Indigenous peoples and the right to self-determination

Indigenous peoples
and the right to self-determination

Speech by Mr Tom Calma Aboriginal and Torres Strait Islander Social Justice Commissioner.

Delivered at International Law Association (Australian Division) and HREOC workshop, Indigenous Peoples and Sovereignty - does sovereignty mean secession?

Sydney, 10 November 2004

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I would like to begin by acknowledging the Gadigal people of the Eora nation.

I pay my respects to the Gadigal as a Kungarakan man whose traditional country lies far north from here, up near Darwin. I recognise the relationship of the Gadigal to this land and their ongoing responsibilities to it, under the watch of their ancestors. In other words, I recognise the ongoing dimensions of the sovereignty of the Gadigal to this country.

On behalf of the Human Rights and Equal Opportunity Commission, thank you for joining us here today at this seminar which we are co-hosting with the International Law Association (ILA). This is the third seminar HREOC has co-hosted with the ILA on international law dimensions of issues facing Aboriginal and Torres Strait Islander peoples.

These seminars have come about due to the efforts of Greg Marks of the ILA, with the eager support of the ILA's President, Margaret Brewster. So thank you to both Greg and Margaret for your efforts, and for your introductory comments this afternoon. I would also like to thank David Ritter who has flown over from Perth to join the discussion today.

This afternoon I am going to talk to you about the importance of the letter 'S' in international law. Indigenous peoples - or Indigenous people as governments prefer to refer to us - have been fighting for the letter 'S' in the United Nations for at least thirty years.

We have been fighting for recognition in international law that we are a 'peoples'. As we know, one of the fundamental principles of international law is set out in Article 1 of the two international covenants (on civil and political, and economic, social and cultural rights). Article 1 states:

All peoples have the right to self-determination. By virtue of that right they may freely determine their political status and freely pursue their economic, social and cultural development.

Throughout the history of the United Nations, governments have been very careful to ensure that they have not used the words 'Indigenous' and 'peoples' next to each other in a sentence. So for example, the three main Indigenous mechanisms in the UN are called:

• The Working Group on Indigenous Populations
• The Permanent Forum on Indigenous Issues; and
• The Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people.

We are also currently in the International Decade for the World's Indigenous People.

On the odd occasion where the term 'Indigenous peoples' has been used, it has been qualified on the basis that the status of Indigenous people remains subject to negotiation. As an example, Article 1(3) of the International Labour Organisation's Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries states that:

The use of the term 'peoples' in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

Another such example is the Durban Declaration of the World Conference Against Racism from 2001.

What governments are doing when they make such a qualification, or when they refuse to use the phrase 'Indigenous peoples' at all, is deferring to the ultimate settlement of this issue through another of the processes of the United Nations.

This is through the working group established by the Commission on Human Rights in 1995 and which is rather inelegantly known as the Ad-hoc open-ended inter-sessional working group on the Draft Declaration on the Rights of Indigenous Peoples. I will refer to it as the CHR Working Group for the remainder of this discussion. For ten years now, this working group has been negotiating a Declaration on the Rights of Indigenous Peoples.

There are two key dates relating to the Draft Declaration that will occur later this year. First, the CHR Working Group will meet for the third week of its tenth session from 29 November to 3 December. At the end of that week, the CHR Working Group will have deliberated for 10 years. Under Commission of Human Rights rules, there will be a review of the Working Group's operations, and a decision will need to be taken next March or April to decide whether to extend the working group any further.

The second key date is that the International Decade for the World's Indigenous People will end on Human Rights Day, December 10, this year. One of the key objectives of this decade is the adoption of the Draft Declaration on the Rights of Indigenous Peoples and the further elaboration of international standards on Indigenous rights.

As you may know, to date through the CHR Working Group process a total of 2 out of 45 articles of the Draft Declaration have reached consensus and have been provisionally adopted. It is clear that when these two key dates come around there will not be a fully agreed and finalised Declaration.

What I want to talk about here is the nature of the debate in this working group on the application of self-determination to Indigenous peoples and some highly significant developments in the Working Group during its two most recent sessions in September 2003 and September 2004 on this issue.

I must confess that coming into the role of Social Justice Commissioner I had heard very negative opinions about the Working Group process. Of course, agreement on only 2 of 45 articles in 10 years with the most recent date of agreement on text being 1996 certainly doesn't leave a favourable impression.

