Indigenous Peoples, Self-Determination and International Law RODERIC PITTY The article examines the re-emergence of indigenous rights in contemporary international law in the context of worldwide agitation by indigenous peoples for the adoption by the United Nations of a Declaration on the Rights of Indigenous Peoples. Two approaches to the protection of indigenous rights are considered: a minimal one that relies on existing human rights conventions, and an inspirational one that seeks a Declaration negotiated in partnership with states willing to recognise indigenous autonomy. Actention is given to judicial recognition of the right to self- determination as a right of free choice, and to the distinction between minority rights and indigenous autonomy. The importance of defining indigenous self-determination in a positive way is emphasised, and prospects for a new UN permanent indigenous forum overcoming the stalemate about indigenous rights are reviewed in terms of the need for greater dialogue. INDIGENOUS PEOPLES AND THE UNITED NATIONS An unresolved tension at the start of the United Nations (UN) Charter has profound implications for disputes concerning the making of international law at the turn of the twenty-first century, during what the UN has called the ‘International Decade of the World’s Indigenous People’, which is lasting from 1995-2004.' The opening declaration of the Charter affirms several objectives that ‘We the Peoples of the United Nations’ are Roderic Pitty, Deakin University, Melbourne ‘The International Journal of Human Rights, Vol.5, No.4 (Winter 2001) pp.44-71 PUBLISHED BY FRANK CASS, LONDONINDIGENOUS PEOPLES AND SELF-DETERMINATION 45 determined to attain. These include respect for ‘fundamental human rights’ based on equality, and the establishment of ‘conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’. Tolerance is highlighted as essential to attaining these objectives, which are accorded a high priority, along with the aim of avoiding ‘the scourge of war’. Article 1 of the Charter says that developing ‘friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ is a key purpose of the UN. Article 2 then emphasises the ‘sovereign equality’ of all member states of the UN, which is not authorised ‘to intervene in matters which are essentially within the domestic jurisdiction of any state’.* Tension exists between the determination to attain fundamental human rights for all peoples, including the right to self- determination, and the acceptance of any conduct by states that is categorised as domestic, however intolerant it may be. This tension reflects a longstanding debate in European conceptions of international law between the natural law of rights and the positivist law of government consent. Although the latter approach, which Falk has called ‘the statist conception of human rights’, has been challenged by the recent growth of international human rights law, it remains resistant to change. Governments with ‘shared interests in keeping certain skeletons in the closet’ have insisted that only states should determine the content and character of human rights, and ‘those who are targets of governmental abuse have little international recourse to relief’! While this marginal international position applies most tragically to indigenous peoples, since the 1980s the situation has apparently changed. After disputing the entrenched belief in the decades after World War II that there was no alternative to assimilation within other societies, indigenous peoples gained a little recognition within the UN for the first time in the early 1980s. The first institutional opening was the setting up in 1982 of an expert UN working group which from 1985 until 1994 formulated a draft UN Declaration on the Rights of Indigenous Peoples.* Yet since the draft Declaration was agreed by this working group in 1994 as a result of extensive consultation with indigenous peoples, relatively little progress has been achieved. This situation reflects what Coates has described as a basic ‘division of expectations and approaches’: while indigenous peoples seek agreements with states as ‘small steps towards the larger goal of cultural survival’, most states seek agreements only to ‘resolve permanently the demands brought forward by indigenous organisations’.‘ Thus resurgent indigenous peoples clamour for space within the UN system, only to face resistance from states unwilling to acknowledge indigenous autonomy.46 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS This debate is expressed in the continuing political controversy about whether indigenous peoples should be recognised as self-determining subjects of international law, not considered as objects who have to accept state practice. This issue raises crucial questions concerning the politics of international law, particularly regarding the universality of human rights and the principle (clearly expressed in the UN Charter) that ‘fundamental freedoms’ must be enjoyed by all people, without discrimination based on race, sex, language, or religion.’ It also highlights the importance of clarifying relations between member states of the UN and non-state actors seeking recognition through international law. This article aims to assess the extent to which indigenous rights are being recognised within international law, and to consider whether there is any realistic prospect of the division of expectations outlined above being substantively resolved. SEMANTIC CONTROVERSIES AND SUBSTANTIVE ISSUES. The disputed status of indigenous peoples in international law has been expressed in two different semantic controversies, which have complicated the process of developing a Declaration of Indigenous Peoples’ Rights. First, most states have been reluctant to refer to ‘indigenous peoples’ as such, using instead the term ‘indigenous populations’ or just ‘indigenous people’. This is done to prevent acceptance of the legal proposition that indigenous peoples have an unqualified right to self-determination. Through a nominal refusal to recognise the status of the original owners of the land as distinct peoples, most states assert that these owners retain only whatever subordinate status is stipulated in domestic law. This refusal amounts to an assertion that indigenous peoples lack a status in international law equal to non-indigenous peoples, Article 1 of the International Covenant on Civil and Political Rights (ratified by over 130 states) says simply: ‘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.” Although the basic principle of self-determination is declared to be universal, its application has been restricted by equating the term peoples in the UN Charter only with current nation-states. Second, certain states have also promoted a geographically restrictive definition of indigenous peoples, claiming that they only exist elsewhere, as the historical responsibility of other (largely European-settler) states. This response has been most common in Asia, although the claim that there are no indigenous peoples in Asia has been strongly contested by a variety of original owners in many Asian states.’ During discussions atINDIGENOUS PEOPLES AND SELF-DETERMINATION 47 the UN about the draft Declaration on Indigenous Peoples’ Rights, this attempt to limit the recognition of indigenous peoples throughout the world has been expressed through the demand from some states to incorporate a precise definition of indigenous characteristics into the Declaration. While this demand has been asserted by various Asian states, China has been the principal exponent of this view, claiming that it ‘would not accept any attempt to use excuses to obscure the “concept” of indigenous people or to blur the distinction between indigenous populations and other minorities’.’ Significantly, while implying that only minorities not indigenous peoples live in China, Chinese officials have also adopted the semantic practice of other states by refusing to acknowledge indigenous peoples elsewhere as distinct entities. Although these semantic controversies are intense, they are superficial rather than fundamental. Kingsbury has pointed out that ‘as a matter of international law this fixation with terminology is misconceived’, since ‘tight holders and the actual application of rights are both determined by substantive legal analysis’, not just by terminology.” The essential debate about the status of indigenous peoples in contemporary international law focuses not mainly on definitions, but on different political approaches to the preservation of indigenous rights. The key contested issue concerning the recognition of indigenous rights in international law is whether this requires a specific Declaration, including the right to self-determination, or whether existing general human rights treaties provide sufficient means to ensure the cultural survival of indigenous peoples. Essentially this debate concerns the constitutional status of indigenous peoples, as distinct from migrant minorities who do not assert a basic political claim of self- determination." One approach, which can be termed minimal, sees such a claim as unlikely to ensure indigenous cultural preservation. The latter is viewed as depending ‘upon gaining state guarantees of the maintenance of cultural integrity’; in this approach, collective rights to cultural survival are best pursued ‘through existing human rights declarations and treaties’, not by seeking a new declaration of indigenous rights.” An alternative approach, which can be termed inspirational, regards the process of making an international declaration of indigenous rights as potentially capable of transforming the relationship between indigenous peoples and states; in this view, applying ‘the human right to self-determination’ of indigenous peoples existing in dialogue with other peoples ‘represents not a threat, but rather an opportunity’ for the UN to expand equality in international law." These contrasting perspectives do not correspond simply to the respective positions of all states and indigenous representatives who have48 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS participated in negotiations about a draft Declaration, since some states have become more sympathetic than others to the inspirational approach to self-determination."