Protecting the Vulnerable within the Framework of Self-Determination

Chapter 7


Protecting the Vulnerable within the Framework of Self-Determination


Introduction


A concept of internal self-determination which is informed by the colonial experiences of indigenous peoples and remains focused on achieving the overriding goal of liberating Aboriginal lands and communities from the alien governments that surround them, can do much to meet the core concerns of indigenous peoples. However, it remains to be asked whether international law can deliver the same promising future for potentially vulnerable Aboriginal individuals living within autonomous self-governing communities. If international law is to embrace a concept of self-determination which promises to vest ‘sovereign’ powers in Aboriginal governments, protecting the basic human rights of individuals living within those communities will be an issue of fundamental importance for the international community. Indeed, international law may seem able to provide a ready answer to this crucial question in the protection provided to all individuals by the international law of human rights, regardless of their socio-economic background or the government under which they live. However, such easy answers rarely exist to complex problems such as that of indigenous peoples.


Striking an appropriate balance between securing effective protection for the rights of indigenous children whilst upholding and respecting the right of indigenous peoples to self-determination will not be easy. Difficult questions arise: can international human rights law provide adequate and appropriate protection to the rights and interests of potentially vulnerable indigenous children, without compromising the basic cultural integrity of indigenous communities? If the arguments as to cultural legitimacy can be overcome, who will be responsible for protecting the rights of indigenous individuals within self-governing communities: indigenous governments or the state? And if indigenous communities are to be responsible for protecting the rights of indigenous individuals, who will be answerable to the international community for any violations of those rights? It is unlikely that the answers to these questions will be found within the orthodox doctrines of international law. The international community is seeking to fashion a tailored response to the self-determination claims of indigenous peoples. A similarly tailored response is required to the protection of indigenous individuals. If progress is to be made on these issues, new and perhaps innovative approaches to the relationship between indigenous individuals, indigenous peoples, the state and, ultimately, the international community, will need to be explored.


Indigenous Peoples and Human Rights


Part of the concern of both states and commentators over affording recognition to the collective rights of indigenous peoples, including their right to self-determination, has been rooted in the common perception that some aspects of indigenous cultures are simply ‘incommensurable’ with the existing body of international human rights norms. This raises the spectre of a direct conflict developing within international human rights law between the right of the collective to self-determination and the rights of indigenous individuals. If the right of indigenous peoples to self-determination is given its most literal interpretation it confers a right on indigenous peoples to determine for themselves the social, cultural and political system under which they wish to live and a free choice as to the values by which their collective lives as a community should be governed.1 Applying this principle of self-determination, there is no guarantee, or perhaps even likelihood, that in exercising this right to determine their own internal systems of governance, the community will choose a liberal democratic model of government that slips neatly and tidily into the existing framework of international law. Indeed, the fear of commentators is that indigenous peoples will choose to endorse a range of deeply entrenched socio-political traditions and practices that do not sit easily with the concept of human rights, at least as conceived and understood in the West. Concerns about traditional punishments, the treatment of women and other vulnerable family members, and the ‘undemocratic’ nature of indigenous tribal governments are prominent amongst the anticipated difficulties.2


Reconciling Indigenous Peoples’ Right to Cultural Integrity and Individual Human Rights

Clashing rights: the debate surrounding the accommodation of group rights

The potential clash between Aboriginal cultures and the individual rights of Aboriginal people has generally been conceptualized as an inconsistency between two competing human rights which the state must find a way to reconcile within the existing framework of international human rights law. The right of a peoples to the protection of their cultural values and practices constitutes an essential part of the broader right to self-determination and is now well-established within the body of mainstream human rights norms.3 The rights of minorities, albeit conceptualized as individual rather than group rights, are recognized under Article 27 of the International Covenant on Civil and Political Rights (ICCPR).4 The subsequent work of the Human Rights Committee has led to the development of a substantial body of jurisprudence on the cultural rights of minority groups, including the cultural rights of indigenous peoples.5 The collective right of indigenous peoples to the protection of their cultural identity has been afforded strong protection under ILO Convention No. 169 and the UN Declaration on the Rights of Indigenous Peoples, with a number of articles emphasizing the right of indigenous peoples to respect for their cultural values, practices, traditions and customs.6 The Committee on Economic, Social and Cultural Rights has recently embraced this more controversial approach, holding that the right of everyone to take part in cultural life as protected under Article 15 of the Covenant on Economic, Social and Cultural Rights (CESCR) can be a collective right inhering in the community or group.7 However, whilst generally supportive of widening the scope of international human rights law to embrace the concept of collective rights to cultural integrity, the weight of academic literature has traditionally taken a fairly uncompromising stance on the overriding importance of individual rights where a conflict between the rights of an individual and the rights and interests of the group cannot be avoided and some form of compromise must be found.8 Indeed, the view of many commentators is that collective rights, where recognized, must not be allowed to prejudice the protection of individual interests: individual human rights must take priority. Consequently, where accommodation is needed between the culture and traditions of the collective and the human rights of its individual members, it is the culture and traditions of the group that must give way.


