Shaping indigenous self-determination: Promising or unsatisfactory solutions

International Community Law Review

Volumn 13, Issue 4, 2011, Pages 413-436

  Barelli, Mauro ^a  

^a CITY UNIVERSITY   (United Kingdom)

Author keywords

indigenous peoples; participatory rights; self determination; United Nations Declaration on the Rights of Indigenous Peoples

Indexed keywords

EID: 80155143446     PISSN: 18719740     EISSN: 18719732     Source Type: Journal    
DOI: 10.1163/187197311X599450     Document Type: Article

References (97)

1. James Crawford, "The Right of Self-Determination in International Law: Its Development and Future", in Philip Alston (Ed.), Peoples' Rights (2000) p. 7.
2. For general discussions of self-determination, see Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (1995).
3. James Summers, Peoples and International Law: How the Right of Self- Determination and Nationalism Shape a Contemporary Law of Nations (2007).
4. On this point, see, among others, Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004) pp. 332-400;
5. Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (2000) pp. 98-125;
6. Hurst Hannum, Autonomy, Sovereignty, and Self- Determination: The Accommodation of Conflicting Rights (1990);
7. Yash Ghai (Ed.) Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States (2000);
8. Wolfgang Danspeckgruber, "Self-Determination, Self-Governance, and Security", 15 International Relations (2000) pp. 11-21.
9. The term 'sub-national groups' is used to refer to national/ethnic, religious and linguistic groups who live within the borders of a State and claim to be a 'people' for the purposes of self-determination. Crucially, the question of who is a 'people' has never found a definitive answer under international law.
10. See, for example, Reference re Secession of Quebec, Supreme Court of Canada, [1998] 1 SCR 217, para. 123.
11. For a discussion of the meaning of the term 'people', see the UNESCO report produced, in 1989, by an international meeting of experts. SHS-89/CONF.602/7.
12. Accordance with International Law of the Unilateral Declaration of Independence in respect of Kosovo (Kosovo Opinion), International Court of Justice, Advisory Opinion of 22 July 2010, para. 79.
13. See, in particular, Declaration on the Granting of Independence to Colonial Countries and Peoples, GA Resolution 1514 (XV), 14 December 1960. It should be noted, however, that independence was only one of the available options for the peoples concerned.
14. See, Principles which Should Guide Members in Determining Whether or Not an Obligation Exists to Transmit the Information Called for under Article 73(e) of the Charter, Annex, Principle VI, GA Resolution 1541 (XV), 15 December 1960.
15. For example, Robert McCorquodale, "Self-Determination: A Human Rights Approach", 43 International and Comparative Law Quarterly (1994) pp. 857-885;
16. Rosalyn Higgins, Problems and Process: International Law and How We Use It (1995) pp. 121-128;
17. Thomas Musgrave, Self-Determination and National Minorities (2000) pp. 188-199 and 258;
18. Gaetano Pentassuglia, "State Sovereignty, Minorities and Self-Determination: A Comprehensive Legal View", 9 International Journal on Minority and Group Rights (2002) pp. 303-324. (Pubitemid 37181936)
19. See, for example, General Comment No. 12: The right to Self-determination of Peoples (13 March 1984), Human Rights Committee, available at: http://www2.ohchr.org/english/bodies/hrc/comments .htm;
20. Katangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights, Comm. No. 75/92 (1995);
21. General Recommendation No. 21: Right of Self-Determination (23 August 1996), Committee on the Elimination of All Forms of Racial Discrimination, available at http://www2.ohchr.org/english/bodies/cerd/comments.htm;
22. Reference re Secession of Quebec, Supreme Court of Canada, [1998] 1 SCR 217.
23. Thomas Franck, "The Emerging Right to Democratic Governance", 86 American Journal of International Law (1992) p. 54.
24. See, Christopher Borgen, "The Language and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia", 10 Chicago Journal of International Law (2009) pp. 1-33;
25. Richard Falk, "The Kosovo Advisory Opinion: Conflict Resolution and Precedent", 105 American Journal of International Law (2011) pp. 50-59.
26. Quane, for one, has recently commented that 'the Declaration may represent one of the most significant stages in the development of the right to self-determination since decolonisation.' Helen Quane, "New Directions for Self-Determination and Participatory Rights?", in S. Allen and A. Xanthaki (Eds.) Reflections on the UN Declaration on the Rights of Indigenous Peoples (2011) p. 260.