* However, the refusal hitherto of most states to adopt this approach is a reflection of the fact that the status of indigenous peoples is yet to be positively determined, and shows that a determination of the standing of indigenous peoples in international law requires further substantive dialogue. Debate about the political standing of indigenous peoples at the UN has developed substantially since the late 1970s, in the wider context of growing international concern with how states implement their human rights obligations. This concern has increasingly extended beyond inter- governmental relations. In 1977 van Boven considered that current ‘international human rights law is not pre-eminently a domain reserved for Governments and States but rather the collective responsibility of all organs of society, particularly individuals, groups and non-governmental organisations’, who ‘may not remain indifferent in such matters of public and international concern as violations of human rights by the State’."’ Although states remain the dominant actors, with obligations limited largely to defending their citizens, the role of transnational civil organisations in sharing information and exposing government abuses has greatly expanded."* The discussion since the early 1980s of a draft Declaration of Indigenous Peoples’ Rights has involved representatives of states negotiating directly with indigenous representatives, who have insisted that violations of their rights cannot be dismissed as merely a domestic matter. Despite semantic disputes, this discussion has developed in practice because of the value attached to ‘both autonomy and participation’ in a ‘human rights conception [which] rests on a distinctive linkage of equality and autonomy, summarised in the notion of (individual and collective) self-determination’.” While finalisation of the draft Declaration has been much slower than was expected in the early 1990s, the process of regular dialogue in the UN has seen indigenous peoples re-emerge as subjects of international law, insisting that they must be responsible together with states for making new law. Before assessing the prospects for resolving the key political issue of indigenous autonomy, it is useful to review the ways in which indigenous rights have re-emerged into international law in recent times. THE RE-EMERGENCE OF INDIGENOUS RIGHTS. One Canadian review of the long struggle for international recognition of indigenous peoples’ rights refers to these first nations as ‘the forgottenINDIGENOUS PEOPLES AND SELF-DETERMINATION 49 people of international law’."* This is an apt description because of the long history of changing views of indigenous peoples within international law, characterised by a period of great interest and controversy during Spain’s initial conquest of Central America, followed by a prolonged degeneration in the nature of debate during the subsequent age of European imperialist expansion throughout the rest of the world, and then by the slow reconstitution of inter-cultural dialogue after the era of decolonisation in the third quarter of the 20th century. This legal history contains complex episodes, but it can be summarised as a story of the recognition, denial and re-emergence of indigenous peoples within international law. Broadly, the phase of imperialist denial of indigenous rights corresponds with the growing dominance of the positivist view ‘that international law is law between and not above states, finding its theoretical basis in their consent’. This view overshadowed earlier natural law conceptions, which regarded European and non-European peoples as equally subject to the law of nations, albeit as elaborated by European scholars debating amongst themselves. This change was accompanied by a shift from individual natural law rights inherent in different peoples to state- sanctioned rights acquired by political organisations conforming to a limited European idea of civilisation.” Consequently, for many generations ‘indigenous peoples were denied statehood and the rights to make international law or benefit from its protection, either as groups or individuals, ... and the treatment of indigenous peoples became a private domestic matter for the state in which they lived, immune from external scrutiny or comment’.” Since there are many legacies of the abuse of international law to dispossess indigenous peoples, including the privileged status of the territorial integrity of existing states established through conquest, it is important to note that some recognition of indigenous rights in international law existed in an earlier epoch. The recent re-emergence of indigenous peoples within international law can be understood as a return, in a global context, to the concerns expressed ‘at the very birth of international law’ by writers such as Las Casas and Vitoria who recognised the humanity of other peoples.” Renewal of international concern with indigenous rights has gained momentum since the late 1970s. Before then, states readily dismissed international complaints by indigenous peoples, even when indigenous leaders managed to attract the temporary support of other states, such as when the Iroquois Chief Deskaheh petitioned the League of Nations with the support of the Netherlands (and then Estonia, Ireland, Panama and Persia) in the early 1920s to protest against Canada and Britain’s refusal to acknowledge the self-governing status of his confederacy.”50 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS Recent moves to establish an indigenous forum at the UN should be seen against the background of a long history of efforts by indigenous peoples to gain international support. Until the 1970s the dominant international attitude toward indigenous peoples combined ignorance with cultural control. This was reflected in the aim of assimilation. Convention 107 of the International Labour Organisation (ILO), adopted in 1957 to foster the integration of indigenous people into nation-states, rejected the use of ‘force or coercion’ to promote this objective, but denied the possibility of a goal beyond integration, such as the preservation of indigenous autonomy.” In 1980 this Convention was rebuked by an international congress of South American indigenous peoples as having been ‘elaborated by oppressive governments’ in order ‘to legalise’ colonial domination, a view expressed by other indigenous peoples consistently in conferences since the mid-1970s.% The development of worldwide solidarity networks amongst indigenous peoples was one precondition for the move to recognise indigenous rights internationally. JUDICIAL RECOGNITION OF INDIGENOUS RIGHTS A crucial historical ‘breakthrough’ in the re-emergence of indigenous peoples within international law occurred in 1975, when the International Court of Justice advised that ‘the indigenous inhabitants of ‘Western Sahara were entitled to self-determination’, instead of forced incorporation within a state. This case has served as a fundamental reference point for many subsequent claims made by indigenous peoples, and therefore deserves a specific examination. The importance of this case has been highlighted by indigenous peoples and by leading international jurists, including a later judge of the International Court, Sir Robert Jennings. In 1983 he cited the Western Sahara case to affirm that international law can ‘take account of a relationship of peoples with land that is entirely and essentially different from that of western land law and, indeed, different from the standard international law treatment of possession and user in relation to the acquisition and exercise of territorial sovereignty’. He acknowledged that an indigenous relationship to land was ‘equally valid and almost certainly more ancient’ than European forms of ownership. He argued that international law must encompass the totality of international relations by comprehending different legal traditions, and stressed ‘the imperative need to develop international law to comprehend within itself the rich diversity of cultures [and] civilisations’.”” By stressing the multicultural integrity of modern international law, Jennings impliedINDIGENOUS PEOPLES AND SELF-DETERMINATION 51 that it was necessary to create new law, not apply old stereotypes. His comments suggest that the ethnocentric idea of a hierarchy of societies, which was propounded by international lawyers in the late 19th and early 20th centuries to limit the makers of international law to European or comparable states, was never a legitimate part of international law. The Western Sahara case was significant in two fundamental respects. First, it decisively refuted the old imperialist assumption that nomadic tribes were too primitive to occupy land in any legal sense. The Court’s opinion about the illegitimate nature of any claim by invading forces to first ownership of already occupied land was expressed unanimously, despite differences amongst some judges concerning the way the case proceeded.