Brownlie is one of the strongest proponents of this view. Attacking what he describes as the ‘low quality debate in this field’, he argues that commentators who raise the issue of incompatibility between indigenous customs and traditions and existing human rights standards are wrongly dismissed with accusations of paternalism.9 In his view, the real paternalists are those commentators who assume that indigenous populations cannot adapt to international human rights standards. For Brownlie, the applicability of international human rights standards to indigenous peoples is simply non-negotiable and communal interests must not be allowed to take priority over human rights values.10 Adopting this rather hard-line approach, if indigenous cultures have to change and adapt to meet existing standards then so be it. Rich takes a very similar position. He argues that there must exist a rough hierarchy among the subjects of human rights law and ‘that the individual as the ultimate beneficiary of all human rights has primacy’.11 Consequently, in Rich’s view there can be no human rights, including group rights, which detract from the rights of the individual.12 The rights of the individual must prevail. This position is also reflected in the writings of Kamenka, who argues in similar terms that whilst claims to collective ‘third-generation rights’ can be valid and protected by the international law of human rights, they are valid only insofar as they support and strengthen core civil and political rights, rather than destroy them.13


Whilst keen to protect the rights of individuals from being unduly undermined by the interests of the group, commentators have, however, also stressed that the rights and interests of the individual and the rights and interests of the group are often supportive and complementary, with the survival of the group recognized as an essential factor in promoting the interests of the individual.14 Cultural, religious and linguistic rights are frequently cited as classic examples of individual rights that can only be exercised in any meaningful way in community with other members of the group. In this context, the protection and survival of the group is accepted as essential to the realization of these individual entitlements, leading commentators to concede that measures to protect the group may be justified even if it means some immediate interference with the rights of its individual members. In resolving this potential clash of rights, commentators have emphasized the need for flexibility if the rights of the individual are not to be fundamentally undermined in the longer term.15 International human rights law has always allowed for flexibility in interpreting and implementing normative human rights standards, allowing for compromises and accommodation between two existing and apparently conflicting rights when necessary. The same principles of flexibility and accommodation can be applied whether or not the rights in question are two individual rights or an individual and a collective right.16


Xanthaki has become a strong proponent of this view, affording considerably more weight to the cultural integrity of the group and its intrinsic value than has traditionally been the case.17 She argues that invoking ‘a pre-determined hierarchy of individual rights above cultural rights is a simplistic solution’.18 In her view, a system that recognizes and respects cultural rights only up until the point that those rights come into conflict with the dominant individualistic rights-based framework of the West ‘rings of cultural imperialism’.19 Greater accommodation by the dominant legal framework to the cultural worldview of indigenous peoples is therefore needed, with adjustments to the ‘universal’ standards of the West, ‘tailored to the particular circumstances of each context’.20 A flexible approach is called for; one that does not approach conflict between the group and individual with a predetermined hierarchy of norms but where ‘conflicts between rights, principles, and norms are generally solved on an ad hoc basis, after taking into account various considerations’.21 The outcome of this balancing process will be highly fact- and context-specific, depending on the relative importance of the rights and interests at stake and the degree of interference that is contemplated. Adopting this model of conflict resolution, in some cases the rights of the group will take precedence, in others the rights of the individual will prevail.


