On fragile architecture: The un declaration on the rights of indigenous peoples in the context of human rights

European Journal of International Law

Volumn 22, Issue 1, 2011, Pages 141-163

  Engle, Karen ^a  

^a the University of Texas School of Law   (United States)

Author keywords

[No Author keywords available]

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EID: 79954517219     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chr019     Document Type: Article

References (58)

1. United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 61/295, 13 Sept. 2007 (UNDRIP). 129 countries voted in favour, 4 opposed, and 11 abstained.
2. See generally K. Engle, The Elusive Promise of Indigenous Development (2010).
3. By 'strong forms', I mean both external self-determination models and forms of self-determination that provide for significant autonomy for indigenous groups vis-à-vis the state. I hope to distinguish these models, which do not rely on human rights concepts, from the human right to self-determination that has arguably been more broadly recognized for indigenous peoples, including in the UNDRIP.
4. Fraser, 'From Redistribution to Recognition? Dilemmas of Justice in a "Post-Socialist" Age', 212 New Left Review (1995) 68, at 69.
5. Programme of Activities for the International Decade of the World's Indigenous People, GA Res. 50/157, 21 Dec. 1995, Annex, at para. 6.
6. Report of the working group established in accordance with Commission on Human Rights Resolution 1995/32 of 3 Mar. 1995 on its eleventh session, Annex I, UN Doc. E/CN.4/2006/79 of 22 Mar. 2006.
7. For a copy of the resolution see Namibia: Amendments to Draft Resolution on Behalf of the African Union to Draft Resolution, UN Doc. A/C.3/61/L.57/Rev.1 (21 Nov. 2006).
8. Cherrington, 'United Nations General Assembly Declines Vote on Declaration on Indigenous Rights' (8 Dec. 2006), available at: www.culturalsurvival.org/news/mark-cherrington/united-nations-general-assembly-declines-vote-declaration-indigenous-rights.
9. All four of these states have since endorsed the UNDRIP, albeit to varying degrees.
10. When Canada endorsed the UNDRIP in Nov. 2009, e.g., it made clear that 'the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws': Indian and Northern Affairs Canada, 'Canada's Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples' (12 Nov. 2010), available at: www.ainc-inac.gc.ca/ap/ia/dcl/stmt-eng.asp (last accessed 28 Jan. 2011).
11. The US expressed similar qualifications in Dec. of the same year, noting that the declaration, 'while not legally binding or a statement of current international law... has both moral and political force': US Department of State, 'Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples' (16 Dec. 2010) at 1, available at: www.state.gov/documents/organization/153223.pdf (last accessed 28 Jan. 2011).
12. And while New Zealand acknowledged that the declaration is an 'affirmation of accepted international human rights', it added that the declaration 'also expresses new, and non-binding, aspirations': 'New Zealand Statement, Ninth Session of the United Nations Permanent Forum on Indigenous Issues' (19 Apr. 2010) at 5, available at: www.docip.org/gsdl/collect/cendocdo/index/assoc/HASHe2c9/a6688410.dir/PF10pita007.PDF (last accessed 28 Jan. 2011).
13. Australia's endorsement of the rights embodied in the UNDRIP was somewhat more positive, noting that while the declaration 'does not create new rights[,]... [it] elaborates upon existing international human rights norms and principles as they apply to Indigenous peoples': Australian Human Rights Commission, 'Questions and Answers on the UN Declaration on the Rights of Indigenous Peoples' (Apr. 2009), available at: www.hreoc.gov.au/social_justice/declaration/declaration_QA_2009.html (last accessed 28 Jan. 2011).
14. Draft Declaration on the Rights of Indigenous Peoples, in UN Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, 45th Session, 'Report of the Working Group on Indigenous Populations on its Eleventh Session', UN Doc. E/CN.4/Sub.2/1993/29/Annex I (23 Aug. 1993), Art. 31.
