Sovereign states and self-determining peoples: Carving out a place for transnational indigenous peoples in a world of sovereign states

International Community Law Review

Volumn 12, Issue 2, 2010, Pages 191-212

  Koivurova, Timo ^a  

^a UNIVERSITY OF LAPLAND   (Finland)

Author keywords

indigenous people; peoples' rights; self determination; sovereignty; transnational

Indexed keywords

EID: 77954941457     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197310X498598     Document Type: Conference Paper

References (63)

1. The Universal Declaration of Human Rights, at http://www.un.org/en/ documents/udhr/ (1 December 2009).
2. The International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 23 March 1976, 999 UNTS 171. International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entered into force on 3 January 1976, 993 UNTS 3.
3. See e.g. A. Cassese, International law (Oxford University Press, Oxford, 2005, 2nd ed.) pp. 60-64 He argues that 'Article 1, common to the two 1966 UN Covenants on Human Rights... essentially confers on the peoples of all the contracting parties the right to internal self-determination' (p. 62).
4. See at, , viewed on 1 December 2009.
5. Christopher J. Borgen, "Kosovo's Declaration of Independence: Self-Determination, Secession and Recognition", Vol.12 ASIL insights, February 29 (2008), Issue 2, http://www.asil.org/insights080229. cfm, viewed on 1 December 2009.
6. As is provided e.g. in the UN's Friendly Relations Declaration, the emergence into any other political status freely determined by a people constitutes one mode of implementing the right of self-determination by that people. See the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, at http:// www.hku.edu/law/conlawhk/conlaw/outline/ Outline4/2625.htm [1, viewed on 1 December 2009.
7. The ICJ made a decision to treat South West Africa under a model deriving from the League of Nations Mandated Territories system. South West Africa (Namibia from 1970 onwards) was one of the German overseas colonies placed under the mandate system of the League of Nations after World War I to be managed by the Union of South Africa. After World War II, South Africa sought to annex the territory, a move that was challenged by the UNGA. In 1949, the UNGA requested an advisory opinion from the ICJ as to whether South Africa's mandate had survived the termination of the League of Nations and if it had, how it should be managed and whether it should be transferred to the trusteeship system. The ICJ answered the first question in the affirmative; that is, it stated that the mandate had indeed survived the termination of the mandate system. However, it did not opine that the area should be placed under the trusteeship system but, rather, recommended that it continue to be governed by rules similar to those of the mandate system.
8. As the ICJ put it in the Frontier Dispute between Burkina Faso and Mali: '... At first sight this principle [uti possidetis] conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples... Thus the principle of uti possidetis has kept its place among the most important legal principles, despite the apparent contradiction which explained its coexistence alongside the new norms. Indeed it was by deliberate choice that African States selected, among all the classic principles, that of uti possidetis. This remains an undeniable fact...'. The Case Concerning the Frontier Dispute of 22 December 1986 (Burkina Faso v. Republic of Mali), 8 December 2000, ICJ, Judgment, I.C.J. Reports 1986, p. 554, at 567.
9. D. McGoldrick, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights, (Oxford, 1991), pp. 14-15.
10. James Crawford, "The Right of Self-Determination in International Law: its Development and Future", in Philip Alston (ed.), Peoples' Rights, pp. 7-68, at 27.
11. Reference re Succession of Quebec from Canada [1998] 2 SCR 217. Reprinted in Vol. XXXVII, November 1998 International Legal Materials, pp. 1340-1377. There were three questions that were referred to the Supreme Court: "1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? 3. In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?".
12. Since Quebec declined to take part in the proceedings, an Amicus curiae was appointed on behalf of the Supreme Court to represent the interests of Quebec. Both the Minister of Justice and Amicus Curiae commissioned leading international law experts on the issue to provide their opinion on the international law aspects dealt with in answering to question 2.
13. See the advisory opinion, paragraph 113.
14. Ibid., para. 114.
15. Ibid., para. 123.
16. Ibid., para. 124.
17. Ibid, para. 125.
18. Ibid., para. 126.
19. This cautious attitude can be seen in paras. 134-135: "A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration, supra, requirement that governments represent "the whole people belonging to the territory without distinction of any kind" adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession. 135 Clearly, such a circumstance parallels the other two recognized situations in that the ability of a people to exercise its right to self-determination internally is somehow being totally frustrated. While it remains unclear whether this third proposition actually reflects an established international law standard, it is unnecessary for present purposes to make that determination...".
20. Ibid., see the discussion in paras. 141-142.
21. Ibid., para. 112: "... international law places great importance on the territorial integrity of nation states and, by and large, leaves the creation of a new state to be determined by the domestic law of the existing state of which the seceding entity presently forms a part...".
