European Conquest and the Rights of Indigenous Peoples Part 6 ppt

Precisely because cou-‘it could lead to a very different world map’, self-determination has, inthe 1990s, been perceived, politically and legally, as the ‘most problem-atic topic in indi

eastern Europe True to its declaratory policy concerning post-war order,the United States insisted on self-determination for the states of easternEurope The Soviet role in thwarting free elections, first in Poland andthen elsewhere in eastern Europe, was seen as a denial of the principle

of self-determination and was consequently a source of the Cold War.Whether in the case of free and democratic elections for the states

of eastern Europe, or the right of colonised peoples to sovereign dependence as states, the common issue was the freedom of nations

in-to determine their future unfettered by external powers In both casesthe object of self-determination was the right of peoples to constitutethemselves as a self-governing ‘nation state’ What was to be deter-mined was the sovereign authority and independence of states withjurisdiction over defined territory as the political expression of the peo-ple contained in them A problem common to both cases was that theseso-called ‘nation-states’ more often than not contained ethnic minoritiesthat might themselves seek self-determination at some future juncture;

as indeed happened in the resurgence of ethnonationalism followingthe end of the Cold War Self-determination is thus an inherently am-biguous principle On the one hand, it has been and continues to beinterpreted in the context of relations between states It is inextricably

linked with the principle of sovereign independence from other states On

the other hand, it is the normative basis of claims from within particularstates for independence from the jurisdiction of those states As Cobbanput it in the 1960s, ‘[t]he history of self-determination is a history of themaking of nations and the breaking of states’.65

In the context of relations between states, self-determination is pled to the control of a territorial state Consequently, states tend toregard indigenous peoples’ claims to self-determination as claims toterritorial sovereignty that would dismember them Precisely because

cou-‘it could lead to a very different world map’, self-determination has, inthe 1990s, been perceived, politically and legally, as the ‘most problem-atic topic in indigenous peoples’ rights’; one that ‘strikes at the legit-imacy of settler regimes’.66 The problem is, as Kingsbury puts it, that

of solving ‘how the principle of self-determination can be reconciledwith the concern of states to maintain their territorial integrity and withthe concern of the international community not to risk unlimited frag-mentation of existing states’.67This is an understandable and justifiable

65Cobban, Nation-State, p 43. 66 Perkins, ‘Researching Indigenous Peoples’.

67 Kingsbury, ‘Claims’, p 485.

concern, but indigenous claims to a right to self-determination are notintended to result in the establishment of independent states.68 Werethat the aim it would face formidable political obstacles and wouldnot, in any case, be legally feasible in the framework of current inter-national law Claims to self-determination that conflict ‘with the worldsystem of state sovereignty’ are simply not recognised in internationallaw.69And because of its historical encumbrances self-determination isalmost inevitably regarded as being in conflict with the principle of statesovereignty.

For many indigenous peoples, however, self-determination is mental to the recovery of their rights This is poignantly illustrated in

funda-the First Report of funda-the Australian Aboriginal and Torres Strait Islander

Social Justice Commission It argues that ‘every issue concerning thehistorical and present status, entitlements, treatment and aspirations ofAboriginal and Torres Strait Islander peoples is implicated in the concept

of self-determination’ ‘The right to self-determination’, it continues, ‘isthe right to make decisions.’70 ‘Our entire experience since the asser-tion of British sovereignty over our country has been the experience ofthe denial of the right to self-determination – The human experiencewas one of devastation and destruction, death and disease, brutalisationand misery Our lives were utterly subject to the control, the decisions,

of others.’71

Cast in this light it is understandable that regaining control over thedecisions that affect them, via self-determination, is indeed a first prior-ity for indigenous peoples, whether in Australia or elsewhere

An illustration of the positive benefits that could possibly result fromself-determination for indigenous peoples is the recommendation of theAustralian Royal Commission into Aboriginal Deaths in Custody that

it is ‘fundamental to reducing the number of Aboriginals in custody’

In support of this opinion Commissioner Elliott Johnston QC referred

to a report of the House of Representatives Standing Committee onAboriginal Affairs

which included: the devolution of political and economic power toAboriginal and Torres Strait Islander communities; control over thedecision-making process as well as control over the ultimate decisionsabout a wide range of matters including political status, economic,

