993/26/Add.1,    paras. 21-
     23). 

     20. After the Second World War, by comparison, the term 
     "indigenous" assumed the meaning it had previously been 
     given by the Pan-American Onion, rather than the League of 
     National The General Assembly, in resolution 275    (III) of 
     11 May 1949, recommended a study of the conditions of the 
     "aboriginal population and other underdeveloped social 
     groups" of the Americas, with a view to promoting their 
     integration and development. Three years later, the 
     Government of Belgium provoked a controversy by arguing that 
     Article 73 of the Charter should be interpreted in the light 
     of the concept of "indigenous" found in Article 22 of the 
     Covenant of the League of Nations. 5/ According to the 
     delegation of Belgium, the reporting obligations of Article 
     73 applied not only to overseas colonies, but to    
     "backward indigenous peoples" living within the borders of 
     independent States in all regions of the world. 
     
     D. ILO CONVENTION NO. 107 

     21. The delegation of Belgium was not successful in bringing 
     the concept of "indigenous peoples" into Article 73 of the 
     Charter, but the ILO adopted the Convention concerning the 
     Protection and Integration of Indigenous and Other Tribal 
     and Semi-Tribal Populations in Independent Countries, 1957 
     (No. 107). Article 1 of the Convention defines the term 
     "tribal" in terms reminiscent of    

     E/CN.4/Sub.2/AC.4/1996/2 
     page 9  

     the League Covenant: their "social and economic conditions 
     are at a less advanced stage" in comparison with their 
     neighbours, and they live under separate laws, either of 
     their own choosing or imposed by the State. Some "tribal" 
     peoples, moreover, "are regarded as indigenous on account of 
     their descent from the populations which inhabited the 
     country, or a geographical region to which the country 
     belongs, at the time of conquest or colonization" and remain 
     socially, economically and culturally distinct. 

     22. In the terms set forth by Convention No. 107, then, both 
     "tribal" and "indigenous" peoples are mainly characterized 
     by social, cultural, economic, legal and institutional 
     distinctiveness. Evidence of actual oppression or 
     discrimination is not a criterion. The only factor that 
     differentiates "indigenous" peoples from "tribal"     
     peoples is a history of "conquest or colonization", but this 
     distinction is of no practical consequence, since the 
     Convention guarantees both categories of people exactly the 
     same rights. According to Convention No. 107, all 
     "indigenous" peoples are "tribal", but not all "tribal" 
     peoples are "indigenous". Special rights attach equally to 
     both groups. No advantage is gained by virtue of being 
     "indigenous" in the sense of having been a victim, 
     historically, of conquest or colonization. Hence, the source 
     of rights is not (according to this ILO international 
     instrument) a people's history of being conquered, colonized 
     or oppressed, but its history of being distinct as a society 
     or nation. 
     
     23. It is noteworthy that Convention No. 107 was not only 
     ratified by 14 States in Latin America and 2 in Western 
     Europe, but also by 11 States in Africa and Asia.  

     E. STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS 
        POPULATIONS 
     
     24. In his monumental STUDY OF THE PROBLEM OF DISCRIMINATION 
     AGAINST INDIGENOUS POPULATIONS (E/CN.4/Sub.2/1986/7 and 
     Add.1-4), the Special Rapporteur of the Sub-Commission, Mr. 
     J. Martinez Cobo, offered a cautious, preliminary analysis 
     of the concept of "indigenous" that reflects the fundamental 
     elements already incorporated into article 1 of Convention 
     No. 107. 

          "Indigenous communities, peoples and nations are those 
          which, having a historical continuity with pre-invasion 
          and pre-colonial societies that developed on their 
          territories, consider themselves distinct from other 
          sectors of the societies now prevailing in those 
          territories, or parts of     

     E/CN.4/Sub.2/AC.4/1996/2
     page 10  

          them. They form at present non-dominant sectors of 
          society and are determined to preserve, develop and 
          transmit to future generations their ancestral 
          territories, and their ethnic identity, as the basis of 
          their continued existence as peoples, in accordance 
          with their own cultural patterns, social institutions 
          and legal systems". 6/  

     25. This combines the element of DISTINCTIVENESS, which 
     characterizes both "indigenous" and "tribal" peoples 
     according to article 1 of ILO Convention No. 107, with the 
     element of COLONIALISM, which in the Convention No. 107 is 
     employed to differentiate "indigenous" from "tribal". 

     26. The Special Rapporteur proposed three additional 
     elements for the concept of "indigenous", albeit in a way 
     that suggests that these new elements are neither necessary 
     nor sufficient to clarify a particular group. One element is 
     "non-dominance at present", implying that some form of 
     discrimination or marginalization exists, and justifies 
     action by the international community. It would not follow, 
     however, that a group ceases to be "indigenous" if, as a 
     result of measures taken for the full realization of its 
     rights, it were no longer non-dominant. 

     27. The Special Rapporteur referred also to the importance 
     to the group of retaining a relationship with ancestral 
     lands or territories, as well as the importance of ensuring 
     that the distinctiveness of the group is voluntary, rather 
     than imposed upon the group by the State. These two points 
     were addressed when the ILO revised Convention No. 107. 

