U N I T E D N A T I O N S

Economic and Social Council ENGLISH
Distr. Original: ENGLISH
GENERAL
E/CN.4/Sub.2/AC.4/1996/2 GE. 96-12980 (E)
10 June 1996

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of
Discrimination and Protection of Minorities
Working Group on Indigenous Populations

Fourteenth session
29 July - 2 August 1996
Item 4 of the provisional agenda

STANDARD-SETTING ACTIVITIES: EVOLUTION OF STANDARDS
CONCERNING THE RIGHTS OF INDIGENOUS PEOPLE

Working Paper by the Chairperson-Rapporteur, Mrs. Erica-
Irene A. Daes. On the concept of "indigenous people"


CONTENTS

PARAGRAPHS PAGE

Introduction . . . . . . . . . . . . . . . 1 - 9 3

I. HISTORICAL REVIEW OF INTERNATIONAL
PRACTICE . . . . . . . . . . . . . . . 10 - 41 5
A. League of Nations . . . . . . . . . . . 12 - 14 6
B. Pan-American Union. . . . . . . . . . . 15 - 16 6
C. Charter of the United Nations . . . . . 17 - 20 7
D. International Labour Organization
Convention No. 107 . . . . . . . . . . 21 - 23 8

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CONTENTS (continued)

PARAGRAPHS PAGE

E. Study of the Problem of Discrimination
against Indigenous Populations . . . . 24 - 27 9
F. International Labour Organization
Convention No. 169 . . . . . . . . . . 28 - 34 10
G. Indigenous peoples' point of view . . . 35 - 38 12
H. Views expressed by Governments . . . . 39 14
I. Views expressed by members of
the Working Group . . . . . . . . . . . 40 - 41 14

II. CRITICAL LEGAL ANALYSIS . . . . . . . 42 - 65 15
A. Comparison with "Non-Self-Governing
Territories" . . . . . . . . . . . . . 42 - 46 15
B. Comparison with "minorities" . . . . . 47 - 59 16
C. The search for factors specific
to "indigenous" . . . . . . . . . . . . 60 - 65 19

III. CONCLUSIONS AND RECOMMENDATIONS . . . 66 - 74 21

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INTRODUCTION

1. At its thirteenth session, the Working Group on
Indigenous Populations decided to recommend to the Sub-
Commission on Prevention of Discrimination and Protection of
Minorities that the Chairperson-Rapporteur, Mrs. Erica-Irene
A. Daes, be entrusted with the preparation of a note on
criteria for the definition of indigenous peoples based on
information which might be submitted to her by Governments,
intergovernmental organizations and indigenous peoples'
organizations. 1/

2. The recommendation of the Working Group was subsequently
approved by the Sub-Commission in paragraph 3 of its
resolution 1995/38 of 24 August 1995.

3. In paragraph 7 of its resolution 1996/40 of 19 April
1996, the Commission on Human Rights took note of the
recommendation of the Working Group that the Chairperson-
Rapporteur address the concept of "indigenous people" and
noted that any work should take into account the views of
Governments and organizations of indigenous people. The
Commission furthermore requested that the discussion of this
issue take place during the fourteenth session of the
Working Group, and that the report of the Working Group be
transmitted to Governments and organizations of indigenous
people prior to the next session of the open-ended inter-
sessional Working Group of the Commission established in
accordance with resolution 1995/32 to elaborate a draft
declaration on the rights of indigenous people.

4. To date, the Chairperson-Rapporteur has received no
comments from Governments or organizations of indigenous
people regarding the issue of definition. She has been
guided, however, in particular by the rich relevant
discussions on this conceptual question at previous sessions
of the Working Group, and has taken careful note of the
extensive edge of views between Governments and indigenous
people at the first session of the open-ended inter-
sessional Working Group of the Commission established An
accordance with the above-mentioned resolution, which took
place An Geneva from 20 November-1 December 1995. 2/ The
Chairperson-Rapporteur was fortunately able to participate
in the deliberations and to address this Working Group, as
an observer and An her capacity as Chairperson-Rapporteur of
the Working Group on Indigenous Populations.

5. It should also be noted that the Chairperson-Rapporteur
prepared a comprehensive note (E/CN.4/Sub.2/AC.4/1995/3) on
criteria which might be applied when considering the concept
of indigenous peoples which was submitted

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to the Working Group on Indigenous Populations at its
thirteenth session. The basic criteria identified in the
note included questions relating to historical continuity,
distinctive cultural characteristics, traditional lands,
non-dominance, pelf-identification and group consciousness.
The Chairperson-Rapporteur also mentioned in the note para.
7) that the attendance at the Working Group of certain
persons describing themselves as "indigenous peoples" had
been challenged by other indigenous peoples' representatives
in the Working Group.

6. The Chairperson-Rapporteur also raised the question of
the desirability of a definition of the concept "indigenous
people". She, and others, pointed out that the Working Group
itself had been a success despite not having adopted any
formal definition of "indigenous people". That forum had
none the less become, in the view of almost all the
participants, the major meeting point in the united Nations
system for representatives of observer Governments,
indigenous peoples intergovernmental and non-governmental
organizations and other interested individuals, in
particular members of the academic family - a real
"community of peoples", as the Chairperson-Rapporteur called
it. It was also contributing, systematically and
constructively, to the promotion, protection and realization
of the rights of the world's indigenous peoples.

7. Notwithstanding these observations, the Chairperson-
Rapporteur expressed, inter alia, the view that some
discussions regarding in particular a further analysis of
the concept of "indigenous people" might be desirable both
as a response to the growing interest of Governments and
indigenous peoples themselves and as a "guide" for the
United Nations system, in particular in the field of the
implementation of international instruments relating to the
promotion and protection of the rights of indigenous
peoples.

8. In elaborating the present working paper the Chairperson-
Rapporteur also took into consideration the examination of
this question by the Special Rapporteur of the Sub-
Commission, Mr. M. Alfonso Martinez, in his second progress
report on the study on treaties, agreements and other
constructive arrangements between States and indigenous
populations (E/CN.4/Sub.2/1995/27, paras 48-129).

