Implementation of the Right of Self-Determination of Indigenous Peoples
International Conference on Indigenous Peoples` Self-Determination
and the Nations State in Asia
Baguio, Philippines, 18-21 April 1999
Implementation of the Right of Self-Determination of Indigenous Peoples within the Framework of Human Security
John B. Henriksen[1]
I believe this conference will make an important contribution to the Asian discourse on the concept of the right of self-determination, including questions related to its implementation and potential role as a conflict preventive device. Allow me to thank the organizers for making this possible.
I have been asked to talk about “the implementation of the right of self-determination within the framework of human security” - within an indigenous peoples context.
I will begin by sharing with you my working definition of the concept of “indigenous peoples human security,” which encompasses many elements, inter alia physical, spiritual, health, religious, cultural, economic, environmental, social and political aspects. In my opinion, the desirable human security situation exists when the people concerned and its individual members have adequate legal and political guarantees for the implementation of their fundamental rights and freedoms, including the right of self-determination. Furthermore, one must also take into account the relative aspects of human security, in particular the subjective feeling of security.
My paper focuses on the right of self-determination in relation to political and cultural security within the larger framework of human security. I am asking whether the implementation of right of self-determination for indigenous peoples has a role to play in the improvement of the human security situation of indigenous peoples. It is assumed here that a reliable human security situation is an important contributing factor in efforts made to prevent conflicts from occurring and in resolving existing conflicts.
The paper is structured in seven parts:
1. The right of self-determination: an evolving concept;
2. The scope and beneficiaries of the right of self-determination;
3. The discourse on the right of self-determination in the context of the draft United Nations Declaration on the Rights of Indigenous Peoples;
4. The implementation of the right of self-determination: its contribution to the enhancement of the human security situation of indigenous peoples;
5. The relationship of autonomy and self-government to the concept of self- determination;
6. Case studies; and
7. Conclusions.
1. The right of self-determination: an evolving concept
Since 1919, with the creation of the United Nations predecessor, the League of Nations, international relations have been founded on the principle of national self-determination with “peoples” as members of the international community and not dynastic States in the hands of particular individual rulers or families. However, at the time of the League of Nations one was elaborating on a “principle” of self-determination and not a “right” of self-determination.
After the creation of the United Nations in 1945, the “principle” of peoples self-determination has evolved into a “right” under international law. Professor Hurst Hannum is of the view that “although it is debatable whether the right to self-determination is jus cogens,[2] self-determination has undoubtedly attained the status of a ‘right’ in international law.” Moreover, that “while it seems clear that self-determination has attained the status of a right, the scope of that right most be explored.”[3]
Although, the right of self-determination has been a cardinal principle of the United Nations dating from the beginning of the organization, up to now the United Nations has been reluctant to recognize any further extension of this right beyond the traditional decolonization context. The question whether the right of self-determination has been recognized under international law outside the context of traditional decolonization is still a very controversial matter.
However, the United Nations process on the rights of indigenous peoples indicates that the understanding of the scope of the right of self-determination may be evolving further, in particular as a result of the discourse taking place within the context of the draft declaration on the rights of indigenous peoples and the many national self-government arrangements.
The international process is influenced by national political processes, which often tend to be more pragmatic and flexible than the international process. The national experiences of indigenous self-determination, or self-government as some would phrase it, directly influence the international debate and thereby move the debate forward.
It is necessary for the international community to continue to take into account the national processes in their search for an effective and non-discriminatory implementation of the right of self-determination, in order to ensure that the concept of self-determination is in compliance with the views and aspirations of as many as possible of the world`s peoples, and not only those living under “traditional colonization.”
2. The scope and beneficiaries of the right of self-determination
The right of self-determination of peoples is a fundamental principle in international law. It is embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Common Article 1, paragraph 1 of these Covenants provide that:
“All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples` Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples.[4] It has been endorsed by the International Court of Justice.[5] Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee[6] and Committee on the Elimination of Racial Discrimination[7] as well as international jurists and human rights experts.[8] Moreover, the United Nations system has undertaken a number of special studies on the right of self-determination, such as studies prepared by Hector Gros Espiell and Aureliu Cristescu.[9]
The principle of “all peoples right of self-determination” offer two difficult challenges: (1) the identification of the group of “people” and (2) the identification of what “the people” can “determine by itself.”
The term “people”
The term “peoples” is not defined in international law. The lack of consensus is due not to intellectual failure to define the term but reflects the fact that the meaning of the term is closely linked to sensitive political and legal factors, in particular the fundamental question pertaining to the right of self-determination.
However, peoples are often described as a group of individual human beings who enjoy some or all of the following common features: (1) a common historical tradition; (2) ethnic identity; (3) cultural homogeneity; (4) linguistic unity; (5) religious or ideological affinity; (5) territorial connection; and (6) common economic life. Moreover, it should also be said that there must be will or consciousness to be a people, and institutions to express the identity of the people.