     F. ILO CONVENTION NO. 169 

     28. ILO Convention No. 107 has been revised and replaced by 
     the Convention on Indigenous and Tribal Peoples in 
     Independent Countries, 1989 (No. 169), which in article 1 
     has retained the distinction between "indigenous" and 
     "tribal" peoples, while modifying the way in which these two 
     terms are defined. 7/ "Tribal peoples" are peoples "whose 
     social, cultural and economic conditions distinguish them 
     from other sections of the national community, and whose 
     status is regulated wholly or partially by their own customs 
     or traditions or by special laws or regulations". This 
     formulation embraces the factor of "distinctiveness" as it 
     appeared in ILO Convention No. 107, but deletes any  
     implication that tribal peoples are inferior or less 
     "advanced". "Indigenous peoples" are now defined in terms of 
     their distinctiveness, as well as their descent from the 
     inhabitants of their territory "at the time of conquest or 
     colonization or the ESTABLISHMENT OF PRESENT STATE 
     BOUNDARIES" (emphasis    

     E/CN.4/Sub.2/AC.4/1996/2
     page 11  

     supplied). The addition of the underlined phrase has the 
     effect of minimizing any logical differences between the 
     concepts of "indigenous" and "tribal", since both concepts 
     are now chiefly defined by the extent to which the group 
     in question constitutes a distinct society. 

     29. The only concrete remaining difference between the 
     definition of "indigenous" and "tribal" in ILO Convention 
     No. 169 relates essentially to the principle of self-
     determination. A people may be "tribal", either by its own 
     choice (that is, by maintaining its own laws and customs), 
     or without its consent (as a result of special legal status 
     imposed by the State). A people may be classified as 
     "indigenous" only if it so chooses by perpetuating its own 
     distinctive institutions and identity. 

     30. Even this residual distinction appears to be vitiated by 
     article 1.2 of the Convention, which provides that "self-
     identification" shall be a fundamental criterion when 
     determining the status of particular groups. 8/ In other 
     words, the only objective or extrinsic criterion of the 
     "indigenous" or "tribal" character of a group is 
     DISTINCTIVENESS. The remaining criterion is subjective: the 
     choice of the group to be and remain distinct, which is an 
     exercise of self-determination. 

     31. Like ILO Convention No. 107, moreover, Convention No. 
     169 accords the same rights to "indigenous" and "tribal" 
     peoples, further eroding the usefulness of distinguishing 
     between these categories of peoples. 

     32. It may justifiably be stated that, after two rounds of 
     exhaustive negotiations on the problem of definition, first 
     in 1957 and again 1988-1989, the ILO did not achieve greater 
     semantic precision, but on the contrary succeeded only in 
     merging the definition of "indigenous" AND "tribal" into a 
     single broad test of distinctiveness. 

     33. The draft inter-American declaration on the rights of 
     indigenous peoples, prepared by the inter-American 
     Commission on Human Rights for consideration by the General 
     Assembly of the Organization of American States, adopts the 
     conceptual approach of ILO Convention No. 169, defining 
     "indigenous peoples" as descendants of the earliest 
     inhabitants of the country. 9/ Interestingly, however, the 
     draft inter-American declaration suggests that cultural 
     distinctiveness - the central element of the ILO definition 
     of "tribal" - provides an alternative basis for establishing 
     that a group is 

     E/CN.4/Sub.2/AC.4/1996/2
     page 12  

     "indigenous". If adopted, this instrument would combine 
     "indigenous" and "tribal", as defined in the above-mentioned 
     ILO Conventions, into one concept, with two alternative 
     tests. 

     34. The United Nations Development Programme (UNDP) has 
     prepared draft guidelines for support to indigenous peoples. 
     10/ Draft guidelines 4, 5 and 6 refer to the definition of 
     indigenous peoples. In these draft guidelines mention is 
     made, inter alia, to the fact that despite certain 
     characteristics common to the world's indigenous peoples, no 
     single accepted definition of indigenous peoples exists 
     which captures their diversity. Therefore, "self-
     identification" as indigenous or tribal is usually regarded 
     as a fundamental criterion for determining whether groups 
     are indigenous or tribal, sometimes in combination with 
     other variables such as language spoken and geographic 
     location or concentration. These draft guidelines adopt the 
     definition of ILO Convention No. 169.  

     G. INDIGENOUS PEOPLES' POINT OF VIEW 

     35. Indigenous representatives on several occasions have 
     expressed the view, before the Working Group that a 
     definition of the concept of "indigenous people" is not 
     necessary or desirable. They have stressed the importance of 
     self-identification as an essential component of any 
     definition which might be elaborated by the United Nations 
     system. In addition, a number of other elements were noted 
     by indigenous representatives, in particular during the 
     thirteenth session of the Working Group. 11/ For example, 
     the Aboriginal and Torres Strait Islander Social Justice 
     Commissioner, Mr. M. Dodson, stated: "there must be scope 
     for self-identification as an individual and acceptance as 
     such by the group. Above all and of crucial and fundamental 
     importance is the historical and ancient connection with 
     lands and territories. ...". A number of other indigenous 
     representatives referred to the working definition developed 
     by the Special Rapporteur, Mr. Martinez Cobo. 12/ The 
     representative of the Sami Council, for example, stated that 
     "even without a definition it should be relatively easy to 
     identify the beneficiaries (of the draft declaration) by 
     using the criteria of the Cobo report which is adequate to 
     determine whether a person or community is indigenous or 
     not.  Factors such as historical continuity, self-
     identification and group membership are cardinal criteria in 
     this regard". 
     
