European Conquest and the Rights of Indigenous Peoples Part 6 ppt

Recovering rights eastern Europe. True to its declaratory policy concerning post-war order, the United States insisted on self-determination for the states of eastern Europe. The Soviet role in thwarting free elections, first in Poland and then 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 in- dependence as states, the common issue was the freedom of nations to determine their future unfettered by external powers. In both cases the object of self-determination was the right of peoples to constitute themselves as a self-governing ‘nation state’. What was to be deter- mined was the sovereign authority and independence of states with jurisdiction over defined territory as the political expression of the peo- ple contained in them. A problem common to both cases was that these so-called ‘nation-states’ more often than not contained ethnic minorities that might themselves seek self-determination at some future juncture; as indeed happened in the resurgence of ethnonationalism following the end of the Cold War. Self-determination is thus an inherently am- biguous principle. On the one hand, it has been and continues to be interpreted 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 particular states for independence from the jurisdiction of those states. As Cobban put it in the 1960s, ‘[t]he history of self-determination is a history of the making of nations and the breaking of states’. 65 In the context of relations between states, self-determination is cou- pled to the control of a territorial state. Consequently, states tend to regard indigenous peoples’ claims to self-determination as claims to territorial sovereignty that would dismember them. Precisely because ‘it could lead to a very different world map’, self-determination has, in the 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 reconciled with the concern of states to maintain their territorial integrity and with the concern of the international community not to risk unlimited frag- mentation of existing states’. 67 This is an understandable and justifiable 65 Cobban, Nation-State,p.43. 66 Perkins, ‘Researching Indigenous Peoples’. 67 Kingsbury, ‘Claims’, p. 485. 129 European Conquest and the Rights of Indigenous Peoples concern, but indigenous claims to a right to self-determination are not intended to result in the establishment of independent states. 68 Were that the aim it would face formidable political obstacles and would not, in any case, be legally feasible in the framework of current inter- national law. Claims to self-determination that conflict ‘with the world system of state sovereignty’ are simply not recognised in international law. 69 And because of its historical encumbrances self-determination is almost inevitably regarded as being in conflict with the principle of state sovereignty. For many indigenous peoples, however, self-determination is funda- mental to the recovery of their rights. This is poignantly illustrated in the First Report of the Australian Aboriginal and Torres Strait Islander Social Justice Commission. It argues that ‘every issue concerning the historical and present status, entitlements, treatment and aspirations of Aboriginal and Torres Strait Islanderpeoplesis implicated in the concept of self-determination’. ‘The right to self-determination’, it continues, ‘is the right to make decisions.’ 70 ‘Our entire experience since the asser- tion of British sovereignty over our country has been the experience of the denial of the right to self-determination. – The human experience was one of devastation and destruction, death and disease, brutalisation and 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 the decisions 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 from self-determination for indigenous peoples is the recommendation of the Australian 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 on Aboriginal Affairs which included: the devolution of political and economic power to Aboriginal and Torres Strait Islander communities; control over the decision-making process as well as control over the ultimate decisions about 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. 130 Recovering rights social andcultural development;and havingthe resources andcapacity to control the future of communities within the legalstructure common to all Australians. 72 Self-determination is, in these reports, the right to make decisions and have control over decision-making within the state rather than a matter of setting up new and separate sovereign states. But, as we have seen, states almost inevitably regard self-determination for indigenous peoples as being in conflict with the principle of state sovereignty. This tension is inherent in General Assembly Resolution 1514, which is a key document in support of indigenous peoples’ rights. With reference to colonies it declares that ‘the subjection of peoples to alien subjugation and domination and exploitation constitutes a denial of fundamental human rights’. Article 1 then asserts that ‘all peoples have the right to self-determination by virtue of [which] . . . they freely determine their political 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 waysthatoppose self-determination to ‘the existing geographical delimitation of territorial boundaries of sovereign states’. It stipulates that ‘[a]ny attempt at the partial or total disruption of the national unity and the territorial integrity of the country is incompatible with 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 Nations and the Universal Declaration of Human Rights and this Declaration, on the basis of equality, non-interference in the internal affairs of all States 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 that indigenous peoples should have control over the decisions that affect them, but they remain nevertheless concerned about the implications of claims to self-determination. Canada has accepted inclusion of the right 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 the era of decolonisation makes them unwilling to accept the autonomy within the state sought by indigenous peoples as proper instances of 72 Brennan, One Land One Nation, pp. 153–4. 