9. The following analysis of the concept of "indigenous
people" is of a preliminary nature, and has the principal
aim of promoting a more focused discussion of this question
by the interested parties at the

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fourteenth session of the Working Group, an well as at the
open-ended working group of the Commission. As further
explained below, it is the considered opinion of the
Chairperson-Rapporteur that the concept of "indigenous'. is
not capable of a precise, inclusive definition which can be
applied in the same manner to all regions of the world.
However, greater agreement may be achieved with respect to
identifying the principal factors which have distinguished
"indigenous peoples" from other groups in the practice of
the United Nations system and regional intergovernmental
organizations. The Chairperson-Rapporteur has accordingly
devoted a part of this working paper to a historical review
of international practice, in an attempt to extract, inter
alia, recurring conceptual elements or themes.

I. HISTORICAL REVIEW OF INTERNATIONAL PRACTICE

10. It should be acknowledged at the outset that the
international discussion of the concept of "indigenous"
evolved, from the late nineteenth century until the
establishment of the Working Group in 1982, 3/ within the
framework of European languages, notably English, Spanish,
and German. English and Spanish share a common root in the
Latin term indigenae, which was used to distinguish between
persons who were born in a particular place and those who
arrived from elsewhere (advenae). The French term autochtone
has, by comparison, Greek roots and, like the German term
Ursprung, suggests that the group to which it refers was the
first to exist in the particular location. Hence, the
semantic roots of the terms historically used in modern
international law share a single conceptual element:
priority in time.

11. A fruitful starting point for the consideration of
international practice is the Berlin Africa Conference of
1884-1885, convened by the Great Powers with the aim of
agreeing on principles for the assertion and recognition of
their territorial claims in Africa. In article 6 of the
Final Act of the Conference, the Great Powers made a
commitment to the "protection of indigenous populations" of
Africa. In this legal context, the term "indigenous" was
meant to distinguish between citizens of nationals of the
Great Powers and those persons in Africa who were under the
colonial domination of the Great Powers. It should be born
in mind that there was an implicit element of race in the
use of the term "indigenous", as well. When the British
Empire subjected the Dutch settlers in South Africa to
British rule following the Boer War, for example, it was
never conceived that article 6 of the Final Act was
applicable to them.

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A. LEAGUE OF NATIONS

12. In accordance with Article 22 of the Covenant of the
League of Nations the Members of the League accepted as a
"sacred trust of civilization" the duty of promoting the
well-being and development of the "indigenous population" of
those "colonies and territories" which remained under their
control. Hence, the Covenant of the League of Nations also
used the term "indigenous" to distinguish between colonial
powers and peoples who were living under colonial
domination. The Covenant added a second level of
qualification, however, characterizing "indigenous
populations" as "peoples not yet able to stand by themselves
under the strenuous conditions of the modern world", as
contrasted to more "advanced" societies. Both factors (that
is, colonial domination and institutional capacity) were to
be considered, under Article 22 of the Covenant, in
determining the degree of supervision that was appropriate
to particular territories and peoples.

13. The case of South Africa illustrates the meaning which
attached to Article 22 of the Covenant, in the practice of
the League. In 1919, South Africa was not yet an independent
State. It was still a part of the British Empire and, albeit
self-governing in its local or internal affairs, subordinate
to the British Parliament in London. Nevertheless, the
League entrusted South Africa with a mandate, under Article
22, over the territory and population of Namibia. Within the
conceptual framework of the Covenant, Namibia was
"indigenous", in contradistinction to the "advanced"
character of South Africa. The League did not conceive,
however, that the African population of South Africa itself
was "indigenous" in relation to recent Dutch and British
settlers.

14. It is possible to identify one more important element of
the evolving concept of "indigenous" in the case of South
Africa. Article 22 of the Covenant was applied to
TERRITORIES, as demarcated by internationally recognized
borders, rather than to peoples who could be distinguished
by sociological, historical or political factors. Thus,
Namibia, as a territory geographically defined by the Great
Powers, was deemed to be "indigenous", while the African
population within South Africa was not so considered.

B. PAN-AMERICAN ONION

15. Meanwhile, however, the Pan-American Onion, as the
predecessor of the present-day Organization of American
States, had begun to use the "indigenous"

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in a rather different manner. In its resolution XI of 21
December 1938, the Eighth International Conference of
American States declared:

"That the indigenous populations, as descendants of the
first inhabitants of the lands which today form
America, and in order to offset the deficiency in their
physical and intellectual development, have a
preferential right to the protection of the public
authorities". The objective of this preferential
treatment was to be their "complete integration into
the national life" of existing States. In this and
subsequent official documents of the Pan-American
Union, it should be noted that the terms "indigenous"
and "Indian" were used interchangeably.

16. As a matter of regional practice in the Americas,
therefore, the term "indigenous" was employed to identify
marginalized or vulnerable ethnic, cultural, linguistic and
racial groups within State borders, rather than the
inhabitants of colonial territories that were distinct
geographically from the administering Power.

C. CHARTER OF THE UNITED NATIONS

17. The adoption of the Charter of the United Nations in
1945 did nothing to reconcile different usages of the term
"indigenous" in international law. Article 73 of the Charter
refers to "territories whose peoples have not yet attained a
full measure of self-government", rather than "indigenous
populations" as that term appears in the Covenant of the
League of Nations. It was not until 15 December 1960 that
the United Nations General Assembly, in resolution 1541
(XV), defined a "Non-Self-Governing Territory" for this
purpose, using a two-tiered test. A territory which is
"geographically separate and is distinct ethnically and/or
culturally from the country administering it" falls, prima
facie, under Article 73. Evidence that the inhabitants
suffer a '"position or status of subordination" may be
advanced to support this presumption, but is not required.

18. It has generally been presumed that the foregoing
definition of a "Non-Self-Governing Territory", in respect
to Article 73 of the Charter, is also applicable to the
definition of "peoples" who are entitled to the exercise of
the right of self-determination under common article 1 of
the two International Covenants on Human Rights (hereinafter
Covenants). However, the significance of the choice of the
term "peoples"', rather than "territories", by the drafters
of the two Covenants should not be minimized. The shift from
a geographical conception to a sociological one implies a

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broadening of the application of the principle of self-
determination to include non-dominant groups within the
boundaries of independent States.

19. Consistent with the foregoing analysis of the choice of
the term "peoples" in the two Covenants, the 1970
Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations 4/
prohibits the dismemberment of States "conducting themselves
in compliance with the principle of equal rights and self-
determination of peoples ... and thus possessed of a
government representing the whole people belonging to the
territory without distinction as to race, creed or velours.
It would have been unnecessary to make such a qualification
unless it was understood that the population of a State
could consist of a number of "peoples", each possessing the
right of self-determination. As the Chairperson-Rapporteur
has analysed in her explanatory note concerning the draft
declaration on the rights of indigenous peoples, the right
of self-determination may be satisfied where a people enjoys
an effective voice, through its own representatives, in the
governing of a democratic State, and suffers no disadvantage
or discrimination (E/CN.4/Sub.2/1993/26/Add.1, paras. 21-
23).