15. African Union Assembly, 8th Session, Decision on the United Nations Declaration on the Rights of Indigenous Peoples, Doc. Assembly/au/9 (viii) Dec. 141 (30 Jan. 2007), at para. 6.
16. Thus, the opposition by African states raised questions about the meaning of self-determination and the extent to which the international legal doctrine of uti possidetis (which had required that post-colonial boundaries in Africa followed those set up by colonial powers) could survive in the face of challenges by groups across the region claiming rights to self-determination.
17. The New Zealand representative, e.g., issued a statement on behalf of Australia, New Zealand, and the US expressing concern that '[s]elf-determination... could be misrepresented as conferring a unilateral right of self-determination and possible secession upon a specific subset of the national populace, thus threatening the political unity, territorial integrity and the stability of existing UN Member States': Statement by H.E. Ms. Rosemary Banks, Ambassador and Permanent Representative of New Zealand, on behalf of Australia, New Zealand, and the United States, available at: www.australiaun.org/unny/Soc_161006.html (last accessed 1 Feb. 2001).
18. Global Indigenous Peoples' Caucus. Steering Committee, 'Report of the Global Indigenous Peoples' Caucus' (31 Aug. 2007), available at: www.hreoc.gov.au/social_Justice/declaration/screport_070831.pdf (last accessed 1 Feb. 2011).
19. Indian Law Resource Center, 'UN Adopts Declaration on the Rights of Indigenous Peoples' (13 Sept. 2007), available at: www.indianlaw.org/sites/indianlaw.org/files/UNDeclarationAdopted20070913.pdf (last accessed 29 Jan. 2011).
20. Both these positions are a far cry from the Indian Law Resource Center's position in 1982 that '[i]ndigenous peoples qualify as peoples possessing a right of self-determination; hence, indigenous peoples have the right to self-determination, that is, to possess whatever degree of self-government in their territories the indigenous peoples may choose': Barsh, 'Indigenous Peoples: An Emerging Object of International Law', 80 AJIL (1986) 369, at 376.
21. International Law Association, 'Interim Report: The Hague Conference, Rights of Indigenous Peoples' (2010), at 10, available at: www.ila-hq.org/download.cfm/docid/9E2AEDE9-BB41-42BA-9999F0359E79F62D (last accessed 28 Jan. 2011).
22. The Report's support for this point is minimal. It cites a 2004 statement by a number of regional indigenous caucuses, in which the groups essentially assured states that, even without what later became Art. 46, states would be free to invoke their right to territorial integrity. Of course, the freedom to invoke a claim was not sufficient for many states, which is why they demanded an explicit statement on the limitation of the right.
23. (Citing Wiessner, 'Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples', 41 Vanderbilt J Transnat'l L (2008) 1141, at 1176).
24. Dourough, 'The Significance of the Declaration on the Rights of Indigenous Peoples and its Future Implementation', in C. Charters and R. Stavenhagen (eds), Making the Declaration Work (2009), at 264, 265.
25. UN Permanent Forum on Indigenous Issues, 'About UNPFII and a brief history of indigenous peoples and the international system' (2006), available at: www.un.org/esa/socdev/unpfii/en/history.html (last accessed 1 Feb. 2011).
26. Art. 33 appears to have replaced Arts 8 and 32 of the 1993 draft, but with no explicit reference to collective rights. The new language in the provision reads: 'Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.' Art. 35 of the adopted version includes language identical to that in Art. 34 of the 1993 version, but without the word 'collective' as an adjective to the right.
27. International Work Group for Indigenous Affairs, 'UN Declaration on the Rights of Indigenous Peoples: Human rights organizations condemn efforts to block vital human rights instrument' (30 Nov. 2006), available at: www.iwgia.org/graphics/Synkron-Library/Documents/Noticeboard/News/International/NGOStatementonDeclarationNov302006.htm (last accessed 1 Feb. 2011).