68 Alfred, Peace, Power, Righteousness, p 57.

69 Irons, ‘Indigenous Peoples and Self-Determination, p 203.

70 ATSIC, First Report, p 41. 71 Ibid., p 43.

social and cultural development; and having the resources and capacity

to control the future of communities within the legal structure common

to all Australians.72

Self-determination is, in these reports, the right to make decisionsand have control over decision-making within the state rather than amatter of setting up new and separate sovereign states But, as we haveseen, states almost inevitably regard self-determination for indigenouspeoples as being in conflict with the principle of state sovereignty Thistension is inherent in General Assembly Resolution 1514, which is a keydocument in support of indigenous peoples’ rights With reference tocolonies it declares that ‘the subjection of peoples to alien subjugationand domination and exploitation constitutes a denial of fundamentalhuman rights’ Article 1 then asserts that ‘all peoples have the right toself-determination by virtue of [which] they freely determine theirpolitical status and freely pursue their economic, social and cultural de-velopment’ But Article 6 then makes it clear that self-determination can-not be interpreted in ways that oppose self-determination to ‘the existinggeographical delimitation of territorial boundaries of sovereign states’

It stipulates that ‘[a]ny attempt at the partial or total disruption of thenational unity and the territorial integrity of the country is incompatiblewith the purposes and principles of the Charter of the United Nations’.Article 7 then follows with the injunction that it is the duty of all states

to ‘uphold the obligation to enforce the Charter of the United Nationsand the Universal Declaration of Human Rights and this Declaration,

on the basis of equality, non-interference in the internal affairs of allStates and respect for the sovereign rights of all peoples and their terri-torial integrity’ In essence, coupling self-determination to decolonisa-tion meant subordination of ‘the notion of self-determination itself

to an over-riding conception of the unity and integrity of the state’.73

Governments are increasingly either willing or forced to accept thatindigenous peoples should have control over the decisions that affectthem, but they remain nevertheless concerned about the implications

of claims to self-determination Canada has accepted inclusion of theright to self-determination in the Draft Declaration, but for the ma-jority of governments Article 3 is worrying The reluctance of states

to move beyond the legal meaning given to self-determination in theera of decolonisation makes them unwilling to accept the autonomywithin the state sought by indigenous peoples as proper instances of

72Brennan, One Land One Nation, pp 153–4. 73 Falk, ‘Rights of Peoples’, p 26.

self-determination States are concerned over whether adoption ofArticle 3 would eventually mean ‘separate legal systems covering allmanner of things from taxation and gambling to criminal law and mar-riage relationships’ In response to the Draft the New Zealand govern-ment of the time, for example, declared its support for the ‘right ofindigenous people to exist as distinct communities with their own cul-tural identity’, but did not regard this as implying self-determination

in the sense enshrined in international law For other states as well, theproblem has been, to paraphrase Brennan, whether self-determinationmeans the international legal definition of it developed by theUnited Nations with decolonisation in mind or, instead, a differentconcept.74

So far I have wanted to draw attention to three essential points cerning the principle of self-determination in relation to indigenous peo-ples First, since World War II it has been linked to decolonisation andbeen regarded as primarily applicable only to the peoples within colo-nial boundaries Second, it has inescapably involved tension between itsinternal and external senses States have chosen to emphasise the latterwhich supports the principle that they should be able to conduct their af-fairs without interference from other states In this sense the populationcontained within the boundary of a state is treated as whole Focusing

con-on the internal aspects of self-determinaticon-on would instead necessitateasking whether particular groups within states have or should haveself-determination This in turn could lead to breaking up particularstates Third, the meaning of self-determination emphasised by indige-nous peoples is not of statehood but control over decisions within theexisting institutional structure of states This sense of self-determination

is fundamental to Anaya’s account of the concept in which he uncouples

it from decolonisation

Anaya argues that the apparent tension between the internal and ternal aspects of self-determination results from a ‘misconception thatself-determination in its fullest sense means a right to independent state-hood’ This is a misconception that stems from the identification of self-determination with the process of decolonisation, which did indeedresult in the establishment of new states For Anaya, limiting the ap-plication of self-determination to peoples in colonial situations ‘deniesits relevance to all segments of humanity’ and overlooks its connec-tion, as a principle, with human rights It cannot now be separated

ex-74 Brennan, One Land One Nation, p 151.

