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Published online by Cambridge University Press: 21 July 2009
The history of indigenous peoples is not a fortunate one: colonization,discrimination, exploitation, dispossession, relocation, and genocide have been their lot.1 Indigenous peoples seek recognition as distinct groups in order to preserve their culture and, plainly, to survive. Their wish for recognition is coupled with various demands, ranging from political participation to autonomy, self-government and independence, often subsumed under ‘the right of self-determination’. Although, throughout this century,attempts have been made to improve the plight of indigenous peoples,these have proven inadequate so far.2 In 1994, after nine years of preparation,the UN Working Group on Indigenous Populations (hereinafter:Working Group) finalised the draft of a Declaration on the Rights of Indigenous Peoples. With its adoption by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (hereinafter:UN Sub-Commission)in August 1994, 3 the draft Declaration has commenced its course towards adoption by the General Assembly.
1. For general literature on indigenous peoples, see Indigenous Peoples, A Global Quest for Justice, A Report for the Independent Commission on International Humanitarian Issues(1987); Moody, R., The Indigenous Voice, Visions and Realities, 2 Vols. (1988)Google Scholar; Amnesty International, Human Rights Violations Against Indigenous Peoples, Human Rights Violations against the Indigenous Peoples of the Americas (1992); and F. Wilmer, The Indigenous Voice in World Politics (1993).
2. The only binding instruments on the protection of indigenous peoples in general are ILO Conventions No. 107 of 1957 (328 UNTS 247) and No. 169 of 1989 (28 ILM 1384 (1989)).For an analysis of these Conventions, see Brolmann, CM. & Zieck, M.Y.A., Indigenous Peoples, in CM. Brolmann, R. Lefeber & M.Y.A. Zieck (Eds.), Peoples and Minorities in International Law 187–220 (1993)Google Scholar and references; see also Alfredsson, G., The Right of Self Determination and Indigenous Peoples, in C. Tomuschat (Ed.), Modern Law of Self-Determination 41–54 (1993)Google Scholar; Reed Howard, B., Human Rights and Indigenous People: On the Relevance of International Law for Indigenous Liberation, 35 GYIL 105–150 (1992)Google Scholar; Iorns, C., Indigenous Peoples and Self-Determination; Challenging State Sovereignty, 24 Case W. Res. J.Inťl Law 199–348 (1992).Google Scholar
3. See Resolution 1994/45, of 26 Aug. 1994.
4. It may come as no surprise that the momentum of the Draft's course has been halted by the UN Commission for Human Rights: on 3 March 1995, the Commission has decided to establish an “open-ended inter-sessional Working Group” (in which, inter alia, all UN member states hold a seat) for further elaboration of the Draft (53 rd meeting, internal version, UN Doc. E/CN.4/1995/L.62). Whereas endorsement of this decision by the UN ECOSOC is expected in the winter of 1995/1996, it is unlikely that a draft will be submitted to the UN General Assembly before 1998.
5. Text in the Annex to UN Doc. E/CN.4/Sub.2/1994/2/Add.l.
6. See UN Doc. E/CN.4/Sub.2/1994/3O, para. 37.
7. Three preambular clauses refer to self-determination. The first reference is implicit: “Recognizing also that indigenous people have the right freely to determine their relationships with States”. The second one refers to the right of self-determination as contained in the UN Charter and the two 1966 International Covenants on Civil and Political Rights (999 UNTS 171), and on Economic, Social and Cultural Rights (993 UNTS 3). The third one is a reminder that “nothing in this Declaration may be used to deny any peoples their right of self-determination”.
8. Emphasis added.
9. Several of the provisions which can be viewed as elaborations of Art. 31 simultaneously incorporatethe contents of Arts. 1(2) of both Human Rights Covenants; see in particular Arts. 21, 26, 27, and 30.
