By David Weissbrodt and Wendy Mahling

The United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities met in Geneva, Switzerland, in August 1994 for its forty-sixth session. The Sub-Commission is a subsidiary body of the Commission on Human Rights. It is composed of twenty-six members who are elected to four-year terms by the Commission. It has seven members from Africa, five from Latin America, five from Asia, three from Eastern Europe, and six from "Western Europe and Other" (including the United States).

The mandate of the Sub-Commission includes human rights standard setting as well as specific review of country situations and current human rights issues in all parts of the world. Because of its role in initiating action within the United Nations human rights system and its accessibility to nongovernmental organizations, each year hundreds of human rights activists from dozens of countries travel to Geneva to attend the session of the Sub-Commission.

This year, the Sub-Commission completed work on a draft declaration on indigenous rights. It also completed three norm- setting studies on (1) the right to a fair trial, (2) the protection of minorities, and (3) human rights and the environment. In addition, several special rapporteurs made progress reports on various studies about topics as the transition to democracy in South Africa, the right to adequate housing, the question of the impunity of perpetrators of violations of human rights, human rights and extreme poverty, as well as human rights and population transfers. The Sub- Commission also requested permission from the Commission to appoint special rapporteurs to undertake three new studies. The proposed study topics are (1) sexual slavery during periods of armed conflict, (2) humanitarian intervention, and (3) gross and large-scale violations of human rights as an international crime.

The transmission of the draft Declaration on the Rights of Indigenous People to the Commission on Human Rights for approval, and then possibly to the General Assembly for adoption, marks the end of twelve years of work at the Sub-Commission. The Sub- Commission created the Working Group on Indigenous Populations in 1982. During the past twelve years, the Working Group on Indigenous Populations has collected comments and suggestions concerning the draft declaration from hundreds of indigenous groups, nongovernmental organizations, intergovernmental organizations, and governments. This year, the Working Group on Indigenous Populations met for its final discussion of the draft declaration, although the Working Group will continue to meet to monitor the situation of indigenous groups throughout the world as well as activities of the United Nations Decade on Indigenous People.

The draft declaration provides for separate indigenous legal identities and direct access to international bodies. Draft Article 3 states, for example, that "[i]ndigenous peoples have the right of self-determination." In addition, the declaration asserts that indigenous peoples have the right to autonomy and self-government. Indigenous leaders have described the rights set forth in these articles as including freedom from economic and political domination, self-government, the right to their own independent government, and the right to participate in the international community at the same level as governments.

Most indigenous leaders have not characterized the right to self-determination as primarily the right to secede. Although the interpretation of this provision of the declaration will ultimately be determined by the member states, the chair of the Working Group, Erica-Irene Daes, has indicated that she thinks self-determination includes the right to secede. Daes has stated that "[i]ndigenous peoples are . . . 'peoples' in every social, cultural, and ethnological meaning of this term" and cannot, therefore, be denied the right to secession. This right to secede, however, would not be without limits. Indigenous peoples must first try to work through a state's government and political system. Under the declaration, only if a government is so nonrepresentative that it cannot be said to represent the whole population may an indigenous group exercise its continuing right to secede.

The draft declaration also addresses the issue of land and resource rights as well as the related issue of the environment. Article 26 states that "[i]ndigenous peoples have the right to own . . . the lands and territories . . . and other resources which they have traditionally owned or otherwise occupied or used." This article implies that ancestral land should be returned to indigenous peoples. Article 27, however, provides a compromise when the return of lands and resources is not possible. In such situations, indigenous peoples would have the right to just and fair compensation. Article 27 states that such compensation "shall take the form of lands, territories and resources equal in quality, size and legal status.

Although many Sub-Commission members raised questions about the draft declaration, the consensus was that further delays to amend the declaration would be superfluous because higher United Nations bodies would review the draft and make additions and deletions. Furthermore, additional delays could cause hardship on indigenous peoples who needed the protection provided in the declaration. Hence, the Sub-Commission forwarded the draft declaration to the Commission on Human Rights for review.

At its session in 1995, the Commission on Human Rights established an open-ended inter-sessional working group to consider the draft declaration. In contrast to the open access which indigenous organizations had to the Sub-Commission's Working Group on Indigenous Populations, the Commission decided to limit access to its inter-sessional working group to United Nations bodies and nongovernmental organizations in consultative status with ECOSOC. Hence, to participate in the Commission's inter-sessional working group considering the draft declaration, indigenous representatives must either receive consultative status or affiliate themselves with non-governmental organizations which have consultative status.

In addition to completing the draft declaration on the Rights of Indigenous People, the Sub-Commission considered the final report on the right to a fair trial. The former United States member to the Sub-Commission, Judge William Treat, presented the final report on the right to a fair trial which he co-authored with the Sub-Commission member from Russia, Stanislav Chernichenko.

In the resolution which the Sub-Commission adopted on the right to a fair trial, the Sub-Commission reaffirmed that articles 2, 9.3, 9.4, and 14 of the Covenant on Civil and Political Rights should be considered nonderogable, that is, not subject to limitation even in times of public emergency, "because they are necessary to protect other nonderogable rights," such as the right to be free from torture and arbitrary execution. To ensure a fair trial, the Sub-Commission recommended the continued international monitoring of the right to a fair trial through intergovernmental organizations and international trial observers. In addition, the Sub-Commission recommended that the Commission on Human Rights establish in 1996 an open-ended working group to begin drafting a third optional protocol to the Covenant on Civil and Political Rights aimed at making the right to a fair trial and a remedy nonderogable.