from the expression it has been given in a variety of human rightsinstruments,75the significance of which is illustrated by the situation ofindigenous peoples in, for example, Australia and Canada Understood

as decolonisation resulting in the establishment of a new state, determination has not been a possibility for these peoples To respond

self-to claims self-to self-determination by indigenous peoples in these states

by saying that they are not in a colonial situation and hence not titled to make such claims would be to deny the entitlement to self-determination contained in a number of human rights instruments Itwould also mean in some way denying the claim made by many indige-nous peoples that they continue to live in a colonial situation Further,

en-to depict self-determination as an escape from colonisation is en-to invertthe true relationship between the two Colonisation is a deviation fromself-determination Self-determination is not, as it often seems, a princi-ple invented as a response or corrective to colonialism Anaya’s point isthat decolonisation should be seen as rectification of a departure fromthe norm of self-determination and not as something that defines it Thisleads Anaya to distinguish between what he calls the substantive andthe remedial aspects of self-determination Decolonisation is a remedialmeasure that results in the formation of new states, but not all remedialmeasures necessarily result in new states

The substantive aspect of self-determination is, according to Anaya,defined by recognition of ‘a standard of governmental legitimacywithin the modern human rights framework’ The substance of self-determination is expressed in ‘shared opinion and behaviour aboutthe minimum conditions for the constitution and functioning of legiti-mate government’ meant to benefit all ‘peoples’ Anaya proposes thatsubstantive self-determination so defined ‘consists of two normativestrains’ or aspects: a constitutive and an ongoing one.76The essence ofthe constitutive aspect is that ‘the governing institutional order be sub-stantially the creation of processes guided by the will of the people’ Itshould ‘reflect the collective will of the people, or peoples, concerned’.77

The ongoing aspect is defined as requiring ‘that the governing tutional order, independently of the processes leading to its creation

insti-or alteration, be one under which people may live and develop freely

on a continuous basis’.78 ‘Ongoing self-determination requires a erning order under which individuals and groups are able to makemeaningful choices in matters touching upon all spheres of life on a

gov-75Anaya, Indigenous Peoples, p 77. 76 Ibid., p 81 77 Ibid 78 Ibid.

continuous basis.’79 Anaya objects to the conventional understanding

of self-determination as divided into internal and external aspects, asone that obscures and neglects the reality of the ‘multiple and overlap-ping spheres of human association’ States are not constituted simply of

a homogeneous collection of people whose only loyalty is to the state.They contain groups with overlapping and competing loyalties that de-mand participation in making decisions that affect them Both the con-stitutive and ongoing aspects correspond to human rights instrumentsthat enjoin parties to them to allow participation The collective will ofthe people that defines the constitutive aspect is expressed in the in-junction in the International Covenant on Civil and Political Rights thatpeoples are to ‘freely determine their political status’ And in the case

of the ongoing aspects, the stipulation in the International Covenant onEconomic, Social and Cultural Rights that peoples are to ‘freely pursuetheir economic, social and cultural development’

Anaya criticises the remedial aspect of self-determination for ing crucial omissions By emphasising territorial states, defined by colo-nial boundaries that ignored tribal and ethnic groupings, decolonisa-tion left indigenous peoples locked up in political groupings in whichthey did not gain self-determination in the sense of participation indecision-making Further, state sovereignty, to which self-determination

involv-is linked, both supports the status quo and deflects international scrutinyaway from the internal conduct of the state Intervention that violatessovereignty is at the same time a denial of self-determination as it is un-derstood in relations between states But to strictly observe the principle

of sovereign independence would be to leave citizens at the mercy ofthe states in which they are encased.80

Having re-cast self-determination in this manner Anaya proceeds tothe norms embedded in a variety of human rights documents that elab-orate the elements of self-determination he has highlighted His con-tention is that self-determination together with related human rights

‘precepts’ are the basis for a number of important norms concerning digenous peoples These norms in fact ‘elaborate on the requirements ofself-determination’ Anaya identifies them as non-discrimination, cul-tural integrity, lands and resources, social welfare and development,and self-government He details the instruments in which these appearand it is clear from his presentation that each one can be seen as an ex-pression of substantive self-determination centred on the collective will

in-79 Ibid., p 82 80 Ibid., p 85.

of peoples and participation in decisions that affect them In elaborating

on self-government, Anaya returns to the idea of overlapping tions that challenge the view of the state bound up with the conventionalview of self-determination Against ‘the traditional Western conceptionsthat envisage mutually exclusive states as the primary factor for locat-ing power and community’, Anaya’s preference is ‘a political order that

associa-is less state-centred and more centred on people in a world of dassocia-istinctyet increasingly integrated and overlapping spheres of community andauthority’.81