But I was quite surprised when I attended the latest session of the Working Group this September at the pace of the deliberations and the atmosphere of goodwill that exists in the negotiations. In light of the challenges that remain for this Declaration, I think it is worth me saying at this point that the negotiations are being conducted in good faith and there remains much hope that a Declaration will eventually come into existence.

So I am not describing to you a debate that has no chance of resolution. In fact, as you will see shortly, the debate is currently delicately poised and may even be heading towards consensus on the issue of recognition of a right to self-determination for Indigenous peoples.

Before discussing why this is so, however, I will provide a brief overview of the history of the Draft Declaration. A full description of this history can be found in the Social Justice Report 2002, copies of which are available on the entry table today.

Indigenous peoples' have sought the recognition of their rights in international foras going back to the League of Nations in the 1920s. There are two aspects to this struggle. First, recognition of the place of Indigenous peoples at the negotiating table as sovereign peoples, or the right to participate. And second, the elaboration of the distinct rights of Indigenous peoples, based on the recognition and protection of distinct Indigenous cultures and societies.

It was not until 1982, however, that Indigenous peoples have been able to access United Nations processes with any consistency or in numbers. This was made possible through the establishment of the Working Group on Indigenous Populations (or WGIP).

For twenty plus years, the WGIP has fulfilled two functions. It has reviewed developments in the recognition of Indigenous human rights, something which it does on a thematic basis each year. And secondly, it gives attention to the evolution of standards concerning the rights of Indigenous peoples.

It is under this second function of the WGIP that the Draft Declaration on the Rights of Indigenous Peoples emerged between 1985 and 1993. The five independent experts who make up the Working Group engaged in debate with Indigenous organisations and governments in its annual sessions and progressively developed a Declaration setting out specific issues that they felt required recognition in order to protect the distinct cultures of Indigenous peoples.

The Declaration recognises the distinct cultural attributes of Indigenous peoples and the necessity for these to be protected in order for Indigenous peoples to be able to live freely and in equality with other segments of society. This involved recognition of:

• the spiritual connection of Indigenous peoples to their traditional lands and resources;
• the specific vulnerabilities of Indigenous peoples, including through economic marginalisation and in times of war and conflict;
• the particular vulnerabilities of Indigenous women and children; and
• the need for recognition of the continuing existence of distinct systems of law and governance.

In 1993, the WGIP concluded its work on the Declaration when it inserted into Article 3 recognition that Indigenous peoples have the right to self-determination. The WGIP's Declaration was then adopted by consensus by the Sub-Commission on the Protection and Promotion of Human Rights in 1994. Both the Working Group on Indigenous Populations and the Sub-Commission are, of course, independent expert bodies in the UN human rights system.

In 1995, the Commission on Human Rights established the CHR Working Group to elaborate a Declaration on the Rights of Indigenous Peoples. As a working group of the CHR, this process is a political one involving States or governments. Indigenous peoples can participate in the working group in informal session, but ultimately the process is controlled by the member states. At times there have been heated debates in the Working Group on the adequacy of the participation of Indigenous peoples. And this is an issue that has not been fully resolved.

The specific mandate of the CHR Working Group is to negotiate a Declaration based on the draft prepared by the WGIP and endorsed by the Sub-Commission. So the negotiations take as their basis, text that was negotiated by States and Indigenous peoples under the guidance and ultimate decision of the independent experts of the WGIP

The issue of self-determination lies at the core of the Declaration. There are a number of provisions in the Declaration which relate to this principle. The key ones for explaining the debates are as follows. (NB: The relevant provisions are attached in full at the end of this speech)

Preambular paragraph 14 affirms the fundamental importance of the right of self-determination of all peoples, and preambular paragraph 15 notes that this Declaration may not be used to deny any peoples their right of self-determination.

Article 3 then outlines the right of self-determination in the language of the international covenants which I read earlier. Article 31 gives examples of what self-determination might entail and Article 45 ensures that the right of self-determination, and the other rights recognised in the Declaration, are to be applied consistently with the Charter of the United Nations. There are other articles of the Draft Declaration that relate to self-determination, but it is these ones that debates in the CHR Working Group have largely focused on.

It is fair to say that resolving the issue of Indigenous self-determination is the main challenge faced by the CHR Working Group.

During the debates on self-determination in the working group to date, very few States have indicated that they can accept the current wording of the Draft Declaration. Most countries have sought to amend the text to safeguard their territorial integrity and political unity from separatist Indigenous movements.

The Australian government position until this year was based in concern about separatism and secession, but went further as it opposed the use of the term 'self-determination' at all, and instead sought the Declaration to refer to a right to 'self-empowerment' or 'self-management'.