20. After the Second World War, by comparison, the term
"indigenous" assumed the meaning it had previously been
given by the Pan-American Onion, rather than the League of
National The General Assembly, in resolution 275 (III) of
11 May 1949, recommended a study of the conditions of the
"aboriginal population and other underdeveloped social
groups" of the Americas, with a view to promoting their
integration and development. Three years later, the
Government of Belgium provoked a controversy by arguing that
Article 73 of the Charter should be interpreted in the light
of the concept of "indigenous" found in Article 22 of the
Covenant of the League of Nations. 5/ According to the
delegation of Belgium, the reporting obligations of Article
73 applied not only to overseas colonies, but to
"backward indigenous peoples" living within the borders of
independent States in all regions of the world.

D. ILO CONVENTION NO. 107

21. The delegation of Belgium was not successful in bringing
the concept of "indigenous peoples" into Article 73 of the
Charter, but the ILO adopted the Convention concerning the
Protection and Integration of Indigenous and Other Tribal
and Semi-Tribal Populations in Independent Countries, 1957
(No. 107). Article 1 of the Convention defines the term
"tribal" in terms reminiscent of

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the League Covenant: their "social and economic conditions
are at a less advanced stage" in comparison with their
neighbours, and they live under separate laws, either of
their own choosing or imposed by the State. Some "tribal"
peoples, moreover, "are regarded as indigenous on account of
their descent from the populations which inhabited the
country, or a geographical region to which the country
belongs, at the time of conquest or colonization" and remain
socially, economically and culturally distinct.

22. In the terms set forth by Convention No. 107, then, both
"tribal" and "indigenous" peoples are mainly characterized
by social, cultural, economic, legal and institutional
distinctiveness. Evidence of actual oppression or
discrimination is not a criterion. The only factor that
differentiates "indigenous" peoples from "tribal"
peoples is a history of "conquest or colonization", but this
distinction is of no practical consequence, since the
Convention guarantees both categories of people exactly the
same rights. According to Convention No. 107, all
"indigenous" peoples are "tribal", but not all "tribal"
peoples are "indigenous". Special rights attach equally to
both groups. No advantage is gained by virtue of being
"indigenous" in the sense of having been a victim,
historically, of conquest or colonization. Hence, the source
of rights is not (according to this ILO international
instrument) a people's history of being conquered, colonized
or oppressed, but its history of being distinct as a society
or nation.

23. It is noteworthy that Convention No. 107 was not only
ratified by 14 States in Latin America and 2 in Western
Europe, but also by 11 States in Africa and Asia.

E. STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS
POPULATIONS

24. In his monumental STUDY OF THE PROBLEM OF DISCRIMINATION
AGAINST INDIGENOUS POPULATIONS (E/CN.4/Sub.2/1986/7 and
Add.1-4), the Special Rapporteur of the Sub-Commission, Mr.
J. Martinez Cobo, offered a cautious, preliminary analysis
of the concept of "indigenous" that reflects the fundamental
elements already incorporated into article 1 of Convention
No. 107.

"Indigenous communities, peoples and nations are those
which, having a historical continuity with pre-invasion
and pre-colonial societies that developed on their
territories, consider themselves distinct from other
sectors of the societies now prevailing in those
territories, or parts of

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them. They form at present non-dominant sectors of
society and are determined to preserve, develop and
transmit to future generations their ancestral
territories, and their ethnic identity, as the basis of
their continued existence as peoples, in accordance
with their own cultural patterns, social institutions
and legal systems". 6/

25. This combines the element of DISTINCTIVENESS, which
characterizes both "indigenous" and "tribal" peoples
according to article 1 of ILO Convention No. 107, with the
element of COLONIALISM, which in the Convention No. 107 is
employed to differentiate "indigenous" from "tribal".

26. The Special Rapporteur proposed three additional
elements for the concept of "indigenous", albeit in a way
that suggests that these new elements are neither necessary
nor sufficient to clarify a particular group. One element is
"non-dominance at present", implying that some form of
discrimination or marginalization exists, and justifies
action by the international community. It would not follow,
however, that a group ceases to be "indigenous" if, as a
result of measures taken for the full realization of its
rights, it were no longer non-dominant.

27. The Special Rapporteur referred also to the importance
to the group of retaining a relationship with ancestral
lands or territories, as well as the importance of ensuring
that the distinctiveness of the group is voluntary, rather
than imposed upon the group by the State. These two points
were addressed when the ILO revised Convention No. 107.

F. ILO CONVENTION NO. 169

28. ILO Convention No. 107 has been revised and replaced by
the Convention on Indigenous and Tribal Peoples in
Independent Countries, 1989 (No. 169), which in article 1
has retained the distinction between "indigenous" and
"tribal" peoples, while modifying the way in which these two
terms are defined. 7/ "Tribal peoples" are peoples "whose
social, cultural and economic conditions distinguish them
from other sections of the national community, and whose
status is regulated wholly or partially by their own customs
or traditions or by special laws or regulations". This
formulation embraces the factor of "distinctiveness" as it
appeared in ILO Convention No. 107, but deletes any
implication that tribal peoples are inferior or less
"advanced". "Indigenous peoples" are now defined in terms of
their distinctiveness, as well as their descent from the
inhabitants of their territory "at the time of conquest or
colonization or the ESTABLISHMENT OF PRESENT STATE
BOUNDARIES" (emphasis

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supplied). The addition of the underlined phrase has the
effect of minimizing any logical differences between the
concepts of "indigenous" and "tribal", since both concepts
are now chiefly defined by the extent to which the group
in question constitutes a distinct society.

29. The only concrete remaining difference between the
definition of "indigenous" and "tribal" in ILO Convention
No. 169 relates essentially to the principle of self-
determination. A people may be "tribal", either by its own
choice (that is, by maintaining its own laws and customs),
or without its consent (as a result of special legal status
imposed by the State). A people may be classified as
"indigenous" only if it so chooses by perpetuating its own
distinctive institutions and identity.