Will Kymlicka finds much to admire in Anaya’s account but arguesthat it contains some serious problems These stem, in Kymlicka’s view,from Anaya presenting ‘as an interpretation of “actually exisiting” in-ternational law’ what is actually a normative theory for reforming in-ternational law When it is regarded as the former the first problem forKymlicka is that he sees ‘no evidence that the international commu-nity accepts the right to self-determination for non-indigenous nationalminorities’ The burden of his argument is that states are willing to con-cede rights to indigenous peoples because they pose less of a threat thanlarge minorities Even if states do accord self-determination to indige-nous peoples they are not likely to extend this to large stateless nations.Kymlicka finds no evidence for the international community having sofar ‘accepted any general principle of self-determination for national

groups, and, a fortiori, such a general principle cannot be what underlies

recent developments in the law regarding indigenous peoples’.82

This leads to the second problem of whether distinctive remedialrights to correct ‘historic violations of self-determination require

or justify having separate conventions for indigenous peoples or less nations Here his underlying concern is with whether there is anyjustification for ‘establishing a system of differential rights between in-digenous peoples and stateless nations’ It would only make sense toestablish a permanent distinction between indigenous and stateless na-tions if they had different inherent rights of self-determination Yet this

state-is what Anaya seeks to deny.’

To Kymlicka’s mind remedial rights meant to correct past ment neither ‘captures nor explains the emerging norms of internationallaw’.83He proposes that the more likely explanation for the impetus to

mistreat-81 Ibid., p 112.

82Will Kymlicka, ‘Theorizing Indigenous Rights’, University of Toronto Law Journal, 49

(Spring 1999), 288.

83 Ibid., p 289.

‘international protection of indigenous peoples is the scale of tural difference’ Kymlicka finds Anaya curiously silent about culturaldifference and suggests that relying on claims about radical cultural dif-ference cut against self-determination: ‘it would imply that as soon asindigenous peoples start driving cars, going to university, working inmodern corporations, and adopting other aspects of modern westernlifestyles, then they lose their claim to self-determination They couldonly maintain a traditional way of life.’84

cul-For Kymlicka a further difficulty is that Anaya steps away from fronting a ‘major controversy concerning indigenous rights – namely,whether standard human rights norms apply to indigenous self-government, or whether it is a form of cultural imperialism to expectindigenous communities to abide by “Eurocentric” principles of indi-vidual civil and political rights’.85This involves a complex set of issues,some of which are touched upon immediately below and are taken upagain in the conclusion to the book

con-At this point it should be abundantly clear that self-determination

is a contested concept, the meaning of which is not easy to pin down.The next section considers four related issues regarded by internationallawyers as obstacles to establishing self-determination as an interna-tional legal norm These are the tensions between individual and grouprights, coupled with the adequacy or otherwise of human rights to es-tablish indigenous rights; the semantics and legal implications of theterms ‘people’, ‘peoples’ and ‘populations’; the contemporary scope ofself-determination; and, the assumed conflict between indigenous self-determination and state sovereignty

Issues to be resolved

Human rights and indigenous rights

In the United Nations system indigenous rights are an expression andextension of universal human rights Indigenous rights are codified andformalised through the United Nations human rights system The DraftDeclaration on Indigenous Rights proclaims that ‘Indigenous Peopleshave the right to the full and effective enjoyment of all human rights andfundamental freedoms recognised in the Charter of the United Nations,the Declaration of Human Rights and international human rightslaw’ (Art 1) This, however, is not informative about the conceptual

84 Ibid., p 290 85 Ibid., p 291.

differences between human and indigenous rights In particular, it doesnot answer the question of why, given that ‘[a]ll present internationalhuman rights documents and doctrines apply to indigenous peoplesthroughout the world’,86 there is any need for a distinct set of indige-nous rights.

