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The UN's Palestinian Rights Covenant By: Joseph Klein
FrontPageMagazine.com | Monday, September 17, 2007


The United Nations General Assembly overwhelmingly adopted the Declaration on the Rights of Indigenous Peoples last week. Four countries voted against the text – Australia, Canada, New Zealand and the United States. They did so with good reason. The Declaration, which was more than twenty years in the making, is a muddled document that does not even contain a definition of the “indigenous peoples” it is supposed to protect. It is also superfluous. Individual and minority rights are already addressed in existing human rights treaties.

The Declaration’s purpose is to manufacture a synthetic global group identity among distinct, unrelated communities of people living within legally defined national jurisdictions all over the world. The characteristic that all of these folks are supposed to share in common, under the blanket title of “indigenous peoples”, is that they claim to be ‘first’ inhabitants in a given area of land whom ‘colonialist’ outsiders have sought to wipe out or exploit. The Declaration’s proponents believe that today’s globalization is nothing more than a continuation of this exploitation, which they call ‘neo-colonialism’. In their anti-Western, anti-capitalist worldview, which the Declaration embodies, technology, multi-national corporations and global markets are all driving forces in the exploitation of countless indigenous communities which stand in their way.

Although not legally binding as a treaty, the Declaration is intended by its proponents to set forth international norms to govern the collectivist rights of indigenous peoples over ‘their’ lands, resources and ‘traditional knowledge’. Victoria Tauli-Corpuz, chair of the UN Permanent Forum on Indigenous Issues (an advisory group under the UN’s Economic and Social Council), said that the Declaration "sets the minimum international standards for the protection and promotion of the rights of indigenous peoples. Therefore, existing and future laws, policies and programs of indigenous peoples will have to be redesigned and shaped to be consistent with this standard."[1]

Remember that you will not find any definition of “indigenous peoples” in the Declaration. It relies entirely on communities’ own self-identification as indigenous peoples, based on claims asserting historical continuity with pre-colonial and/or pre-settler societies, a strong link to territories and surrounding natural resources, and different cultural, linguistic, traditional, and other characteristics to those of the dominant culture of that region or state. That could mean just about any self-declared minority group with alleged ties to an area of land can claim indigenous status, insist on self-determination over control of huge swaths of territory and resources within national borders and demand reparations for perceived wrongs against them and their ancestors.

Not surprisingly, for example, the Palestinians are asserting with a straight face that “Palestinian rights are enshrined in the universally accepted principle that land belongs to its indigenous inhabitants”.[2] They got help in this regard from a document published as far back as 1990 by the UN’s Division for Palestinian Rights, which contrasted the ‘outsider’ Zionists who came from Europe to establish the state of Israel with the “indigenous people of Palestine, whose forefathers had inhabited the land for virtually the two preceding millennia”.[3] Of course, under the UN principle of self-identification - which the Palestinians are all too happy to exploit to their political advantage - no proof is required of any Palestinian ties by birth, continuity of land possession, language, religion or tradition to the ancient idol-worshipping Canaanites whom Muslim Palestinians now conveniently claim to be their indigenous forebears. By contrast, Jews living in Israel today are indisputably connected by common religion, heritage and language to the ancient Hebrews who inhabited the land several millennia ago.

Masters of propaganda and of playing victim, the Palestinians have shamelessly linked their situation with that of indigenous groups such as the Six Nations Indian tribes in Canada. One of their motives is to whip up as much indigenous grassroots and sympathetic Leftist support as they can for their global campaign of boycott, divestment and sanctions against Israel by using the vocabulary of oppression, colonialism and apartheid that the Left loves to hear.

In a letter of “solidarity” to the Canadian “People of Six Nations”, the Palestinians wrote as follows:

“On the anniversary of the Six Nations Land Reclamation we express our solidarity to you and to all those that are defending today their land and livelihoods against theft and colonization.

On February 28th, 2006, after the Canadian government gave a construction company the permission to build a settlement on their land, the people of Six Nations took it back, demanding an end to the theft and destruction of their land and to settler encroachment on their territory. Many of them now face charges in Canadian courts for defending their land. This sounds tragically familiar to us in Palestine and to many others around the world. For over 500 years the same mechanisms have been used against indigenous peoples, to colonize and dispossess…

As Palestinians we are still victims of a colonial project and a state that continues to refer to itself as the “only democracy in the Middle East”. The fact that it has been scrutinized by the UN Committee on the Elimination of Racial Discrimination for its policies and even the UN Rapporteur on Human Rights accuses it of apartheid policies seemingly does not detract from its status.”[4]

The Palestinians followed much the same course in another letter of solidarity with “our brothers in the Mexican indigenous communities who have resisted genocide for over 500 years”, stating that “the Palestinian and Mexican people are united more than ever in a common history, mourning and struggle”.[5]

The UN’s Permanent Forum on Indigenous Issues will have China and Iran as members starting in 2008. Their presence will help assure more propaganda opportunities for the Palestinians to de-legitimize Israel’s right to exist. Meanwhile, there will continue to be a complete whitewash of the plight of the indigenous Tibetans brutalized by the Chinese and of the indigenous Persian people in Iran whom the Muslim conquerors subjugated with their imported Islamic religion and continue to oppress.