30. Even this residual distinction appears to be vitiated by
article 1.2 of the Convention, which provides that "self-
identification" shall be a fundamental criterion when
determining the status of particular groups. 8/ In other
words, the only objective or extrinsic criterion of the
"indigenous" or "tribal" character of a group is
DISTINCTIVENESS. The remaining criterion is subjective: the
choice of the group to be and remain distinct, which is an
exercise of self-determination.

31. Like ILO Convention No. 107, moreover, Convention No.
169 accords the same rights to "indigenous" and "tribal"
peoples, further eroding the usefulness of distinguishing
between these categories of peoples.

32. It may justifiably be stated that, after two rounds of
exhaustive negotiations on the problem of definition, first
in 1957 and again 1988-1989, the ILO did not achieve greater
semantic precision, but on the contrary succeeded only in
merging the definition of "indigenous" AND "tribal" into a
single broad test of distinctiveness.

33. The draft inter-American declaration on the rights of
indigenous peoples, prepared by the inter-American
Commission on Human Rights for consideration by the General
Assembly of the Organization of American States, adopts the
conceptual approach of ILO Convention No. 169, defining
"indigenous peoples" as descendants of the earliest
inhabitants of the country. 9/ Interestingly, however, the
draft inter-American declaration suggests that cultural
distinctiveness - the central element of the ILO definition
of "tribal" - provides an alternative basis for establishing
that a group is

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"indigenous". If adopted, this instrument would combine
"indigenous" and "tribal", as defined in the above-mentioned
ILO Conventions, into one concept, with two alternative
tests.

34. The United Nations Development Programme (UNDP) has
prepared draft guidelines for support to indigenous peoples.
10/ Draft guidelines 4, 5 and 6 refer to the definition of
indigenous peoples. In these draft guidelines mention is
made, inter alia, to the fact that despite certain
characteristics common to the world's indigenous peoples, no
single accepted definition of indigenous peoples exists
which captures their diversity. Therefore, "self-
identification" as indigenous or tribal is usually regarded
as a fundamental criterion for determining whether groups
are indigenous or tribal, sometimes in combination with
other variables such as language spoken and geographic
location or concentration. These draft guidelines adopt the
definition of ILO Convention No. 169.

G. INDIGENOUS PEOPLES' POINT OF VIEW

35. Indigenous representatives on several occasions have
expressed the view, before the Working Group that a
definition of the concept of "indigenous people" is not
necessary or desirable. They have stressed the importance of
self-identification as an essential component of any
definition which might be elaborated by the United Nations
system. In addition, a number of other elements were noted
by indigenous representatives, in particular during the
thirteenth session of the Working Group. 11/ For example,
the Aboriginal and Torres Strait Islander Social Justice
Commissioner, Mr. M. Dodson, stated: "there must be scope
for self-identification as an individual and acceptance as
such by the group. Above all and of crucial and fundamental
importance is the historical and ancient connection with
lands and territories. ...". A number of other indigenous
representatives referred to the working definition developed
by the Special Rapporteur, Mr. Martinez Cobo. 12/ The
representative of the Sami Council, for example, stated that
"even without a definition it should be relatively easy to
identify the beneficiaries (of the draft declaration) by
using the criteria of the Cobo report which is adequate to
determine whether a person or community is indigenous or
not. Factors such as historical continuity, self-
identification and group membership are cardinal criteria in
this regard".

36. As mentioned earlier, indigenous groups insist on their
right to define themselves both in terms of an individual's
"self-identification" as an

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indigenous person and with respect to the community's right
to define its members. This 'subjective" approach - that
indigenous peoples are those who feel themselves to be
indigenous and are accepted as such by members of the group -
has been widely supported, although it is not clear whether
it would be sufficient if other "objective" criteria, such
as ancestry, were absent. 13/ The Human Rights Committee, in
addressing this question, especially in connection with the
SANDRA LOVELACE case, has found that denial of the legal
right of an Indian woman to reside on the Indian Tobique
Reserve, in Canada, because of her marriage to a non-Indian
violated her right, "in community with the other members of
her group", to enjoy her own culture as guaranteed by
article 27 of the International Covenant on Civil and
Political Rights. The Human Rights Committee did not
directly address the issue of whether the author of the
communication, Ms. Lovelace, had lost her status as an
Indian. Nevertheless, it has implicitly decided that she
remained a part of the Maliseet Indian band from which she
came. The case of Sandra Lovelace was considered in the
light of the fact that her marriage to a non-Indian has
broken up. There was no evidence that the above-mentioned
Indian band objected to her residing on the reserve. 14/

37. Article 27 of the Covenant has also been invoked by
indigenous people. In this respect, it should be mentioned,
for example, that in 1980, an Aboriginal delegation
addressed the Sub-Commission on the Australian Government's
failure to protect a sacred site on Aboriginal leasehold
land at Noonkanbah from the Western Australian Government's
insistence that exploratory drilling for oil should proceed.
15/ Another case concerning Canadian Indians (communication
No. 167/1984, BERNARD OMINAYAK, CHIEF OF THE LUBICON LAKE
BAND V. CANADA). raised issues before the Human Rights
Committee under article 27 of the Covenant with respect to
the traditional rights to fishing and hunting, as well as
issues of self-determination under article 1 of the
Covenant. In its review of this case, the Committee did,
inter alia, find a violation of article 27. It recognized
"that the rights protected by article 27, include the rights
of persons, in community with others, to engage in economic
and social activities which are part of the culture of the
community to which they belong". 16/

38. It should be also mentioned that some indigenous
representatives from Asia stated that, in view of the
establishment of the new working group of the

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Commission on Human Rights, a formal definition was urgently
needed to prevent Governments from denying the existence of
indigenous peoples in their countries. 17/

H. VIEWS EXPRESSED BY GOVERNMENTS

39. The representatives of the observer Governments of
Bangladesh and India emphasized the need for a clear
definition of "indigenous people" in the interest of an
effective focus on the true indigenous people of the world.
The representative of the observer Government of Bangladesh
stated in particular that a procedure based on self-
identification could be self-defeating and that it would be
a great disservice to the true indigenous people if the
agenda for indigenous people were allowed to be confused
with the agenda of other subnational and tribal groups that
constituted minorities within their respective countries.

