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Calma, Tom --- "Human Rights Special - Recent Developments in the Recognition of the Right of Self - Determination for Indigenous Peoples" [2004] IndigLawB 70; (2004) 6(7) Indigenous Law Bulletin 6


Recent Developments in the Recognition of the Right of Self-Determination for Indigenous Peoples

by Tom Calma

This article provides a brief overview of developments in the United Nations Working Group (‘Working Group’) on the Draft Declaration on the Rights of Indigenous Peoples (‘Draft Declaration’) relating to the recognition of self-determination.[1] There have been some highly significant developments in the Working Group during its two most recent sessions in September 2003 and September 2004 on this issue. These will be discussed further during the concluding week of the Working Group’s deliberations in December 2004.

Article 3 of the Draft Declaration seeks to confirm that Indigenous peoples are entitled to the right of self-determination, as set out in Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It states:

Indigenous 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.

During the debates on self-determination in the Working Group to date, very few states[2] have indicated that they accept this wording. Most states have expressed concern that such recognition could threaten their territorial integrity or political unity. They have sought guarantees in the Draft Declaration against this eventuality.

Indigenous peoples have responded to the concerns of states by asserting that nothing less than the recognition of a full right of self-determination is acceptable. They have argued that international covenants provide that 'all peoples' have the right of self-determination and that this applies without discrimination. Accordingly, Indigenous peoples have argued in the Working Group that the Draft Declaration needs to ensure that Indigenous peoples are not restricted to the enjoyment of a lesser, and discriminatory, standard of international law.

Indigenous peoples also note that there are a number of independent studies through the Sub-Commission on the Protection and Promotion of Human Rights, 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.[3] 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.

The debates on self-determination have been very extensive in the 2003 and 2004 sessions of the Working Group, and as a result we are starting to see a narrowing of differences in the views of states and Indigenous peoples.

In the 2003 session of the Working Group, the Nordic countries – Norway, Denmark, Finland, Iceland and Sweden – made a proposal relating to self-determination. This recommended, firstly, maintaining the recognition of self-determination in Article 3 in its original form. Secondly, it suggested amending Paragraph 15 of the Preamble to include language which would protect against the dismemberment of the territorial integrity or political unity of a state.

The American Indian Law Alliance (‘AILA’) conducted a detailed analysis of this proposal, concluding that it may inadvertently create a discriminatory standard for Indigenous peoples. This was by subjecting the entire Draft Declaration to the principle of territorial integrity and therefore potentially creating additional restrictions on Indigenous peoples’ rights that do not currently exist in international law.

In order to address this, AILA proposed alternative amendments to the Preamble of the Draft Declaration (in Paragraphs 14 and 15) which would, ‘...acknowledge that international law principles applicable to the right of self-determination may be freely invoked in the future...’ while also ensuring that the principle of territorial integrity is not given, ‘...some special status or significance above a host of other international law principles.’[4]

The AILA amendments to the Preamble sought to ensure the equal application of the right of self-determination to Indigenous peoples, and to refocus the text away 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 Working Group process. It was 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.

At the start of the 2004 session of the Working Group, the Nordic States were joined by New Zealand and Switzerland in a new proposal for the Draft 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 takes into account the AILA proposal from 2003 by building on their recommendation for the Preamble (in Paragraph 15). However, it also returns to the concerns of states by explicitly incorporating into the body of the Draft Declaration, in Article 3, language protecting against threats to territorial integrity. The new language in Article 3 is drawn from a 1997 United Nations Declaration on Friendly Relations[5] and the Vienna Declaration and Program of Action of the World Conference on Human Rights in 1993.[6]

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 2003 by proposing a slightly reworded version of Preambular Paragraph 15 (which ensures the equal application of the right of self-determination and principles of international law) combined with the retention of Article 3 in its original form (ie without explicit language on territorial integrity). It also sought to add a new paragraph to the Preamble of the Draft Declaration which would provide positive recognition to other principles of international law that are relevant to self-determination.

In introducing this proposal, Indigenous people stated that the purposes of the amendments were:

Again, the introduction of such a proposal by the majority of Indigenous peoples is highly significant. The provision of an Explanatory Note that explicitly details the interpretation of international law as it relates to the self-determination principle is also an important development.

Other proposals were made about self-determination during the September 2004 meeting. Most significantly from an Australian perspective, there was a proposal by the Government that constitutes a significant change in their approach. In previous sessions, the 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. They indicated that they could accept the Nordic, New Zealand and Swiss proposal in this year's meeting, or alternatively, a slightly modified version of this proposal, which would see some of the proposed text moved from the body of Article 3 to the Preamble.

Overall, there has been a significant narrowing in the lines of dispute about the right of self-determination as it applies to Indigenous peoples through the processes of the Working Group. While there is still a distance to travel before Indigenous peoples have this right affirmed in the Draft Declaration, the Working Group has moved closer to the point where the majority of participants acknowledge that Indigenous peoples’ right of self-determination is capable of being recognised. The focus of debates has shifted from whether Indigenous peoples have a right of self-determination to a focus on the nature and extent of this right.

The critical issue to resolve this debate will be how the principle of territorial integrity is 'captured' in the Draft Declaration.

While the proposal of Indigenous peoples does not refer specifically to territorial integrity, it comes with a clear understanding of how international law operates and how it incorporates these considerations. The office of the Aboriginal and Torres Strait Islander Social Justice Commissioner, along with FAIRA,[8] NAILSS,[9] ATSIC[10] and the Sovereign Union of Aboriginal Nations of Australia has endorsed this proposal. It has clear logic and a guarantee of the application of the territorial integrity principle alongside other principles of international law. This guarantee is appropriately weighted alongside other, equally important, principles of international law.

Some states have shown 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 Draft Declaration (or the Travaux Preparatoires) once it is concluded. This would be used as ‘insurance’ by states to confirm the application of territorial integrity principles.

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. As the Indigenous proposal for self-determination shows, explicit guarantees relating to territorial integrity are 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 rather than law. It is a politics of decolonisation – a new version of a process that, to date, has not been applied to Indigenous peoples.

We must now await the outcomes of the December 2004 session of the Working Group, and then the decision of the United Nations Commission on Human Rights in April 2004, as to the future of the Draft Declaration process and the ultimate settlement of the self-determination issue.

Tom Calma is the Human Rights and Equal Opportunity Commission Aboriginal Torres Strait Islander Social Justice Commissioner. He is a Kungarakan man from the Northern Territory.


[1] This article is an edited version of a speech delivered at the International Law Association (Australian Division) and Human Rights and Equal Opportunity Commission, Indigenous Peoples and Sovereignty - Does Sovereignty Mean Secession? 10 November 2004.

[2] ‘States’ refers to the nation states of the United Nations or national governments.

[3] For further details see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2002, HREOC: Sydney, 2002, ch 2 at <www.humanrights.gov.au> 24 November 2004.

[4] American Indian Law Alliance, Nordic States' Proposal on Self-Determination: Indigenous Concerns and a Proposed Alternative, 20 September 2004.

[5] United Nations Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States, 22 March 2004, A/RES/58/189.

[6] Vienna Declaration and Program of Action of the World Conference on Human Rights, adopted 25 June 1993, A/CONF.157.23.

[7] Inuit Circumpolar Conference, Indigenous Peoples’ Proposed Amendments Relating to the Right of Self-Determination - Explanatory Note, 2004.

[8] The Foundation for Aboriginal and Islander Research Action.

[9] National Aboriginal and Torres Strait Islanders Legal Services Secretariat Limited.

[10] The Aboriginal and Torres Strait Islander Commission.


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