     36. As mentioned earlier, indigenous groups insist on their 
     right to define themselves both in terms of an individual's  
     "self-identification" as an  

     E/CN.4/Sub.2/AC.4/1996/2
     page 13  

     indigenous person and with respect to the community's right 
     to define its members. This 'subjective" approach - that 
     indigenous peoples are those who feel themselves to be 
     indigenous and are accepted as such by members of the group - 
     has been widely supported, although it is not clear whether 
     it would be sufficient if other "objective" criteria, such 
     as ancestry, were absent. 13/ The Human Rights Committee, in 
     addressing this question, especially in connection with the 
     SANDRA LOVELACE case, has found that denial of the legal 
     right of an Indian woman to reside on the Indian Tobique 
     Reserve, in Canada, because of her marriage to a non-Indian 
     violated her right, "in community with the other members of 
     her group", to enjoy her own culture as guaranteed by 
     article 27 of the International Covenant on Civil and 
     Political Rights. The Human Rights Committee did not 
     directly address the issue of whether the author of the 
     communication, Ms. Lovelace, had lost her status as an 
     Indian. Nevertheless, it has implicitly decided that she 
     remained a part of the Maliseet Indian band from which she 
     came. The case of Sandra Lovelace was considered in the 
     light of the fact that her marriage to a non-Indian has 
     broken up. There was no evidence that the above-mentioned 
     Indian band objected to her residing on the reserve. 14/ 

     37. Article 27 of the Covenant has also been invoked by 
     indigenous people. In this respect, it should be mentioned, 
     for example, that in 1980, an Aboriginal delegation 
     addressed the Sub-Commission on the Australian Government's 
     failure to protect a sacred site on Aboriginal leasehold 
     land at Noonkanbah from the Western Australian Government's 
     insistence that exploratory drilling for oil should proceed. 
     15/ Another case concerning Canadian Indians (communication 
     No. 167/1984, BERNARD OMINAYAK, CHIEF OF THE LUBICON LAKE 
     BAND V. CANADA). raised issues before the Human Rights 
     Committee under article 27 of the Covenant with respect to 
     the traditional rights to fishing and hunting, as well as 
     issues of self-determination under article 1 of the 
     Covenant. In its review of this case, the Committee did, 
     inter alia, find a violation of article 27. It recognized 
     "that the rights protected by article 27, include the rights 
     of persons, in community with others, to engage in economic 
     and social activities which are part of the culture of the 
     community to which they belong". 16/  

     38. It should be also mentioned that some indigenous 
     representatives from Asia stated that, in view of the 
     establishment of the new working group of the 

     E/CN.4/Sub.2/AC.4/1996/2
     page 14  

     Commission on Human Rights, a formal definition was urgently 
     needed to prevent Governments from denying the existence of 
     indigenous peoples in their countries. 17/  

     H. VIEWS EXPRESSED BY GOVERNMENTS 

     39. The representatives of the observer Governments of 
     Bangladesh and India emphasized the need for a clear 
     definition of "indigenous people" in the interest of an 
     effective focus on the true indigenous people of the world. 
     The representative of the observer Government of Bangladesh 
     stated in particular that a procedure based on self-
     identification could be self-defeating and that it would be 
     a great disservice to the true indigenous people if the 
     agenda for indigenous people were allowed to be confused 
     with the agenda of other subnational and tribal groups that 
     constituted minorities within their respective countries. 

     I. VIEWS EXPRESSED BY MEMBERS OF THE WORKING GROUP 

     40. Mr. R. Hatano, member of the Working Group, in one of 
     his statements before the Sub-Commission regarding in 
     particular the draft declaration on the rights of indigenous 
     peoples, expressed the following views in connection with 
     the definition of the concept "indigenous people": "...Even 
     if [the declaration] was not a binding legal instrument, it 
     none the less sets out the rights of indigenous peoples and 
     the duties of States towards these peoples. However, nowhere 
     did the declaration define the key expression 'indigenous 
     people'. Apparently, indigenous organizations did not want 
     the term to be defined for fear some indigenous persons 
     would not be covered by the scope of the definition. 
     However, such organizations had repeatedly affirmed that the 
     world's population included approximately 300 million 
     indigenous persons. How had they arrived at that figure 
     without some yardstick or definition to distinguish between 
     indigenous and non-indigenous persons?. 18/  

     41. Mr. J. Bengoa, alternate member of the Working Group, 
     stated that regarding the development of a concept of 
     indigenous people, the discussion clearly had two sides: a 
     theoretical one and a political one. Also, there was a 
     difficult linguistic problem in view of the usage of the 
     words "populations" and "peoples". The draft declaration 
     which had been approved by the Sub-Commission used both 
     words without making a clear distinction between them A 
     definition of the concept of "indigenous peoples" could be 
     an important step towards the recognition of indigenous 
     peoples and their rights and could well serve to make the 
     very important distinction between indigenous 