I. VIEWS EXPRESSED BY MEMBERS OF THE WORKING GROUP

40. Mr. R. Hatano, member of the Working Group, in one of
his statements before the Sub-Commission regarding in
particular the draft declaration on the rights of indigenous
peoples, expressed the following views in connection with
the definition of the concept "indigenous people": "...Even
if [the declaration] was not a binding legal instrument, it
none the less sets out the rights of indigenous peoples and
the duties of States towards these peoples. However, nowhere
did the declaration define the key expression 'indigenous
people'. Apparently, indigenous organizations did not want
the term to be defined for fear some indigenous persons
would not be covered by the scope of the definition.
However, such organizations had repeatedly affirmed that the
world's population included approximately 300 million
indigenous persons. How had they arrived at that figure
without some yardstick or definition to distinguish between
indigenous and non-indigenous persons?. 18/

41. Mr. J. Bengoa, alternate member of the Working Group,
stated that regarding the development of a concept of
indigenous people, the discussion clearly had two sides: a
theoretical one and a political one. Also, there was a
difficult linguistic problem in view of the usage of the
words "populations" and "peoples". The draft declaration
which had been approved by the Sub-Commission used both
words without making a clear distinction between them A
definition of the concept of "indigenous peoples" could be
an important step towards the recognition of indigenous
peoples and their rights and could well serve to make the
very important distinction between indigenous

E/CN.4/Sub.2/AC.4/1996/2
page 15

groups and minorities. In that regard, the difference
between defining peoples and establishing procedures to
exercise the right of self-identification should be made.
The procedures to exercise the right of self-identification
had to have the following characteristics: first, they had
to be operational in order to serve international objectives
and in particular allow an understanding of the many
different cultures; second, they had to be functional to
allow participation of the indigenous peoples; third, they
had to be flexible in order to be able to respond to new
situations in the dynamic process of recognizing indigenous
peoples' rights. Mr Bengoa stressed the fact that the
principle of self-identification is inalienable and has to
be part of the definition. The characteristic of being the
first people and the strong ties to the land also
constituted important elements of a possible definition. He
pointed out the inherent danger of a requirement of historic
continuity, as many indigenous peoples had been forcibly
removed from their lands or were now living in urban areas
but had kept their indigenous identity. Also, he stated that
the element of having been subjected to colonization needed
further discussion, as it seemed to reflect mainly the
situations faced by indigenous groups in the Americas. The
element of distinct culture which was recognized by all
existing definitions should not constitute a decisive
feature in order to allow for a more dynamic approach,
taking into account processes of change in indigenous
societies. Furthermore, he regarded the characteristic of
non-dominance as an empirical reality but not necessarily a
substantive feature. 19/

II. CRITICAL LEGAL ANALYSIS

A. COMPARISON WITH "NON-SELF-GOVERNING TERRITORIES"

42. It will be recalled that in General Assembly resolution
1541 (XV) the Assembly had defined "Non-Self-Governing
Territories" in terms of three fundamental factors: cultural
distinctiveness, geographic separateness, and actual
subordination. The evolving concept of "indigenous" overlaps
with the formal definition of "Non-Self-Governing
Territories" with respect to the first factor
(distinctiveness). we have seen that subordination, while
suggested as a possible element of a definition in the
Martinez Cobo study, was not included in the definition
adopted by the ILO conventions in this field, although
marginalization and oppression are unquestionably shared
experiences of most indigenous peoples. It does not seem
logical, moreover,

E/CN.4/Sub.2/AC.4/1996/2
page 16

that the presence or absence of oppression should be a
factor distinguishing indigenous peoples from others heaving
experienced so-called classic colonialism.

43. The third factor, geographic separateness, also merits a
critical re-examination. The Special Rapporteur, Mr.
Martinez Cobo, recognized that indigenous peoples tend to be
characterized by their maintaining special relationship"
with their "ancestral territories". Although ILO Convention
No. 169 does not include any geographical factor in its
definition of "indigenous", it none the less affirms, in
article 13, the "special importance" of the continuing
relationship between indigenous peoples and their ancestral
territories for continuing their "cultures and spiritual
values". In other words, the cultural distinctiveness of
indigenous peoples, which is central to the concept of
"indigenous" in contemporary international law, is
inseparable from "territory".

44. The inseparability of cultural distinctiveness and
territory from the concept of "indigenous" was noted by the
United Nations Conference on Environment and Development in
paragraph 26.1 of Agenda 21, adopted by a consensus of
Member States:

"Indigenous people and their communities have a
historical relationship with their lands and are
generally descendants of the original inhabitants of
those lands". 20/

45. The centrality of land tenure systems and ecological
knowledge to the cultures of indigenous peoples was
reaffirmed, again by consensus, at the International
Conference on Population and Development at Cairo in 1994.
21/

46. The WORLD BANK OPERATIONAL MANUAL also identifies "a
close attachment to ancestral territories and to the natural
resources in these areas" as one of five factors which, in
varying degrees, tend to characterize "indigenous peoples".
22/

B. COMPARISONS WITH "MINORITIES"

47. Acknowledging the significance of "territory" may be
necessary to address another major logical and conceptual
problem: differentiating "indigenous peoples" from
"minorities". A strict distinction must be made between
"indigenous rights" and "minority rights". Indigenous
peoples are indeed peoples and not minorities or ethnic
groups. 23/

E/CN.4/Sub.2/AC.4/1996/2
page 17

48. The Permanent Court of International Justice (P.C.I.J.)
did not define the concept "minority" but made an attempt to
provide the meaning of the concept of "community" in the
Greco-Bulgarian Communities case as follows:

"...a group of persons living in a given country or
locality having a race, religion, language and
traditions of their own, and united by this identity of
race, religion, language and traditions in a sentiment
of solidarity, with a view to preserving their
traditions, maintaining their form of worship, securing
the instruction and upbringing of their children in
accordance with the spirit and tradition of their race
and mutually assisting one another. 24/

49. The above-mentioned formula contains four main elements:
(a) biological distinctiveness; (b) cultural distinctiveness
(religion, language, traditions); (c) the choice or desire
to remain distinct (which may be implied in the perpetuation
of the cultural distinctiveness of the group); and (d)
social cohesiveness (which may be implied from the fact that
the group seeks a recognition of its collective rights). The
racial factor is, of course, no longer admissible as a
matter of law or science.

50. The meaning of the concept of "minority" provided by the
P.C.I.J. may therefore be collapsed into the same concept
that lies at the heart of all recent attempts to define
"indigenous" - that is, a distinctiveness which the people
concerned wish to perpetuate.

