FW: Compromise on Article 3?:Self-determination

Craven, Jim jcraven at SPAMclark.edu
Mon Nov 20 08:40:43 MST 2000




Good News:

Bella Yellowhorn and serveral Blackfoot have won their case in Alberta
via-a-vis the right to drive with Blackfoot Nation license plates on
Blackfoot cars and to use Tribal driver's licenses and insurance in lieu of
Alberta driver's licenses and insurance. She told the judge that she cannot
be forced to accept Canadian citizenship (violation of Final Draft of the
Helsinki Accords etc) and that she is Blackfoot not Canadian, and therefore
has the status of say an American driving in Alberta with Montana plates.
This of course has implications far beyond the immediate issue.

Jim Craven


-




Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, IL 61820 USA
217-333-7954(voice)
217-244-1478(fax)
fboyle at law.uiuc.edu <mailto:fboyle at law.uiuc.edu>




The Black List - http://www.theMarcusGarveyBBS.com

Dear Black List Friends:
        Thought some of you might find this to be of interest. It concerns
the negotiations going on now in Geneva at UN Headquarters on the Draft
Declaration on the Rights of Indigenous Peoples.
Best regards,
Francis Boyle.

-

Dear Indigenous Friends:
        This morning  I read through the debates on self-determination.
Although I am not there, it appears to me that you are going around in
circles once again  on this critical matter with the States. They simply are
not paying attention to what you have to say. For what it is worth,
therefore, it is still my advice that you offer them the following
compromise on Article 3 that will protect your right to self-determination
while at the same time meet any "legitimate" concerns some of these States
might have. If you have any questions, please feel free to give me a call at
217-333-7954.
Aloha.
Francis A. Boyle
Professor of International Law
-

Dear Friends:
        Once again, for what it is worth, I hereby offer the following
compromise language on Article 3 that meets legitimate concerns about
secession.
Francis A. Boyle
Professor of International Law

Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, Ill. 61820
Phone: 217-333-7954
Fax: 217-244-1478
fboyle at law.uiuc.edu