     E/CN.4/Sub.2/AC.4/1996/2
     page 15  

     groups and minorities. In that regard, the difference 
     between defining peoples and establishing procedures to 
     exercise the right of self-identification should be made. 
     The procedures to exercise the right of self-identification 
     had to have the following characteristics: first, they had 
     to be operational in order to serve international objectives 
     and in particular allow an understanding of the many 
     different cultures; second, they had to be functional to 
     allow participation of the indigenous peoples; third, they 
     had to be flexible in order to be able to respond to new 
     situations in the dynamic process of recognizing indigenous 
     peoples' rights. Mr Bengoa stressed the fact that the 
     principle of self-identification is inalienable and has to 
     be part of the definition. The characteristic of being the 
     first people and the strong ties to the land also 
     constituted important elements of a possible definition. He 
     pointed out the inherent danger of a requirement of historic 
     continuity, as many indigenous peoples had been forcibly 
     removed from their lands or were now living in urban areas 
     but had kept their indigenous identity. Also, he stated that 
     the element of having been subjected to colonization needed 
     further discussion, as it seemed to reflect mainly the 
     situations faced by indigenous groups in the Americas. The 
     element of distinct culture which was recognized by all 
     existing definitions should not constitute a decisive 
     feature in order to allow for a more dynamic approach, 
     taking into account processes of change in indigenous 
     societies. Furthermore, he regarded the characteristic of 
     non-dominance as an empirical reality but not necessarily a 
     substantive feature. 19/ 

     II. CRITICAL LEGAL ANALYSIS  

     A. COMPARISON WITH "NON-SELF-GOVERNING TERRITORIES" 

     42. It will be recalled that in General Assembly resolution 
     1541 (XV) the Assembly had defined "Non-Self-Governing 
     Territories" in terms of three fundamental factors: cultural 
     distinctiveness, geographic separateness, and actual 
     subordination. The evolving concept of "indigenous" overlaps 
     with the formal definition of "Non-Self-Governing 
     Territories" with respect to the first factor 
     (distinctiveness). we have seen that subordination, while 
     suggested as a possible element of a definition in the 
     Martinez Cobo study, was not included in the definition 
     adopted by the ILO conventions in this field, although 
     marginalization and oppression are unquestionably shared 
     experiences of most indigenous peoples. It does not seem 
     logical, moreover, 

     E/CN.4/Sub.2/AC.4/1996/2
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     that the presence or absence of oppression should be a 
     factor distinguishing indigenous peoples from others heaving 
     experienced so-called classic colonialism. 

     43. The third factor, geographic separateness, also merits a 
     critical re-examination. The Special Rapporteur, Mr. 
     Martinez Cobo, recognized that indigenous peoples tend to be 
     characterized by their maintaining special relationship" 
     with their "ancestral territories". Although ILO Convention 
     No. 169 does not include any geographical factor in its 
     definition of "indigenous", it none the less affirms, in 
     article 13, the "special importance" of the continuing 
     relationship between indigenous peoples and their ancestral 
     territories for continuing their "cultures and spiritual 
     values". In other words, the cultural distinctiveness of 
     indigenous peoples, which is central to the concept of 
     "indigenous" in contemporary international law, is 
     inseparable from "territory". 

     44. The inseparability of cultural distinctiveness and 
     territory from the concept of "indigenous" was noted by the 
     United Nations Conference on Environment and Development in 
     paragraph 26.1 of Agenda 21, adopted by a consensus of 
     Member States: 
     
          "Indigenous people and their communities have a 
          historical relationship with their lands and are 
          generally descendants of the original inhabitants of 
          those lands".  20/ 

     45. The centrality of land tenure systems and ecological 
     knowledge to the cultures of indigenous peoples was 
     reaffirmed, again by consensus, at the International 
     Conference on Population and Development at Cairo in 1994. 
     21/ 

     46. The WORLD BANK OPERATIONAL MANUAL also identifies "a 
     close attachment to ancestral territories and to the natural 
     resources in these areas" as one of five factors which, in 
     varying degrees, tend to characterize "indigenous peoples".  
     22/  

     B. COMPARISONS WITH "MINORITIES"

     47. Acknowledging the significance of "territory" may be 
     necessary to address another major logical and conceptual 
     problem: differentiating "indigenous peoples" from 
     "minorities". A strict distinction must be made between 
     "indigenous rights" and "minority rights". Indigenous 
     peoples are indeed peoples and not minorities or ethnic 
     groups. 23/ 

     E/CN.4/Sub.2/AC.4/1996/2
     page 17  

     48. The Permanent Court of International Justice (P.C.I.J.) 
     did not define the concept "minority" but made an attempt to 
     provide the meaning of the concept of "community" in the 
     Greco-Bulgarian Communities case as follows:  

          "...a group of persons living in a given country or 
          locality having a race, religion, language and 
          traditions of their own, and united by this identity of 
          race, religion, language and traditions in a sentiment 
          of solidarity, with a view to preserving their 
          traditions, maintaining their form of worship, securing 
          the instruction and upbringing of their children in 
          accordance with the spirit and tradition of their race 
          and mutually assisting one another. 24/ 

     49. The above-mentioned formula contains four main elements: 
     (a) biological distinctiveness; (b) cultural distinctiveness 
     (religion, language, traditions); (c) the choice or desire 
     to remain distinct (which may be implied in the perpetuation 
     of the cultural distinctiveness of the group); and (d) 
     social cohesiveness (which may be implied from the fact that 
     the group seeks a recognition of its collective rights). The 
     racial factor is, of course, no longer admissible as a 
     matter of law or science. 

     50. The meaning of the concept of "minority" provided by the 
     P.C.I.J. may therefore be collapsed into the same concept 
     that lies at the heart of all recent attempts to define 
     "indigenous" - that is, a distinctiveness which the people 
     concerned wish to perpetuate. 