In developing her approach, Xanthaki draws on the work of Anaya. Both of these leading commentators, whilst generally sympathetic to the cultural claims of indigenous peoples, accept there must be limits to the level of ‘adjustment’ that can be expected of international human rights law.22 Xanthaki is clear in her view that the accommodation of group rights cannot be permitted to fracture the very ‘foundations’ of the international human rights system.23 Her endorsement of indigenous peoples’ cultural integrity is thus heavily qualified. Whilst willing to accept that cultural practices may restrict human rights at the margins, she does not believe that cultural practices that ‘violate the core of these rights can be tolerated in the name of cultural diversity’.24 The ‘core’ or the ‘essence’ of existing human rights law is thus protected, Xanthaki concluding: ‘[i]n my view, no cultural practices and beliefs can violate these values and no real adjustment can be initiated to these rights.’25 The greater respect shown to the cultural integrity of indigenous peoples in Xanthaki’s approach is to be welcomed. However, the extent to which this qualified approach can really address the legitimate concerns of indigenous peoples as to the ethnocentric nature of international human rights law will depend on the level of adjustment and accommodation that is tolerated in the name of cultural difference. It also depends on whether the ‘core’ or ‘essence’ of the human rights system can successfully defend itself against the same accusations of cultural imperialism which undoubtedly exist around the margins.26


Reconciling the group and the individual in international law

As the views of leading commentators have changed towards greater accommodation of group interests within the framework of international human rights law, so have the UN treaty bodies proved themselves increasingly willing and able to protect the communal interests of the group, even where the individual rights of community members are at stake. The Human Rights Committee has been at the forefront of these developments. Its willingness to protect the communal interests of the group under the auspices of Article 27 was made clear in its General Comment on the rights of minorities:


Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion. Accordingly, positive measures by States may also be necessary to protect the identity of a minority and the rights of its members to enjoy and develop their culture and language to practise their religion, in community with the other members of the group.27


In its jurisprudence under the Optional Protocol, the Human Rights Committee has also proved itself willing to undertake a balancing of group and individual rights, even where this balancing of interests may compromise the absolute protection traditionally afforded to the individual. The decision of the Human Rights Committee in the case of Kitok v Sweden28 provides a good example of the ability of the international community to carry out this balancing exercise under Article 27 of the ICCPR within the framework of international human rights law. The complainant in Kitok was a member of a Sami family who had been active in reindeer husbandry for over a century. The author had been denied membership of a Sami Village and he contended that this constituted a violation of his rights under Article 27 of the ICCPR. Under Swedish legislation, membership of a Sami village brought with it certain important rights to engage in reindeer husbandry, as well as a range of other hunting and fishing rights. Although the initial decision as to membership was made by the Sami community, an appeal could be made to the Swedish courts. In light of this, the Swedish government tried to argue that this was not in fact a dispute between Mr Kitok and the state but between Mr Kitok and the Sami community. The Committee rejected this argument, pointing out that it was Swedish legislation that was responsible for dividing the Sami into members and non-members of a Sami village and restricting the rights of the latter. However, the Committee was more sympathetic to the argument that the restrictions imposed on non-Village members were necessary for the protection of reindeer husbandry and thereby the Sami culture. The Swedish government argued:


As in every society where conflict occurs, a choice had to be made between what is considered to be in the general interest on the one hand and the interests of the individual on the other. A special circumstance here is that reindeer husbandry is so closely connected to the Sami culture that it must be considered part of the Sami culture itself. In this case the legislation can be said to favour the Sami community in order to make reindeer husbandry economically viable now and in the future.29


The Committee therefore concluded that restrictions on the rights of an individual were permissible provided that it could be shown that the restrictions had a reasonable and objective justification and were necessary for the continued viability and welfare of the minority as a whole.30 Applying that principle to Kitok’s case, the Committee concluded that there had been no violation of Article 27, noting in particular that Mr Kitok had been permitted by the Sami community to graze and farm reindeer and engage in hunting and fishing.31


Decisions such as Kitok reflect the increasing importance afforded to cultural integrity when carrying out the required balancing of rights within the framework of international human rights law. However, whilst UN treaty bodies, such as the Human Rights Committee, have been prepared to further the communal interests of the group, even where the individual rights of community members are at stake, there is a clear limit as to how far this accommodation of the group will go. Thornberry reports that whilst the UN treaty bodies are generally sympathetic to indigenous peoples and the need to protect their cultural values, practices and traditions,32 where the right of the individual engaged is perceived as of fundamental importance, UN bodies, such as the Human Rights Committee, have been much less accommodating. For example, the Human Rights Committee have taken an uncompromising position on the need for the Australian government to secure the abolition of traditional Aboriginal punishments such as ‘spearing the thigh’, which, in the Committee’s view, amount to cruel, inhuman and degrading treatment or punishment contrary to Article 7 of the ICCPR.33 The Committee on Economic, Social and Cultural Right’s General Comment on the right of everyone to take part in cultural life reflects this uncompromising stance where the culture or traditions of the group are deemed harmful to the rights of individuals:


The Committee wishes to recall that, while account must be taken of national and regional particularities and various historical, cultural and religious backgrounds, it is the duty of States, regardless of their political, economic or cultural systems, to promote and protect all human rights and fundamental freedoms. Thus, no-one may invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope.34


Importantly, however, the Committee sets down a structured framework within which any limitations or restrictions on the cultural integrity of the group must be justified.35 Thus the burden will fall on the state to demonstrate that any purported limitation on the cultural integrity of the group pursues a legitimate aim, is compatible with the nature of the right of everyone to take part in cultural life and is strictly necessary for the promotion of general welfare in a democratic society. In short, any such limitations or restrictions must be proportionate: the least restrictive measure possible to achieve the effective protection of the competing right.36


The key human rights instruments dealing specifically with indigenous peoples have tried to draw a similar balance between the protection of indigenous cultures and the individual rights of the members of the group. Where the international community has chosen to afford specific recognition to the collective rights of indigenous peoples, those rights have thus been heavily qualified by core human rights guarantees. In many ways, ILO Convention No. 169 marked a turning point in attitudes towards indigenous peoples by affording clear recognition to their collective social, economic and cultural rights and their right to ‘respect for their social and cultural identity, their customs and traditions and their institutions’.37 The protection to be afforded to the cultural integrity of indigenous peoples is, however, unequivocally qualified in the Convention by the need for compliance with both national and international human rights standards. The unacceptability of any discrimination on the grounds of sex is made clear in Article 3 of the Convention,38 whilst both Articles 8 and 9 explicitly subject the practice of indigenous customs and traditions to their compatibility with national and international human rights standards. Thus Article 8 provides that indigenous peoples ‘have the right to retain their own customs and institutions’ but only insofar as ‘these are not incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights’. Article 9 similarly provides that ‘the methods customarily practised by the peoples concerned for dealing with offences committed by their members shall be respected’ but only ‘to the extent compatible with the national legal system and internationally recognized human rights’.


The inclusion of core human rights guarantees within the UN Declaration proved much more contentious. In general terms, the Declaration places by far the greater emphasis on indigenous peoples’ collective rights. Thus, whilst the rights of indigenous people as individuals have not been entirely neglected,39 the treatment of the individual is often rather unsatisfactory. During the drafting process, this gave rise to strong concern that the Declaration as a whole did not provide sufficient protection for indigenous individuals. In the final stages of the drafting process there was therefore a concerted effort by a number of states to try and redress the balance between the group and the individual and bring down the Declaration much more firmly in favour of the individual. These efforts met with mixed results.


At the HRC Working Group even the very idea of protecting collective rights within the framework of the Declaration did not escape challenge. Indeed, the idea of enshrining collective rights within the international law of human rights continued to attract considerable state opposition. The disquiet expressed by many Western states is understandable. At a fundamental level, to afford recognition and protection to the collective interests of the group seems to run counter to the very purpose of the international human rights system. Human rights, as traditionally conceived, are intended to protect the individual from the potential abuses of the group. To afford rights and protection to the group under the rubric of international human rights law is thus, in the opinion of some, an anathema. Several states, including influential states such as France, the United States and Japan, adopted this particularly uncompromising position before the HRC Working Group; the representative of France expressing in unequivocal terms the view of the French government that collective rights simply did not exist in international human rights law.40 The UK maintained this position before the General Assembly, stating during the debate on the adoption of the Declaration that the UK ‘did not accept that some groups in society should benefit from human rights that were not available to others’ and ‘did not accept the concept of collective human rights in international law’.41 In line with these more hard-line views, some governments continued to object to the use of the collective term ‘peoples’ in the Declaration on the basis that it may lead to a denial of the rights of individuals in favour of collective rights.42


Amongst those states willing to concede the inclusion of collective rights within the Declaration, a number took an equally uncompromising stance on the relationship between the individual and the group, maintaining that collective rights must only be seen as a ‘reinforcement for the enjoyment of individual rights’ and that their exercise must not be allowed to interfere with or violate the rights of individuals.43 Sweden explicitly adopted this position before the General Assembly, arguing that whilst it was willing to accept collective rights outside the framework of international law, ‘it was of the firm opinion that individual human rights prevailed over the collective rights mentioned in the Declaration’.44 In accordance with the usual principles of norm creation in the international sphere, states could not accept the inclusion of new collective rights within the Declaration that were perceived as contradicting, impinging upon or weakening their existing and chronologically prior human rights duties under international law.