51. In his important STUDY ON THE RIGHTS OF PERSONS
BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES,
the Special Rapporteur of the Sub-Commission, Mr. F.
Capotorti, argued that the size and power of a group are
important considerations in determining whether it should be
an object of special international protection. A "minority"
from the viewpoint of sociology, he reasoned, is not
necessarily the same as a "minority" within the context of
international human rights law. From his perspective, he
proposed the following definition:

"A group numerically inferior to the rest of the
population of a State, in a non-dominant position.
whose members - being nationals of the State - possess
ethnic, religious or linguistic characteristics
differing from those of the rest of the population and
show, if only implicitly, a sense of solidarity,
directed towards preserving their culture, traditions,
religion or language. 25/

E/CN.4/Sub.2/AC.4/1996/2
page 18

52. Thus defined, a group must not only lack political
power, but lack the numerical strength ever to gain power
through democratic means, before it qualifies as a
"minority". An oppressive group that constitutes a numerical
minority of the national population would, accordingly, not
qualify as a "minority", but in such as case the State
concerned would not be entitled to invoke national unity and
territorial integrity against legitimate national liberation
movements.

53. At the request of the Sub-Commission, Mr. J. Deschenes
made a great effort to improve upon the definition of
"minority" but reached essentially the same conclusions as
Mr. Capotorti. Be suggested one refinement that merits our
attention, however. This was to place greater weight on the
element of choice, since there would seem to be no need to
be concerned with groups that did not wish to be protected,
or to maintain their distinct identity as groups. 26/

54. In a more recent study, the Special Rapporteur of the
Sub-Commission, Mr. A. Eide, was also inspired by the
definition proposed by Mr. Capotorti, although he concluded
that the size of the group and its distinctiveness are
sufficient as tests of its character as a minority, thereby
abandoning the element of non-dominance. 27/

55. At its first session in 1995, the new Working Group on
Minorities of the Sub-Commission considered the possibility
of elaborating a more precise definition of "minority" but
the debate merely underscored the futility of such an
endeavour, and the Working Group proceeded to discuss
practical means of protecting minorities without agreeing on
a definition. 28/

56. At the second session of the Working Group on Minorities
a member, Mr. S. Chernichenko, presented a working paper on
the definition of minorities (E/CN.4/Sub.2/AC.5/1996/WP.1
and Corr.1), in which he proposed a new definition of
minorities. In this respect, he emphasized, inter alia, that
his definition did not extend to indigenous populations and
that the tasks of the Working Group on Minorities did not
include the development of any definition of indigenous
populations (para. 7).

57. The Human Rights Committee in its General Comment No. 23
(50) (art. 27) observes that "culture manifests itself in
many forms, including a particular way of life associated
with the use of land resources, specially in the case of
indigenous peoples. That right may include such traditional
activities as fishing or hunting and the right to live in
reserves protected by law". 29/

E/CN.4/Sub.2/AC.4/1996/2
page 19

In any event, the "working definition" included in the
Capotorti study does not help distinguish between the
concepts of "indigenous" and "minority" since most groups
that regard themselves as indigenous peoples could satisfy
its tests.

58. The task of clarifying the concept of "indigenous" is
accordingly complicated by the fact that the United Nations
has previously failed to devise reasonably precise
definitions of "peoples" or "minorities". 30/

59. Since the three concepts "indigenous", "peoples" and
"minorities" are logically and legally related, it would be
necessary to refine all of them simultaneously, lest our
efforts to clarify the concept of "indigenous" add to the
existing uncertainty in the meaning of the other related
concepts.

C. THE SEARCH FOR FACTORS SPECIFIC TO "INDIGENOUS"

60. It is none the less possible to identify at least two
factors which have never been associated with the concept of
"minorities": priority in time and attachment to a
particular territory. These factors do not, however, help to
distinguish between the concept of "indigenous" and the
concept of "peoples", since "peoples" are also ordinarily
identified with a distinct territory to which they have a
claim of historical precedence. In other words, it is
possible to find points of differentiation between
"indigenous" and "minority", but not between "indigenous"
and "peoples", based upon the efforts of international
organizations to define these terms in this century.

61. This is an appropriate stage at which to review the
discussion of these issues by participants at the first
meeting of the working group of the Commission on Human
Rights which was established by resolution 1995/32. Several
delegations of Member States maintained that it was
essential to adopt a definition of the concept "indigenous"
before negotiating the substantive provisions of a
declaration on the rights of these people. Some delegations,
moreover, reasoned that the concept of "indigenous" is
applicable only to situations in which the original
inhabitants of the territory were subjugated and physically
dispossessed by settlers from overseas, bearing alien
cultures and values, and where these settlers, rather than
the original inhabitants, have been the real beneficiaries
of decolonization and independent statehood. These
circumstances, the same delegations contend, have largely
been restricted historically to the Americas and Oceania.

62. Further, in adopting its report, the working group
stipulated that it was "solely a record of the debate and
does not imply acceptance of the usage of

E/CN.4/Sub.2/AC.4/1996/2
page 20

either expression 'indigenous peoples' or 'indigenous
people,. In this report both are used without prejudice to
the positions of the particular delegations, where
divergences of approach remain" (E/CN.4/1996/84, para. 3).

63. The advisability and feasibility of adopting a
definition of the concept of "indigenous" may reasonably be
judged from the conceptual framework proposed by concerned
delegations. The definition which has been suggested differs
in only one concrete aspect from the conceptual model
presented in the Martinez Cobo study or the two ILO
conventions in this field: conquest, colonization,
subjugation or discrimination must be at the hands of
persons from other regions of the world rather than
neighbours. In the opinion of the Chairperson-Rapporteur,
this makes an unjustified distinction between long-distance
aggression and short-distance aggression, and it is
logically impossible to establish a cut-off distance.
Moreover, it assumes that the cultural differences that
exist between peoples in a simple linear function of
distance, such that mere proximity creates a presumption of
shared values. The information provided to the Working Group
on Indigenous Populations each year contradicts the validity
of that assumption.

64. Underlying the arguments made by many observer
Government delegations is a conceptual critique of the use
of the term "indigenous" to distinguish between groups that
have been neighbours for millennia. To the extent that the
English and Spanish terms which are currently in official
use in the United Nations system imply a distinction between
persons originating in a country, as opposed to immigrants
or settlers, the unease of many African and Asian
Governments is understandable. Plainly, most of the persons
who have control of the contemporary State are not less
native to the soil of the country as a whole than groups
that are identified as "indigenous" or "tribal". It should
be pointed out, however, that this conceptual difficulty
disappears if we think of "indigenous" peoples as groups
which are native to their own specific ancestral territories
within the borders of the existing State, rather than
persons that are native generally to the region in which the
State is located.