73 Falk, ‘Rights of Peoples’, p. 26. 131 European Conquest and the Rights of Indigenous Peoples self-determination. States are concerned over whether adoption of Article 3 would eventually mean ‘separate legal systems covering all manner 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 of indigenous 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, the problem has been, to paraphrase Brennan, whether self-determination means the international legal definition of it developed by the United Nations with decolonisation in mind or, instead, a different concept. 74 So far I have wanted to draw attention to three essential points con- cerning the principle of self-determination in relation to indigenous peo- ples. First, since World War II it has been linked to decolonisation and been regarded as primarily applicable only to the peoples within colo- nial boundaries. Second, it has inescapably involved tension between its internal and external senses. States have chosen to emphasise the latter which supports the principle that they should be able to conduct their af- fairs without interference from other states. In this sense the population contained within the boundary of a state is treated as whole. Focusing on the internal aspects of self-determination would instead necessitate asking whether particular groups within states have or should have self-determination. This in turn could lead to breaking up particular states. Third, the meaning of self-determination emphasised by indige- nous peoples is not of statehood but control over decisions within the existing 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 ex- ternal aspects of self-determination results from a ‘misconception that self-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 indeed result in the establishment of new states. For Anaya, limiting the ap- plication of self-determination to peoples in colonial situations ‘denies its relevance to all segments of humanity’ and overlooks its connec- tion, as a principle, with human rights. It cannot now be separated 74 Brennan, One Land One Nation,p.151. 132 Recovering rights from the expression it has been given in a variety of human rights instruments, 75 the significance of which is illustrated by the situation of indigenous peoples in, for example, Australia and Canada. Understood as decolonisation resulting in the establishment of a new state, self- determination has not been a possibility for these peoples. To respond to claims to self-determination by indigenous peoples in these states by saying that they are not in a colonial situation and hence not en- titled to make such claims would be to deny the entitlement to self- determination contained in a number of human rights instruments. It would also mean in some way denying the claim made by many indige- nous peoples that they continue to live in a colonial situation. Further, to depict self-determination as an escape from colonisation is to invert the true relationship between the two. Colonisation is a deviation from self-determination. Self-determination is not, as it often seems, a princi- ple invented as a response or corrective to colonialism. Anaya’s point is that decolonisation should be seen as rectification of a departure from the norm of self-determination and not as something that defines it. This leads Anaya to distinguish between what he calls the substantive and the remedial aspects of self-determination. Decolonisation is a remedial measure that results in the formation of new states, but not all remedial measures necessarily result in new states. The substantive aspect of self-determination is, according to Anaya, defined by recognition of ‘a standard of governmental legitimacy within the modern human rights framework’. The substance of self- determination is expressed in ‘shared opinion and behaviour about the minimum conditions for the constitution and functioning of legiti- mate government’ meant to benefit all ‘peoples’. Anaya proposes that substantive self-determination so defined ‘consists of two normative strains’ or aspects: a constitutive and an ongoing one. 76 The essence of the constitutive aspect is that ‘the governing institutional order be sub- stantially the creation of processes guided by the will of the people’. It should ‘reflect the collective will of the people, or peoples, concerned’. 77 The ongoing aspect is defined as requiring ‘that the governing insti- tutional order, independently of the processes leading to its creation or alteration, be one under which people may live and develop freely on a continuous basis’. 78 ‘Ongoing self-determination requires a gov- erning order under which individuals and groups are able to make meaningful choices in matters touching upon all spheres of life on a 75 Anaya, Indigenous Peoples,p.77. 76 Ibid., p. 81. 77 Ibid. 78 Ibid. 133 European Conquest and the Rights of Indigenous Peoples continuous basis.’ 79 Anaya objects to the conventional understanding of self-determination as divided into internal and external aspects, as one 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 instruments that enjoin parties to them to allow participation. The collective will of the people that defines the constitutive aspect is expressed in the in- junction in the International Covenant on Civil and Political Rights that peoples are to ‘freely determine their political status’. And in the case of the ongoing aspects, the stipulation in the International Covenant on Economic, Social and Cultural Rights that peoples are to ‘freely pursue their economic, social and cultural development’. Anaya criticises the remedial aspect of self-determination for involv- 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 which they did not gain self-determination in the sense of participation in decision-making. Further, state sovereignty, to which self-determination is linked, bothsupports the status quoand deflects international scrutiny away from the internal conduct of the state. Intervention that violates sovereignty 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 of the states in which they are encased. 