28. The human rights groups that signed the statement were: Amnesty International, Canadian Friends Service Committee (Quakers), International Service for Human Rights, International Work Group for Indigenous Affairs (IWGIA), Kairos: Canadian Ecumenical Justice Initiatives, Netherlands Centre for Indigenous Peoples (NCIV), and Rights & Democracy.
29. A number of human rights instruments make clear that some or all of the rights they embody are subject 'only to such limitations as are determined by law', but they do not, as in the UNDRIP, subject them to 'international human rights obligations', given that the instruments themselves are meant to recognize or even create such obligations. See, e.g., Universal Declaration of Human Rights, GA Res. 217 (III), 10 Dec. 1948, Art. 29 ('In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others'); International Covenant on Economic, Social, and Cultural Rights, GA Res. 2200A (XXI), 3 Jan. 1976, Art. 5 ('[T]he State may subject such rights only to such limitations as are determined by law only in so far as... compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society').
30. G. Manuel and M. Posluns, The Fourth World: An Indian Reality (1974), at 40.
31. For a historical account that specifically distinguishes the anticolonial and human rights movements see S. Moyn, The Last Utopia (2010), at 84-119.
32. Roy and Alfredsson, 'Indigenous Rights: The Literature Explosion', 13 Transnat'l Perspectives (1987) 19, at 21.
33. Sanders, 'The Re-Emergence of Indigenous Questions in International Law', 3 Canadian Human Rts Yrbk (1983) 3, at 25.
34. Organization of American States, Inter-American Commission on Human Rights, 'Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin' (1983), at Part II, B(8), describing the position articulated by Wiggins.
35. See, e.g., Inter-American Court of Human Rights: The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACtHR Series C No. 79, 10 IHRR 758 (2001), at para. 149; Inter-American Court of Human Rights: Moiwana Community v. Suriname, IACtHR Series C 124 (2005), 14 IHRR 454 (2007), at paras 155, 173; Inter-American Court of Human Rights: Saramaka People v. Suriname, IACtHR Series C No. 172, 13 IHRR 933, at para. 126.
36. Art. 1, which the convention shares in common with the International Covenant on Economic, Social and Cultural Rights (ICESCR), states, 'All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development'.
37. Scheinin, 'The Right to Self-Determination under the Covenant on Civil and Political Rights', in P. Aikio and M. Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self-Determination (2000), at 179, 179-80.
38. Kitok v. Sweden, Communication No. 197/1985, Views of the Human Rights Committee adopted on 10 Aug. 1988, UN Doc. CCPR/C/33/D/197/1985, at para. 4.1.
39. Lubicon Lake Band v. Canada, Communication No. 167/1984, Views of the Human Rights Committee adopted on 26 Mar. 1990, UN Doc. Supp. No. 40 (A/45/40), at para. 13.3.
40. Lovelace v. Canada, Communication No. 24/1977, Views of the Human Rights Committee adopted on 30 July 1980, UN Doc. No. CCPR/C/13/D/24/1977, at para. 15.
41. UN Human Rights Committee, CCPR General Comment No. 23: The Rights of Minorities (Art. 27), at para. 3.2, UN doc. CCPR/C/21/Rev.1/Add.5. 1994.
42. International Labour Organization, Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No. 107), 26 June 1957.
43. International Labour Organization, Indigenous and Tribal Peoples Convention (No. 169), 27 June 1989, preamble.
44. Colchester, 'Indigenous Peoples and the International Labour Organization', 4 Interights Bulletin (1989) 43, at 43.
45. International Labour Conference, 76th Session, 1989, Record of Proceedings, 31/6. Another indigenous leader, Sharon Venne, a Cree from the Treaty Six territory in western Canada and a representative of the International Work Group for Indigenous Affairs, stated that 'it is unfair and racially discriminatory to limit our rights as peoples under international law'.
