Indigenous Peoples and Self-Determination in International Law

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Indigenous Peoples and Self-Determination in International Law, the Declaration of the UN on Indigenous Peoples’ Rights and the Draft Nordic Saami Convention

Numerous global events are increasingly indicating a trend that humankind has never witnessed before, s trend of the world becoming more closely knit each day. All human nations, societies, cultures and governments are fighting to understand this new reality. The pain and agony of the coming of a new reality and the world is visible within numerous entities. The trend of globalization has not made matters any better as it is increasing in speed each day. In this new world, human beings are required to create new institutions of decision- making and governance. The UN is the only true step towards international governance system that tries to embrace the idea of a wholesome human race.

Ever since the beginning of the new global era, in which the ILO league was founded, the indigenous people of the world were treated as if they had no place in this world, or as if they did not exist at all. Governments all over the world have systematically on a wide range worked hard to extinguish these individuals, their way of life and cultures. They have arbitrarily taken over the property of these people and their waters and land. In addition to this, governments have systematically ignored the call for autonomy by the indigenous people and call for an independent voice, both internationally and domestically. If there is anything the indigenous peoples have in common is that they do not trust their governments and that they wish to speak for their rights and themselves.

The United Nations recently invited and welcomed the indigenous people to become members of the UN family, and to help add to the tasks of the UN. However, this was amid much confusion and many unanswered questions. For instance, people wondered how is it that the UN permanent forum for these individuals is nothing more than the newest chapter in the history of these individuals at the UN. People also wondered whether the indigenous people really had become true members of the UN family. Before this, many people were oblivious to the essentiality of the permanent forum. Even experts for human rights have no or limited knowledge of it and almost nothing is documented about the forum. So the questions continued, and one of the most essential is whether the UN was perhaps exaggerating and only being nice to the indigenous people or whether it was being truthful.

Extensive scholarly works on this issue of indigenous self- governance and autonomy show that autonomy legal concepts suffer from immense confusion. In the following paper, I present a survey if the governance concept in legal scholarship in an attempt to come up with normative grounds for the right of the indigenous people to autonomy. The paper will, therefore, discuss two main things, at first, it will discuss the general considerations of theoretical aspects of the autonomy concept on public law, and examine the level to which the right to autonomy can be justified and defines in the light of comparative and international constitutional legislation. The second section of the paper will give a brief overview of the indigenous people autonomy. By discussing the issue of whether there is an emerging right to autonomy of the indigenous people, the paper will show the ambiguity and confusion surrounding the right to autonomy as presented by the international law. In conclusion, it will be shown that although it is contained in the concept of self- determination, one can truly understand the scope and content of the indigenous people autonomy in the concept of a specific situation and not generally.

One of the most significant results of the UN declaration is the acknowledgement of the right to self- determination of the indigenous people. The inclusion of an express provision on the matter in the document was one of the key controversial items during the process of drafting since it touches on increasingly fundamental concepts for both states and the indigenous groups. Also, the Brazil representative expressed the challenges of the government in regards to the right to self- determination in the context of the declaration draft. Nevertheless, the final draft of the declaration puts together a number of provisions which indirectly and directly declare the right of the indigenous people to self- determination and delineate its scope. The key provision of the right offers merely the beginning point for the comprehension of the self- determination content as defined by the declaration.

It establishes a right that is unqualified at first sight, which does not refer to the principle of the territorial integrity of states or political unity, when compared to other international instruments concerning similar issues. Nevertheless article 46 of the declaration makes its scope clear, determining a principle of general interpretation, according to which, nothing in the declaration should be interpreted as implying for any particular state, group, people or person any right to participate in any act or to perform any activity in contrast to the UN charter or construed as encouraging or authorizing any action which has the potential to impair or dismember the political unity or territorial integrity of independent and sovereign states.

Irrespective of these clear statements, a systematic analysis of the UN declaration would result to the conclusion that the exercise of the right of the indigenous groups to self- determination, in the manner the document describes, presupposes the scope of life within a state framework. No provision or article in the declaration suggests a right to the so- called external self- determination or right to secession. The content of the specific right of the indigenous people to self- determination according to the declaration establishes firstly, standards of quality to be attained under two main premises, the political participation of the indigenous people and their self- governance. These are the ideologies that merge the concerns of the state and the indigenous people into a common convergent notion of self- determination, better understood when placed against the challenging background of coexistence of a number of groups within a state and internal governance.

The position of independence or autonomy in international law can be accessed through the analysis of international law sources like treaties, customs, and practices of international organizations, conventions, reports, doctrines and documents. Analysis of these sources of information indicates that there are weak grounds for the acknowledgement of autonomy as an international law principle. However, other sources indicate otherwise. In such sources, autonomy is shown as a principle of international law because firstly, autonomy for certain populations are a principle of international law founded on an allegation of a popular practice of leading states. Secondly, it is a principle because it is a right of minorities that are distinctive. The third argument is based on the issue of self- determination of populations. Concerning the first argument, there is a developing consensus internationally that political autonomy is the proper response to the trend of territorial minorities, especially territorial indigenous minority populations. It is, however, unclear whether there is a practice of autonomy that is common.

It is also not persuasive that self-government for certain people is a standard of international habitual law or not. Arguably, the status of the minority can be equated with the autonomy right. This alleged right can be said to be customary law obtained from the constant occurrence of autonomy. However, forms of autonomy and self- governance vary so much in different cases that their specific context remain a customary rule that has not evolved, as well as, doubtful. The right to autonomy is also not expressed in major international documents that concern the rights of the minority or in the practices of the Council of Europe, or some universal rights treaty of the minority or the United Nations. As it follows, in the context of the rights of the minority, autonomy appears as pragmatic or hortatory politics refusing to change itself into a coherent norm or maybe dissolving into sub constituencies that are conceptual before our eyes. Therefore, there is no distinctive minority right to autonomy as an international law principle.

Indigenous groups have time and again underlined that recognition of self- determination right is a precondition for the effective practice of the rest of fundamental human rights and freedoms. Correspondingly, from the initial meeting of the Expert Group, the appointees of the Saami convention declared that any Saami convention, to be acceptable, must acknowledge the right of the Saami people to self- determination. The members of the government were sympathetic of this plea. During its first year of work, the Expert Group devoted most of its time to main discussions on the matter of self- determination.

In addition to this, the expert Group appointed a smaller group from its members to draft a memorandum, outlining contemporary position of the international law on self- determination rights of the indigenous people. It is only fair to indicate that the issue of self- determination dominated the early period of the work of the group. It was clear to all of the group’s members that the position of the Expert group took on the self- determination right would significantly affect the rest of the Saami Convention. Yet the discussions on the self- determination issue never really took off. Without a significant debate, a consensus emerged that it is clear that the Saami people actually constitutes such a people that is entitles to the self- determination rights.

Conclusion

Analysis of the autonomy concept and the existence of the autonomy right in the main literary sources of constitutional and international law as they bear on the considered cases in this survey show that there is a weak or limited normative basis for this critical right. However, it is becoming clear and gradually achieving more de jure support in the international organizations’ practices, the Draft UN Declaration on the indigenous people’s rights, documents and in the constitutional jurisprudence. Eventually, the autonomy right will obtain explicit acknowledgement and support in the public law sources. The concept of this right is evolving and currently, it has a stronger foundation for its legal implementation and justification as regards the autonomy right of the indigenous people when compared to other populations.