     51. In his important STUDY ON THE RIGHTS OF PERSONS 
     BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, 
     the Special Rapporteur of the Sub-Commission, Mr. F. 
     Capotorti, argued that the size and power of a group are 
     important considerations in determining whether it should be 
     an object of special international protection. A "minority" 
     from the viewpoint of sociology, he reasoned, is not 
     necessarily the same as a "minority" within the context of 
     international human rights law. From his perspective, he 
     proposed the following definition: 

          "A group numerically inferior to the rest of the 
          population of a State, in a non-dominant position. 
          whose members - being nationals of the State - possess 
          ethnic, religious or linguistic characteristics 
          differing from those of the rest of the population and 
          show, if only implicitly, a sense of solidarity, 
          directed towards preserving their culture, traditions, 
          religion or language. 25/ 

     E/CN.4/Sub.2/AC.4/1996/2
     page 18  

     52. Thus defined, a group must not only lack political 
     power, but lack the numerical strength ever to gain power 
     through democratic means, before it qualifies as a 
     "minority". An oppressive group that constitutes a numerical 
     minority of the national population would, accordingly, not 
     qualify as a "minority", but in such as case the State 
     concerned would not be entitled to invoke national unity and 
     territorial integrity against legitimate national liberation 
     movements. 

     53. At the request of the Sub-Commission, Mr. J. Deschenes 
     made a great effort to improve upon the definition of 
     "minority" but reached essentially the same conclusions as 
     Mr. Capotorti. Be suggested one refinement that merits our 
     attention, however. This was to place greater weight on the 
     element of choice, since there would seem to be no need to 
     be concerned with groups that did not wish to be protected, 
     or to maintain their distinct identity as groups. 26/ 

     54. In a more recent study, the Special Rapporteur of the 
     Sub-Commission, Mr. A. Eide, was also inspired by the 
     definition proposed by Mr. Capotorti, although he concluded 
     that the size of the group and its distinctiveness are 
     sufficient as tests of its character as a minority, thereby 
     abandoning the element of non-dominance. 27/ 

     55. At its first session in 1995, the new Working Group on 
     Minorities of the Sub-Commission considered the possibility 
     of elaborating a more precise definition of "minority" but 
     the debate merely underscored the futility of such an 
     endeavour, and the Working Group proceeded to discuss 
     practical means of protecting minorities without agreeing on 
     a definition. 28/ 

     56. At the second session of the Working Group on Minorities 
     a member, Mr. S. Chernichenko, presented a working paper on 
     the definition of minorities (E/CN.4/Sub.2/AC.5/1996/WP.1 
     and Corr.1), in which he proposed a new definition of 
     minorities. In this respect, he emphasized, inter alia, that 
     his definition did not extend to indigenous populations and 
     that the tasks of the Working Group on Minorities did not 
     include the development of any definition of indigenous 
     populations (para. 7). 

     57. The Human Rights Committee in its General Comment No. 23 
     (50) (art. 27) observes that "culture manifests itself in 
     many forms, including a particular way of life associated 
     with the use of land resources, specially in the case of 
     indigenous peoples. That right may include such traditional 
     activities as fishing or hunting and the right to live in 
     reserves protected by law". 29/ 

     E/CN.4/Sub.2/AC.4/1996/2
     page 19  

     In any event, the "working definition" included in the 
     Capotorti study does not help distinguish between the 
     concepts of "indigenous" and "minority" since most groups 
     that regard themselves as indigenous peoples could satisfy 
     its tests. 

     58. The task of clarifying the concept of "indigenous" is 
     accordingly complicated by the fact that the United Nations 
     has previously failed to devise reasonably precise 
     definitions of "peoples" or "minorities". 30/ 

     59. Since the three concepts "indigenous", "peoples" and 
     "minorities" are logically and legally related, it would be 
     necessary to refine all of them simultaneously, lest our 
     efforts to clarify the concept of "indigenous" add to the 
     existing uncertainty in the meaning of the other related 
     concepts. 

     C. THE SEARCH FOR FACTORS SPECIFIC TO "INDIGENOUS"

     60. It is none the less possible to identify at least two 
     factors which have never been associated with the concept of 
     "minorities": priority in time and attachment to a 
     particular territory. These factors do not, however, help to 
     distinguish between the concept of "indigenous" and the 
     concept of "peoples", since "peoples" are also ordinarily 
     identified with a distinct territory to which they have a 
     claim of historical precedence. In other words, it is 
     possible to find points of differentiation between 
     "indigenous" and "minority", but not between "indigenous" 
     and "peoples", based upon the efforts of international 
     organizations to define these terms in this century. 

     61. This is an appropriate stage at which to review the 
     discussion of these issues by participants at the first 
     meeting of the working group of the Commission on Human 
     Rights which was established by resolution 1995/32. Several 
     delegations of Member States maintained that it was 
     essential to adopt a definition of the concept "indigenous" 
     before negotiating the substantive provisions of a 
     declaration on the rights of these people. Some delegations, 
     moreover, reasoned that the concept of "indigenous" is 
     applicable only to situations in which the original 
     inhabitants of the territory were subjugated and physically 
     dispossessed by settlers from overseas, bearing alien 
     cultures and values, and where these settlers, rather than 
     the original inhabitants, have been the real beneficiaries 
     of decolonization and independent statehood. These 
     circumstances, the same delegations contend, have largely 
     been restricted historically to the Americas and Oceania. 

