On the tenth anniversary of the historic passing of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the General Assembly on 13 September 2007, Dr. Julian Burger, the former Head of the United Nations Programme for Indigenous Peoples at the UN Office of the High Commissioner for Human Rights (OHCHR), reflects on his career in indigenous rights, the drafting of UNDRIP and its future. He also offers us his thoughts on human rights careers.
Q: Thank you for agreeing to share your experiences with the HRRN of the drafting of the UNDRIP. What motivated you to work in the area of Indigenous Rights?
A: It was accidental and came about because I was working as Director of Research at Anti-Slavery International. I was asked to attend the first United Nations Working Group on Indigenous Populations (WGIP) in Geneva in August 1982. Attending the Working Group was an eye-opening experience and the first time that I learnt about the scale of human rights abuses that were taking place against indigenous peoples. There were representatives from Australia, Guatemala, the US and a few other countries and only about 15 or 20 delegates. Each year that I went to the meeting, I became more and more interested in the situations of indigenous peoples. We began to commission studies on indigenous peoples and I had an opportunity to visit indigenous communities. A key turning point was when Zed Press asked me to write a book on the issues affecting indigenous peoples, and I wrote ‘Report from the Frontier: state of the world’s indigenous peoples’. The publication attracted the attention of the United Nations and I was then asked to draft a report on the situation relating to indigenous rights and then working for a UN think-tank based in Geneva. The UN Centre for Human Rights, as it was then, invited me to head up the developing Indigenous Peoples Programme in 1990, a position I stayed with until 2010.
Q: You were at the heart of the organisation of the UNDRIP negotiations. How did the idea of creating a Declaration come about?
A: It was driven by indigenous peoples. The discussions really started in 1983-1984, when the WGIP, a UN expert body, was charged with preparing a draft declaration. As time went by indigenous participation grew and grew until we had meetings with more than 1,000 participants. When I began working on this, I was not happy with the way the negotiations and discussions were taking place, as there were many discussions groups on various themes taking place simultaneously and progress was slow. When the UN General Assembly proclaimed 1993 as the international year of indigenous peoples, I proposed that the WGIP set this as a deadline for completing the draft declaration. This was achieved and the draft was then sent forward to the Commission on Human Rights for approval of the Member States.
Q: What was the reaction of Member States to the Declaration?
A: Member States were mostly hostile. Some were against the document because it recognized collective rights, others were concerned about the right to self-determination and most feared the progressive rights on lands and resources. The ensuing talks and negotiations were often dramatic and included walk outs and even a hunger strike.
Q: What do you think was the break-through moment for the Declaration?
A: Probably two factors. The first was the increasing frustration with the slow progress by the Nordic countries and the decision of Norway to lead informal meetings to adopt articles in principle. This turned out to be a real confidence-building measure as it also gave indigenous peoples a role in co-chairing the meetings. Something they asked for in the plenary sessions but could not obtain. The second was the increasing interest of Latin American countries, particularly Mexico in getting the process finished. An unusual breakthrough moment was thanks to the Mexican government organising a retreat at Patzcuaro, Mexico which allowed the delegates to meet in a very informal setting and try to find areas of agreement. The momentum from the retreat was further bolstered by Mexico chairing the Human Rights Council’s first session in 2006 and managing to get a cross-section of states to adopt the declaration.
Q: How did you feel when it was finally passed?
A: I was not there at the time of the vote of the General Assembly, but once I heard there was a feeling of euphoria, not only for me, but all around. It was amazing, especially given the fact that this document was unlike any other Declaration or Convention created by the United Nations. It was drafted and influenced directly by those who would benefit from it the most, indigenous peoples.
Q: What do you think are its successes?
A: I think the fact that it is a document drawn directly from indigenous peoples’ experiences makes it a unique text. As there was great participation, there is also a sense of ownership and this has meant that indigenous peoples at the national level are actively seeking its implementation.
Q: What do you think are some of its weaknesses?
A: It was started in the 1980s and some of the ideas in it are rooted in that time. There are new concerns that have emerged which are not reflected or realised in it. For example, the impact of climate change, the protection of intellectual property rights, biodiversity and the scale of impact of the extractive industries. For much of the negotiation process states and indigenous peoples were quite rigid and not open to even favourable proposals from each other. These suspicions meant that some good proposals never got the support that they deserved. This is one of the effects of negotiations: it is very difficult to go back and make changes once all sides are agreed.
Q: What does the future look like for the UNDRIP in your opinion?
A: Now there is a debate on whether the Declaration should become a convention. This is the natural progress of principles at the United Nations. It is risky as governments could further weaken the document or may not even be interested in creating a convention. I have found indigenous advocates to be wary about this, as they feel it took over twenty years to negotiate the Declaration and that it will be another twenty years before a convention comes to fruition. The key leaders instrumental in the drafting are also older and there is a concern that there is not as much momentum from the younger generation to press for the convention.
I personally think it would be beneficial, as it could clarify key terms, like free, prior and informed consent and experts would be able to define the terms strongly in the commentary/jurisprudence. But, indigenous peoples think the vagueness is an advantage, and allows for a liberal interpretation. Yet, the main problem is that it still depends on whether Member states want to start this process.
Q: Finally do you have any advice for those who are passionate about human rights research and careers in human rights?
A: Keep an open mind on your career options. You may be qualified in one specialist area and even have set your heart on it but circumstances change and other opportunities come up. So my advice is stay open minded, seize on all opportunities that come your way, and be ready to learn new skills and knowledge. This is what happened in my case. I knew very little about indigenous rights to start with but have spent most of my working career dedicated to this cause.