The United States of America has sought to further limit the application of self-determination to Indigenous peoples to what is termed 'internal' dimensions. And then a few countries, such as the United Kingdom and France, have expressed concern about ensuring that recognition of the rights of Indigenous peoples - including to self-determination - does not threaten the universality of human rights or provide special status to Indigenous peoples.

Indigenous peoples have responded to these concerns by stating that nothing less than the recognition of a full right of self-determination is acceptable. They have argued that the international covenants provide that 'all peoples' have the right of self-determination and that this applies without discrimination. Accordingly, the CHR Working Group needs to ensure that it does not restrict Indigenous peoples to enjoyment of a lesser, and discriminatory, standard of international law. The USA's position of internal self-determination is rejected outright by Indigenous peoples.

Indigenous people also note that there are a number of independent studies through the Sub-Commission, as well as findings and commentaries by the human rights treaty committees which state that Indigenous peoples do constitute 'a peoples' for the purposes of article 1 of the international covenants. Accordingly, they argue that the existence of the right of self-determination for Indigenous peoples does not depend on its recognition in the draft Declaration. This is another reason why Indigenous peoples are concerned that any restrictions on the right would be discriminatory.

This is a shorthand description of an extremely complex debate but it is these issues that have dominated the debates on self-determination in the Draft Declaration process. These debates have been very extensive in the 2003 and 2004 sessions of the CHR Working Group, and we are starting to see a convergence of the views of States and Indigenous peoples on the principle.

The central issue here is the territorial integrity and secession argument. So in order to comment on this, let me describe to you the very significant developments on this issue in the 2003 and 2004 sessions of the Working Group.

The 2003 session of the Working Group focused on a proposal by the Nordic countries - Norway, Denmark, Finland, Iceland and Sweden - relating to self-determination. Part of this proposal involved amending the text of the Draft Declaration to address the concerns of States as well as those of Indigenous peoples.

That proposal involved maintaining Article 3 of the Declaration in its original form and amending preambular paragraph 15 of the Declaration to include language from the 1970 Friendly Relations Declaration which would protect against the dismemberment of the territorial integrity or political unity of a State.

The American Indian Law Alliance (or AILA) conducted a detailed analysis of this proposal in which they concluded that it may inadvertently create a discriminatory standard for Indigenous peoples by subjecting the entire draft Declaration to the principle of territorial integrity.

As a consequence, they proposed an alternative amendment to preambular paragraph 15 as well as preambular paragraph 14. This alternative text would, in their words, 'ensure a coherent approach that is consistent with international law' and 'meet the basic objectives of the Nordic States' proposal'. They stated:

We are prepared to consider an amendment to the preamble to (the Declaration) so as to acknowledge that international law principles applicable to the right of self-determination may be freely invoked in the future. However, it would be misleading and unjust to highlight in (the Declaration) solely the principle of territorial integrity. This could erroneously imply that the principle of territorial integrity has some special status or significance above a host of other international law principles -such as democracy, rule of law, respect for human rights, non-discrimination and justice - which all apply in the context of self-determination.^[1]

Accordingly, AILA proposed the following amended text for pp14 and 15. The amendment to pp14 would ensure the equal application of the right of self-determination to Indigenous peoples, and pp15 would refocus the text from explicit guarantees of territorial integrity to a more general, and broader, application of international law standards.

The AILA proposal is a critical intervention in the CHR Working Group. This is because it is the first time that an Indigenous organisation has proposed a substantive change to the text of the Draft Declaration. The importance of this was acknowledged by States and has been a catalyst for the debate in the 2003 and 2004 sessions.

Prior to the 2004 session of the Working Group, the Nordic States were joined by New Zealand and Switzerland in a new proposal for the Declaration. This built on the debates in the 2003 session and proposed new language for a number of articles, including those relating to self-determination. This new language on self-determination takes into account the AILA proposal from 2003 by building on their proposal for preambular paragraph 15.^[2] It also takes up the concerns of States by explicitly incorporating into the body of the Declaration, in Article 3, language relating to territorial integrity.

This new language is shown on the overhead. It formed the starting point for discussion in the 2004 session of the Working Group. The new language in Article 3 reflects the Friendly Relations Declaration and is also drawn directly from the Vienna Declaration of the World Conference on Human Rights in 1993. As noted, it introduces to the draft Declaration explicit language on territorial integrity.