22. See, e.g. L. Malezer, 'Permanent Forum on Indigenous Issues: Welcome to the Family of the UN', in J. Castellino and N. Walsh (eds.), International Law and Indigenous Peoples (Martinus Nijhoff Publishers, Leiden, 2005) p. 67.
23. In 1982 the Working Group on Indigenous Populations was established as a subsidiary organ to the Sub-Commission on Prevention of Discrimination and Protection of Minorities (now the Sub-Commission on the Promotion and Protection of Human Rights), endorsed by ECOSOC on May 7, 1982; UN Doc. E/Res/1982/34. It is comprised of five members of the Sub-Commission, one representing each of the five geographical regions designated by the UN for electoral purposes. As a subsidiary organ of the Sub-Commission, the Working Group is located at the lowest level of the hierarchy of UN human rights bodies. Its recommendations have to be considered and accepted first by its superior body, the Sub-Commission, then by the Commission on Human Rights (now the Human Rights Council) and the Economic and Social Council (ECOSOC) before the UN General Assembly itself.
24. Draft United Nations Declaration on the Rights ofIndigenous Peoples, 1994/45, at visited on 1 December 2009.
25. Article 3, E/CN.4/Sub.2/1993/29/Annex I, 23 August 1993.
26. Ibid., Article 31.
27. C.E. Foster, 'Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples' in 12 European Journal of International Law (2001), pp. 141-157, at 142-143.
28. C.E. Foster, 'Articulating Self-determination in the Draft Declaration on the Rights of Indigenous Peoples' in 12 European Journal of International Law (2001), Ibid., at p. 156. The operative paragraph 1 of the 1992 version reads: "Indigenous peoples have the right to self-determination, in accordance with international law by virtue of which they may freely determine their political status and institutions and freely pursue their economic, social and cultural development. An integral part of this is the right to autonomy and self-government". E/CN.4/ Sub.2/1992/33.
29. Resolution of the Commission on Human Rights 1995/32, 3 March 1995.
30. See the version adopted by the Human Rights Council (A/HRC/1/L.10, 30 June 2006, pp. 56-72), at visited on 1 December 2009.
31. See the explanatory paper by Canada after its voting against the Declaration, and also outlining the reasons why the other countries that abstained from the vote did so, many of them having problems with Article 3 on self-determination (Canada's Position: United Nations Draft Declaration on the Rights of Indigenous Peoples - June 29, 2006), at visited on 1 December 2009.
32. See the press release from the 3rd Committee, at visited on 25 June 2007. As put in the UNGA press release: 'But an initiative led by Namibia, co-sponsored by a number of African countries, resulted in the draft being amended. In its new form, the draft would have the Assembly decide "to defer consideration and action on the United Nations Declaration on the Rights of Indigenous Peoples to allow time for further consultations thereon"...The amendments were adopted by a vote of 82 in favour to 67 against, with 25 abstentions (annex II)... Prior to the vote, the representative of Peru - recalling that it had taken 24 years for the Declaration to be hammered out - said the original draft had been revised to address the concerns of many delegations, particularly regarding the principle of self-determination of peoples and respect for national sovereignty... However, his counterpart from Namibia, explaining the proposed amendments, said that some provisions ran counter to the national constitutions of a number of African countries and that the Declaration was of such critical importance that it was only "fair and reasonable" to defer its adoption by the Assembly to allow for more consultations'.
33. For a general overview, see at visited on 1 December 2009.
34. Article 46 (1) of the adopted UN Declaration, which can be downloaded at visited on 1 December 2009.
35. The Saami are an indigenous people living in the northern parts of three Nordic states - Norway, Sweden and Finland - and on the Kola Peninsula in the Russian Federation. They arrived in the region well before the present majority populations of those states and are ethnically and linguistically distinct as a people from the mainstream societies. At present, there are approximately 90,000 Saami living in the northernmost regions of the North Calotte and the Kola Peninsula. Of these, the Norwegian Saami constitute the largest group, numbering approximately 50,000-65,000 persons, followed by the Saami in Sweden (20,000), Finland (8000) and Russia (2000). These figures are at best rough estimates as there is no clear definition of who constitute the Saami. See the Report, p. 65.
36. See also 'Introduction to the Saami', the Saami: A Cultural Encyclopedia, p. 5. The Saami are now a minority in most parts of their traditional areas.
37. There are approximately 155 000 Inuit living in four States, see at http://en.wikipedia.org/wiki/ Inuit, visited on 1 December 2009.
38. For a comprehensive study of the Arctic Council, see Timo Koivurova and David VanderZwaag," The Arctic Council at 10 Years: Retrospect and Prospects", 40:1 University of British Columbia Law Review (2007) pp. 121-194.