65. The purpose of the present document is not to minimize
the concerns expressed by some Governments, but to
demonstrate that their concerns cannot effectively be met
through an exercise in definition. The result of undertaking
such an exercise would be a definition which lacked any
scientific

E/CN.4/Sub.2/AC.4/1996/2
page 21

or logical credibility, thereby undermining (in turn) the
credibility and usefulness of the declaration of principles
to which it was attached.

III. CONCLUSIONS AND RECOMMENDATIONS

66. It is an encouraging fact that Governments in the Latin
American region have expressed confidence in their
understanding of the meaning of "indigenous" in their own
regional context, rendering an explicit, negotiated
definition of this concept largely unnecessary. The
Chairperson-Rapporteur is cognizant of the fact that, even
in the Americas, disputes have often arisen regarding the
"indigenous" status of particular groups. Within the United
States, for example, more than 100 groups are still seeking
formal acknowledgement of their status as "Indian tribes",
under a 1978 law identifying seven historical and
sociological criteria applicants must satisfy with
scientific evidence. 31/

67. In practical terms, then, it would be foolhardy to
disregard both the regional and the national dimensions of
the concept of "indigenous" Regional research and
consultations would be extremely useful for this purpose
and, in the future, differences in practice must be
recognized as long as they are broadly consistent with
regional and international expert opinion. Where disputes
occur, they should be addressed in the same way as other
disputes involving both factual and legal issues in the
field of human rights, that is to say, through a
constructive dialogue between expert bodies and the
representatives of indigenous peoples and Governments.

68. At its second and third sessions, the Working Group on
Indigenous Populations discussed the definition of the
concept of "indigenous" at great length, using the work of
the Special Rapporteur as a point of departure. 32/ No
consensus was reached, but indigenous people who
participated in these discussions stressed the need for
flexibility and for respecting the desire and the right of
each indigenous people to define itself. From that time the
Working Group has indeed adopted a flexible approach to
determining eligibility to participate in its annual
sessions, relying upon organizations of indigenous peoples
themselves to draw attention to any improper assertions of
the right to participate as "indigenous" peoples. On the
whole, this has been successful, and shows that the gradual
evolution of the concept of "indigenous" in practice, and in
cooperation with

E/CN.4/Sub.2/AC.4/1996/2
page 22

indigenous peoples themselves, is sufficiently practical and
effective as a method of screening the claims of groups
whose legal character may be challenged.

69. In summary, the factors which modern international
organizations and legal experts (including indigenous legal
experts and members of the academic family), have considered
relevant to the understanding of the concept of "indigenous"
include:

(a) Priority in time, with respect to the occupation
and use of a specific territory;

(b) The voluntary perpetuation of cultural
distinctiveness, which may include the aspects of language,
social organization, religion and spiritual values, modes of
production, laws and institutions;

(c) Self-identification, as well as recognition by
other groups, or by State authorities, as a distinct
collectivity; and

(d) An experience of subjugation, marginalization,
dispossession, exclusion or discrimination, whether or not
these conditions persist.

70. The foregoing factors do not, and cannot, constitute an
inclusive or comprehensive definition. Rather, they
represent factors which may be present, to a greater or
lesser degree, in different regions and in different
national and local contexts. As such, they may provide some
general guidance to reasonable decision-making in practice.

71. The United Nations system should be mindful of the
conclusion of the managers of the World Bank that "no single
definition can capture (the) diversity" of indigenous
peoples worldwide. 33/ It would also be wise to heed the
words of the Special Rapporteur, Mr. Capotorti, who warned
that precise universal definition, while of philosophical
interest, would be nearly impossible to attain in the
current state of global realities, and would in any event
not contribute perceptibly to the practical aspects of
defending groups from abuse. 34/

72. In presenting this analysis, the Chairperson-Rapporteur
wishes to stress that she can find no satisfactory reasoning
for distinguishing between "indigenous" and "tribal" peoples
in the practice or precedents of the United Nations. Nor is
she persuaded that there is any distinction between
"indigenous" peoples, and "peoples" generally, other than
the fact that the

E/CN.4/Sub.2/AC.4/1996/2
page 23

groups typically identified as "indigenous" have been unable
to exercise the right of self-determination by participating
in the construction of a contemporary nation-State.

73. The Chairperson-Rapporteur is compelled to conclude that
any inconsistency or imprecision in previous efforts to
clarify the concept of "indigenous" was not a result of a
lack of adequate scientific or legal analysis, but due to
the efforts of some Governments to limit its globality, and
of other Governments to build a high conceptual wall between
Indigenous and "peoples" and/or "Non-Self-Governing
Territories". No one has succeeded in devising a definition
of "indigenous" which is precise and internally valid as a
philosophical matter, yet satisfies demands to limit its
regional application and legal implications. All past
attempts to achieve both clarity and restrictiveness in the
same definition have in fact resulted in greater ambiguity.

74. The only immediate solution, based on the experience of
the Working Group on Indigenous Populations, is a procedural
one: we must ensure that the eventual implementation of a
declaration on the rights of indigenous peoples is entrusted
to a body which is fair-minded and open to the views of
indigenous peoples and Governments, so that there is room
for the reasonable evolution and regional specificity of the
concept of "indigenous" in practice.

NOTES

1/ E/CN.4/Sub.2/1995/24, para. 162.

2/ See E/CN.4/1996/84.

3/ The creation of the Working Group on Indigenous
Populations was recommended by the Sub-Commission on
Prevention of Discrimination and Protection of Minorities in
its resolution 2 (XXXIV) of 8 September 1981, endorsed by
the Commission on Human Rights in its resolution 1982/19 of
10 March 1982, and authorized by the Economic and Social
Council in its resolution 1982/34 of 7 May 1982.

4/ General Assembly resolution 2625 (XXV) of 24 October
1970, annex.

5/ See A/2361 (1952).

6/ E/CN.4/Sub.2/1986/7/Add.4, United Nations
Publication, Sales No. E.86.XIV.3, para. 379.