It is a commonplace that the difference between these two is thathuman rights are held by individuals while indigenous rights are thecollective rights held or claimed by groups or peoples The right to self-determination, in particular, is a collective right that cannot be claimed

by individuals.87 From this it follows that one reason for needing tosupplement human rights with a set indigenous rights is precisely thathuman rights do not comprehend the collective nature of key indige-nous rights A frequent claim is that human rights are Eurocentric and

do not make adequate provision for indigenous customs and culturalpractices Implicit in the idea of indigenous rights is an affirmation ofthe existence of collectivities that have a distinct identity linked to theirparticular culture and place of belonging A compelling reason for rightsspecific to indigenous peoples is thus that individual human rights donot give legal expression to the existence of unique groups or cultures

If there are just human rights then groups of indigenous peoples have

no legally defined rights that set them, their culture and place of tachment, apart from others Without safeguards for collective or grouprights cultural identity is at risk For this reason Article 6 of the DraftDeclaration stipulates the collective right to live as distinct peoples.88

at-Indigenous peoples argue that group rights are the only way to ensureprotection against ethnocide

In the absence of specific indigenous rights codified in internationallaw indigenous peoples have appealed to and relied upon human rights.There are at least two reasons for them having done so In the first place

it is claimed that all major instruments of human rights, such as the

UN Declaration, include indigenous peoples Second, human rights areperceived to have been successful in transforming behaviour RobertWilliams, for instance, argues that ‘[m]oral suasion, shame, and thesimple capacity to appeal to an internationally recognised legal stan-dard for human rights have all done much to undermine the legitimacy

of state-sanctioned domestic practices that deny human rights’.89 His

86 Perkins, ‘Researching Indigenous Peoples’ Rights’.

87 Hilary Charlesworth, ‘Individual Complaints: An Overview and Admissibility

Requirements’, in Pritchard (ed.), Indigenous Peoples, p 79.

88 See Appendix for the text of Article 6 89 Williams, ‘Encounters’, p 670.

purpose in referring to the human rights process in this way, ever, is to argue for benefits that could be expected from adoption of

how-a Univershow-al Declhow-arhow-ation on Rights of Indigenous Peoples In the show-ameway that human rights discourse has affected the domestic behaviour ofstates the standards and principles laid down in the Declaration would

‘enter into the domestic policy discourse of [settler state governments]

as an urgent matter affecting their own moral standing and authority inthe international community as progressive advocates of internationalhuman rights standards and values’.90

As well as anything else indigenous rights are an expression of thedistinctive conception indigenous peoples have of political and socialrelations In an illuminating discussion of indigenous peoples in rela-tion to individual human rights, Russell Barsh contrasts the role of thestate in indigenous and non-indigenous thinking ‘In the legal systems

of states, a “right” is an argument against state power In indigenousthinking, there is no state, only a web of reciprocal relationships amongindividuals This renders “rights” in the classical sense meaningless, be-cause there is no state to argue against, only relatives.’91Barsh points outthat in indigenous societies, at least in the North American ones withwhich he is most familiar, kinship is paramount Consequently ‘the mostimportant difference between Indigenous peoples and conceptions of

“rights” and the notion of “human rights” in international law speaks

to the question of who bears the duty to satisfy claims: the state or otherindividuals’.92The socialisation of indigenous peoples into a network ofresponsibilities to kin, clan and nation means that these formations arethe source of rights and obligations This implies that indigenous andnon-indigenous peoples conceive of rights in quite different ways Inthe non-indigenous framework ‘ “Rights” are essential to maintaining

a social order based on a hierarchy of power, from the family to state.Indigenous peoples have been struggling to remain outside that kind

of social order, and as such they are quick to dismiss the relevance of

“rights” in the usual, individualised sense.’ Barsh observes that this ischanging as indigenous societies ‘becom[e] more like the states that op-press them’ With the breakdown of tribal society (in North America),

‘Indian communities are increasingly using law, force and punishment

to manage insiders and outsiders.’93

90 Ibid., p 671.

91 Russell Barsh, ‘Indigenous Peoples and the Idea of Individual Human Rights’, Native

Studies Review, 10: 2 (1995), p 41.