At its session in 1995, the Commission accepted the Sub- Commission's suggestion to consider establishing an open-ended working group to begin drafting a third optional protocol aimed at guaranteeing the right to a fair trial and a remedy at the Commission's next session. The Commission, however, recommended that the open-ended working group consider the desirability of a third optional protocol before beginning the drafting of the optional protocol.

The Sub-Commission also considered the final report on human rights and the environment by special rapporteur, Fatma Ksentini (Algeria). The final report on human rights and the environment concluded that environmental problems must be linked with the right to development. To this end, Ksentini recommended taking into account internal conditions such as poverty along with external conditions such as debt burdens. In addition, the final report also included recommendations that human rights bodies from a variety of fields should examine the environmental dimension of human rights under their mandates.

The Sub-Commission adopted a resolution recommending Ksentini's proposal that a thematic special rapporteur on human rights and the environment be appointed at the Commission level. The special rapporteur would monitor, examine, and receive communications as well as make recommendations on environmental problems affecting human rights. In addition, the special rapporteur would seek comments on the draft principles on human rights and the environment, which would establish an international human right to a healthy environment.

Significantly, the Commission decided not to establish a special rapporteur on the environment. Instead, the Commission requested that the Secretary-General prepare a report containing the opinions of governments, intergovernmental organizations, and nongovernmental organizations on the issues raised in the final report on the environment. The Commission decided to consider these issues and responses at its next session.

The Sub-Commission also considered the final report on the protection of minorities by Asbjorn Eide. Eide had presented the final report at the Sub-Commission session in 1993, but the Sub- Commission had been unable to discuss it because of time constraints. The final report concluded that the Sub-Commission had been neglecting one-half of its mandate -- the protection of minorities. Eide recommended that a Working Group on Minorities be established to provide a forum where minorities could make a contribution to a more comprehensive handling of the Sub- Commission's mandate. This Working Group would be modelled after the Working Group on Indigenous Populations, although each Working Group would meet separately.

The Sub-Commission recommended the establishment of an inter-sessional Working Group on Minorities. The mandate of the Working Group would include reviewing the application of the 1992 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, providing recommendations on measures for the protection of minorities in "cases where the working group finds a risk of the eruption or escalation of violence between different groups in society," and promoting dialogue between different groups in societies and governments.

The Commission approved the Sub-Commission's request to establish an inter-sessional Working Group on Minorities for an initial three-year period. The establishment of this inter- sessional working group marks a significant change in the work of the Sub-Commission because the Sub-Commission will now consider on an annual basis the other half of its mandate, the protection of minorities.

In addition to the thematic topics the Sub-Commission considered, it also examined the individual human rights situations of many countries. The Sub-Commission examines country human rights situations under two procedures, the public procedure established under ECOSOC resolution 1235 (XLII) and the confidential procedure established under ECOSOC resolution 1503 (XLVIII). Both procedures have been established to examine gross violations of human rights.

The confidential 1503 procedure is a more complex and layered procedure than the 1235 procedure. Under the 1503 procedure, a working group on communications consisting of five Sub-Commission members, each representing a different geographical region, meets for two weeks prior to the Sub- Commission session. They review communications regarding human rights violations that the United Nations received during the preceding year. The Working Group votes on which communications to forward to the Sub-Commission for review as revealing a "gross and systematic violation of human rights." The Sub-Commission meets privately during its session in August to consider which of these communications it should forward to the Commission on Human Rights for further review or the appointment of a special rapporteur to study the situation.

Because the 1503 procedure is confidential, official information regarding which countries are under review in the procedure is not available until the Commission's session. At the Commission session, the Chair announces which countries the Commission reviewed under resolution 1503. The Chair does not give information, however, on the substance of the complaints considered. Furthermore, the Chair does not state the course of action the Commission decided to take on the situations unless the Commission decides to discontinue review under resolution 1503.

At the Commission's session in February and March 1995, the Chair announced that decisions had been taken on twelve countries. These countries include Albania, Armenia, Azerbaijan, Chad, Lao People's Democratic Republic, Latvia, Moldova, Rwanda, Saudi Arabia, Slovenia, and Uganda. Of these countries, the Commission decided to discontinue review of Albania, Lao People's Democratic Republic, Latvia, Moldova, Slovenia, Thailand, and Uganda. In addition, the Chair announced that consideration of the situation in Rwanda had been moved to the public 1235 procedure.

Under its public 1235 procedure, the Sub-Commission heard statements by nongovernmental organizations and governments concerning the human rights situations in several countries over the course of five days. As in previous years, the members of the Sub-Commission voted by secret ballot on country situations. The Sub-Commission considered fifteen draft resolutions on country situations and adopted eleven. The countries and areas that were the subject of the adopted resolutions included Albania, Bougainville, Burundi, Chad, Guatemala, Haiti, Iran, Iraq, the Middle East, Rwanda, and Togo. The Sub-Commission also adopted a decision concerning the situation in Tajikistan based on a statement by the Chair. In contrast, resolutions on East Timor and Indonesia were not adopted. In addition, a resolution on the Israeli-occupied territories was not considered after a no-action motion passed. Also, a resolution on human rights violations of "enclaved groups" such as people of Greek origin living under Turkish occupation was dropped from consideration.

Several members of the Sub-Commission expressed concern over the amount of time consumed by the review of country situations. In particular, many Sub-Commission members thought that the amount of time expended on the public procedure prevented the Sub-Commission from adequately reviewing its other work. The Sub-Commission decided to take up the public complaint procedure as its first agenda item at the forty-seventh session. By reviewing the country situations first, the Sub-Commission stated that it would be better able to allocate time for its remaining agenda items.

The Sub-Commission will meet for its forty-seventh session in August 1995.

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