E/CN.4/Sub.2/AC.4/1996/2
page 24

7/ In connection with the definition employed in ILO
Convention No. 169, see, I. Brownlie, "Treaties and
Indigenous Peoples". THE ROBB LECTURES, F.M. Brookfield
(ed.), Clarendon Press, Oxford, 1992, pp. 60-67. For an
analysis of the provisions of this Convention, see R.L.
Barsh, "An Advocate's Guide to the Convention on Indigenous
and Tribal Peoples", 15 OKLAHOMA UNIVERSITY LAW REVIEW 209
(1990), L. Swepston, "A New Step in the International Law on
Indigenous and Tribal Peoples: ILO Convention No 169 of
1989", 15 OKLAHOMA UNIVERSITY LAW REVIEW 677 (1990) and S.J.
Anaya, "Indigenous Rights Norms in Contemporary
International Law", ARIZONA JOURNAL OF INTERNATIONAL AND
COMPARATIVE LAW, vol. 8, No. 2, Fall 1991, pp 6-15.

8/ So formulated, art. 1.2 of ILO Convention No. 169
provides that "self-identification" should be given great
weight, although it is not sufficient in itself.

9/ OEA/Ser/L/V/II.90, Doc. 9 rev. 1 (21 September
1995).

10/ Guidelines for Support to Indigenous Peoples,
United Nations Development Programme, Draft V, January 1995.
These draft Guidelines should be adopted by the Executive
Board of UNDP.

11/ See E/CN.4/Sub.2/1995/24, para. 41-51.

12/ Ibid., para. 29-32.

13/ See H. Hannum, "New Developments in Indigenous
Rights", VIRGINIA JOURNAL OF INTERNATIONAL LAW, vol. 28, No.
3, Spring 1988, p. 663.

14/ Communication No. R.6/24, SANDRA LOVELACE V.
CANADA, in OFFICIAL RECORDS OF THE GENERAL ASSEMBLY, THIRTY-
SIXTH SESSION. SUPPLEMENT NO. 40 (A/36/40), annex XVIII. For
a comprehensive analysis of the relevant Views, expressed by
the Human Rights Committee, see G. Alfredsson and A. de
Zayas, "Minority Rights: Protection by the United Nations",
HUMAN RIGHTS LAW JOURNAL 26 February 1993, vol. 14, No. 1-2,
pp. 5-6.

15/ H. McRae, G. Nettheim and L. Beacroft, ABORIGINAL
LEGAL ISSUES, The Law Book Company Limited, Sydney, 1991,
p.320.

16/ Ibid., FORTY-FIFTH SESSION. SUPPLEMENT NO. 40
(A/45/40), vol. II, annex IX, para 32.2.

17/ E/CN.4/Sub.2/1995/24, para. 41.

18/ E/CN.4/Sub.2/1992/SR.31/Add.1, para. 36.

19/ See E/CN.4/Sub.2/1995/24, paras. 45-51.

E/CN.4/Sub.2/AC.4/1996/2
page 25

20/ RECORD OF THE UNITED NATIONS CONFERENCE ON
ENVIRONMENT AND DEVELOPMENT (Rio de Janeiro, 3-4 June 1992),
vol. I, resolution 1, annex II. United Nations Publication,
Sales No. E.93.I.8. See also chapter 26 of Agenda 21 on
"Recognizing and strengthening the role of indigenous people
and their communities".

21/ A/CONF.171/13, para. 6.27.

22/ Operational Directive 4.20, para. 5 (a), September
1991. Other factors listed are self-identification, a
distinct language, customary social and political
institutions, and a subsistence-oriented economy.

23/ E.-I. A. Daes, "On the Relations Between Indigenous
Peoples and States", WITHOUT PREJUDICE, vol. III, p. 44.

24/ See Greco-Bulgarian Communities (Advisory Opinion),
P.C.I.J. Series B. No. 17, p. 22 (31 July 1930). In this
respect, see also P. Thornberry, "The UN Declaration on the
Rights of Persons Belonging to National or Ethnic, Religious
and Linguistic Minorities: Background, Analysis,
Observations, and an Update", UNIVERSAL MINORITY RIGHTS, A.
Phillips and A. Rosas (eds.), Abo Akademi University
Institute for Human Rights, 1995, pp. 16-17.

25/ F. Capotorti, STUDY ON THE RIGHTS OF PERSONS
BELONGING TO ETHNIC, RELIGIOUS AND LINGUISTIC MINORITIES,
United Nations publication, Sales No. E.91.XIV.2, Geneva,
1991, para. 568.

26/ E/CN.4/Sub.2/1985/31, paras. 74 and 181.

27/ E/CN.4/Sub.2/1993/34, para. 29.

28/ E/CN.4/Sub.2/1996/2, paras. 76-90.

29/ CCPR/C/21/Rev.1/Add.5. See in particular para. 7.

30/ For an analysis of the meaning of the concepts
"indigenous", "peoples" and "minorities", see M.N. Shaw,
"The Definition of Minorities in International Law",
ISRAEL YEARBOOK ON HUMAN RIGHTS, vol. 20 (1991) pp. 13-43;
E.-I.A. Daes, "Some Considerations on the Right of
Indigenous Peoples to Self-Determination", TRANSNATIONAL
LEGAL AND CONTEMPORARY PROBLEMS, vol. 3 (1993), pp. 2-11;
Daes, "Dilemmas Posed by the UN Draft Declaration on the
Rights of Indigenous Peoples", NORDIC JOURNAL OF
INTERNATIONAL LAW, 63:205-212 (1994); Daes, "The United
Nations Declaration on Minority Rights: Necessary, Urgent
and Overdue", INTERNATIONAL GENEVA YEARBOOK, vol. IX, 1995,
in particular pp. 91-92; R.L. Barsh, "Indigenous Peoples in
the 1990s: From Object to Subject of International Law?",
HARVARD HUMAN RIGHTS JOURNAL, vol. Seven, Spring 1994, in
particular pp. 36-41 and 78-82; D. Sanders, "Indigenous
Peoples at the United Nations" (on file with the author),
September 1995, pp. 1-17; G. Alfredsson, "Group Rights,
Preferential Treatment

E/CN.4/Sub.2/AC.4/1996/2
page 26

and the Rule of Law", Discussion Paper for Consultation on
Group Rights at the University of Cambridge, Law and Society
Trust, Colombo, August 1995, p. 21.

31/ See W.C. Canby, Jr., AMERICAN INDIAN LAW (second
edition), St. Paul, Minn., West Publishing Co., 1988, pp. 5-8.

32/ E/CN.4/Sub.2/1983/22, paras. 109-119;
E/CN.4/Sub.2/1984/20, paras. 99-110.

33/ WORLD BANK OPERATIONAL MANUAL, op. cit.,
Operational Directive 4.20 (1991).

34/ Capotorti, op. cit., paras. 561-562.

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