     62. Further, in adopting its report, the working group 
     stipulated that it was "solely a record of the debate and 
     does not imply acceptance of the usage of 

     E/CN.4/Sub.2/AC.4/1996/2
     page 20  

     either expression 'indigenous peoples' or 'indigenous 
     people,. In this report both are used without prejudice to 
     the positions of the particular delegations, where 
     divergences of approach remain" (E/CN.4/1996/84, para. 3). 

     63. The advisability and feasibility of adopting a 
     definition of the concept of "indigenous" may reasonably be 
     judged from the conceptual framework proposed by concerned 
     delegations. The definition which has been suggested differs 
     in only one concrete aspect from the conceptual model 
     presented in the Martinez Cobo study or the two ILO 
     conventions in this field: conquest, colonization, 
     subjugation or discrimination must be at the hands of 
     persons from other regions of the world rather than 
     neighbours. In the opinion of the Chairperson-Rapporteur, 
     this makes an unjustified distinction between long-distance 
     aggression and short-distance aggression, and it is 
     logically impossible to establish a cut-off distance. 
     Moreover, it assumes that the cultural differences that 
     exist between peoples in a simple linear function of 
     distance, such that mere proximity creates a presumption of 
     shared values. The information provided to the Working Group 
     on Indigenous Populations each year contradicts the validity 
     of that assumption. 

     64. Underlying the arguments made by many observer 
     Government delegations is a conceptual critique of the use 
     of the term "indigenous" to distinguish between groups that 
     have been neighbours for millennia. To the extent that the 
     English and Spanish terms which are currently in official 
     use in the United Nations system imply a distinction between 
     persons originating in a country, as opposed to immigrants 
     or settlers, the unease of many African and Asian 
     Governments is understandable. Plainly, most of the persons 
     who have control of the contemporary State are not less 
     native to the soil of the country as a whole than groups 
     that are identified as "indigenous" or "tribal". It should 
     be pointed out, however, that this conceptual difficulty 
     disappears if we think of "indigenous" peoples as groups 
     which are native to their own specific ancestral territories 
     within the borders of the existing State, rather than 
     persons that are native generally to the region in which the 
     State is located. 

     65. The purpose of the present document is not to minimize 
     the concerns expressed by some Governments, but to 
     demonstrate that their concerns cannot effectively be met 
     through an exercise in definition. The result of undertaking 
     such an exercise would be a definition which lacked any 
     scientific 

     E/CN.4/Sub.2/AC.4/1996/2
     page 21  

     or logical credibility, thereby undermining (in turn) the 
     credibility and usefulness of the declaration of principles 
     to which it was attached. 

     III. CONCLUSIONS AND RECOMMENDATIONS

     66. It is an encouraging fact that Governments in the Latin 
     American region have expressed confidence in their 
     understanding of the meaning of "indigenous" in their own 
     regional context, rendering an explicit, negotiated 
     definition of this concept largely unnecessary. The 
     Chairperson-Rapporteur is cognizant of the fact that, even 
     in the Americas, disputes have often arisen regarding the 
     "indigenous" status of particular groups. Within the United 
     States, for example, more than 100 groups are still seeking 
     formal acknowledgement of their status as "Indian tribes", 
     under a 1978 law identifying seven historical and 
     sociological criteria applicants must satisfy with 
     scientific evidence. 31/ 

     67. In practical terms, then, it would be foolhardy to 
     disregard both the regional and the national dimensions of 
     the concept of "indigenous" Regional research and 
     consultations would be extremely useful for this purpose 
     and, in the future, differences in practice must be 
     recognized as long as they are broadly consistent with 
     regional and international expert opinion. Where disputes 
     occur, they should be addressed in the same way as other 
     disputes involving both factual and legal issues in the 
     field of human rights, that is to say, through a 
     constructive dialogue between expert bodies and the 
     representatives of indigenous peoples and Governments. 

     68. At its second and third sessions, the Working Group on 
     Indigenous Populations discussed the definition of the 
     concept of "indigenous" at great length, using the work of 
     the Special Rapporteur as a point of departure. 32/ No 
     consensus was reached, but indigenous people who 
     participated in these discussions stressed the need for 
     flexibility and for respecting the desire and the right of 
     each indigenous people to define itself. From that time the 
     Working Group has indeed adopted a flexible approach to 
     determining eligibility to participate in its annual 
     sessions, relying upon organizations of indigenous peoples 
     themselves to draw attention to any improper assertions of 
     the right to participate as "indigenous" peoples. On the 
     whole, this has been successful, and shows that the gradual 
     evolution of the concept of "indigenous" in practice, and in 
     cooperation with 

     E/CN.4/Sub.2/AC.4/1996/2
     page 22  

     indigenous peoples themselves, is sufficiently practical and 
     effective as a method of screening the claims of groups 
     whose legal character may be challenged. 

     69. In summary, the factors which modern international 
     organizations and legal experts (including indigenous legal 
     experts and members of the academic family), have considered 
     relevant to the understanding of the concept of "indigenous" 
     include: 

          (a) Priority in time, with respect to the occupation 
     and use of a specific territory;  

          (b) The voluntary perpetuation of cultural 
     distinctiveness, which may include the aspects of language, 
     social organization, religion and spiritual values, modes of 
     production, laws and institutions;  

          (c) Self-identification, as well as recognition by 
     other groups, or by State authorities, as a distinct 
     collectivity; and  

          (d) An experience of subjugation, marginalization, 
     dispossession, exclusion or discrimination, whether or not 
     these conditions persist. 