Prior to this language being considered in the most recent session of the Working Group, Indigenous peoples gave consideration to alternative language on self-determination. This resulted in a further new proposal, which was put forward on behalf of most Indigenous representatives attending the meeting.

This proposal sought to build on the AILA proposal from last year by proposing a slightly reworded version of preambular paragraph 15, retaining Article 3 in its original form (that is, without explicit language on territorial integrity) and by adding a new preambular paragraph which would provide positive recognition to other principles of international law that are relevant to self-determination and which had been referred to by AILA in their submissions in the 2003 meeting.

This new proposal is reflected on the slide. In introducing this proposal, Indigenous people provides an explanatory note as to the intention of the amendments. It reads in part, that the purposes of the amendments, which are to be read together, includes:

• to achieve consensus among States and Indigenous peoples, by accommodating both State and Indigenous concerns in regard to the fundamental human right of self-determination;
• to retain the original language of article 3 ... consistent with principles of equality and non-discrimination;
• to affirm that, to the extent provided in international law, States will continue to have the freedom to invoke any principle of international law, including the principle of territorial integrity, in relation to the exercise of self-determination;
• to avoid any explicit reference to the principle of territorial integrity in the (Declaration), in view of the growing abuses of this principle in different regions of the world; and
• to encourage harmonious and cooperative relations between States and Indigenous peoples, based on universal and mutually reinforcing principles and values of international law.^[3]

Again, the introduction of such a proposal and an explanatory note that explicitly details the interpretation of international law as it applies to Indigenous peoples in relation to self-determination is highly significant

Now there were a few other proposals made in the September 2004 meeting about self-determination, but at the end of the day the debate has reached a point where we are moving between this proposal of the majority of Indigenous delegations and that of the Nordic countries. The only other substantive proposal which differs from these is a proposal by another Indigenous delegation to include the entirety of Article 1 of the international covenants in Article 3 of the Declaration.

I want to conclude by making some comments about where the debate is at, but before doing that I want to provide you with one more piece of detail about the debate. A very significant development from an Australian perspective was the change in our government's position during the debates at this session.

In previous sessions, our government had argued against the principle of self-determination. This year they dropped their opposition to the use of this term, with the proviso that it was appropriately qualified with protections of territorial integrity. The Nordic, New Zealand and Swiss proposal in this year's meeting addresses that concern and so the government were prepared to accept this text or a slightly modified version of it.[4]

So where does this leave us and more importantly what does it mean?

There has been a significant narrowing in the lines of dispute about the right of self-determination as it applies to Indigenous peoples. Most participants in the CHR Working Group, through the positions they have adopted, impliedly or explicitly acknowledge that Indigenous peoples are capable of being recognised as possessing a right of self-determination. These debates have, in my view, moved from being focused on whether Indigenous peoples have a right to self-determination to now focusing on the nature and extent of Indigenous peoples' right to self-determination.

This is not to say that it is not still contentious. Recognition of self-determination is a vital step in a legal process of decolonising the relationship of Indigenous peoples and States. Some Indigenous peoples see the attempts to impose qualifications of territorial integrity as leading instead to their re-colonisation or as limiting recognition of their sovereign rights as Indigenous nations.

When the CHR Working Group resumes later this month it will focus on the issue of self-determination. It is likely that the debate will come down to how the principle of territorial integrity is 'captured' by the Declaration.

The proposal of Indigenous peoples, with no explicit reference, comes with a clear understanding of how international law operates and how it includes territorial integrity considerations. Some States showed great interest in seeing the explanatory note jointly agreed by most of the Indigenous delegations incorporated into the record of the meeting, so that it may form part of the interpretative materials of the Declaration (or the traveux prepetoire) once it is concluded.

The Social Justice Commissioner's Office, along with FAIRA, NAILSS, ATSIC and the Sovereign Union of Aboriginal Nations of Australia have endorsed this proposal. It has clear logic and a guarantee of the application of the territorial integrity principle alongside other principles of international law through the provisions of preambular paragraph 15 as well as Article 45 (which I only briefly mentioned earlier). In other words, despite the absence of explicit language on territorial integrity, the draft Declaration has a double guarantee of the application of this principle already. But it is a guarantee that is appropriately weighted alongside other, equally important, principles of international law.

What remains to be seen is whether this logic is enough for those States who remain concerned to ensure that there is absolutely no misunderstanding about the effect on their political unity and territorial integrity of the recognition of the right of self-determination for Indigenous peoples. I would argue that more explicit text is unnecessary from an international law perspective. But as Indigenous peoples have known and stated for a long time, this process is one that is primarily about politics and not law. And I think it is a politics of decolonisation - a new version of a process that to date has not been applied to Indigenous peoples.