* The Court observed that, even in the late 19th century, acquisition of sovereignty over territory occupied by indigenous peoples ‘was not generally considered as effected unilaterally through’ assertions of colonial ownership, but rather only ‘through agreements concluded with local rulers’.” This rejection of the spurious application of the legal expression terra nullius (ownerless land) to the territory occupied by ‘the tribes of the desert’ who had, what Judge Gros called, ‘an autonomous world’, has far-reaching significance.” This was clearly, in the words of Judge Ammoun, ‘a condemnation’ of the state practice of denying the rights of indigenous peoples merely ‘to justify conquest and colonisation’."" This first aspect of the Western Sahara case was later endorsed in a number of countries, including Australia.” The international judicial breakthrough in the Western Sahara case was a crucial validation of the historical role of negotiations between expanding states and indigenous peoples, expressed through genuine treaties. Proponents of the minimal approach to recognising indigenous rights argue that such treaties have only a limited utility, claiming they were neither comprehensive nor conducive to maintaining indigenous autonomy.” Yet the Western Sahara case suggests that even broken treaties retain value as vital symbols of the only legitimate international political process through which competing claims to the same territory can be permanently resolved. Proponents of the inspirational approach to recognising indigenous rights have continued to focus on the importance of respecting negotiated agreements between indigenous peoples and states. In 1999 a report was provided to the UN working group on indigenous peoples concerning the value of treaties and agreements with governments. The main purpose of this study, conducted by Miguel Alfonso Martinez, was to analyse the potential use of such ‘instruments for ensuring the promotion and protection of the rights and freedoms of indigenous peoples’ and to highlight ‘the need to develop innovative,52 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS forward-looking approaches to relationships between indigenous peoples and Governments’. Although his report was criticised by many indigenous representatives for suggesting that the situation of indigenous peoples living in Africa and Asia was categorically different from elsewhere, a representative of an indigenous organisation in India supported the reaffirmation of the principle ‘that treaties between indigenous peoples and States were international agreements and that indigenous peoples were subjects of international law, meaning that any domestication of those agreements by States was a violation of the indigenous peoples’ right to self-determination’.** The importance of negotiations has continually been raised in UN committees considering indigenous issues. Thus the Australian government was criticised in 1999 by the UN Committee on the Elimination of Racial Discrimination for not obtaining indigenous consent before extinguishing indigenous land titles, and by other UN committees (such as the Committee on Economic, Social and Cultural Rights) for not respecting Aboriginal peoples’ enjoyment of a right to self-determination.* The second aspect of the Western Sahara case that has been fundamental was the reaffirmation by the International Court of Justice of ‘self-determination’ as a basic principle of international law. This had been outlined a few years before, in 1971, in the last of several cases concerning Namibia (or South West Africa). In that case a majority of the Court stated that the principle of self-determination definitely applied to all non-self-governing territories, whose peoples (in the words of Article 73 of the UN Charter) ‘have not yet attained a full measure of self- government’. The Court in the Western Sahara case observed that the tight of the indigenous population of Western Sahara to self- determination had been ‘expressly reaffirmed’ in the UN General Assembly resolution requesting the Court’s opinion, and constituted ‘a basic assumption’ of the case.” The discussion of this aspect of the case in the Western Sahara Advisory Opinion outlined ‘the basic principles governing the decolonisation policy of the General Assembly’. The Court pointed out that the right of ‘all peoples’ to self-determination (first declared in 1960 in resolution 1514 of the General Assembly on Independence for Colonial Countries and Peoples) undoubtedly applied to the Sahrawi people of Western Sahara.” The Court said ‘the right of self- determination leaves the General Assembly a measure of discretion with respect to the forms and procedures by which that right is to be realised’. When discussing the General Assembly's resolutions, the Court pointed out that the right of self-determination did not imply only one possible outcome (it noted the existence of ‘other possibilitiesINDIGENOUS PEOPLES AND SELF-DETERMINATION 33 besides independence, association or integration’ with a state), but it emphasised ‘the basic need to take account of the wishes of the people concerned’.*' The fact that these principles were clearly reiterated in a case involving an indigenous people is significant. While the broader question of which territories should be considered non-self-governing is a political matter that was that was not brought before the Court, the case still provided a clarification of the contemporary status of indigenous peoples in international law. One crucial feature of the Western Sahara case was the affirmation by members of the Court of the need to apply the principle of self- determination consistently, recognising the original rights of indigenous peoples. Judge Petren argued that the absence of ‘a sufficiently developed body of rules and practice to cover all the situations’ of decolonisation should not prevent the political development of ‘that law in specific cases like that of Western Sahara’.”* Judge Dillard emphatically expressed ‘the cardinal restraint which the legal right of self- determination imposes’ on the choices open to the General Assembly in any particular case, by pointing out that: ‘It is for the people to determine the destiny of the territory and not the territory the destiny of the people’. He also stressed that, in all relevant situations, it must be clear that the human right of ‘self-determination is satisfied by a free choice not by a particular consequence of that choice or a particular method of exercising it’. This was an unequivocal affirmation of the point that only by a genuine process of self-determination could the negative legal status of non-self-governing territories be resolved.“ The most important political implication of the Western Sahara case is that the right to self-determination is best understood as a right of due process, not necessarily as a right of secession or independence. It is precisely this point which has been raised in recent conferences of indigenous peoples devoted to clarifying their renewed involvement in international law. Thus, at a conference of indigenous voices held in the Netherlands in 1993, both Michael Dodson and Howard Berman stressed that self-determination ‘is in fact a right of process’, being basically ‘a right to have an act of free choice’, which does not imply a specific outcome.** At the same conference the Ogoni leader Ken Saro Wiwa (who was executed two years later by the Nigerian military regime) declared that his people ‘began to ask for self-determination about three years ago’, because ‘we want to decide how we are going to live, even if we are a part of Nigeria’."* This was clearly a call for the basic human right to have a free choice. Unfortunately, despite the international legal recognition of their right to self-determination, the situation of the Sahrawi people has for many54 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS years been no better than that of the indigenous people of Ogoniland struggling against Nigerian military repression. Within months of the International Court’s Advisory Opinion the Sahrawi were forced to defend themselves against a joint invasion by Morocco and Mauritania, states which expected the Court to give priority to their territorial concerns rather than to the rights of nomads. The UN has been criticised for the long delay in holding a referendum to determine the political wishes of the Sahrawi people. This was eventually promised in 1991 but has never been held. Powerful states such as the USA and France have not put pressure on Morocco to respect international law, but instead have proposed ‘some sort of limited autonomy’ in place of a free choice.”” Yet this failure has resulted from the UN’s political difficulties, not from the opinion of the Court. Indeed, a leading international lawyer, Antonio Cassese has stated that ‘it is precisely when the conflicting interests of the various international actors are at stake that the principle of self-determination and the consequent freedom of choice of the population concerned ... could offer a solution’. Whether such a solution is reached in fact depends not just on the renewal of indigenous rights in international law, but also on the creation of an adequate political dialogue. INDIGENOUS AUTONOMY AND MINORITY RIGHTS An enduring challenge facing indigenous peoples seeking an enhanced status in international law is how to assert their rights in ways that will be recognised by other much more powerful actors. One problem that indigenous peoples have continually faced is getting their specific status recognised, rather than being seen as just another minority group. An important issue that has been discussed within expert committees of the UN concerns the distinction between indigenous peoples and non- indigenous ethnic minorities. Papers on this issue were recently prepared by Erica-Irene Daes, former chair of the UN’s working group on indigenous peoples, and by Asbjorn Eide, chair of the working group on minorities. Before discussing these papers, it is useful to contrast two views of this issue expressed earlier by academic commentators on international law. One view discounts the political significance of this distinction. Thus Brownlie has argued that there is no basic difference concerning the relevant international law which should be applied to indigenous peoples and minorities, claiming that ‘the issues of self-determination, the treatment of minorities, and the status of indigenous populations’ are ‘in principle the same’ as they are all cases of ‘the rights and claims of groups with their own cultural histories and identities’. In this view, the coreINDIGENOUS PEOPLES AND SELF-DETERMINATION 5S principle involved in all such claims ‘consists in the right of a community which has a distinct character to have this character reflected in the institutions of government under which it lives’. It is further contended that the political assertion of this right of autonomy requires similar language, since ‘in order to obtain recognition of the claim to cultural identity, or to statehood, the claimant must accept the terms of the dialogue’ established in the existing international system. This perspective stresses the subordinate nature of both indigenous peoples and non-indigenous minorities, claiming that both groups need to adopt similar approaches to gain government recognition. An alternative view regards most governments as unlikely to respond to indigenous claims expressed in such a minimal way, ‘especially in the absence of intense political pressure from anti-statist, or non-statist, forums’.