46. Even while attempting to use this language, indigenous peoples have long advocated for something stronger than the right to consultation - the right to 'free, prior and informed consent'. While some supporters of the UNDRIP claim that such a right is included in the declaration, once again what was achieved was less than what was called for. Art. 32(2) states that '[s]tates shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources' (emphasis added). Consent is thus only the goal in the UNDRIP. The 1993 version of the declaration recognized the right of indigenous peoples to require that states acquire their consent: Draft Declaration on the Rights of Indigenous Peoples, in UN Commission on Human Rights, Subcommission on Prevention of Discrimination and Protection of Minorities, 45th Session, 'Report of the Working Group on Indigenous Populations on its Eleventh Session', UN Doc. E/CN.4/Sub.2/1993/29/Annex I, (23 Aug. 1993), Art. 30.
47. Laski, 'Towards a Universal Declaration of Human Rights', in UNESCO (ed.), Human Rights: Comments and Interpretation: A Symposium Edited by UNESCO (1949), at 78, 86.
48. Brown, '"The Most We Can Hope For...": Human Rights and the Politics of Fatalism', 103 South Atlantic Quarterly (2004) 451, at 457.
49. Brown explains: Ignatieff claims that 'rights inflation - the tendency to define anything desirable as a right - ends up eroding the legitimacy of a defensible core of rights' (90). This 'defensible core' is defined as those rights 'that are strictly necessary to the enjoyment of any life whatever' (90). Although it is hard to see what could be more necessary than food and shelter to such enjoyment, Ignatieff goes in the other direction, insisting that 'civil and political freedoms are the necessary condition for the eventual attainment of social and economic security' (90).
50. She attributes this position to Ignatieff by identifying his resistance to the right to food and shelter as a concern about a 'metonymic slide' into the land of socialism, where free enterprise would be limited.
51. See Kennedy, 'The "Rule of Law," Political Choices and Development Common Sense', in D. Trubek and A. Santos (eds), The New Law and Economic Development: A Critical Appraisal (2006), at 95.
52. Anthropologist Charles Hale demonstrates, in the context of Guatemala, that neoliberal modernization and indigenous cultural rights often fit quite comfortably together in what he terms 'neoliberal multiculturalism': see Hale, 'Does Multiculturalism Menace: Governance, Cultural Rights and the Politics of Identity in Guatemala', 34 J Latin American Studies (2002) 485.
53. 'Universal Declaration of Human Rights: Take the Quiz', available at: http://html.knowyourrights2008.org/en/universal-declaration-of-human-rights/take-the-quiz.html (last accessed 1 Feb. 2011).
54. The Inter-American Court has engaged in similar analysis. Aloeboetoe v. Suriname, e.g., is often cited as an example of the Court's jurisprudence respecting culture and local custom because the Court decided to 'take Saramaka custom into account' in defining the terms 'children', 'spouse', and 'ascendants' for the purpose of determining who would receive reparations for human rights violations. The decision includes a caveat, however: 'to the degree that it does not contradict the American Convention'. Thus, the Court determined that 'in referring to "ascendants," the court shall make no distinction as to sex, even if that might be contrary to Saramaka custom': Inter-American Court of Human Rights, Aloeboetoe v. Suriname, IACtHR Series C No 15, 1.2 IHRR 208 (1994), at para. 62.
55. L. Sheleff, The Future of Tradition (1999), at 123.
56. E. Povinelli, The Cunning of Recognition (2002), at 12.
57. The examples it offers are not the ones likely to be at issue, however, making it unclear what it envisages as the scope of the exception: '[o]f course, cultural self-determination must be exercised in accordance with human rights standards as recognized by international law, especially those which - having attained the status of jus cogens (e.g., prohibition of torture or similar practices, enslavement, etc.) - are absolutely predominant even over the interests of the community at large'. Thus, like the UNDRIP itself, the report skirts the issue.
58. Anaya and Wiessner, 'The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment', Jurist (2007), available at: http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php (last accessed 1 Feb. 2011).