1.Introduction
Self-determination is a problematic topic in international law with extraordinary contradiction in its usage. The concept has been liberally used as a slogan of universal purpose, but its application is a rather complex issue with several obstacles [01]. Its significance has been well-accepted and even romanticised [02], but its accurate meaning has not yet been determined.
This paper develops the theme of the situation of indigenous claims of self-determination under international law and human rights law, with emphasis in the conceptual debate it involves, arguing that if on the one hand self-determination seems to be a significant victory for indigenous peoples, on the other, it may be a false hope it is alleged that this right does not apply to them. The debate is not new, but it is still up to date and a more theoretical approach focused on conceptual matters rather than on legal texts is certainly worth discussing.
The United Nations Declaration on the Rights of Indigenous Peoples recognises this right stating, in its art. 3, that "Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." Notwithstanding the positivity of the legal wording, indigenous societies have been particularly victimised by the abstract difficulties it implies. Their representatives have been stressing over and over along the years that the right to self-determination is vital for their survival and development [03], but international law does not appear to be an optimistic scenario for these claims. In fact, Antonio Cassese argues that self-determination is firmly entrenched in only three areas of international law [04]: as an anti-colonialist standard; as a ban on foreign military occupation; and as a requirement that all racial groups be given full access to government.
In order to reach the answer to the proposed question, first this essay will analyse the confusion relating to the foundations in which rest the indigenous claims, which will partly explain the uncertainty on the issue. Second it will discuss the relevance of the term "peoples" to the debate. Third, it will consider what law and the courts have to say about the question. Fourth, the discussion between self-determination and territorial integrity will be put forth. In the conclusion it will be argued that, far from being a panacea, the right of self-determination for indigenous peoples is a conceptual pandemonium.
2.Conceptual obstacles and the right of indigenous self-determination
Kingsbury enumerates [05] five fundamentally different conceptual structures used by indigenous peoples in claims for their rights: (1) human rights and non-discrimination claims; (2) minority claims; (3) self-determination claims; (4) historic sovereignty claims; (5) claims as indigenous peoples, including claims based on treaties or other agreements between indigenous peoples and states.
Each of these structures is different, has a unique style of argument and its own patterns of legitimation and delegitimation. However,as they are built in political struggles, the lines and boundaries between them are drawn among clashes of biased interest and are, therefore, a form of political expression. Kingsbury argues [06] that lawyer-diplomats frequently try to connect these political divides, making the differences between them less determinative. This leads to a second variant, in which all the political disparities can be overcome for some other objective by expanding that category’s domain. This chain certainly clarifies the thoughts that "self-determinations is actually a human right, that minority rights to culture extend to indigenous land rights, that all indigenous peoples by virtue of that designation have the right to self-determination" [07].
James Crawford exemplifies this puzzlement, explaining [08] that indigenous peoples are becoming increasingly more vocaland averse to be treated as members of a minority. They seek separate recognition as a native people of their land and use the language of self-determination, invoking the Declaration on the Rights of Indigenous Peoples. But, in his view, the reference to self-determination in the Declaration is to internal self-determination; therefore, indigenous peoples would have to work out their claims within the boundaries of the states in which they happen to be.
What, however, should be included in a right of internal self-determination? Self-determination can vary from a right to individual participation to a high degree of autonomy. The equation between the right to participate and self-determination fails to consider the need for a limit to prevent decisions made against indigenous peoples by a less than benevolent or even tyrannical majority from being effectuated. [09]
Indigenous peoples fight for a more extensive interpretation, by claiming that the right to self-determination is the soul of the United Nations Declaration and all complaints against that are mere political diversions. In contrast, state governments allege that self-determination is a right upholding independent states only and any application of it to groups would undermine state sovereignty.
All this disagreement and multiplicity of approaches weakens the indigenous plea in the national states in which they are and bring serious difficulties to negotiation in the United Nations (UN) and the Organisation of American States (OAS) of proposed Declaration of Indigenous Peoples [10].This problematic language of self-determination diverges significantly from situation to situation and from era to era. As a result, the discourse has always come across as international double-speak with vague meaning. [11]
3.The definition of "peoples" in international law
The inclusion of the term "peoples" linked to self-determination in international law indicates the collective or group character of this principle. Anaya defends [12] that the term signifies that self-determination is concerned with human beings, not only as individuals but more as social creatures engaged in a social life in a community. In its plain meaning, the author says, "the term ‘peoples’ undoubtedly embraces the multitude of indigenous groups like the Maori, the Miskito, and the Navajo" [13], which include different communities, each with particular social, cultural, and political characteristics strongly rooted in history.