‘! Many indigenous peoples face a gulf between their perception that autonomous action is required for their cultural survival and their lack of political space to attain this.” Falk has observed that indigenous peoples ‘have overwhelmingly been marginalised as outside the framework of normal political behaviour’. He notes that ‘promises associated with the mainstream right of self-determination have almost no relevance to them: this creates a high degree of normative confusion as a fundamental aspiration of these peoples is inevitably some form of self-determination, but not the prevailing one’, which is limited ‘by the fiction that a people and a state are virtually interchangeable’.* They respond by seeking ‘a special regime expressing rights of indigenous peoples, both the individual and group rights’, reflecting demands formulated from their experience that ‘cannot be easily understood, much less accommodated, by existing international law rules, procedures, and structures for ascertaining and protecting human rights’, all of which give indigenous peoples no access, identity or special value." From this view, ‘the insistence on a distinct category is a matter of policy, not logic’, especially with regards to the process of formulating a Declaration of Indigenous Peoples’ Rights. This ‘is not something than can be given, it is not a gift’ from states; rather, it can only ‘be a joint creation, something that is the product of participation at all stages’ by indigenous peoples in a changing international system.’’ The change required to declare indigenous rights is evident from the fact that, whereas some neighbouring states have an interest in helping to protect ethnic minorities, indigenous peoples usually lack international support from states.°° The papers by Eide and Daes consider some crucial issues raised by the distinction between minorities and indigenous peoples, in terms of how this distinction leads to different categories of rights. Eide suggests56 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS that whereas minority rights ‘aim at ensuring a space for pluralism in togetherness’, the new instruments of international law being made ‘concerning indigenous peoples are intended to allow for a high degree of autonomous development’, based on an ‘underlying assumption’ that indigenous peoples should be able to choose the extent and nature of their participation in the larger society. He notes that this contrast reflects the unique importance of rights to land and natural resources for indigenous peoples, and is ‘logically connected to the basic point that the minority instruments refer to rights of (individual) persons, whereas those concerning the indigenous refer to rights of peoples’. He argues that ‘it is difficult to accept a principle of territorial autonomy based strictly on ethnic criteria’, since this contradicts ‘basic principles of equality and non-discrimination between individuals’. Eide acknowledges that the special situation of indigenous peoples ‘requires some degree of territorial autonomy’ including ‘a considerable degree of self-management and control over land and other natural resources’. While thus accepting the importance of the distinction between indigenous peoples and minorities, Eide suggests that it does not apply uniformly throughout the world, claiming it is ‘probably much less useful’ for Asia and Africa than the Pacific, the Americas or even remote areas of Europe. He also qualifies the scope of the distinction by implying that indigenous peoples living in urban areas may have to combine their separate identity ‘with integration on a basis of equality’, and thus be in a similar situation to minorities who ‘often have several identities’. The importance of maintaining a valid distinction between indigenous peoples and minorities is emphasised by Daes, who argues that the difficulty of applying this distinction in particular areas of Africa and Asia is no reason for identifying the rights of indigenous peoples merely with those of minorities. While noting that ‘no definition or list of characteristics can eliminate overlaps between the concepts of minority and indigenous peoples’, she stresses the fact ‘that indigenous peoples and minorities organise themselves separately and tend to assert different objectives, even in those countries where they appear to differ very little in ‘objective’ characteristics’ from other people living within a state. Daes calls for ‘a purposive approach’, using ‘the goals and aspirations’ of the people concerned to determine ‘what rights a particular group may legitimately assert, as a matter of law’. She observes that ‘classification as a “minority” or as “indigenous” has very different implications in international law’. Daes argues that both types of groups have the right to live ‘without adverse discrimination’, but ‘only indigenous peoples are currently recognised to possess a right to politicalINDIGENOUS PEOPLES AND SELF-DETERMINATION 57 identity and self-government as a matter of international law’, In her view, the principal legal distinction between the rights of minorities and indigenous peoples in contemporary international law is with respect to internal self-determination: the right of a group to govern itself within a recognised geographical area, without State interference (albeit in some cooperative relationship with State authorities, as in any federal system of national government). Daes contends ‘the most helpful approach’ is to consider specific cases in terms of ‘the “ideal types” of each group’. Whereas ‘the ideal type of “minority” focuses on the group’s experience of discrimination’, the ‘ideal type of “indigenous peoples” focuses on aboriginality, territoriality, and the desire to remain collectively distinct, all elements which are tied logically to the exercise of the right to internal self-determination, self- government, or autonomy’. Daes notes that ‘some minorities today enjoy limited self-government, either de facto or pursuant to national legislation’, but she insists that indigenous peoples had retained ‘an attachment to a homeland’ even when forcibly removed from it. An important issue linked to the distinction between indigenous peoples and minorities in international law is the status of individual and collective rights. During discussion of the draft Declaration of Indigenous Peoples’ Rights, powerful states such as Japan, France and increasingly the USA have claimed that collective human rights are not presently recognised in international law.” This claim has been disputed by international lawyers such as Thornberry, the author of a book on minority rights, who says that ‘international law has already recognised the intrinsic value of communities’. He sees attempts to limit human rights to individuals as a ‘regression’ reaching ‘back to the 1950s’. Thornberry and others have pointed to recognition of the ‘community’ rights of minorities in Article 27 of the International Covenant on Civil and Political Rights." Yet it has been the inability of existing human rights instruments to ‘accommodate properly the collective rights of indigenous peoples’ that has been behind the campaign by indigenous peoples for a specific UN Declaration of their rights.” During discussion at the UN Commission on Human Rights in 1996 of the draft Declaration of Indigenous Peoples’ Rights, a representative of the Central Land Council in Australia, Olga Havnen, argued that ‘collective rights were already recognised in international law’ (including the rights of self-determination and protection from genocide), but indigenous peoples were yet to benefit from the extension of such existing laws to protect them. Havnen maintained ‘the draft declaration had been58 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS elaborated because existing human rights law did not protect indigenous peoples and therefore the arguments put forward by Governments that guarantees in international law already existed were meaningless’."* This point about acknowledging ‘the importance of collective rights for indigenous peoples’ was emphasised by many indigenous representatives during discussion in November 2000 of the draft Declaration of Indigenous Peoples’ Rights.“ The only current human rights treaty specifically recognising indigenous rights is ILO Convention 169, adopted in 1989 to replace Convention 107 but hitherto ratified by only a dozen or so states. The new convention was revised from 1986-89, after the UN expert working group on indigenous peoples began in 1985 to formulate the draft Declaration of Indigenous Peoples’ Rights. Since ILO Convention 169 has no provision for ‘indigenous peoples themselves to make representations or file complaints’, it is likely to become less important once the draft Declaration is finally adopted, although ‘the former is a binding Convention’ and the latter will be a statement of what is required to preserve indigenous cultures, ‘couched in the terminology of collective rights’. Indeed, the observer for the ILO has stressed that the Declaration should ‘constitute a progression’ from Convention 169, as ‘an inspirational document that could reflect the hopes of indigenous peoples’.” Although ILO Convention 169 specifically concerns ‘indigenous and tribal peoples’, this language was directly qualified as not ‘having any implications as regards the rights which may attach to the term [‘peoples’] under international law’.