80 Having re-cast self-determination in this manner Anaya proceeds to the 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 in- digenous peoples. These norms in fact ‘elaborate on the requirements of self-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 appear and 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 79 Ibid., p. 82. 80 Ibid., p. 85. 134 Recovering rights of peoples and participation in decisions that affect them. In elaborating on self-government, Anaya returns to the idea of overlapping associa- tions that challenge the view of the state bound up with the conventional view of self-determination. Against ‘the traditional Western conceptions that envisage mutually exclusive states as the primary factor for locat- ing power and community’, Anaya’s preference is ‘a political order that is less state-centred and more centred on people in a world of distinct yet increasingly integrated and overlapping spheres of community and authority’. 81 Will Kymlicka finds much to admire in Anaya’s account but argues that 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 for Kymlicka is that he sees ‘no evidence that the international commu- nity accepts the right to self-determination for non-indigenous national minorities’. The burden of his argument is that states are willing to con- cede rights to indigenous peoples because they pose less of a threat than large 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 so far ‘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 remedial rights to correct ‘historic violations of self-determination require or justify having separate conventions for indigenous peoples or state- less nations. Here his underlying concern is with whether there is any justification for ‘establishing a system of differential rights between in- digenous peoples and stateless nations’. It would only make sense to establish a permanent distinction between indigenous and stateless na- tions if they had different inherent rights of self-determination. Yet this is what Anaya seeks to deny.’ To Kymlicka’s mind remedial rights meant to correct past mistreat- ment neither ‘captures nor explains the emerging norms of international law’. 83 He proposes that the more likely explanation for the impetus to 81 Ibid., p. 112. 82 Will Kymlicka, ‘Theorizing Indigenous Rights’, University of Toronto Law Journal,49 (Spring 1999), 288. 83 Ibid., p. 289. 135 European Conquest and the Rights of Indigenous Peoples ‘international protection of indigenous peoples is . . . the scale of cul- tural difference’. Kymlicka finds Anaya curiously silent about cultural difference and suggests that relying on claims about radical cultural dif- ference cut against self-determination: ‘it would imply that as soon as indigenous peoples start driving cars, going to university, working in modern corporations, and adopting other aspects of modern western lifestyles, then they lose their claim to self-determination. They could only maintain a traditional way of life.’ 84 For Kymlicka a further difficulty is that Anaya steps away from con- 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 expect indigenous communities to abide by “Eurocentric” principles of indi- vidual civil and political rights’. 85 This involves a complex set of issues, some of which are touched upon immediately below and are taken up again in the conclusion to the book. 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 international lawyers as obstacles to establishing self-determination as an interna- tional legal norm. These are the tensions between individual and group rights, coupled with the adequacy or otherwise of human rights to es- tablish indigenous rights; the semantics and legal implications of the terms ‘people’, ‘peoples’ and ‘populations’; the contemporary scope of self-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 and extension of universal human rights. Indigenous rights are codified and formalised through the United Nations human rights system. The Draft Declaration on Indigenous Rights proclaims that ‘Indigenous Peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognised in the Charter of the United Nations, the Declaration of Human Rights and international human rights law’ (Art. 1). This, however, is not informative about the conceptual 84 Ibid., p. 290. 85 Ibid., p. 291. 136 Recovering rights differences between human and indigenous rights. In particular, it does not answer the question of why, given that ‘[a]ll present international human rights documents and doctrines apply to indigenous peoples throughout 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 that human rights are held by individuals while indigenous rights are the collective 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 to supplement human rights with a set indigenous rights is precisely that human 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 cultural practices. Implicit in the idea of indigenous rights is an affirmation of the existence of collectivities that have a distinct identity linked to their particular culture and place of belonging. A compelling reason for rights specific to indigenous peoples is thus that individual human rights do not 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 at- tachment, apart from others. Without safeguards for collective or group rights cultural identity is at risk. For this reason Article 6 of the Draft Declaration stipulates the collective right to live as distinct peoples. 88 Indigenous peoples argue that group rights are the only way to ensure protection against ethnocide. In the absence of specific indigenous rights codified in international law 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 are perceived to have been successful in transforming behaviour. Robert Williams, for instance, argues that ‘[m]oral suasion, shame, and the simple 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. 