This is the context in which the upcoming negotiations on the Draft Declaration will take place.

Thank you.

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Overheads for presentation

The following information was provided as overhead slides during the presentation:

Slide 1 - Draft Declaration on the Rights of Indigenous Peoples

Preambular paragraphs 14 and 15

Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights affirm the fundamental importance of the right of self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development, and

Bearing in mind that nothing in this Declaration may be used to deny any peoples their right of self-determination.

Article 3

Indigenous
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.

Article 31

Indigenous
peoples, as a specific form of exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to their internal
and local affairs, including culture, religion, education, information, media,
health, housing, employment, social welfare, economic activities, land and resources
management, environment and entry by non-members, as well as ways and means
for financing these autonomous functions.

Article 45

Nothing
in this Declaration may be interpreted as implying for any State, group or person
any right to engage in any activity or to perform any act contrary to the Charter
of the United Nations.

Slide 2 - Nordic
proposal on self-determination (2003)

Pp15

Bearing
in mind that nothing in this Declaration may be used
to deny any peoples their right of self-determination, and further emphasizing
that nothing in this Declaration shall be construed as authorizing or encouraging
any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-determination
of peoples, and thus possessed of a Government representing the peoples belonging
to the territory without distinction of any kind.

Slide 3 - AILA proposal
for pp14 and 15

Acknowledging
that the Charter of the United Nations, the International Covenant on Economic,
Social and Cultural Rights and the International Covenant on Civil and Political
Rights affirm the fundamental importance of the right of self-determination
of all peoples, by virtue of which they freely determine their political status
and freely pursue their economic, social and cultural development, and
that this right applies equally to indigenous peoples and

Bearing
in mind that nothing in this Declaration may be used to deny any peoples
their right of self-determination exercised in conformity with applicable
principles of international law

Slide 4 - Nordic
/ New Zealand and Swiss proposal on self-determination (2004)

pp15

Bearing
in mind that nothing in this Declaration may be used
to deny any peoples their right of self-determination exercised in conformity
with applicable principles of international law, including the principles contained
in this Declaration,

Article 3

Indigenous
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.

Taking
into account the particular situation of peoples under colonial or other forms
of alien domination or foreign occupation, it is recognised that peoples have
the right to take any legitimate action, in accordance with the Charter of the
United Nations, to realise their inalienable right of self-determination. The
denial of the right of self-determination is a violation of human rights and
underlines the importance of the effective realisation of this right.

In
accordance with the Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter
of the United Nations, this shall not be construed as authorising or encouraging
any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting
themselves in compliance with the principle of equal rights and self-determination
of peoples and thus possessed of a Government representing the whole people
belonging to the territory without distinction of any kind.

Slide 5 - Indigenous
proposal on self-determination (2004 session)

Pp15

Bearing
in mind that nothing in this Declaration may be used
to deny any peoples their right of self-determination, exercised in
accordance with international law, including the principles contained in this
Declaration;

NEW pp

Encouraging
harmonious and cooperative relations between states and indigenous peoples based
on principles of justice, democracy, respect for human rights, non-discrimination
and good faith.

Article 3

Indigenous
peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursuer their economic, social and
cultural development.

Slide 6 - Further
indigenous proposal for Article 3 - incorporation of full text of Art.1 ICCPR
and ICESCR

1.
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.

2.
All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and international
law. In no case may a people be deprived of its own means of subsistence.

3.
The States Parties to the present Covenant, including those having responsibility
for the administration of Non-Self-Governing and Trust Territories, shall
promote the realization of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the United
Nations.

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Endnotes

1.
American Indian Law Alliance, Nordic States' proposal on self-determination:
Indigenous concerns and a proposed alternative, 15 September 2003.

2. Note: The AILA proposal was added to by Guatemala and Mexico
during the 2003 session and resulted in a revised version which has been referred
to as the Guatemala / AILA proposal. For the purposes of time I have not described
the content of this proposal, as is it is incorporated into subsequent proposals
by Indigenous Peoples and the Nordic countries in the 2004 session.

3. Inuit Circumpolar Conference, Indigenous peoples proposed
amendments relating to the right of self-determination - explanatory note,
20 September 2004.

4. The government indicated in debates that it was prepared
to move the second new proposed paragraph of Article 3, which relates to legitimate
action to realise the right of self-determination, to the preamble.

Last
updated 11 November 2004.