This is not, however, the only doctrinal position existing on the matter. Many have considered that the term "peoples" is restrictive to the scope of self-determination. For these, the "peoples" would be narrowly defined, mutually exclusive communities. This approach has encouraged the debate on whether indigenous peoples have the right to self-determination or not.
There are three main variants [14] of the latter restrictive thought. The first holds that self-determination only applies to populations which are under conditions of classic colonialism. This approach is correct in identifying decolonization as a process caused by a manifestation of the principle of self-determination. However, it mistakenly affirms that decolonization is its only scope. Anaya believes that this thought would undermine the principle’s human rights character [15].
The second variant includes, in the term "peoples", the aggregate populations of independent states, as well as those of classical colonial territories. Although this approach certainly represents a considerable advance of self-determination as a human rights principle, it is still limited to the population as a whole, to a unified group of people, not embracing the sub-state groups, that may have legitimate claims regarding self-determination in the postcolonial age.
The third approach acknowledges the world as divided into mutually exclusive territorial communities. The problem with this variant is that the "peoples" entitled to self-determination are not defined by their status quo of recognised statehood or colonial territorial boundaries, but instead by a political geography defined by ethnographic cohesion and historically exercised territorial sovereignty. [16]
Anaya defends that each of the variants is flawed "in their limited underlying vision of a world divided into mutually exclusive ‘sovereign’ territorial communities" and that this represents the "traditional Western theoretical perspective that limits humanity to two perceptual categories – the individual and the state..." [17]
This critical view is very favourable to indigenous societies, but, obviously, does not correspond to the thoughts of others experts. Xanthaki writes [18] that there is a tendency to overlook intellectual criteria and focus on the guidance given by international documents. She says that the Article 1 of the International Covenants is interpreted by states as excluding indigenous peoples, which implies a distinction between "peoples" in general and "peoples" for the purpose of self-determination.
Brölmann and Zieck write that the term "indigenous peoples" is a convenient shorthand term for a great number of communities all over the world, but, in addition to problems which are inherent in the use of such terms, the current classification of population groups into "peoples" or "minorities" does not seem to accommodate indigenous peoples. Quite bluntly, they state that "indigenous peoples are, yes, peoples, but not for the purpose of international law". [19]
In reality, for the purpose of self-determination, no international instrument defines who "a people" are. Xanthaki invokes Jennings [20] to express this frustration:
"Nearly forty years ago a Professor of Political Science who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible proposition, the doctrine of self-determination. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide until someone decides who are the people."
The debate between the maximalist approach, defended by Anaya, allowing self-determination to all claimants, and the minimalist approach, of a very strict definition, does not seem to benefit the indigenous peoples. While the experts are pondering and trying to find a balance, a number of them are in a situation where waiting can be lethal. Let us investigate if any hope can be found, if not in the doctrine, then in the law and jurisprudence.
4.Legal and jurisprudential approach to indigenous self-determination
Article 1 of both International Covenants on Human Rights provides that "all peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development". Similar proposition is found in the Helsinki Final Act of 1975, in article 20 of the African Charter on Human and Peoples’ Rights, in the 1970 Declaration on Principles of International Law Concerning Friendly Relations and in a number of UN resolutions. [21] Indigenous matters are dealt with in Conventions 107 and 169 of the International Labour Organization (ILO) and in the UN Draft Declaration on the Rights of Indigenous Peoples. [22]
However, limits are established in many aspects. The norm of uti possidetis juris, for instance,protects the territorial framework of independent states in the interpretation of self-determination, preventing them from being dismantled in their sovereignty. This is the next topic to be discussed.
The Convention 169, say Brölmann and Zieck [23], admits the term "peoples" but holds back when considering the potential consequences this term may have. The draft Declaration expressly grants the right of self-determination to indigenous peoples, but seems to avoid the idea that it would allow the possibility of secession.