137 European Conquest and the Rights of Indigenous Peoples purpose in referring to the human rights process in this way, how- ever, is to argue for benefits that could be expected from adoption of a Universal Declaration on Rights of Indigenous Peoples. In the same way that human rights discourse has affected the domestic behaviour of states the standards and principles laid down in the Declaration would ‘enter intothedomestic policy discourseof [settler stategovernments] as an urgent matter affecting their own moral standing and authority in the international community as progressive advocates of international human rights standards and values’. 90 As well as anything else indigenous rights are an expression of the distinctive conception indigenous peoples have of political and social relations. In an illuminating discussion of indigenous peoples in rela- tion to individual human rights, Russell Barsh contrasts the role of the state in indigenous and non-indigenous thinking. ‘In the legal systems of states, a “right” is an argument against state power. In indigenous thinking, there is no state, only a web of reciprocal relationships among individuals. This renders “rights” in the classical sense meaningless, be- cause there is no state to argue against, only relatives.’ 91 Barsh points out that in indigenous societies, at least in the North American ones with which he is most familiar, kinship is paramount. Consequently ‘the most important 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 other individuals’. 92 The socialisation of indigenous peoples into a network of responsibilities to kin, clan and nation means that these formations are the source of rights and obligations. This implies that indigenous and non-indigenous peoples conceive of rights in quite different ways. In the 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 is changing 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. 138 [...]... 1998), p 1 76 143 Ibid., p 1 76 149 European Conquest and the Rights of Indigenous Peoples Crown and its subsequent judges, of cers and subjects’.144 In later cases the approach of the court differed and the question of the status of the Treaty was finally settled with the 1975 Treaty of Waitangi Act Of particular importance for the definition and location of sovereignty has been the fact that there is an... English and a M¯ ori version of the a Treaty; both of which were accepted in the Treaty of Waitangi Act The first article of the English version cedes to the Crown, ‘absolutely and without reservation, all the rights and powers of sovereignty’.145 The second clause granted the chiefs the absolute chieftainship of their lands, homes, and all their treasured possessions’.1 46 In the M¯ ori version the a rights. .. Joseph Raz in support of the assertion that the well-being of the group is related to but different from, the aggregation of the interests of individuals’.103 In the end indigenous rights might be a species of human rights, but if they are they require human rights to be redefined in ways that include the collective human rights of groups Peoples and populations The right of peoples to self-determination... Ivison, Patton and Sanders (eds.), Political Theory and the Rights of Indigenous Peoples, p 99 148 Recovering rights which M¯ ori can participate fully both in their affairs and in those of a the country.’138 In New Zealand debate about sovereignty has centred on the difference between how M¯ ori and Pakeha (the dominant white society) una derstand the meaning of the term in the 1840 Treaty of Waitangi... Falk noted that at the time of writing, in 1988, the ‘international legal 155 Falk, Rights of Peoples , p 30 See also Falk’s later Human Rights Horizons, chs 6 and 7, and Strelein, Indigenous Self-determination Claims 153 European Conquest and the Rights of Indigenous Peoples framework [did] not give access to the main political arenas to the representatives of indigenous peoples themselves, nor [did]... Article 1 of both the ICCPR and the ICESCR Neither Convention was written with indigenous peoples explicitly in mind Any appeal to these instruments must be made on the grounds that indigenous groups belong to the general category of peoples Consequently, the Draft Declaration on the Rights of Indigenous Peoples seeks to establish the right of selfdetermination as a specific right of indigenous peoples ... to insist that they have indigenous populations rather than indigenous peoples within their borders; they cling to the position that human rights instruments are an adequate protection of indigenous rights; and are concerned about the implications of group rights as opposed to individual rights All of these are, for states, pregnant with the possibility of a challenge to their integrity and over-riding... European representations of non-Europeans, the way first nations were dispossessed of their property, and the struggle to have rights to land and selfdetermination restored to them This chapter concerns some political and moral issues arising from European conquest In relation to the preceding chapters three clusters of problems stand out as the most important: the ethics of constructing ‘others’; the. .. 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 113 139 European Conquest and the Rights of Indigenous Peoples of. .. imperialism To favour the rights of the individual against those of the tribe or nation is thus to impose the political and moral preferences of one group of peoples on another A response to this may be found in the arguments of Eisenberg and Kymlicka,101 both 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 . Citizenship and Cultural Policy (London: Sage, 2001), p. 113. 139 European Conquest and the Rights of Indigenous Peoples of individual rights without undermining the nature of human rights, namely, their. pp. 153–4. 73 Falk, Rights of Peoples , p. 26. 131 European Conquest and the Rights of Indigenous Peoples self-determination. States are concerned over whether adoption of Article 3 would eventually. norm. These are the tensions between individual and group rights, coupled with the adequacy or otherwise of human rights to es- tablish indigenous rights; the semantics and legal implications of the terms