39. This was despite the Saami Council calling for Russians to be included in their Honningsvåg conference: "Consider the ongoing work on a Nordic Saami Convention an important step in the effort to reduce the negative implications of state borders to the Saami society and likewise an important contribution in the acceptance of basic Saami rights regardless of the state border; In this context emphasize the importance that Finland, Norway and Sweden also make effort to incorporate Russia in the development of a Saami convention to ensure that the entire Saami nation acquires legal protection through a treaty of this character". See the preamble of the Honningsvåg Declaration from the website of the Saami Council, at http://www.saamicouncil. net/files/20041215142715.doc, visited on 1 December 2009.
40. There are also many other considerations. Since Sami are only one of the indigenous groups in its territory, it might be viewed as discriminatory, if Russia was to enter into an international treaty over one very small indigenous group (approximately 2000 members). In addition, the Nordic countries have very close contacts with each other, and the same goes with the three Sami communities. The Russian Sami, are, however, active participants in the Sami Council.
41. See the Report on the Draft Saami Convention, "Pohjoismainen saamelaissopimus: Suomalaisnorjalais-ruotsalais-saamelaisen asiantuntijatyö ryhmän 27. lokakuuta 2005 luovuttama luonnos (Finnish Ministry of Justice Publication No. H-2183 F, 90-96. The extensive document (hereinafter 'the Report') consists of nine sections and four annexes totalling 340 pages. See pp. 151-246. The other parts of the Report consist of the following: how the Committee was appointed and its terms of reference (Section 2, pp. 44-46);
42. a summary of the content of the proposed text for a convention (Section 3, pp. 47-56);
43. an explanation of the process leading to the appointment of the Committee and how the Committee has fulfilled its task (Section 4, pp. 57-62);
44. a discussion of some of the general issues related to the Convention (Section 5, pp. 63-64): a review of the legal and factual situation of Saami in Finland, Norway, Sweden and the Russian Federation (Section 6, pp. 65-103);
45. an extensive analysis of the international treaties and other international instruments relevant from the viewpoint of Saami rights (Section 7, pp. 104-147);
46. and a discussion of the status of Saami in the Convention (Section 8, pp. 148-150). The Annexes consist of a review of a study of whether Saami could be parties to the proposed Convention (Annex I, pp. 247-250)
47. a discussion of the legal status of the Russian Saami (Annex II, pp. 251-262), an article by three members of the Expert Committee on the right to self-determination of the Saami (Annex III, pp. 263-318)
48. and the Draft United Nations Declaration on the Rights of Indigenous Peoples, together with suggestions from the Nordic countries, New Zealand and Switzerland (Annex IV, pp. 319-340).
49. The unofficial English version of the Draft Convention can be found from the Saami Council website, at http://www.saamicouncil.net/includes/file- download.asp?deptid=2195&fileid=209 7&file= Nordic%20Saami%20Convention%20(Unofficial%20English%20Translation).doc, visited on 1 December 2009.
50. Article 3. The unofficial English version of the Draft Convention can be found from the Saami Council website, at http://www.saamicouncil.net/includes/ file-download.asp?deptid=2195&fileid=209 7&file= Nordic%20Saami%20Convention%20(Unofficial%20English%20Translation).doc, visited on 1 December 2009.
51. The author's translation from the report.
52. E-mail from the responsible official from the Finnish Ministry of Justice on 11 November 2009. On file with the author.
53. See at the Arctic Council website, at http://arctic-council.org/ filearchive/Ilulissat-declaration.pdf.
54. In the discussion in the Narvik Senior Arctic Official meeting (18.1.), "Iceland expressed concerns that separate meetings of the five Arctic states, Denmark, Norway, U.S., Russia and Canada, on Arctic issues without the participation of the members of the Arctic Council, Sweden, Finland and Iceland, could create a new process that competes with the objectives of the Arctic Council. If issues of broad concern to all of the Arctic Council Member States, including the effect of climate change, shipping in the Arctic, etc. are to be discussed, Iceland requested that Denmark invite the other Arctic Council states to participate in the ministerial meeting. Permanent participants also requested to participate in the meeting. Denmark responded that the capacity of the venue may be an issue". Narvik SAO meeting 2007 Final Report (28-29 November 2007), , visited on 1 December 2009.
55. See Ilulissat Declaration (8 May 2008), , visited on 1 December 2009.
56. See at visited on 1 December 2009.
57. See at http://www.itk.ca/circumpolar-inuit-declaration-arctic- sovereignty, visited on 1 December 2009.
58. Ibid., see, especially, para. 4.2. of the Declaration.
59. Ibid., see paras. 1.3.-1.8. of the Declaration.
60. Classic work is Gudmundur Alfredsson, "Greenland and the Law of Political Decentralisation", in 25 German Yearbook of International Law (1982) pp. 290-308.
61. See the Draft Act on Greenland Self-Government, at http://www. amblissabon.um.dk/NR/rdonlyres/ EDC5978E-71C2-467E-974A-598A01EEA562/0/ DraftActonGreenlandSelfGovernment.pdf (1.12.2009).
62. This has been argued by one of the members of the Expert Committee producing the Draft Nordic Sami Convention, Martin Scheinin, see chapter 7, "The Right of a People to Enjoy Its Culture: Towards a Nordic Saami Rights Convention" in Fransesco Francioni and Martin Scheinin (eds.), Cultural Human Rights, Martinus Nijhoff Publishers, Leiden, 2008.
63. For a recent analysis, see Timo Koivurova, "Limits and possibilities of the Arctic Council in a rapidly changing scene of Arctic governance. Polar Record. Cambridge University Press, 2009. Published online by Cambridge University Press, 8 September 2009.