10. See, inter alia, Art. 8 (self-identification as indigenous); Art. 9 (right to belong to an indigenous community); Art. 32 (right to determine indigenous citizenship); and Art. 34(right to determine the responsibilities of members of the indigenous community). Special mention should be made of the provision in Art. 7 on the relatively new concepts of ethnocide and cultural genocide.
11. See, inter alia, Art. 12 (cultural traditions); Art. 13 (religious traditions); and Art. 24 (traditional medicines and health practices).
12. See Arts. 25–30.
13. ‘Administration’ is used as a shorthand term for a variety of institutions, ranging from “decision-making institutions” and “political and legal systems” to the right to establish and control education systems and media; see Arts. 15, 17, 19, 21, and 33.
14. An. 19.
15. See also Arts. 28 and 30.
16. Art. 4 of the Draft Declaration (which refers to a more general participation “in the political, economic, social and cultural life of the State”) does not detract from this conclusion, for the primary function of this Article is to avoid that the existence of indigenous institutions be used as a pretext for denying indigenous people the enjoyment of universal human rights (see also Arts. 1 and 2).
17. See UN Doc. E/CN.4/Sub.2/1993/26/Add.l. There is only one Explanatory Note, which refers to the penultimate version of the Draft Declaration.
18. UN Doc. E/CN.4/Sub.2/1993/26/Add.l, para. 19.
19. Annex to UN Doc. A/RES/2625 (XXV) (emphasis added). It is generally considered to be the one international provision to shed some light on the content of the right of selfdetermination.
20. See UN Doc. E/CN.4/Sub.2/1993/26/Add.l, para. 21.
21. Id., paras. 23, 21, and 23, respectively.
22. UN Doc. E/Sub.2/26/Add.l, para. 29.
23. Id., para. 23.
24. Cf. the general allusion to “constitutional reforms designed to share power democratically” and “negotiation of arrangements”, id., para. 25 and para. 29, respectively.
25. Id., para. 24.
26. Id., para. 26.
27. The indigenous representatives consider the contents of the Draft Declaration as “comprehensive” and as “reflect[ing] the legitimate aspirations of indigenous peoples as a whole”. UN Doc.E/CN.4/Sub.2/1994/30, para. 133. It should be noted that although the Working Group formally consists of a handful of experts, chaired by Rapporteur Daes, the indigenous peoples were given ample opportunity to take part in the drafting of the text.The Working Group is the only forum in the intergovernmental arena in which indigenous peoples may actively participate.
28. Koskenniemi, M., National Self-Determination Today: Problems of Legal Theory and Practice,43 ICLQ 241–269, at 246 (1994).Google Scholar
29. Cf. Art. 1(3) of the 1989 ILO Convention No. 169: “The use of the term ‘peoples’ in this Convention shall not be construed as having any implication as regards the rights which may attach to the term under international law”. In the same vein the UN proclamation of 1993 as the International Year of the World's Indigenous People. By using the singular ‘people’ - the result of intense negotiations on the part of several states - any specific meaning the adjective ‘indigenous’ may have had so far was eliminated and along with it any notion of collectivity.
30. As far as state practice is concerned, the ongoing struggle in the breakaway Republic of Chechnya is a case in point: the international community considers the conflict an internal one and confines its remarks to urging moderation on the part of Russia in view of the extensive use of force against civilians, notably in the capital Grozny. Forthe view that,although the Russian intervention is justified by virtue of Russia satisfying the conditions laid down in theFriendly Relations Declaration, the ensuing conlict transcends its ‘internal’ character on account of the disproportionality of the means employed and the concomitant violations of international humanitarian law, see Th. Schweisfurth, Tatarstan kan dienen als voorbeeld voor Tsjetsjenië, NRC Handelsblad, 24 January 1995, at 8 (published earlier in Frankfürter Allgemeine Zeitung).