The concept of “indigenous peoples”
There is no international agreement on the definition of indigenous peoples. In the draft United Nations declaration on the rights of indigenous peoples, the term “indigenous peoples” is used, although some governments oppose the usage of the term “peoples” in the indigenous context.[10] Most countries currently seeking to address indigenous issues tend to view definition within the context of its national constitutional and historical framework rather than as an issue of universal character. The international discourse related to the concept of “indigenous peoples” has been addressing the two main questions: (1) who should be identified as “indigenous”, and (2) the terminology of the terms “people”, “peoples” and “populations.”
Although, there is no general agreement on the definition, or the need for a definition of indigenous peoples at the international level, there have been several attempts to define or describe indigenous peoples.
The Special Rapporteur of the Sub-Commission, José Martinez Cobo, formulated a "working definition" in his Study of the Problem of Discrimination against Indigenous Populations, which states that:
“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 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.”[11]
Moreover, the Special Rapporteur outlined a list of factors which may be relevant for defining indigenous peoples and identifying their historical continuity. He expresses the view that such a historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: (1) Occupation of ancestral lands, or at least of part of them; (2) Common ancestry with the original occupants of these lands; (3) Culture in general, or in specific manifestations, (4) Language; (5) Residence in certain parts of the country, or in certain regions of the world; (6) Other relevant factors.[12]
The Special Rapporteur also includes self-identification as indigenous as an fundamental element in his working definition: On an individual basis, an indigenous person is one who belongs to these indigenous peoples through self-identifiction as indigenous (group consciousness) and is recognized and accepted by the group as one of its members (acceptance by the group). This preserves for these communities the sovereign right and power to decide who belongs to them, without external interference.
The International Labour Organization (ILO) has on two occasions described the concept of “indigenous” and “tribal” peoples. The first occasion was the Convention concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (No. 107), which was adopted in 1957. In 1989 this Convention was revised and replaced by the Convention on Indigenous and Tribal Peoples in Independent Countries, (No. 169). The latter Convention retains the distinction between "indigenous" and "tribal" peoples. However, ILO Convention No. 169 accords the same rights to "indigenous" and "tribal" peoples. Accordingly, it is stated in article 1 that ILO Convention No. 169 applies to:
“(a) tribal peoples in independent countries 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;
(b) peoples in independent countries who 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 colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”
However, Article 1(3) specifies that "the use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law". The objective of this provision is to avoid all the difficult questions related to the concept of “peoples,” in particular the right of self-determination.
In its Operational Directive 4.20, the World Bank expresses the view that no single definition can capture the diversity of indigenous peoples. However, the World Bank has identified certain characteristics which often apply to indigenous peoples:
“(1) a close attachment to ancestral territories and to the natural resources in these areas; (2) self-identification and identification by others as members of a distinct cultural group; (3) and indigenous language, often different from the national language; (4)presence of customary social and political institutions; and (5) primarily subsistence-oriented production.”[13]
During the sessions of the United Nations Working Group on Indigenous Populations,[14] indigenous representatives have expressed the view that a definition of the concept of "indigenous people" is not necessary. There is concern that a definition may exclude peoples who consider themselves as indigenous. Indigenous peoples have also questioned the need for a definition, considering that "peoples" in general is not defined in international law.
Indigenous representatives have stressed the importance of self-identification as an essential component of any definition which might be elaborated by the United Nations system. For example, the Aboriginal and Torres Strait Islander Social Justice Commissioner, Mr. Mick Dodson, stated at the thirteenth session of the Working Group in 1995, that: "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[15]...".
The ILO Convention No 169 recognises the significance of self-identification in article 1(2). Similarly, article 8 of the draft declaration on the rights of indigenous peoples provides that:
“Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognised as such.”
Besides self-identification, a number of other elements have been noted by indigenous representatives as being fundamental in the identification of indigenous peoples. For example, Mr. Lars-Anders Baer, the representative of the Saami Council, stated at the thirteenth session of the Working Group, that "factors such as historical continuity, self-identification and group membership are cardinal criteria in this regard."[16]
In her latest publication, Ms. Sharon Helen Venne - an indigenous lawyer from Canada, ask why are “peoples” recognized as having rights, but by placing “indigenous” before “peoples” any recognized rights are negated? She expresses the view that “it is the same argument by which indigenous nations were recognized as having an international capacity to enter into treaties to allow for settlement of their lands. Once settlement was achieved, the international capacity was discounted.”[17]
Although many indigenous representatives have referred to the working definition developed by the Special Rapporteur, Mr. Martinez Cobo, they maintain that a definition is not required.
Professor Erica-Irene A. Daes, the Chairperson-Rapporteur of the United Nations Working Group on Indigenous Populations expressed that she is not “persuaded that there is any distinction between “indigenous” peoples, and “peoples” generally, other than the fact that the group typically identified as “indigenous” have been unable to exercise the right of self-determination..”[18]