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3rd UN Seminar on Treaties by Matt With Kent Edits

3rd UN Seminar on Treaties by Matt With Kent Edits

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3
rd
UN Seminar on Treaties United Nations Headquarters Geneva July 16-17, 2012
Owe Aku International Justice Project
The Treaty Seminar
The Office of the High Commissioner for Human rights is organizing a seminar entitled “StrengtheningPartnership Between Indigenous Peoples and States: Treaties, Agreements, and Other Constructive Arrangements”from the 16-17 of July 2012. The seminar will take place in Geneva, Switzerland, and will be the third seminar on Indigenous treaty issues of the past decade.The seminar’s purported purpose is to foster discussion between Indigenous representatives and our Statecounterparts regarding treaty implementation and interpretation, dispute resolution, and utilizing treaties to fulfillhuman rights obligations owed to Indigenous peoples. The seminar is also meant to provide an open forum whereIndigenous representatives can submit recommendations for both UN and State consideration as well ascomments on any progress (or lack thereof) towards rectifying historical and ongoing treaty violations. Despitethe lack of meaningful follow-up made by both the international community and States with regards to the proposed recommendations of the past two seminars, Indigenous participation in such discussions remainsessential to demonstrate unwavering resolve and the unrelenting voice of the peoples involved. A brief summaryof the recommendations made in the previous two seminars follows.
Role of Owe Aku International Justice Project
The Lakota Nation had an important role to play in conceiving of the UN Study on Treaties, Agreements, andOther Constructive Arrangements” (‘Treaty Study’) and providing case studies that led to the positive conclusionsabout the international nature of Indigenous nations’ treaties. We do not intend to let this Study, or the spirit inwhich it lives, be ignored.Consistent with our ongoing strategy, under the guidance of the Black Hills Sioux Nation Treaty Council, we willsubmit an intervention that will provide the United Nations with the opportunity to implement action-orientedmethodologies involving international courts or the use of other mechanisms specifically designed to addressStates who do not conform with their obligations under their treaties with Indigenous nations. We will also propose aggressive enforcement mechanisms. If we are to work in the United Nations, it must be to express theneeds and wants of our peoples and nations, not as tokens neatly fitting within the confines of procedures thatviolate our rights to self-determination and free, prior and informed consent.
First UN Seminar on Treaties, Agreements, and Other Constructive Arrangements between Statesand Indigenous Peoples (Geneva, 15-17 December 2003):
The first UN seminar on Indigenous treaties was held to explore ways and means to follow up on therecommendations included in the final report of the UN Treaty Study of the Special Rapporteur, Mr. MiguelAlfonso Martinez. The seminar was intended to considered both historic treaties and forward-looking strategiesto utilize
treaties as a basis for improved relations between Indigenous peoples and States
.. Nine academicexperts, 30 State representatives, and 39 Indigenous representatives attended this first seminar. The followingrecommendations and conclusions were submitted to 60
th
session of the Commission on Human Rights.
Summary of Official Conclusions of the Participating Experts:
o
Historic treaties, agreements, and other constructive arrangements should be implemented inaccordance with the spirit in which they were agreed upon.
o
Past treaties have not been respected by States, leading to loss of lands, resources, and humanrights, and non-implementation threatens the survival of Indigenous peoples as distinct peoples.
o
Treaties constitute a means of promoting harmonious, just and more positive relationsbetween States and Indigenous peoples due to their consensual basis and the activeparticipation (
not merely consultation
) of all parties.
Owe Aku International Justice Project oweakuinternational@me.com 646-233-4406 Page 1
 
Summary of Expert Recommendations for State Governments:
States should respect all treaties and establish effective mechanisms for resolution of treaty relatedconflicts. Conflict resolution processes should:
o
Be developed with free, prior, and informed consent of the Indigenous peoples concerned/affected in any way
o
Integrate Indigenous laws and legal norms
o
Recognize the collective nature of the rights of Indigenous peoples
States should incorporate into their education systems programs to educate the general public onIndigenous peoples’ treaties and correctly define the history of Indigenous peoples’ relationships withinthe family of nations
Summary of Expert Recommendations for the UN Commission on Human Rights:
Draw upon existing best practices for conflict resolution in order to develop a mechanism for resolvingconflicts arising form treaties in cases where domestic resolution processes have proven ineffective. (Thecase of the Fort Laramie Treaties is a perfect example of the ineffectiveness of “domestic resolution processes” since the case went as high as the United States Supreme Court where the validity of the treatywas admitted in our favor. The case also demonstrated that there are no effective means for resolutionwithin the United States, or many other States, whose interests lie in continued colonization anddomination).
To organize a world conference on Indigenous peoples considering treaties,
 pacta sunt servanda
(meaning
agreements must be kept 
),
 