* The issue of whether indigenous peoples have an international right to self-determination, which was sidestepped in this Convention, has assumed a central role in recent discussions about the draft Declaration of Indigenous Peoples’ Rights. DEFINING INDIGENOUS SELF-DETERMINATION Many governments have reacted warily to the key indigenous claim for a right of self-determination, largely because they ‘tend to equate all demands for “self-determination” with independence and secession’, even when indigenous peoples clearly ‘desire a status’ other than independent statehood.” This has led to proposals from observers suggesting that indigenous representatives are best advised to restrain their rhetoric, so as not to frighten governments away from a discussion of the draft Declaration. Thus Robert McCorquodale argues that ‘it may be better for {indigenous peoples] to seek separate, self-standing rights’ in the draft Declaration, or use ‘elements of the right of self-INDIGENOUS PEOPLES AND SELF-DETERMINATION 59 determination, without using the term “right of self-determination” itself’. Referring to Article 31 of the draft Declaration, which clearly identifies ‘the right to autonomy or self-government’ as ‘a specific form of exercising’ indigenous peoples’ right of self-determination, he asserts removing the abstract claim of self-determination would help persuade states to support the Declaration, ‘by deflecting the fear of States that secession is being demanded in all claims by indigenous people’.”” One problem with such a proposal is that it may appear to indigenous peoples that they alone must compromise to get their rights respected, particularly when they were previously advised ‘to stop talking in terms of sovereignty and to argue instead for self-determination’.” Indigenous representatives speaking at the UN Commission on Human Rights have consistently rejected attempts by governments to deny them any legal right of self-determination. While the ‘vast majority’ of them do ‘not in fact seek secession from present states’, they insist as ‘a matter of principle ... that states [do] not have the right to say, in advance, how indigenous peoples must decide on their own destiny and how they should thus exercise their right of self-determination’.” Yet their key claim is about the need for a process of choice, not for any specific result such as independence. Another proposal to resolve the conflicting perspectives of indigenous peoples and many states about indigenous rights in international law has been to distinguish between external and internal self-determination, with the scope of the latter being interpreted broadly to accommodate the collective survival of indigenous peoples within the territorial integrity of existing states.” The logic of this position is the reverse of the proposal not to mention self-determination noted above. The general idea ‘is to work with a very much diluted notion of self- determination, admitting an enormous range of degrees, so that even the least element of decentralisation, devolution, or federalisation is counted as constituting some measure of self-determination’.” This proposal is an attempt to transcend the ‘semantic blockage’ that has developed between the universal right of self-determination of peoples and the territorial integrity of states, thus clarifying the potential scope of indigenous autonomy.’ One question that immediately arises about this proposal is whether it is more than just a semantic solution to the issue of the disputed meaning of indigenous self-determination. This proposal is not necessarily a minimalist one. It can be viewed as an attempt to end the discrimination against indigenous peoples in international Jaw by accepting them as autonomous subjects who, lacking ‘the possibility of complete independence against the wish of the encompassing national State’, nevertheless retain ‘as wide a range of60 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS other forms of [political] association’ as they wish.” A recent analysis of self-determination in international law concludes: if the aim must be to promote the international protection of all those groups to which at present international law denies any legal standing, the emphasis must be laid on the right to internal self- determination. Self-determination today ought primarily to be considered a principle mandating the recognition of group rights and regional autonomy. Its value is as the protector of collective rights: it is the counterpart of individual human rights. Accordingly, self-determination should be conceived as a basis for the development of alternative constitutional frameworks, affording those with a right to self-determination a meaningful measure of autonomy. In addition, self-determination ought to be considered as affording disadvantaged groups a right to positive action.” The crucial issue concerning the idea of internal self-determination is whether it can in fact lead to the development of new constitutional frameworks based on indigenous consent, instead of ‘giving international legitimacy’ to old policies of incorporating indigenous peoples ‘under domestic law’.” Indigenous peoples clearly require international protection, and a legal status outside domestic law. Focusing on ‘the internal dimensions of the right to self- determination’ will not readily dissolve the resistance of many states to recognising indigenous rights, since this idea raises crucial issues of political representation that can call into question the legitimacy of a government.” Political representation has enduring significance because the right to internal self-determination, unlike external self- determination for former colonies, ‘is an ongoing right’ that ‘is neither destroyed nor diminished by its having already once been invoked and put into effect’. In exceptional circumstances, ‘when it is apparent that internal self-determination is absolutely beyond reach’ because all attempts to achieve it ‘have failed or are destined to fail’, an oppressed racial or religious group ‘may attempt secession, a form of external self- determination’, in order to stop gross abuses of human rights.”’ While an extreme solution can be caused by the fear of state elites that conceding genuine autonomy may lead to secession, this fear reflects the fact that such elites are averse to genuine political representation.” The continuing dispute between indigenous peoples and states that object to key principles of the draft Declaration of Indigenous Peoples’ Rights reflects contrasting perspectives on human rights and different views of international law. Yet some support for the emphasis on internalINDIGENOUS PEOPLES AND SELF-DETERMINATION 61 self-determination comes from the fact that important states have revised their previous fears. During the 1996 discussion of the draft Declaration, a breakthrough seemed to occur when Canada stated that it now accepted ‘a right of self-determination for indigenous peoples which respected the political, constitutional and territorial integrity of democratic states and which was implemented through negotiations between states and indigenous peoples’."* When this statement was reiterated in 1997, Denmark (which with Columbia, Bolivia and Fiji had supported this view in 1996) maintained that ‘there seems to be an overall consensus that self-determination is a right for all indigenous peoples’. Denmark (which allowed autonomy for the Inuit peoples of Greenland in the late 1970s) and Canada (which in the late 1990s gave limited recognition of indigenous autonomy to the Inuit in northern Canada and the Nisga’a peoples in British Columbia) seem less concerned than other states to prevent international scrutiny of indigenous rights."* Australia, having in 1995 endorsed ‘a reference to self-determination’ that ‘would not imply a right of secession’, reversed its view and lobbied Canada to remove this key reference from the Declaration. New Zealand and Norway accepted that ‘self- determination is central to the draft Declaration’, but along with Finland they suggested the need to clearly demarcate domestic and external aspects, with the scope of internal self-determination to be determined by ‘consultation’ between the government and indigenous peoples.” This proposal was criticised by indigenous leaders such as Saami Council leader Ears Anders Baer and Michael Dodson from Australia, who argued that indigenous participation at the UN ‘is an external expression of self-determination which does not involve secession or independence’."" While indigenous representatives continued to emphasise that ‘self-determination and secession are not synonymous’, they insisted that ‘domestic legislation should not be an obstacle’ to recognising their human right to self-determination, which they need to have for equality with other peoples.” During the discussion of the draft Declaration in 1998, some states again ‘expressed the view that consensus could be achieved provided that the exercise of the right of self-determination did not affect the territorial integrity or the sovereignty of States’, but this prospect was diminished by a statement from the United States which rejected the basic principles and universal objectives of the draft Declaration.” This position was seen by a Native American organisation as likely to obstruct the ‘evolving’ view of ‘many’ states ‘that the concept of self- determination is capable of broadening and evolving in its application’ to indigenous peoples.” Indeed, by calling for the draft Declaration to62 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS include a ‘universally accepted definition’ of indigenous people, and by saying it should include only individual rights, the US position disputed the draft Declaration’s basic rationale.” While the UN High Commissioner for Human Rights, Mary Robinson, endorsed the ‘aspirational nature’ of the draft Declaration, ‘whose purpose was to set out broad principles for the protection of the rights of indigenous peoples’, subsequent meetings of the working group considering the draft Declaration have not been hopeful.” Following the sixth annual session of the Commission on Human Rights working group considering the draft Declaration in late 2000, the Aboriginal and Torres Strait Islander Commission in Australia expressed its ‘grave concerns’ and ‘dismay’ about ‘the increasing polarisation of indigenous and State delegations into separate and opposed blocs’, with some ‘previously supportive’ states shifting towards the positions of ‘the most intransigent’ states as a result of secret meetings.” Similar concerns about ‘closed sessions, without the participation of Indigenous Peoples, to draft new or alternative composite texts of articles under discussion’, were expressed by the International Indian Treaty Council, which saw this practice as contradicting the ‘full and equal participation’ that the Commission on Human Rights had earlier endorsed.” A PERMANENT INDIGENOUS FORUM While the draft Declaration of Indigenous Peoples’ Rights was once expected