27. The WGIP was a subsidiary body of the (then) Sub-Commission on Prevention of Discrimination and Protection of Minorities. It was established pursuant to UN Economic and Social Council Resolution 1982/34 of 7 May 1982.
28. Erica-Irene Daes, "The Contribution of the Working Group on Indigenous Populations to the Genesis and Evolution of the UN Declaration on the Rights of Indigenous Peoples", in C. Charters and R. Stavenhagen (Eds.), Making the Declaration Work: The UN Declaration on the Rights of Indigenous Peoples (2009) p. 74.
29. John Henriksen, "Implementation of the Right of Self-Determination of Indigenous Peoples within the Framework of Human Security", at http://www.iwgia.org/human-rights/self-determination (visited 3 August 2011).
30. See, for example, Report of the WGIP on its first session, UN Doc. E/CN.4/Sub.2/1982/33 (25 August 1982), para. 72.
31. Karen Engle, "On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights", 22 European Journal of International Law (2010) pp. 151-152.
32. See, for example, Geert Van Cleemput, "Clarifying Nationalism, Chauvinism, and Ethnic Imperialism", 12 International Journal on World Peace, (1995) pp. 59-97.
33. In this regard, it is also interesting to compare the progressive content of the UNDRIP with that of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by GA Resolution 47/135 of 18 December 1992.
34. Among the critical issues on which the negotiators most strongly disagreed one should mention the question of definition, the right to collectively own ancestral lands, and the right to control the resources pertaining to these lands. For a detailed analysis of the history of the Declaration, see Stefania Errico, "The Draft UN Declaration on the Rights of Indigenous Peoples: An Overview" and "The UN Declaration on the Rights of Indigenous Peoples is Adopted: An Overview" 7 Human Rights Law Review (2007) pp. 741-759.
35. See, for example, Report of the WGDD in its First Session, UN Doc. E/CN.4/1996/84, paras. 43 and 44.
36. See, for example, Report of the WGDD in its First Session, UN Doc. E/CN.4/1996/84, paras. 45-48; and Report of the WGDD in its Fifth Session, UN Doc. E/CN.4/2000/84, para. 83.
37. Article 4 of the UNDRIP reads: 'indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.'
38. See for example the statements of Mexico, Bangladesh, Norway, Spain, and Russia. Report of the WGDD in its Sixth Session, UN Doc. E/CN.4/2001/85, paras. 64, 69, 82, 83, and 90.
39. Report of the WGDD in its Eleventh Session, UN Doc. E/CN.4/2006/79, Annex I, Revised Chairman's Summary and Proposal, Article 3.
40. It should also be noted that, whereas the original version of the article used the expression 'as a specific form of exercising their right to self-determination', the final wording of Article 4 preferred the expression 'in exercising their right to self-determination', thus promoting a more restricted reading of the right.
41. Human Rights Council Resolution 2006/2 of 29 June 2006.
42. In favour: Netherlands, Pakistan, Peru, Poland, Republic of Korea, Romania, Saudi Arabia, South Africa, Sri Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, Uruguay, Zambia, Azerbaijan, Brazil, Cameroon, China, Cuba, Czech Republic, Ecuador, Finland, France, Germany, Guatemala, India, Indonesia, Japan, Malaysia, Mauritius, Mexico; Against: Canada, Russian Federation; Abstentions: Algeria, Argentina, Bahrain, Bangladesh, Ghana, Jordan, Morocco, Nigeria, Philippines, Senegal, Tunisia, Ukraine. Other States that were against this text were not represented at the Human Rights Council.
43. For this reason, it could be anticipated that some States would ask for the incorporation of additional amendments.
44. Namibia, on behalf of the African Group of States, introduced a resolution to 'defer consideration and action on the United Nations Declaration on the Rights of Indigenous Peoples to allow for further consultations thereon.' Namibia: Amendments to Draft Resolution A/C.3/61/L.18/Rev.1, 21 November 2006, A/C.3/61/L.57/Rev.1, adopted by a vote of 82 in favour, 67 against with 25 abstentions.
45. See, for example, Jennifer Preston, Report to FWCC 22nd Triennial, Quaker Work on the United Nations Declaration on the Rights of Indigenous Peoples, July 2007, available at http://cfsc.quaker.ca/ pages/documents/ReporttoFWCC.pdf (visited 21 April 2011).