impact of treaty abrogation, and remedies for such abrogation.
To seek an advisory opinion from the ICJ regarding the status of treaties and agreements betweenStates and Indigenous peoples.
To request that the UN Treaty Section of the Office of Legal Affairs locate, compile, register, and publishall treaties between Indigenous peoples and States.
Summary of Expert Recommendations for UN treaty bodies:
Develop a working paper to follow up on treaty implementation and mechanisms for resolving conflictsarising from treaties, taking into account importance of transparent, equitable, and participatory avenuesof redress, monitoring, arbitration, and mediation.
To adopt the Declaration on the Rights of Indigenous Peoples before the end of the Decade of the World’sIndigenous Peoples, and
to affirm importance of the right to self determination and the developmentof an international body to adjudicate treaty disputes unresolved through other mechanisms.
Recommend that UN human rights treaty bodies consider how non-compliance with State obligationsarising out of treaties with Indigenous peoples incur additional violations of international human rightsinstruments. (For the United States, who has not been a signatory to many international human rightsinstruments (tied for last place with Somalia), one option available is to use the Convention on theElimination of Racial Discrimination, to which the United States is a signatory. Owe Aku IJP is alsolooking into means for using this process regarding treaty violations.)
Expert Recommendation for the Office of the UN High Commissioner for Human Rights:
OHCHR should provide technical cooperation to assist Indigenous peoples with their negotiations andclaims in relation to treaties
Other useful recommendations submitted by Indigenous participants:
Establishing an international advisory body to resolve disputes arising from treaties between States andIndigenous peoples in order to provide effective relief 
o
Such an advisory body would need a depository for treaties and the ability to conduct further studies
ICJ should be asked for an advisory opinion on the international status of treaties in light of thecollective rights of Indigenous peoples and the internationally recognized right of self-determination
Recognition of the rights of Indigenous peoples under international law
as a means to promoteharmonious relations with States
Owe Aku International Justice Project oweakuinternational@me.com 646-233-4406 Page 2
 
Instituting a complete overhaul of State public education systems in order to sensitize government,industry, and the general public to the cause and effect of their actions on Indigenous peoples
Establish effective funding programs to assist Indigenous peoples in land claim and self-governmentnegotiations
Establish a system of incentives or sanctions in negotiations:
o
Sanctions including avenues for taking a dispute to a court, tribunal, or arbitration body;incentives including trade and other benefits
o
Lobbying donors for positive or negative inducements – ex. providing or withholding aid, loans,or other financial benefits/opportunities
ECOSOC should approve utilizing international bodies and agencies within the UN for the preservationand redress of violations to Indigenous human rights related land and treaties – UN must assert itself asarbitrator of peace and justice
Recommendations from the State Perspective (US/Canada):
Please note that the United States did not actually participate in the Treaty Seminar and, in fact, denounced thelegitimacy of the Treaty Study or the right of the United Nations to look into treaties between States andIndigenous nations.
Asserting that treaties between States and Indigenous peoples are
not international treaties in the sense of agreements between sovereign entities, and thus should be addressed domestically
Undertake efforts to negotiate “modern treaties” – newly negotiated agreements between States andIndigenous peoples established under domestic law
o
(“Modern treaty is a misnomer: whenever States speak of “modern treaties” they are referring tonew domestic agreements, not treaties respecting the sovereignty of Indigenous peoples –  basically just a tool by which States can domesticate international treaties)
States should make provision for dispute resolution outside of the judicial process and ensure Indigenousaccess to domestic judicial systems.
However, all dispute mechanisms should reside within thedomestic legal framework of the State and be developed in tandem with new “modern treaties”
Modern treaties should reflect “reality” that Indigenous peoples are not in opposition to or subjugated byStates, but part of the State’s sovereignty
Canada recommends that States should provide a fair and equitable process to resolve land and resourceclaims (In practice, Government of Canada has taken the position that it will only “negotiate” termsrelated to the extinguishment of aboriginal title.)
Both US and Canada oppose any international dispute resolution forum for Indigenous peoples
Both US and Canada oppose any consolidation of Indigenous treaties within the UN Treaty Registry or any other international depository of Indigenous treaties
Second UN Seminar on Treaties, Agreements, and Other Constructive Arrangements BetweenStates and Indigenous Peoples (Hobbema, Canada, 14-17 November 2006)
A follow-up seminar on treaties was held in Alberta, Canada in 2006 in response to conclusions andrecommendations from the first seminar to pursue further discussions regarding best practices for theimplementation of historic treaties and modern-day treaty negotiations. The second seminar was held on thetraditional lands of the Maskwacîs Cree Nation and was expected to contribute to a dialogue between States andIndigenous peoples to better protect the rights of Indigenous peoples. 523 Indigenous representatives - mainlyfrom Canada – as well as seven Indigenous experts, the Chairperson of the WGIP, and members from both theUNPFII and CERD attended the seminar. The following recommendations and conclusions were submitted to theThird Session of the Expert Mechanism on the Rights of Indigenous Peoples. In the opinion of Owe Aku IJP, therecommendations of the Second Seminar were not nearly as powerful as those from the first and we hope to repair this during the Third Seminar.
Summary of Expert Recommendations for State Governments:
Expressed concern at the lack of implementation by States of recommendations made during the 2003treaty seminar - particularly those focusing on new educational systems and establishing effectivemechanisms for dispute resolution
 Need to implement participatory and just process based on free, prior, and informed consent to addresstreaty violations and related disputes between States and Indigenous peoples
Owe Aku International Justice Project oweakuinternational@me.com 646-233-4406 Page 3

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