Beyond being subject to abuse by the Palestinians and other self-serving groups, the Declaration as written is fundamentally at odds with modern-day institutions premised on individual rights and obligations and on long-settled legal structures operating within internationally recognized sovereign national boundaries. The Declaration’s proponents deny this. They say that they took care of any national sovereignty concerns by agreeing to compromise language offered by the African member states who were concerned about indigenous claims within their own borders. The language they point to states that the Declaration was not intended to authorize or encourage the dismemberment or impairment of the territorial and political sovereignty of any nations. But this language means little in the face of an ideology embodied in the Declaration that rejects modern-day legal institutions as the primary mechanism for determining rights, settling disputes and prescribing remedies for violations of law when indigenous claims are alleged.

Among the areas of concern in this regard is an article in the Declaration saying that "states shall give legal recognition and protection" to lands, territories and resources traditionally "owned, occupied or otherwise used or acquired" by indigenous peoples. (emphasis added)[6] Indigenous peoples’ claims are communal in nature and not based on any concept of individual rights and minority protections familiar to modern day courts and legislatures.

Another provision of the Declaration requires member states to obtain the indigenous peoples’ “free and informed consent prior to the approval of any project affecting their lands or territories and other resources…" (emphasis added)[7] This effectively gives veto power to self-declared indigenous communities over national or regional legislation and management of resources located within a member state’s legal jurisdiction.

The Declaration goes on to provide that the UN’s member states are expected to “provide redress for past transgressions through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property that has been taken without their free, prior and informed consent or in violation of their laws, traditions and customs”.[8]

In other words, the member states must defer to indigenous peoples’ customary laws in any areas where their interests may arguably be affected. These customary laws are not codified anywhere. They are based on traditions that are transmitted orally from generation to generation and that vary widely from community to community.

The inevitable result will be to fragment the current legal institutions and economies of nation-states within which all of these communities of people reside. Indeed, if we accept the estimates of a UN Special Rapporteur on indigenous matters, there are indigenous peoples living in approximately 70 countries throughout the world and constituting approximately 350 million individuals, including 5,000 distinct peoples and over 4,000 languages and cultures. If so, there may be thousands of different sets of customary laws that international law is now supposed to recognize and enforce without any means of determining the authenticity of such orally transmitted customs.

A key area of law that activists for indigenous rights want to replace with indigenous customs is our standard intellectual property law, which permits patenting and other intellectual property protections for products derived from genetic information on plant or animal species. They believe that our intellectual property system allows drug companies to steal indigenous peoples' ‘traditional knowledge’ of the medicinal uses of the plants and animals in their locales.

The indigenous activists draw a false dichotomy, asserting that intellectual property rights as defined in developed countries are completely incompatible with the protection of ‘traditional knowledge’. They do not have to be. Patent law already recognizes that an invention based on ‘prior art' does not qualify for a patent and can accommodate the inclusion of ‘traditional knowledge’ within the definition of prior art, assuming that the existence of such knowledge can be verified. Non-governmental organizations can work with indigenous community representatives to collect and catalogue their relevant accumulated knowledge in databases, which can be used as a resource for challenging patent applications for ideas that add nothing new to this collective wisdom.

However, without effective intellectual property protection for new ideas, pharmaceutical companies will not risk the many millions of dollars in research and development necessary to turn the medicinal properties of plant and animal species into affordable cures for serious illnesses. If they gain any benefits from the bio-diverse regions of the developing world, the drug companies can give back to the people living in these regions by making available free or low cost medicines that result from their research, along with financial assistance in building, equipping and staffing much-needed health clinics. But the Declaration encourages an adversarial relationship rather than such cooperation.

The Declaration on the Rights of Indigenous Peoples, in its current form, is a recipe for more UN-sponsored hostility against Western values and institutions. It also provides yet another UN-made arrow in the Palestinians’ propaganda quiver. A document this bad deserves a quick, unceremonious burial.



NOTES:

[1] UN Adopts Declaration on Rights for Indigenous Peoples Worldwide, International Herald Tribune (September 13, 2007).

[2] How Palestine Became “Israel’s Land” by Sonja Karkar, ZNet (March 31, 2007).

[3] The Origins and Evolution of the Palestine Problem: 1917-1988 (1990).

[4] Solidarity Letter from Palestine to Six Nations from the Palestinian Grassroots Anti-Apartheid Wall Campaign (February 28, 2007).

[5] Resisting colonialism in Palestine and Oaxaca from the Palestinian Grassroots Anti-Apartheid Wall Campaign (November 24th, 2006).

[6] Declaration on the Rights of Indigenous (Article 26, paras. 1 and 3)

[7] Declaration on the Rights of Indigenous Peoples (Article 32, para. 2).

[8] Declaration on the Rights of Indigenous Peoples (Article 11, para. 2).



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