     70. The foregoing factors do not, and cannot, constitute an 
     inclusive or comprehensive definition. Rather, they 
     represent factors which may be present, to a greater or 
     lesser degree, in different regions and in different 
     national and local contexts. As such, they may provide some 
     general guidance to reasonable decision-making in practice. 

     71. The United Nations system should be mindful of the 
     conclusion of the managers of the World Bank that "no single 
     definition can capture (the) diversity" of indigenous 
     peoples worldwide. 33/ It would also be wise to heed the 
     words of the Special Rapporteur, Mr. Capotorti, who warned 
     that precise universal definition, while of philosophical 
     interest, would be nearly impossible to attain in the 
     current state of global realities, and would in any event 
     not contribute perceptibly to the practical aspects of 
     defending groups from abuse. 34/

     72. In presenting this analysis, the Chairperson-Rapporteur 
     wishes to stress that she can find no satisfactory reasoning 
     for distinguishing between "indigenous" and "tribal" peoples 
     in the practice or precedents of the United Nations. Nor is 
     she persuaded that there is any distinction between 
     "indigenous" peoples, and "peoples" generally, other than 
     the fact that the 

     E/CN.4/Sub.2/AC.4/1996/2
     page 23  

     groups typically identified as "indigenous" have been unable 
     to exercise the right of self-determination by participating 
     in the construction of a contemporary nation-State. 

     73. The Chairperson-Rapporteur is compelled to conclude that 
     any inconsistency or imprecision in previous efforts to 
     clarify the concept of "indigenous" was not a result of a 
     lack of adequate scientific or legal analysis, but due to 
     the efforts of some Governments to limit its globality, and 
     of other Governments to build a high conceptual wall between 
     Indigenous and "peoples" and/or "Non-Self-Governing 
     Territories". No one has succeeded in devising a definition 
     of "indigenous" which is precise and internally valid as a 
     philosophical matter, yet satisfies demands to limit its 
     regional application and legal implications. All past 
     attempts to achieve both clarity and restrictiveness in the 
     same definition have in fact resulted in greater ambiguity. 

     74. The only immediate solution, based on the experience of 
     the Working Group on Indigenous Populations, is a procedural 
     one: we must ensure that the eventual implementation of a 
     declaration on the rights of indigenous peoples is entrusted 
     to a body which is fair-minded and open to the views of 
     indigenous peoples and Governments, so that there is room 
     for the reasonable evolution and regional specificity of the 
     concept of "indigenous" in practice.  


                                 NOTES

     
          1/ E/CN.4/Sub.2/1995/24, para. 162. 

          2/ See E/CN.4/1996/84.  

          3/ The creation of the Working Group on Indigenous 
     Populations was recommended by the Sub-Commission on 
     Prevention of Discrimination and Protection of Minorities in 
     its resolution 2 (XXXIV) of 8 September 1981, endorsed by 
     the Commission on Human Rights in its resolution 1982/19 of 
     10 March 1982, and authorized by the Economic and Social 
     Council in its resolution 1982/34 of 7 May 1982.  

          4/ General Assembly resolution 2625 (XXV) of 24 October 
     1970, annex.  

          5/ See A/2361 (1952).  

          6/ E/CN.4/Sub.2/1986/7/Add.4, United Nations 
     Publication, Sales No. E.86.XIV.3, para. 379.    

     E/CN.4/Sub.2/AC.4/1996/2
     page 24  

          7/ In connection with the definition employed in ILO 
     Convention No. 169, see, I. Brownlie, "Treaties and 
     Indigenous Peoples". THE ROBB LECTURES, F.M. Brookfield   
     (ed.), Clarendon Press, Oxford, 1992, pp. 60-67. For an 
     analysis of the provisions of this Convention, see R.L. 
     Barsh, "An Advocate's Guide to the Convention on Indigenous 
     and Tribal Peoples", 15 OKLAHOMA UNIVERSITY LAW REVIEW 209   
     (1990), L. Swepston, "A New Step in the International Law on 
     Indigenous and Tribal Peoples: ILO Convention No 169 of 
     1989", 15 OKLAHOMA UNIVERSITY LAW REVIEW 677 (1990) and S.J. 
     Anaya, "Indigenous Rights Norms in Contemporary 
     International Law", ARIZONA JOURNAL OF INTERNATIONAL AND 
     COMPARATIVE LAW, vol. 8, No. 2, Fall 1991, pp 6-15.  

          8/ So formulated, art. 1.2 of ILO Convention No. 169 
     provides that "self-identification" should be given great 
     weight, although it is not sufficient in itself.  

          9/ OEA/Ser/L/V/II.90, Doc. 9 rev. 1 (21 September 
     1995).  

          10/ Guidelines for Support to Indigenous Peoples, 
     United Nations Development Programme, Draft V, January 1995. 
     These draft Guidelines should be adopted by the Executive 
     Board of UNDP.  

          11/ See E/CN.4/Sub.2/1995/24, para. 41-51.  

          12/ Ibid., para. 29-32.  

          13/ See H. Hannum, "New Developments in Indigenous 
     Rights", VIRGINIA JOURNAL OF INTERNATIONAL LAW, vol. 28, No. 
     3, Spring 1988, p. 663.  