46. Emphasis mine.
47. Timo Koivurova, "Sovereign States and Self-Determining Peoples: Caring Out a Place for Transnational Indigenous Peoples in a World of Sovereign States", 12 International Community Law Review (2010) p. 203.
48. Patrick Thornberry, Indigenous Peoples and Human Rights (2002) p. 385.
49. Gerry Simpson, "The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age", 32 Stanford Journal of International Law (1996) pp. 255-286.
50. For a discussion of forms of external self-determination other than independence (and, therefore, less controversial) see Alexandra Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (2007), pp. 169-173.
51. See the discussions in, Peter Hilpold, "The Kosovo Case and International Law: Looking for Applicable Theories", 8 Chinese Journal of International Law (2009) pp. 55-56;
52. See also the Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, p. 141, online at: http://www.ceiig.ch/Report.html. (visited 3 August 2011).
53. Katangese Peoples' Congress v. Zaire, African Commission on Human and Peoples' Rights, Comm. No. 75/92 (1995), and Reference re Secession of Quebec, Supreme Court of Canada, [1998] 1 SCR 217.
54. See also the Separate Opinions of Judges Yusuf, para. 11;
55. Emphasis mine. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of United Nations, GA Resolution 2625 (XXV).
56. On this point see, among others, Tamara Jaber, "A Case for Kosovo? Self-determination and secession in the 21st Century", 15 The International Journal of Human Rights (2011) pp. 936-937;
57. James Summers, "The Right of Self-Determination and Nationalism in International Law", 12 International Journal on Minority and Group Rights (2005) pp. 335-336.
58. One could also argue that if, as noted above, the safeguard clause included in the 1970 Declaration on Friendly Relations cannot be taken to indicate the existence of a right to remedial secession for subnational groups, in the same way the lack of a reference thereto cannot be taken to indicate the exclusion of such right. However, since this safeguard clause is widely regarded as the legal basis for the right to remedial secession, it is appropriate to discuss it in the context of a potential right to remedial secession for indigenous peoples.
59. 'Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to selfdetermination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.' A/CONF.157/24(Part I) Chapter III.
60. Emphasis mine. Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993, para. 2(3).
61. Vienna Convention on the Law of Treaties (23 May 1969), United Nations, Treaty Series, vol. 1155, p. 331, Article 31. This is a rule of the so-called law of treaties. Arguably, it can also be applied to other instruments, especially when they display a number of features typical of treaties.
62. In the absence of clear legal guidelines, States' responses to remedial secession claims will be essentially informed by political considerations. These responses, however, will normally take into account what the language of international law has to say with regard to this specific issue. In this sense, the fact that the Declaration does not unambiguously exclude the existence of a right to remedial secession for indigenous peoples becomes a relevant element.
63. On the importance of courts and quasi-courts in the process of articulation of indigenous land rights, see Gaetano Pentassuglia, "Towards a Jurisprudential Articulation of Indigenous Land Rights", 22 European Journal of International Law (2011) pp. 165-202.
64. Reference re Secession of Quebec, Supreme Court of Canada, [1998] 1 SCR 217, para. 126. The right of internal self-determination has also been described as 'the right of a people to choose its own government and determine its own political, social and economic policies.
65. Jon Van Dyke, "Self-Determination", International Law Association's Draft Interim Report on the UN Declaration on the Rights of Indigenous Peoples, p. 11. At http://www.ila-hq.org/en/committees/ index.cfm/cid/1024 (visited 3 August 2011).
66. Jan Klabbers, "The Right to be Taken Seriously: Self-Determination in International Law", 28 Human Rights Quarterly (2006) p. 203.
67. Established, in 2007, pursuant to Human Rights Council, Resolution 6/36.
68. Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, Report of the Expert Mechanism on the Rights of Indigenous Peoples, A/HRC/EMRIP/2010/2, 17 May 2010, para. 5.