92 Ibid., p 43 93 Ibid., p 48.

At least two kinds of problems result from indigenous rights beingavailable only to certain groups within states The first is that indigenousrights can be, and indeed have been, objected to as ones that discriminateagainst non-indigeneous people This claim was a plank in the platform

of the now disbanded populist One Nation Party headed by PaulineHanson in Australia In her view and that of her followers, indigenousrights unfairly privileged Aboriginal Australians in access to a range

of government funded benefits A second problem is that individualhuman rights sometimes clash with the collective rights of indigenous

peoples Legal cases involving variations of this clash include Lovelace

vs Canada and Kitok vs Sweden.94Another example is Thomas vs Norris,

‘in which plaintiff David Tomas, a member of the Coast Salish People’

of Canada’s west coast ‘objected to being initiated into the Coast SalishBig House tradition known as the Spirit Dance’ Council for the defend-ants in the case argued that ‘the plaintiff’s civil rights against assault,battery and false imprisonment are subordinate and must give way tothe collective right of the Aboriginal nation to which he belongs and isprotected by s.35(1) [of the Canadian Constitution]’.95

These are cases that pose fundamental questions concerning the sion between the desire to protect cultural integrity and the human rights

ten-of the individual Thus Kymlicka asks, ‘Does the norm ten-of “cultural tegrity” provide indigenous peoples with a right to ignore or set asidehuman-rights principles that conflict with their traditions? Or does thenorm of cultural integrity only apply to cultural practices that are consis-tent with human-rights norms?’96In the final analysis indigenous rightsraise that problem of whether and under what circumstances it is per-missible to over-ride the rights of the individual in favour of collective

in-interests and vice versa.

In a vigorous defence of the claim that ‘the unit of human rights course is the individual human being’,97Anna Yeatman acknowledgesthat ‘[a] people can be the collective subject of rights, and one of thefundamental rights contained in the United Nations Charter was theright of peoples to self-determination’ But she argues, that ‘recogni-tion of a people’s right to self-determination cannot be at the expense

dis-94Steiner and Alston (eds.), Human Rights in Context, pp 1017–19, Anaya, Indigenous

Peoples, p 101 and Srelein, ‘Indigenous Self-Determination Claims,’ p 75.

95 Avigail Eisenberg, ‘The politics of Individual and Group Difference in Canadian

Jurisprudence’, Canadian Journal of Political Science, 27: 1 (March 1994), 3.

96 Kymlicka, ‘Theorizing Indigenous Rights’, p 292.

97 Anna Yeatman, ‘Who is the Subject of Human Rights?’ in D Meredyth and J Minson

(eds.), Citizenship and Cultural Policy (London: Sage, 2001), p 113.

of individual rights without undermining the nature of human rights,namely, their existence as inalienable rights that are not the privilege

of any collectivity to grant or withhold’.98 For her, ‘Human rights

is a conception of rights driven by the idea of the integrity of the man individual Put differently, for human beings to be accorded humanrights means that they are accorded the right to unit status or the right toindividuality.’99It follows from this that in cases where the assertion ofindigenous rights would violate the integrity of the individual humanthere is a fundamental tension between the two

hu-In relation to this, a further complication is the charge thathuman rights are not universal but merely an expression of Westernliberalism.100They can be seen therefore as a form of cultural imperi-alism To favour the rights of the individual against those of the tribe

or nation is thus to impose the political and moral preferences of onegroup of peoples on another A response to this may be found in the ar-guments of Eisenberg and Kymlicka,101both of whom locate the ability

of human individuals to fully realise their individuality and autonomy

in membership of nations or peoples I do not propose to pursue thisline of argument at this juncture but will return to it in Chapter 5

In closing this section I turn once again to Tim Rowse, whom we countered at the very beginning of the book Rowse candidly declaresthat he subscribes ‘to an understanding of human rights in which indi-vidual autonomy is the supreme value’ Consistent with this he declaresthat he supports the assertion of sovereign rights to self-determination

en-by nation states and peoples ‘to the extent that it enables their members

to enjoy autonomy as individuals’ He continues by stating that he is

‘hostile to claims that human rights can be realised only through viduals’ inclusion within any particular nation-state or people’ He isinstead in agreement with Anna Yeatman’s view that ‘[t]he individual

indi-as the subject of human rights belongs nowhere indi-as far indi-as any lar jurisdiction goes, but represents the substantive claim in relation towhich any jurisdiction may be judged’ For Rowse, the assertion of rights

particu-to sovereignty and self-government by nation-states and ‘peoples’ are

‘contingent and imperfect attempts to realise or mediate human rights’

By this route he is led to the observation that ‘[a]ny careful consideration

98 Ibid., p 112 99 Ibid., pp 116–17.

100 Brown, ‘Universal Human Rights’, in Dunne and Wheeler (eds.), Human Rights in

Global Politics, p 105.