to be finalised in the mid-1990s, there is increasing concern that this will not occur even in the next few years. After two general debates covering all 45 articles of the draft Declaration in 1995 and 1996, the UN Commission on Human Rights working group considering the text has become bogged down in adversity, with some states proposing numerous changes in order to restrict the Declaration. Thus the wording of Article 1, which refers to the ‘full and effective enjoyment’ by indigenous peoples of international human rights law, has been challenged by states that want to limit this to only ‘applicable’ human rights ‘instruments’ that they have signed. After five years of work, only two articles (concerning the right to a nationality and gender equality) have been adopted by consensus, despite calls from experts such as Daes and Eide for the Commission on Human Rights to adopt the draft Declaration ‘without delay’ and complaints from many indigenous representatives (such as a spokesperson for the Ainu Association of Sapporo) that ‘at such a speed it would take decades to adopt the whole text’.” One result of the delay is that Article 41 of the draft Declaration, which calls for the UN to create ‘a body at the highestINDIGENOUS PEOPLES AND SELF-DETERMINATION 63 level with special competence ... and with the direct participation of indigenous peoples’, looks like being realised before the Declaration itself, despite the initial reservations of many states and the concerns of indigenous peoples about their access to the UN being limited.” The proposal for a permanent indigenous forum at the UN was raised by the 1993 Vienna World Conference on Human Rights and given consideration by the Commission on Human Rights in 1994.” The proposal received detailed attention during meetings on indigenous issues at the UN during 1999 and 2000. A concern expressed repeatedly by indigenous representatives, such as Mililani Trask of Hawai’i, was that the new body should not replace the expert working group which had provided indigenous peoples with access to the UN since the early 1980s.” Another indigenous speaker, Lazaro Pary, said this working group was ‘the only independent forum open to indigenous peoples’, expressing concern that ‘the elimination of this small door which was open to the temple of human rights would deny them access to the workings of the UN system’." Such concerns were heightened by government statements claiming that ‘the permanent forum, when established, would provide a focal point for review of, and dialogue on, indigenous issues’, so that the working group ‘would not be needed’.'” In response, indigenous speakers told the Commission on Human Rights that the working group needed more time for its meetings, and it ‘should not be a trade-off’ with either a Permanent Forum for Indigenous People or a Special Rapporteur on Indigenous Peoples’ issues." Although Mary Robinson noted the permanent forum would be needed ‘to help harmonise and give coherence and direction to the UN system’s growing programme relating to indigenous peoples’, scepticism was expressed by indigenous peoples about whether their access to the UN would improve." The decision to establish a Permanent Forum on Indigenous Issues was made by the UN Economic and Social Council in July 2000, confirming an earlier resolution by the Commission on Human Rights in April that year. The forum will consist of 16 members, half nominated by governments and half to be appointed from indigenous peoples across the world, with all members to serve as independent experts rather than representatives, and deciding issues by consensus. The decision to set up the permanent forum specified that one year after it has been established there should be a review of other institutions in the UN concerning indigenous issues, inchding the expert working group, ‘with a view to rationalising activities, avoiding duplication and overlap and promoting effectiveness’.'* The resolution was adopted with some controversy concerning whether it implied that the expert working group would64 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS cease to exist. While Denmark, which sponsored the resolution, said ‘establishment of a Permanent Forum did not necessarily mean abolition of the Working Group’, an explicit amendment by Cuba stating that the working group would remain was rejected by most states on the Commission on Human Rights, including Canada.“ The decision to establish a permanent forum was welcomed by indigenous peoples with the qualification that it ‘could not replace the Working Group’.” Whether this call by indigenous peoples for increased access to the UN will be respected remains to be seen. CONCLUSION: DIALOGUE AND CONSENSUS. The development in the past generation of a substantial international network of indigenous peoples seeking recognition of their right to self- determination in international law has posed challenges to many states. It has also raised difficult questions for indigenous peoples about how to engage in dialogue with a variety of states. This experience has demonstrated ‘that partnership in the sphere of human rights cannot be divorced from partisanship’."" Space for partnership has been created principally through the involvement of indigenous peoples in developing a draft Declaration of Indigenous Peoples’ Rights. The long-serving chairperson of the expert working group that had opened a door for indigenous peoples at the UN, Erica-Irene Daes, described their participation as essential to the ‘extraordinary, liberal, transparent and democratic procedure’ that created the draft Declaration. According to Daes, the purpose of the draft declaration was to ensure equality by removing ‘a very old discriminatory application of the law of nations, and even the law of the United Nations Charter’, which has denied indigenous peoples international status.'” The need for partisanship has increased as a result of the protracted consideration since 1995 of the draft Declaration by a working group of the Commission on Human Rights. In 1997 the then facilitator of this group, Peruvian diplomat Jose Urrutia, said that the draft Declaration is ‘inspired by other international Jaw instruments’ together with ‘the legal and philosophical reflections of indigenous peoples’, but there has been misunderstanding as well as dialogue between indigenous representatives and state officials, particularly over the political significance of an indigenous right to self- determination.‘ This is illustrated by the most recent discussions about establishing a permanent forum for indigenous peoples within the UN, and specifically about whether this forum will give indigenous peoples more scope for partnership with the UN. It is unclear whether the creation of such aINDIGENOUS PEOPLES AND SELF-DETERMINATION 65 forum will overcome the stalemate that has developed with the finalisation of the draft Declaration, and assist the difficult process of resolving different perceptions of the scope of indigenous self- determination. The challenge of this process has been described by Ram Dayal Munda, a representative from the Confederation of Indigenous and Tribal Peoples of India, as creating ‘an instrument in international law which contains a built in guarantee to protect the human rights of indigenous peoples and a guarantee that indigenous peoples will not want secession and independence’.""' The crucial point will be reached when states acknowledge that this Declaration can only be legitimately adopted through a process of consensus, which means indigenous consent rather than state obstruction. Then the principal implication of the Western Sahara case, the importance of free choice for indigenous peoples, could be realised internationally. While this eventual outcome may still be prevented by states intent on limiting indigenous autonomy, it at least becomes possible if indigenous peoples and states appeal to the same conventions of international law, formulated through a process of genuine negotiations and dialogue about the meaning of self- determination.'? NOTES 1. This period, which began on 10 December 1994, was recommended by the 1993 Vienna World Conference on Human Rights. The conference suggested consideration of ‘the establishment of a permanent forum for indigenous people in the United Nations system’. World Conference on Human Rights: The Vienna Declaration and Programme of Action, June 1993 (New York: United Nations 1995), p.53. 2. UN Charter, preamble, Article 1(2), and Article 2(7).. 3. Richard Falk, ‘The Rights of Peoples (In Particular Indigenous Peoples)’, in James Crawford (ed.), The Rights of Peoples (Oxford: Oxford University Press 1988) p.17. 4. Ken S. Coates, ‘International Perspectives on Relations with Indigenous Peoples’, in Coates et. al., Living Relationships, Kokiri Ngatahi: The Treaty of Waitangi in the New Millenium (Wellington: Victoria University Press, 1998) pp.22-3, 34-6, 83. Ibid, p.29. UN Charter, Article 1(2). International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, Article 1(1), reprinted in Hurst Hannum (ed.), Documents on Autonomy and Minority Rights (Dordrecht: Martinus Nijhoff Publishers 1993) pp.34-5. Hannum noted that the adoption of this article (also in the International Covenant on Economic, Social and Cultural Rights) ‘remained controversial throughout the drafting of the covenants’, and its scope remains unclear. 8. Benedict Kingsbury, ‘The Applicability of the International Legal Concept of “Indigenous Peoples” in Asia’, in Joanne R. Bauer and Daniel A. Bell (eds), The East Asian Challenge for Human Rights (Cambridge: Cambridge University Press 1999) pp.339, 357; Andrew Gray, ‘The Indigenous Movement in Asia’, in R.H. Barnes, Andrew Gray and Benedict Kingsbury (eds), Indigenous Peoples of Asia (Michigan: Association for Asian Studies 1995) p.41. Similar denials were made earlier by major Nay66 10. IL. 12, 13. 14, 15. 16. 17, 18. 19. 20. 21. 22. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS Latin American states such as Brazil, see Michael Banton, ‘International norms and Latin American states’ policies on indigenous peoples’, Nations and Nationalism, Vol.2, No.1 (1996), pp.91-2. ). Comments by Cong Jun on behalf of China in UN General Assembly, Third Committee, 25th meeting, 17 October 2000, reported on website of UN High Commissioner for Human Rights: www.unhchr.ch/. Benedict Kingsbury, “Indigenous Peoples” as an International Legal Concept’, in Barnes et.al. (note 8) p.16. Montserrat Guibernau, Nationalisms: The nation-state and nationalism in the twentieth century (Oxford: Polity Press 1996) pp.43-4, 59-61, 103-4, distinguishes ‘nations without a state” who ‘put forward specific political demands’ for self- determination from minorities, Jeff J. Corntassel and Tomas Hopkins Primeau, ‘Indigenous “Sovereignty” and International Law: Revised Strategies for Pursuing “Self-Determination™, Human Rights Quarterly, Vol.17, No.2 (1995), p.362. Craig Scott, ‘Indigenous Self-Determination and Decolonisation of the International Imagination: A Plea’, Human Rights Quarterly, Vol.18, No.4 (1996), pp.816, 818. Russel Lawrence Barsh, ‘Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force’, Human Rights Quarterly, Vol.18, No.4 (1996), pp.795-800. Theo C. van Boven, ‘Partners in the Promotion and Protection of Human Rights’, in H. Mejers and E.W, Vierdag (eds), Essays on International Law and Relations in Honour of AJ.P. Tammes (Leyden: Sitjhoff 1977) pp.55, 57. Donnelly, “The social construction of international human rights’, in Tim Dunne and Nicholas J. Wheeler (eds), Human Rights in Global Politics (Cambridge: Cambridge University Press 1999) pp.85-6, and Andrew Hurrell, ‘Power, principles and prudence: protecting human rights in a deeply divided world’, in ibid., pp.288-9; also Andrea Bianchi, ‘Globalisation of Human Rights: the Role of Non-state Actors’, in Gunther Teubner (ed.), Global Law Without a State (Aldershot: Dartmouth 1997) p.191; and Hurst Hannum, Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights, rev. ed. (Philadelphia: University of Pennsylvania Press 1996), p26. Donnelly (note 16) pp.87-88. Pierre Lepage, ‘Indigenous Peoples and the Evolution of International Standards: A Short History’, in Marie Leger (ed.), Aboriginal Peoples: Toward Self-Government (Montreal: Black Rose Books 1994) p.12. S. James Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press 1996), p.19. Paul Keal, ““Just Backward Children”: International Law and the Conquest of Non- European Peoples’, Austratian Journal of International Affairs, Vol.49, No.2 (1995), p.202. The significance of this history is noted in a UN Sub-Commission on the Promotion and Protection of Human Rights working paper, prepared by Erica-Irene Daes, Indigenous Peoples and their Relationship to Land, E/CN.A4/Sub.2/2000/25, 30 June 2000, pp.9-10, paragraphs 23-27. Catherine J. lorns Magallanes, ‘International Human Rights and their Impact on Domestic Law on Indigenous Peoples’ Rights in Australia, Canada and New Zealand’, in Paul Havemann (ed.), Indigenous Peoples’ Rights in Australia, Canada and New Zealand (Auckland: Oxford University Press 1999) p.236. Falk, (note 3) p.19; Anaya (note 19) p.42. For an analysis of the original Spanish debate see Greg C. Marks, ‘Indigenous Peoples in International Law: The Significance of Francisco de Vitoria and Bartoleme de las Casas’, Australian Yearbook of International Law, Vol.13 (1992), pp-1-51. Reference to the arguments of Vitoria and Las Casas was made by Natalie Bennett, a Maori delegate speaking to the Working Group of the UN Commission of Human Rights considering the draft Declaration of Indigenous Peoples’ Rights, at a meeting on 30 October 1997, reported inINDIGENOUS PEOPLES AND SELF-DETERMINATION 67 23, 24, 25. 26. 27. 28. 29. 30. 31. 32. 33. 34, 35. 36. 37. 38. 39. 40. a. 42, 4a. 44. 45. 46. 47. 48. 49. Unrepresented Nations and Peoples Organisation (hereinafter UNPO) Monitor for 1997: www.unpo.orgiwgip/. Lepage (note 18) pp.4-9, notes that the Iroquois Confederacy persisted, trying to be heard at the San Francisco conference which established the UN in 1945. International Labour Organisation Convention (No. 107) Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, signed 26 June 1957, entered into force 2 June 1959, in Hannum (ed.), Documents on Autonomy and Minority Rights (note 7) pp.10, 12, Articles 2(4) and 7(2). Patrick Thornberry, International Law and the Rights of Minorities (Oxford: Clarendon Press 1991), pp.369~71. Jorns Magallanes (note 21) p.239. Sir R.Y, Jennings, ‘Universal International Law in a Multicultural World’, in International Law and the Grotian Heritage (The Hague: T. M-C. Asser Instituut 1985), p.195. James Crawford, The Creation of States in International Law (Oxford: Clarendon Press 1979), p.181. International Court of Justice, Western Sahara, Advisory Opinion of 16 October 1975, ICJ Reports 1975, p.i2, at p.39, paragraph 80; Declaration of Judge Gros, p.75, Separate Opinion of Judge Ammoun, pp.86-7, and Separate Opinion of Judge de Castro, p.171. Ibid., Declaration of Judge Gros, p.76. Ibid., Separate Opinion of Judge Ammoun, pp.85-7. Torns Magallanes (note 21) pp.249-50. Corntassel and Primeau (note 12) pp.353, 355-356, 358-360, argue that because treaties with indigenous peoples were routinely broken they are less important than treaties between states. Comments by Miguel Alfonso Martinez when presenting his report to the 17th session of the Working Group on Indigenous Populations of the Sub-Commission on the Promotion and Protection of Human Rights, Geneva, July 1999, E/CN.4/Sub.2/1999/19, 12 August 1999, paragraph 128. Ibid. paragraphs 136 and 137. ‘CERD/C/SR.1324, 7 October 1999, paragraphs 18, 33, 41; HR/ESC00/41, 24 August 2000, discussion of the third periodic report of Australia. IC] Namibia Opinion, quoted in Crawford (note 28) p.96. IC] Western Sahara Opinion (note 29) p.36, paragraph 70, Ibid., pp.31-4, paragraphs 54-60, and pp.35-6, paragraphs 66-9. Ibid., p.36, paragraph 71. Ibid., p.33, paragraph 58. Ibid., Seperate Opinion of Judge Petren, p.110. Ibid., Seperate Opinion of Judge Dillard, pp. 122-3. Bill Bowring, ‘Self-determination and the jurisprudence of the ICJ’, in International Law and the Question of East Timor (London: Catholic Institute for International Relations and International Platform of Jurists for East Timor 1995), p.161. Michael Dodson, ‘Voices of the peoples — voices of the earth; indigenous peoples — subjugation or self-determination?”, and Howard Berman ‘Summary of discussion on political rights’, in Leo van der Vlist (ed.), Voices of the Earth: Indigenous Peoples, new partners and the right to self-determination in practice (Amsterdam: International Books, Netherlands Centre for Indigenous Peoples 1994) pp.26,180. Ibid. p.183; Ken Saro Wiwa, in ‘Summary of discussion on political rights’, Reuters report from Tindouf, Algeria, in The Age (Melbourne), 1 March 2001, p.12. Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal (Cambridge: Cambridge University Press 1995), p.218. lan Brownlie, ‘The Rights of Peoples in Modern International Law’, in Crawford (ed.), Rights of Peoples (note 3) p.16.68 50. Sl. 52. 53. 54. aoe 56. 57. 58. 59. 60. 61. 63. 64. 65. THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS Ibid. pp.5, 6. Falk (note 3) p.24, Coates (note 4) pp.88-9. Falk (note 3) pp.26, 27. Ibid. p.31. Ibid. pp.32, 33, 34-5. Hannum, Autonomy, Sovereignty and Self-Determination (note 16) p.81. ‘Working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples, Sub-Commission on the Promotion and Protection of Human Rights, 52nd session, E/CN.4/Sub.2/2000/10, 19 July 2000, paper by Eide, paragraphs 8, 9, 10, 15, 21, 23, 25 and 26, Ibid. paper by Daes, paragraphs 37-44, 47-50. Daes (paragraph 45) argues that, while “the exercise of internal self-determination is impractical where the group concerned is highly dispersed’, attachment to territory ‘is central to the claims of indigenous peoples, and it should be given particular weight precisely because it is so closely related to the capability of groups to exercise the rights which they assert’. Barsh (note 14) p.795; Report of the Working Group established in accordance with Commission on Human Rights resolution 1995/32, Commission on Human Rights, S3rd session, 10 December 1996, E/CN.4/1997/102, pp.23, 35. Patrick Thornberry, speaking to the Working Group established by the UN Commission of Human Rights to consider the Draft Declaration of Indigenous Peoples’ Rights (hereinafter Commission on Human Rights Working Group), 6 November 1997, reported in UNPO Monitor 1997: www.unpo.org/iwgip/. ‘Thornberry (note 25) pp.173-8; Lez Malezer, Foundation for Aboriginal and Islander Research Action, speaking to the Commission on Human Rights Working Group, 28 October 1997, reported in UNPO Monitor 1997: www.npo.orgiwgip/. While supported by WK. Hastings, The Right to An Education in Maori: the Case from International Law (Wellington: Victoria University Press, Institute of Policy Seudies 1988), p.18, this view appears at odds with an earlier UN study by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti, Study on the Rights of Persons belonging to Etbnic, Religious and Linguistic Minorities (Geneva: Centre for Human Rights 1978, reprinted in New York, 1991), pp.35~6. Cf. Marc J. Bossuyt and John P. Humphrey, Guide to the “Travaux Preparatoires’ of the International Covenant on Civil and Political Rights (Dordrecht: Martinus Nijhoff Publishers 1987), p.495, for the background to the reference in Article 27 regarding the exercise of minority rights ‘in community” with others, a phrase meant to limit individual use of minority rights. . Mary Simon, Canadian President of the Inuit Circumpolar Conference, “The Integration and Interdependence of Culture and the Environment’, in Kathleen and Paul Mahoney (eds), Human Rights in the Twenty-first Century (Dordrecht: Martinus Nijhoff Publishers 1993) p.523. A ‘relatively conservative’ and ‘individualistic’ Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities was adopted by the UN Commission on Human Rights in 1992, Hannum (ed.), Documents on Autonomy and Minority Rights (note 7) pp.78-83. Report of the Working Group (note 59) p.41. Cassese (note 48) p.329, refers to ‘the legal regulation of groups, minorities, and peoples’ as ‘singularly skewed and inconsistent’, with the Genocide Convention and the Convention on the Elimination of All Forms of Racial Discrimination providing broad but incomplete international law. Report of the sixth session of the Commission on Human Rights Working Group, Geneva, 20 November-1 December 2000, E/CN.4/2000/WG.15/CRP2, 29 November 2000, p.2. Hannum (ed.), Documents on Autonomy and Minority Rights (note 7), pp-45-59. As at August 2000 only 14 countries had ratified ILO Convention 169: Argentina, Bolivia, Costa Rica, Ecuador, Colombia, Denmark, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway, Paraguay and Peru.INDIGENOUS PEOPLES AND SELF-DETERMINATION 69 66. 