69. Situation of Indigenous Peoples in the Russian Federation, UN Doc. A/HRC/15/37/Add.5 (23 June 2010), para. 46.
70. Situation of Indigenous Peoples in Australia, UN Doc. A/HRC/15/37/Add.4 (1 June 2010) para. 91.
71. Report of the Situation of Indigenous Peoples in Nepal, UN Doc. A/HRC/12/34/Add.3 (20 July 2009), para. 65.
72. Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, supra note 63, para. 8.
73. For a more detail discussion, see Zelim Skurbaty (Ed.), Beyond a One-Dimensional State: An Emerging Right to Autonomy? (2005).
74. According to Heintze, autonomy should be defined as 'an indefinite and general legal term that has to be given a concrete content in every special case.' Hans-Joachim Heintze, "On the Legal Understanding of Autonomy", in M. Suksi (Ed.), Autonomy: Applications and Implications (1998) p. 13.
75. Yash Ghai, Public Participation, Autonomy and Minorities (2011) p. 38.
76. ILO Convention No 169 of 1989 Concerning Indigenous and Tribal Peoples in Independent Countries, text available at .
77. Report of the Committee set up to examine the representation alleging non-observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Confederacion Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), para. 31.
78. General Comment No. 23: The Rights of Minorities (Art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5 (4 August 1994) para. 7.
79. General Recommendation No. 23: Indigenous Peoples, UN Doc. A/52/18, Annex V (18 August 1997) para. 4(d).
80. A more general criticism to strategies that invoke existing human rights norms and seek the recognition of self-determination solely in political and legal terms has been advanced by Jeff Corntassel, who has argued that only a holistic approach to self-determination, framed in the context of sustainability, can guarantee the survival of future generations of indigenous peoples.
81. Jeff Corntassel, "Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous-Rights Discourse", 33 Alternatives (2008) pp. 105-132.
82. On this point, see also Joshua Castellino and Jeremie Gilbert, "Self-Determination, Indigenous Peoples and Minorities", 3 Macquarie Law Journal (2003) pp. 173-174.
83. 'Indigenous Peoples and their Relationship to Land', Final Working Paper prepared by the Special Rapporteur, Mrs. Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2001/21 (11 June 2001), para. 12.
84. '(1) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. (2) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. (3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.'
85. See, for example, the statements of several indigenous organizations at the First Session of the WGDD, UN Doc. E/CN.4/1996/84, para. 84, and the Report of the WGDD in its Eight Session, UN Doc. E/ CN.4/2003/92, para. 35.
86. For a 'common practical understanding' of FPIC, see Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples (New York, 17-19 January 2005), UN Doc. E/C.19/2005/3, para. 45.
87. Emphasis mine.
88. Original Article 30.
89. That FPIC should be not read as conferring on indigenous peoples an unqualified right to veto is further confirmed by the statements made by several States on occasion of the adoption of the UNDRIP.
90. For example, Canada noted that 'the establishment of complete veto power over legislative action for a particular group would be fundamentally incompatible with Canada's parliamentary system.' New Zealand noted that indigenous peoples could not enjoy a right that other groups or individuals did not have, that is, the right to veto, because this would create different classes of citizenship. Australia highlighted that it 'could not accept a right that allowed a particular sub-group of the population to be able to veto legitimate decisions of a democratic and representative Government.' Available at: http://www .un.org/News/Press/docs/2007/ga10612.doc.htm. [visited 3 August 2011].
91. In particular, Ilmari Länsman et al. v. Finland, Communication No. 511/1992, CCPR/C/52/D/511/1992 (HRC 1994);
92. Poma Poma v. Peru, Comm. 1457/2006, UN Doc. CCPR/C/95/D/1457/2006 (HRC 2009);
93. Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007).
94. Gaetano Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (2009) p. 113.
95. Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, UN Doc. A/HRC/12/34 (15 July 2009), para. 47.
96. Saramaka People v. Suriname, Inter-American Court of Human Rights, Series C 172 (2007) para. 134.
97. Poma Poma v. Peru, Communication1457/2006, UN Doc. CCPR/C/95/D/1457/2006 (HRC 2009) para. 7.4.