Antonio Cassese clarifies that, notwithstanding the generically applicable disposition, current international law on self-determination is blind in respect of ethnic groups (not forming a racial group) and nationals, religious, cultural, or linguistic minorities. [24] The courts seem to follow this understanding and limit the right to self-determination to minorities and indigenous groups. Below, a case between Zaire and Katangese Peoples’ Congress, judged by the African Commission on Human and Peoples’ rights [25]:
"3. All peoples have a right to self-determination. There may however be controversy as to the definition of peoples and the content of the right. The issue in the case is not self-determination for all Zaireoise people but specifically for the Katangese. Whether the Katangese consist of one or more ethnic groups is, for this purpose immaterial and no evidence has been adduced to that effect.
4. The Commission believes that self-determination may be exercised in any of the following ways: independence, self-government, local government, federalism, confederalism, unitarism or any other form of relations that accords with the wishes of the people but fully cognisant of other recognised principles such as sovereignty and territorial integrity.
5. The Commission is obligated to uphold the sovereignty and territorial integrity of Zaire, member of the OAU and a party to the African Charter on Human and Peoples’ Rights.
6. In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire."
This decision confirms the uncertainty around the term peoples, previously discussed, and prepares for the theme of territorial integrity, to be now presented.
5.Indigenous self-determination and territorial integrity
The probable reason behind both the doctrinal and the legal denial of the right to self-determination for indigenous peoples is its delicate implication on state sovereignty. Concerns over the integrity of the states are almost exclusively linked with the risk of indigenous secession. [26] Yet, Juan Léon, spokesman for the Defensoría Maya, pointed out [27] that "States don’t want to recognize that we are peoples, indigenous peoples, and not just groups, or ethnic groups, or populations... We have explained that we are not going to divide states, to create isolation in the state. But they still argue that if they recognize the terminology we use, we would try in the future to create secessions all over the world."
Although international law provides for the instrument of secession in cases in which the states are violating the human rights and fundamental freedoms, indigenous peoples do not as a rule aspire for autonomous statehood. Niezen writes [28] that indigenism can be differentiated from ethno-nationalism by the reluctance of indigenous people, at least up to present, to invoke secession and independent statehood as desired political targets.
He lists three reasons for this. First, secessionist behaviour of indigenous societies would give birth to states’ withdrawals from treaties and other trust obligations that are understood as benefit by these peoples. Second, the simple fact that the international movement of indigenous peoples is an international movement is a disincentive to secessionism. Finally, most indigenous societies are too small and their resources too meagre to acquire membership of an international community any other way. [29]
In Niezen’s analysis [30], it is extremely doubtful that the exercise of self-determination by indigenous groups would spread transnational secession and territorial realignments, if only for the simple reason that it would be tremendously improbable to find a new state to take the risks inherent in an annexation. However, hypothetically, states still face the risk of territorial loss through the instrument of indigenous self-determination in case the criteria of significant, ongoing human rights abuse were present.
As a proof of their fears, states refer to the statement [31] made by the Crees in Quebec:
"We do not want to secede from Canada; but if Quebec becomes a separate state, we will insist on our right of self-determination, our right to choose which, if any, state we determine to associate ourselves with".
Most authors maintain that self-determination must be focused on the participation of peoples in the political system of the state. Professor Higgins, for instance, argues [32] that self-determination is to be harnessed to, and not become the enemy of territorial integrity. Malcolm Shaw defends [33] that self-determination has a role of preserving the sovereignty and independence of states.
In turn, Stavenhagen’s critique [34] about the theme is very conservative. He states that there is a ‘good’ self-determination against ‘bad’ states and a ‘bad’ self-determination against ‘good’ states. In a very black and white view, he explains, in a publication of 1996, that the problem with self-determination and minorities may be reduced to four types of contradictions [35]:
1.Conflict between peoples who legitimately claim the right to self-determination to themselves but deny it to other peoples (for example: Serbs, Croatians, and Muslims in Bosnia-Herzegovina);
2.Denial of the right of self-determination in the name of the rights of the state (for example: Kurds in Iraq and Turkey);
3.Denial of the collective right to self-determination for non-state peoples in the name of universal individual human rights (for example: indigenous peoples in the Americas);
4.Denial of both the right to self-determination and universal human rights (for example: Apartheid South Africa and Palestine).
The paradoxes concerning the right of self-determination in relationship to states and to other peoples are one more factor of confusion about the matter. Self-determination proposition is seen in a negative way as its meaning might be confused with secession and reason for arguments and war.