67. 68. 69. 70. 71. 72. 23. 74, 75. 76. ~ Cassese (note 48) pp.350-1, emphasis in original. 78. 77. 79. 80. 81. 82. 83. 84, 85. 86. 87. CM, Brolmann and M.Y.A. Zieck, ‘Indigenous Peoples’, in Catherine Brolmann, Rene Lefeber and Marjoleine Zieck (eds), Peoples and Minorities in International Law (Dordrecht: Martinus Nijhoff Publishers 1993) pp.211, 219. Report of the Working Group (note 59) pp.11~12. International Labour Organisation Convention (No. 169) Concerning Indigenous and ‘Tribal Peoples in Independent Countries, adopted 27 June 1989, entered into force 5 September 1991, Article 1(3), in Hannum (ed.), Documents on Autonomy and Minority Rights (note 7) p.47; Natan Lerner, ‘The 1989 ILO Convention on Indigenous Populations: New Standards”, in Yoram Dinstein and Mala Tabory (eds), The Protection of Minorities and Human Rights (Dordrecht: Martinus Nijhoff Publishers 1992) p.219. Hannum, Autonomy, Sovereignty and Self-Determination (note 16), p.96. |. Robert McCorquodale, ‘New ‘Trends in Relation to Self-Determination’, Proceedings of the Third Annual Meeting of the Australian and New Zealand Society of International Law (Canberra: Centre for International and Public Law Australian National University 1995) p.119. Garth Nettheim, “Peoples” and “Populations” - Indigenous Peoples and the Rights of Peoples’, in Crawford (ed.), Rights of Feoples (note 3) p.118. Catherine Iorns Magallanes, ‘The Draft Declaration on the Rights of Indigenous Peoples’, Proceedings of the Second Annual Meeting of the Australian and New Zealand Society of International Law (Canberra: Centre for International and Public Law Australian National University 1994) p.290. Brolmann and Zieck (note 66) p.216. David Makinson, ‘Rights of Peoples: Point of View of a Logician’, in Crawford (ed.), Rights of Peoples (note 3) p.76. Ibid. pp.75-6. Nettheim (note 71) p.120. James Tully, ‘The Struggles of Indigenous Peoples for and of Freedom’, in Duncan Ivison, Paul Patton and Will Sanders (eds), Political Theory and the Rights of Indigenous Peoples (Cambridge: Cambridge University Press 2000) p.57. Theo van Boven, ‘Human Rights and Rights of Peoples’, European Journal of International Law, Vol.6 (1995), p.471. Cassese (note 48) p.101. Ibid., pp.119-20. Michael Freeman, ‘The right to self-determination in international politics: six theories in search of a policy’, Review of International Studies, Vol.25, No.3 (1999), p.365. Report of the Working Group (note 59), p.63. Statement by Denmark to the Commission on Human Rights Working Group, 31 October 1997, reported in UNPO Monitor for 1997; www.unpo.org/iweip/, and in Sarah Pritchard, ‘Commission on Human Rights Working Group (CHRWG) Third session 27 October ~ 7 November 1997, Indigenous Law Bulletin (Sydney) Vol.4, Issue 10, March 1998, p.10, Denmark (Greenland): Greenland Home Rule Act, 29 November 1978, in Hannum (ed), Documents on Autonomy and Minority Rights (note 7) pp.212-8; Nisga’a Final Agreement, 4 August 1998, excerpts on Nisga’a Self-Government in 37 International Legal Materials 1258 (1998), pp.1278-95. For a summary of this agreement, see Tully (note 78) pp.49-50. Statement by Bill Barker on behalf of the Australian government at the first session of the Commission on Human Rights Working Group, Geneva, 21 November 1995, and statement by Australian Foreign Minister Mr Downer on 21 July 1998, reported in The ‘Age (Melbourne), 22 August 1998. Statements of New Zealand and Norway to the Commission on Human Rights Working Group, 30 October 1997, and statement of Finland, 31 October 1997, reported in UNPO Monitor for 1997: www.unpo.org/iwgip/; see also Pritchard, (note 84) pp.9-10.70 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 88. Pritchard, (note 84) pp.8-9; summary of statements at October 1997 session of the ‘Commission on Human Rights Working Group, on international page of Aboriginal and Torres Strait Islander Commission website: www.atsic.gov.au/issues/ international/draftdec/. 89. Dalee Sambo, Marcial Arias Garcia and Lazaro Pary, speaking to the Commission on Human Rights Working Group, 31 October 1997, reported in UNPO Monitor for 1997: www.unpo.org/iweip/; see also report of the working group on indigenous issues, submitted to the Commission on Human Rights, 56th session, 13 April 2000, E/CN.4/2000/84. 90. Commission on Human Rights, 55th session, Indigenous Issues, E/CN.4/1999/82, 20 January 1999 (report of Commission on Human Rights Working Group meetings held in early December 1998), pp.4, 6,11-12. 91. Written statement by the International Indian Treaty Council to the Commission on Human Rights, E/CN.4/1999/NGOI73, 4 March 1999, pp.2, 3. 92. Commission on Human Rights, 5Sth session, Indigenous Issues (note 90) p.6. 93. Ibid. p. 8; the most pessimistic statement was made by Lazaro Pary of Indian Movement Tupaj Amaru to the 57th session of the Commission of Human Rights, 12 April 2001, saying ‘in six years no tangible progress had been achieved’ and ‘if matters continued like this, there would not be a draft declaration in 100 years’, reported on website of UN High Commissioner for Human Rights: www.unhchr.ch/. 94. Written statement by the Aboriginal and Torres Strait Islander Commission to the Commission on Human Rights, E/CN.4/2001/NGO/S4, 23 January 2001, pp.2, 3. 95. Written statement by the International Indian Treaty Council to the UN Commission on Human Rights, E/CN.4/2001/NGO/44, 23 January 2001, pp.2-3. 96. Commission on Human Rights, 57th session, draft report of the working group established in accordance with Commission on Human Rights resolution 1995/32, E/CN.4/2000/WG.15/CRP4, 30 November 2000, annex I, Amendments Proposed by Governments for Future Discussion, p.1. 97. Daes, in Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Sist session, Human Rights of Indigenous Peoples, Report of the Working Group on Indigenous Populations, Geneva, 26~30 July 1999, F/CN.4Sub.2/1999/19, 12 August 1999, p.8. Eide, in Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, 52nd session, summary record of the 18th meeting, Geneva, 14 August 2000, E/CN.4Sub.2/2000/SR.18, 15 February 2001, p.6. Ainu Association, in Commission on Human Rights, 5Sth session, Indigenous Issues (note 90) p.5; John Henriksen of the Saami Council, speaking to the 56th session of the Commission on Human Rights, 14 April 2000, reported on website of UN High Commissioner for Human Rights: www.unhchr.ch/. 98. Draft Declaration, Article 41; Commission on Human Rights, 52nd session, Report of the working group established in accordance with Commission on Human Rights resolution 1995/32, E/CN.4/1996/84, 4 January 1996, p.18. 99. Commission on Human Rights, 50th session, resolution 1994/28, A permanent forum in the United Nations for indigenous people, adopted withouc a vore. UN High Commissioner for Human Rights: www.unhchr.chi. 100. Statement to the 17th session of the Working Group on Indigenous Populations, Geneva, 28 July 1999, reported in UNPO Monitor for 1999: www.unpo.org/iwgip/; Report of the Working Group on Indigenous Populations (note 97) pp.27-8. 101. Statement to the Sub-Commission on the Promotion and Protection of Human Rights, HR/SC/99/17, 17 August 1999, p.5. 102. Commission on Human Rights, 56th session, Report of the open-ended inter- sessional ad hoc working group on a permanent forum for indigenous people, E/CN.4/2000/86, 28 March 2000, p.20. 103. Wilton Littleckild, statement to the Commission on Human Rights, 56th session, 14 April 2000, reported on website of UN High Commissioner for Human Rights:INDIGENOUS PEOPLES AND SELF-DETERMINATION 71 104. 105. 106. 107. 108. 109. 110. 1. 112. www.unbchr.ch/. In 2001 the Commission on Human Rights ‘decided to appoint, for a three-year period, a Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people’, announced in UN press release, 27 April 2001: www.unhchr.ch/. Opening statement by Mary Robinson to the open-ended working group on the permanent forum for indigenous people, Geneva, 14 February 2000, p. 2, on website of UN High Commissioner for Human Rights: www.unhchr.ch/. For indigenous scepticism see Commission on Human Rights report (note 102) p.21. Economic and Social Council, Establishment of a Permanent Forum on Indigenous Issues, resolution 2000/22, 28 July 2000, paragraph 8, E/RES/2000/22, p.3. Commission on Human Rights, 56th session, 27 April 2000, resolution E/CN.4/2000/L.68. Ms Gutierrez, International Indian Treaty Council, speaking to the Sub-Commission on the Promotion and Protection of Human Rights, 52nd session, 14 August 2000, E/CN.4/Sub.2/2000/SR.18, 15 February 2001, p.12. van Boven, ‘Partners’ (note 15), p.55. The UN's thetoric for the 1993 International Year for Indigenous Peoples of ‘a new partnership’ was questioned by indigenous activists as falsely implying ‘that in the past we had entered into an agreed parmership and now it was time to amend the old one and start afresh’. Irene Watson, ‘International Year for Indigenous Peoples’, in Irene Moores (ed.), Voices of Aboriginal Australia: Past, Present, Future (Springwood: Butterfly Books 1995) pp.383-4. Statements in Sydney, 1995, quoted in Sarah Pritchard, ‘The UN Draft Declaration on Indigenous Rights’, Proceedings of the Fifth Annual Conference of the Australian and New Zealand Society of International Law (Canberra: Centre for International and Public Law Australian National University 1997), pp-54, 55. ‘Mr Jose Urrutia, comments to the Commission on Human Rights Working Group, 28 October 1997, reported in UNPO Monitor for 1997: www.unpo.org/iwgip/. Statement to the Commission on Human Rights Working Group, 3 November 1997, reported in UNPO Monitor for 1997: www-unpo.org/iwgip/. Hannum, Autonomy, Sovereignty and Self-Determination (note 16), p.103; James Tully, Strange Multiplicity: Constitutionalism in an age of diversity (Cambridge: Cambridge University Press 1995), p.138.