> ----------

>
>                       Francis A. Boyle
> Law Building
> 504 E.Pennsylvania Ave.
> Champaign, Illinois 61820
> Phone: 217-333-7954
> Fax: 217-244-1478
> fboyle at law.uiuc.edu
> 6 November 1997
>
> My Dear Indigenous Friends:
>
>       I have done some research on this stalemate confronting all the
> delegations in Geneva on Draft Article 3:
>
> DRAFT ARTICLE 3 (self-determination )
>       " Indigenous peoples have the right of self-
>         determination. By virtue of that right they
>         freely determine their political status and
>         freely pursue their economic, social and
>         cultural development."
>
>       I am making the following proposal for all the delegations to
> consider. I am assuming that some of the States have legitimate concerns
> about the question of secession. However, for example, it is clear that
> the United States government's objection that the Mormon's are the
> indigenous people of Utah is not made in good faith. This is a
> ridiculous objection that is deliberately designed to insult you and to
> treat you like idiots. But let us assume that there are some states
> which support Indigenous Peoples but nevertheless do have some
> legitimate concerns about secession. Can something be done that would
> alleviate their concerns while at the same time protecting the rights of
> indigenous peoples?
>       Remember I am making this proposal for your consideration in
> full awareness that I am not on the front-lines of the battle. You are
> the warriors, not me. You have to decide, not me. It is your futures
> that are at stake, not mine. Ultimately, I will respect and support your
> decision if you do not agree with me. But that being said, I offer the
> following for your consideration:
>
>       The Declaration on Principles of International Law Concerning
> Friendly Relations and Co-Operation Among States in Accordance with the
> Charter of the United Nations was adopted by the United Nations General
> Assembly by consensus on October 24, 1970 in G.A. Res. 2625 (XXXV) 25
> GAOR, Supp. (No. 28) 121; reprinted in 9 International Legal Materials
> 1292 (1970). The fact that the Declaration was adopted by consensus
> means that no State dissented, not even the United States. In other
> words, the contents of the Declaration were fully acceptable to all the
> State Members of the United Nations Organization at that time.Today the
> Declaration is universally considered to constitute customary
> international law.
>        I will not bother to go through the entirety of this lengthy
> Declaration at this time. But for our purposes, the relevant portion is
> as follows:
>
> The principle of equal rights and self-determination of peoples
>
>       By virtue of the principle of equal rights and
> self-determination of peoples enshrined in the Charter of the United
> Nations, all peoples have the right freely to determine, without
> external interference, their political status and to pursue their
> economic, social and cultural development, and every State has the duty
> to respect this right in accordance with the provisions of the Charter.
>       Every State has the duty to promote, through joint and separate
> action, realization of the principle of equal rights and
> self-determination of peoples, in accordance with the provisions of the
> Charter, and to render assistance to the United Nations in carrying out
> the responsibilities entrusted to it by the Charter regarding the
> implementation of the principle, in order:
>
>       (a) To promote friendly relations and co-operation among States;
> and
>
>       (b) To bring a speedy end of colonialism, having due regard to
> the freely expressed will of the peoples concerned;
>
> and bearing in mind that subjection of peoples to alien subjugation,
> domination and exploitation constitutes a violation of the principle, as
> well as a denial of fundamental human rights, and is contrary to the
> Charter.
>
>       Every State has the duty to promote through joint and separate
> action universal respect for and observance of human rights and
> fundamental freedoms in accordance with the Charter.
>
>       The establishment of a sovereign and independent State, the free
> association or integration with an independent State or the emergence
> into any other political status freely determined by a people constitute
> modes of implementing the right of self-determination by that people.
>
>       Every State has the duty to refrain from any forcible action
> which deprives peoples referred to above in the elaboration of the
> present principle of their right to self-determination and freedom and
> independence.  In their actions against, and resistance to, such
> forcible action in pursuit of the exercise of their right to
> self-determination, such peoples are entitled to seek and to receive
> support in accordance with the purposes and principles of the Charter.
>
>       The territory of a colony or other Non-Self-Governing Territory
> has, under the Charter, a status separate and distinct from the
> territory of the State administering it; and such separate and distinct
> status under the Charter shall exist until the people of the colony or
> Non-Self-Governing Territory have exercised their right of
> self-determination in accordance with the Charter, and particularly its
> purposes and principles.
>
>       Nothing in the foregoing paragraphs shall be construed as
> authorizing or encouraging any action which would dismember or impair,
> totally or in part, the territorial integrity or political unity of
> sovereign and independent States conducting themselves in compliance
> with the principle of equal rights and self-determination of peoples as
> described above and thus possessed of a government representing the
> whole people belonging to the territory without distinction as to race,
> creed or colour.
>
>       Every State shall refrain from any action aimed at the partial
> or total disruption of the national unity and territorial integrity of
> any other State or country.
>
>       As you can see from this language, the Declaration establishes a
> balance between the right of self-determination and secession. This
> language is the customary international law on the subject. Therefore, I
> would like to suggest for your consideration that  you propose to the
> States an additional sentence to be added at the end of  Draft Article 3
> as follows:
>
> "Indigenous peoples shall exercise the right of self-determination in
> accordance with the requirements of international law, including the
> Declaration on Principles of International Law Concerning Friendly
> Relations and Co-Operation Among States in Accordance with the Charter
> of the United Nations (1970)."
>
>       The addition of this sentence to Draft Article 3 should
> alleviate any legitimate concerns held by States about secession. While
> at the same time, this language will fully protect your right of
> self-determination. The States have already accepted the Declaration as
> far back as 1970. Today, the Declaration is considered to constitute
> customary international law. Therefore, the States should be willing to
> accept this reference to the Declaration in Draft Article 3. Conversely,
> if a State is not willing to accept the reference to the Declaration,
> then it seems to me that this State is not dealing with you in good
> faith.
>       If you agree with my analysis that this addition to Draft
> Article 3 is a reasonable compromise, then I would ask you to forward it
> to your people in Geneva. If they have any questions about it, they are
> free to contact me by phone or fax as indicated above. If they agree
> with my analysis, then the delegations could tender it to the States as
> a  reasonable and good faith compromise proposal designed to end the
> deadlock over Draft Article 3.
>
>       Yours very truly,
>
>       Francis A. Boyle
>       Professor of International Law
>
>
>
>
>
>
>
> Francis A. Boyle
> Law Building
> 504 E. Pennsylvania Ave.
> Champaign, Ill. 61820
> Phone: 217-333-7954
> Fax: 217-244-1478
> fboyle at law.uiuc.edu


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