31. Cases of (de)colonization constitute the one exception on which general agreement exists; see, e.g., Thürer, D., Self-Determination, in R. Bernhardt (Ed.), Encyclopedia of Public International Law, Vol.8, 470–476, at 473 (1985).Google Scholar On the ‘national’ right to self-determination,see Cassese, A., who, already in 1979, pointed to the “democratic thrust” of the right(Political Self-Determination. Old Concepts and New Developments, in A. Cassese (Ed.), UN Law/Fundamental Rights, Two Topics in International Law 137–165, at 153 (1979))Google Scholar; Thornberry, P., The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism, in Tomuschat (Ed.), supra note 2, at 101–138Google Scholar; Rosas, A., Internal Self-Determination, in id., at 225–252; and H. Hannum, Autonomy, Sovereignty and Self-Determination:The Accommodation of Conflicting Rights, e.g. 46 et seq. (1990).Google Scholar
32. Arts. 1(1) of both Human Rights Covenants.
33. Y. Beigbeder, International Monitoring of Plebiscites, Referenda and National Elections:Self-Determination and Transition to Democracy 1 and 18 (1994).
34. See Klabbers, J. & Lefeber, R., Africa: Lost Between Self-Determination and Uti Possidetis, in Brölmann et al. (Eds.), supra note 2, 37–76, at 46–49; see also the Report to the UN Sub-Commission by A. Eide, UN Doc. E/CN.4/Sub.2/1992/37, para. 165.Google Scholar
35. Recent history offers some relatively felicitous examples of cases which involve autonomy arrangements, such as the Inuit in Canada, the Aboriginals in Australia and the Saami in Norway. The Greenland Home Rule arrangement has served as a model for the drafting of the Declaration (see UN Doc. E/CN.4/1992/42).
36. Cf. Observations of Berman, in ASIL (Ed.), Proceedings of the 87th Annual Meeting 190 (1993); and Heintze, H.J., Völkerrecht und Indigenous Peoples, 50 ZaöRV 39–71, at 50 (1990).Google Scholar
37. This is left implicit in the Draft Declaration, but appears clearly from the Explanatory Note.In addition, some indigenous peoples have made it no secret that their aspirations go beyond ‘internal self-determination’. See, on this matter, UN Doc. E/CN.4/Sub.2/1994/30, paras. 37–39; cf. Tomuschat, C., Self-Determination in a Post-Colonial World, in Tomuschat (Ed.), supra note 2, 1–20, at 13; and Alfredsson, supra note 2, at 42.Google Scholar
38. R. Falk, The Rights of Peoples (In Particular Indigenous Peoples), in J. Crawford (Ed.), The Rights of Peoples 17–37, at 17 (1988).
39. On the definition of ‘peoples’ and ‘indigenous peoples’, see, e.g., Brölmann & Zieck, supra note 2, at 190–197, and references. As for the distinction between ‘peoples’ and ‘minorities’ suffice it to recall that, although nearly all indigenous ‘peoples’ also constitute ‘minorities’in the states in which they live, their legal quality of ‘peoples’ is of particular importance. Minority rights are, in essence, individual human rights. Due to this characteristic andtheir lacking a political component, minority rights are not capable of yielding the comprehensive protection which the indigenous people require for their survival as ‘peoples’ in the collective sense.
40. This does not preclude that indigenous peoples may eventually emerge as a new subject of (a particular form of) self-determination. Along the same lines the view of indigenous rights as a legal category sui generis: this seems to be suggested by the Rapporteur of the Working Group (UNDoc.E/CN.4/Sub.2/1993/26/Add.l,para. 13). Cf.P. Thornberry, International Law and the Rights of Minorities 395 (1991); and Falk, supra note 38, at 31–36, who advocates a ‘specific regime’ of rights.
41. See supra note 26 and accompanying text.
42. For an example of a text which takes the interests of all citizens into consideration, see the (Algiers) Declaration on the Rights of Peoples (drafted by a non-governmental assembly of experts in 1976, the text of which appears in Cassese (Ed.), supra note 31, at 219), which mentions some rights for peoples who also constitute aminority within a state (Arts. 19 and 20) and subsequently states that these rights “shall be exercised with due respect for the legitimate interests of the community as a whole” (Art. 21).