101 Eisenberg, ‘Politics of Individual and Group Difference’, pp 3–21, and Will Kymlicka,

Liberalism, Community and Culture (Oxford: Clarendon Press, 1989).

of “self-determination” policy must try to come to an understanding ofthe relationship between Indigenous rights and human rights’.102This

is, I think, saying that in cases where the assertion of indigenous rightswould violate the integrity of the individual human there is a strong casefor over-riding collective rights, including that of self-determination atthe sub-state level

Another approach to this would be to ask what justifies the right

to self-determination Kingsbury suggests that one way to respond tothis would be to ‘[begin] with the group, and with the proposition thatthe interests of the group itself are sufficient to establish a right’ But

he argues that this ‘is not the basis on which human rights analysisproceeds’ It concerns the interests of individuals ‘If self-determination

is to be understood as a human right, the starting point must bethe value to the interests of individuals of membership of a particularkind of group.’ He then cites Joseph Raz in support of the assertion that

‘the well-being of the group is related to but different from, the gation of the interests of individuals’.103 In the end indigenous rightsmight be a species of human rights, but if they are they require humanrights to be redefined in ways that include the collective human rights ofgroups

aggre-Peoples and populations

The right of ‘peoples’ to self-determination is inscribed in Article 1 ofboth the ICCPR and the ICESCR Neither Convention was written withindigenous peoples explicitly in mind Any appeal to these instrumentsmust be made on the grounds that indigenous groups belong to thegeneral category of ‘peoples’ Consequently, the Draft Declaration onthe Rights of Indigenous Peoples seeks to establish the right of self-determination as a specific right of ‘indigenous peoples’ Article 3 of theDeclaration is thus a repetition of Article 1 of the Convention except forthe insertion of the word ‘indigenous’.104

The problem with this is that ‘peoples’ is taken to refer to groups stituted as nations that were colonised States see indigenous peoplesdifferently and to circumvent separatist claims that would challenge

con-102 All references in this paragraph are to Tim Rowse, Indigenous Futures: Choice and

Devel-opment for Aboriginal and Islander Australia (Sydney: University of New South Wales Press,

2002), p 18.

103 Kingsbury, ‘Claims’, p 502.

104 Article 3 states: ‘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.’

their authority they have wanted to cling to a distinction between ples’ and ‘populations’ This is far from being a mere matter of legalsemantics Indigenous peoples claim both that ‘self-determination is aninherent right of peoples (including indigenous peoples)’ and that ‘thisright entails sovereignty’ Representatives of indigenous peoples arguethat this does not necessarily imply separatism or secession But, as Ironspoints out, it does ‘imply that indigenous peoples themselves have theright to determine their form and extent of government, including theright to choose independence’.105For just this reason, government rep-resentatives to the Working Group on Indigenous Peoples have tended

‘peo-to argue that indigenous peoples should be regarded as minority groupswithin the state The task is then ‘minority protection within the state’.Government representatives have maintained ‘that indigenous peoplesare not entitled to self-determination under international law as the legalright of self-determination is only appropriate to the process of decoloni-sation and liberation from foreign occupation’ It is for this reason thatgovernments have preferred the term ‘indigenous populations’ to ‘in-digenous peoples’ as a way of avoiding ‘any implication that indigenouspeoples are entitled to the right of “all peoples” to self-determination’.106

A further problem is the distinction between the singular ‘people’ andthe plural ‘peoples’ The text of the final declaration of the 1993 UnitedNations Vienna Conference on Human Rights uses ‘people’ rather than

‘peoples’ Dianne Otto points out that this is a form of Orientalism

It ‘collapse[s] all indigenous groups into a single category incapable

of specific geographic or ethnocultural meaning, [hence it] reflects thecontinuing power of the global colonialist discourse’.107Simply put, itdoes violence to the differences between groups of indigenous peopleswho are far from being all alike

The contemporary scope of self-determination

A persistent argument about the right to self-determination, stated invarious instruments, such as the International Convention on Civil andPolitical Rights, has been whether it includes minorities generally orjust those in a ‘colonial’ situation We have already seen that the mean-ings given to ‘self-determination’ have included freedom from colonialdomination, the right to choose independence from or association withanother state, and, the collective right of a people (nation) to determine

105 Irons, ‘Indigenous Peoples’, p 211 106 Ibid., p 212.

107 Dianne Otto, ‘A Question of Law or Politics? Indigenous Claims to Sovereignty in

Australia’, Syracuse Journal of International Law and Commerce, 21 (1995), 718.