Do Indigenous peoples have a right to self-determination?

Answering this question requires explaining what sort of self-determination we refer to here. Self-determination is a highly contested term, and it has a variety of meanings and competing claims. Nevertheless, over the years it has become a norm in the international legal framework.

Generally, self-determination means governance by the “self” free from any external interference. It means, a “self” has the right to determine its political status and political goals, and by virtue of that right, the “self” determines its social, cultural, and economic developments. 

However, the term “self” is yet another contested connotation. Who is the “self”? According to the United Nations Charter, particularly its articles 1 and 55, the “self” refers to “peoples” and self-determination is attached to “peoples.” Hence, it is peoples’ right.

Who are the “peoples” that can legally claim a right to self-determination?

Unfortunately, there are no set definitions, and therefore, reference to “peoples” in the United Nations Charter was rather vague. However, as the concept has become a norm in international law, the General Assembly of the United Nations in 1960 adopted resolution 1514 (XV) endorsing the Declaration on the Granting of Independence to Colonial Countries and Peoples. By “colonial countries and peoples,” the Declaration referred to peoples of the colonies – the so-called non-self-governing territories or trust territories.

According to the United Nations Charter, a Non-Self-Governing Territory is a territory “whose people have not yet attained a full measure of self-government.” In 1946, the UN had prepared a list of such territories in transition, to be self-governing territories. People inhabiting such territory are entitled to attain a right to self-determination as part of the decolonization process. 

On which basis were these territories identified as non-self-governing?

 A doctrine called “salt-water thesis” is applied to determine the non-self-governing territories. The doctrine suggests the presence of a salty water body in-between dividing colonial powers from the colonized territories. For example, the African colonies are physically separated from the European colonies by the Atlantic Ocean. Hence, such colonies are entitled to a right to self-determination.

To gain a status of the non-self-governing territory, a territory has to be geographically distinct, explicitly identifiable by its external and internal borders. The people of the territory were economically or politically subordinated and culturally distinct, whose social hierarchy was comparable with the non-self-governing status.

What does a right to self-determination mean as part of the decolonization process?

As part of the decolonization process, a right to self-determination includes three elements – 1) independence, 2) free association, and 3) integration.

Independence refers to a right to achieving a separate statehood. Free association is about freely choosing to achieve a separate status partnering with other states. And finally, integration suggests being assimilated with the existing colonial state administering the territory. 

Can Indigenous peoples be a valid claimant for a right to self-determination?

Like non-self-governing territories, Indigenous peoples’ territories were also colonized by settlers, where they had been inhabiting from history immemorial. Their lands were concurred and colonized in the name of terra-nulius – a term used in the Euro-centric international law to refer to nobody’s lands. As a result, indigenous peoples have become gradually marginalized on their own lands and were forcefully assimilated.

However, these groups of peoples are determined to preserve, develop and transmit to future generations their ancestral territories, unique socio-cultural practices and identity, and the customary legal and knowledge systems connected to their lands and land-based resources.

Yet, they are not territorially separated in most countries in which they live. In other words, there are no precise territorial boundaries for them to claim a right to self-determination as it is understood as part of the decolonization process that occurred in the aftermath of the second world war. Nevertheless, within the framework of international human rights law, Indigenous peoples are entitled to enjoy a right to self-determination without jeopardizing the territorial integrity of the state in which they live. Exercising self-determination this way is commonly understood as “internal self-determination.”

What are the differences between internal and external self-determination?

The meaning of self-determination as part of the decolonization process is usually known as external self-determination, which grants a right to be independent nationhood. After the end of the decolonization process, a right to exercise external self-determination is ceased to exist.

Internal self-determination is about exercising autonomy and self-governance in matters that are of concern for a recognized social group, such as the Indigenous peoples. A right to maintain culture and cultural identity, livelihood activities connected to lands, occupied or otherwise used by the Indigenous peoples, and a right to manage land-based resources, conservation practices, and customary social norms are considered the internal exercise of the right to self-determination.

In a nutshell, internal self-determination is linked to a distinctly identifiable social group, such as the Indigenous peoples, exercising the right within the nation-state’s territorial domain.

Do Indigenous peoples abide by such an understanding of exercising a right to self-determination?

 In principle, yes! Indigenous peoples worldwide heavily participated in the negotiation between and among themselves and the states for a Declaration setting a universal framework of minimum standards for their survival, dignity, and well-being. A two-decade negotiation resulted in a victory after the United Nations Declaration on the Rights of Indigenous Peoples was adopted in September 2007, which they celebrated vigorously.

Article 46 (1) of the Declaration suggests as follows:

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

The assertion reaffirms the fundamental international legal norms embodied in the United Nations Charter, namely arctic 2 (4), suggesting absolute non-violability of the state’s territorial integrity and political independence. The adherence to the commitment under article 46 (1) of the Declaration with that of article 2(4) of the UN Charter provides a coherent understanding that Indigenous peoples’ right to self-determination is exercised without threatening states’ territorial integrity in which they live.

How do Indigenous peoples exercise such a right to self-determination?

The post-colonial understanding of self-determination takes the form of self-governance, as re-assured by the United Nations Declaration on the Rights of Indigenous Peoples. However, while article 3 of the Declaration confirms that Indigenous peoples have a right to self-determination, further clarification is provided in article 4, saying that exercising the right to self-determination takes the form of a right to autonomy or self-government in matters relating to their internal and local affairs.

Today a right to self-determination has transformed into a procedural practice, particularly the way it is exercised. In today’s context, self-determination is exercised in an inclusive democratic process, which is respectful in observing fundamental human rights norms, such as non-discrimination, promotion of social justice and procedural fairness in any matter of governance. Concerning procedural standards, the UN Declaration endorsed the principle of “free, prior and informed consent” that requires proper procedural tools for implementation. Therefore, greater inclusion of Indigenous peoples in matters that affect them through participation in decision-making with a right not to be consulted only but to consent with a clear understanding of the actions and consequences are the way to exercise a right to self-determination. 

Author: Kamrul Hossain