          14/ Communication No. R.6/24, SANDRA LOVELACE V. 
     CANADA, in OFFICIAL RECORDS OF THE GENERAL ASSEMBLY, THIRTY-
     SIXTH SESSION. SUPPLEMENT NO. 40 (A/36/40), annex XVIII. For 
     a comprehensive analysis of the relevant Views, expressed by 
     the Human Rights Committee, see G. Alfredsson and A. de 
     Zayas, "Minority Rights: Protection by the United Nations", 
     HUMAN RIGHTS LAW JOURNAL 26 February 1993, vol. 14, No. 1-2, 
     pp. 5-6.  

          15/ H. McRae, G. Nettheim and L. Beacroft, ABORIGINAL 
     LEGAL ISSUES, The Law Book Company Limited, Sydney, 1991, 
     p.320.  

          16/ Ibid., FORTY-FIFTH SESSION. SUPPLEMENT NO. 40 
     (A/45/40), vol. II, annex IX, para 32.2.  

          17/ E/CN.4/Sub.2/1995/24, para. 41.  

          18/ E/CN.4/Sub.2/1992/SR.31/Add.1, para. 36. 

          19/ See E/CN.4/Sub.2/1995/24, paras. 45-51. 

     E/CN.4/Sub.2/AC.4/1996/2
     page 25  

          20/ RECORD OF THE UNITED NATIONS CONFERENCE ON 
     ENVIRONMENT AND DEVELOPMENT (Rio de Janeiro, 3-4 June 1992), 
     vol. I, resolution 1, annex II. United Nations Publication, 
     Sales No. E.93.I.8. See also chapter 26 of Agenda 21 on 
     "Recognizing and strengthening the role of indigenous people 
     and their communities".  

          21/ A/CONF.171/13, para. 6.27.  

          22/ Operational Directive 4.20, para. 5 (a), September 
     1991. Other factors listed are self-identification, a 
     distinct language, customary social and political 
     institutions, and a subsistence-oriented economy.  

          23/ E.-I. A. Daes, "On the Relations Between Indigenous 
     Peoples and States", WITHOUT PREJUDICE, vol. III, p. 44.  

          24/ See Greco-Bulgarian Communities (Advisory Opinion), 
     P.C.I.J. Series B. No. 17, p. 22 (31 July 1930). In this 
     respect, see also P. Thornberry, "The UN Declaration on the 
     Rights of Persons Belonging to National or Ethnic, Religious 
     and Linguistic Minorities: Background, Analysis, 
     Observations, and an Update", UNIVERSAL MINORITY RIGHTS, A. 
     Phillips and A. Rosas (eds.), Abo Akademi University 
     Institute for Human Rights, 1995, pp. 16-17. 

          25/ F. Capotorti, STUDY ON THE RIGHTS OF PERSONS 
     BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES, 
     United Nations publication, Sales No. E.91.XIV.2, Geneva,    
     1991, para. 568.  

          26/ E/CN.4/Sub.2/1985/31, paras. 74 and 181.  

          27/ E/CN.4/Sub.2/1993/34, para. 29.  

          28/ E/CN.4/Sub.2/1996/2, paras. 76-90.  

          29/ CCPR/C/21/Rev.1/Add.5. See in particular para. 7.  

          30/ For an analysis of the meaning of the concepts 
     "indigenous", "peoples" and "minorities", see M.N. Shaw, 
     "The Definition of Minorities in International Law",    
     ISRAEL YEARBOOK ON HUMAN RIGHTS, vol. 20 (1991) pp. 13-43; 
     E.-I.A. Daes, "Some Considerations on the Right of 
     Indigenous Peoples to Self-Determination", TRANSNATIONAL 
     LEGAL AND CONTEMPORARY PROBLEMS, vol. 3 (1993), pp. 2-11; 
     Daes, "Dilemmas Posed by the UN Draft Declaration on the 
     Rights of Indigenous Peoples", NORDIC JOURNAL OF 
     INTERNATIONAL LAW, 63:205-212 (1994); Daes, "The United 
     Nations Declaration on Minority Rights: Necessary, Urgent 
     and Overdue", INTERNATIONAL GENEVA YEARBOOK, vol. IX, 1995, 
     in particular pp. 91-92; R.L. Barsh, "Indigenous Peoples in 
     the 1990s: From Object to Subject of International Law?", 
     HARVARD HUMAN RIGHTS JOURNAL, vol. Seven, Spring 1994, in 
     particular pp. 36-41 and 78-82; D. Sanders, "Indigenous 
     Peoples at the United Nations" (on file with the author), 
     September 1995, pp. 1-17; G. Alfredsson, "Group Rights, 
     Preferential Treatment    

     E/CN.4/Sub.2/AC.4/1996/2
     page 26  

     and the Rule of Law", Discussion Paper for Consultation on 
     Group Rights at the University of Cambridge, Law and Society 
     Trust, Colombo, August 1995, p. 21.  

          31/ See W.C. Canby, Jr., AMERICAN INDIAN LAW (second 
     edition), St. Paul, Minn., West Publishing Co., 1988, pp. 5-8.  

          32/ E/CN.4/Sub.2/1983/22, paras. 109-119; 
     E/CN.4/Sub.2/1984/20, paras. 99-110.  

          33/ WORLD BANK OPERATIONAL MANUAL, op. cit., 
     Operational Directive 4.20 (1991).  

          34/ Capotorti, op. cit., paras. 561-562.  

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