Over the course of the drafting process, states pressed for the inclusion of a number of provisions and amendments which would guarantee much stronger protection for the rights of indigenous individuals, particularly those of women and children.45 In later sessions of the Working Group, a general consensus developed amongst participating states as to the desirability of drafting, with particular reference to the United Nation Convention on the Rights of the Child (UNCRC), a new additional article on the rights of indigenous children.46 States such as Sweden, the Netherlands, France and Switzerland led the calls for a much stronger all-embracing ‘safeguard’ clause which would make it clear that exercising rights under the Declaration would not be allowed to prejudice or interfere with the rights of individuals as protected under existing international human rights law.47 The Working Group also considered a number of proposals to include within more of the individual paragraphs an explicit reference to the need for indigenous peoples to conform with international human rights standards. Where the Declaration confers specific protection on particular cultural practices and traditions (see, for example, Articles 11 and 12 of the Declaration48), it was thus suggested at an early session of the Working Group that their compatibility with existing international human rights standards should first be established.49


Indigenous representatives at the Working Group were strongly opposed to these attempts to secure a greater level of protection for the rights of individuals within the Declaration, arguing that such explicit reference to international human rights standards was unnecessary and jeopardized one of the primary objectives of the Declaration. Indigenous groups emphasized that within Aboriginal cultures, the community and the individual are mutually supportive and complementary, reinforcing rather than undermining one another. They therefore argued that recognition of collective rights simply could not ‘lead to a denial of the rights of individuals’.50 In the face of this opposition, states did not get everything they wanted and many of the proposals failed to find their way into the final text. The result of this strained negotiating process was a somewhat unhappy compromise. The rights of indigenous peoples ‘as peoples’ now sit uncomfortably within the Declaration next to the rights of indigenous people ‘as individuals’ as if they were one and the same thing and the relationship between the two straightforward and unproblematic.51


There is some limited guidance as to how any potential conflict between the rights of the group and the rights of indigenous individuals is to be resolved, with some fundamental human rights principles firmly entrenched within the final text. Thus, despite the emphasis on collective rights, the individual has been accorded precedence in a number of instances. In line with the approach taken in ILO Convention No. 169, some provisions are explicitly qualified by human rights guarantees. Article 34, for example, provides that indigenous cultural traditions and values will only be protected insofar as they are consistent with core human rights standards:


Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.


This is, however, the only substantive provision in which indigenous cultures are specifically required to comply with the standards enshrined in international human rights law.


In recognition of the frequent concerns raised about gender inequalities within indigenous communities, a specific non-discrimination clause has been included. Article 44 thus provides:


All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals.


The importance of protecting against gender discrimination in the context of community membership is further reinforced by Article 9 which unequivocally states that whilst indigenous peoples and individuals have the right to belong to an indigenous community or nation in accordance with their particular traditions and customs, ‘no discrimination of any kind may arise from the exercise of such a right’. This particular concern with the potential vulnerability of both women and children is carried through into Article 22 of the Declaration which places an obligation on states, in conjunction with indigenous peoples, to ‘ensure that indigenous women and children enjoy the full protection and guarantees against all forms of violence and discrimination’.


The strong concern amongst states that the rights of indigenous children may be jeopardized by placing too much emphasis on the collective rights of indigenous groups was also clearly evident in the debate over the legitimacy of removing indigenous children from their communities. Article 7.2 of the Declaration now provides:


Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.


The language prohibiting the forcible removal of children is considerably more restrictive than earlier drafts which prohibited in general terms ‘the removal of indigenous children from their families and communities under any pretext’. States were strongly opposed to the suggestion within this earlier draft that removing indigenous children from their families and communities could never be justified even if the child was being subjected to grave physical and emotional abuse. States therefore maintained the firm position, now reflected in the final wording of Article 7, that in such circumstances it may be in ‘the child’s interests to be removed from their families and communities, whether the child [is] indigenous or non-indigenous … and that in those circumstances indigenous people and communities should not receive preferential treatment’.52


In addition to these specific protections for indigenous individuals, the Declaration contains a more general safeguard clause in the form of Article 46 which provides a sweeping guarantee qualifying all of the Declaration’s substantive provisions with basic human rights protections. Article 46 is drafted in very broad and general terms, providing:


2. In the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations. Any such limitations shall be non-discriminatory and strictly necessary solely for the purpose of securing due recognition and respect for the rights and freedoms of others and for meeting the just and most compelling requirements of a democratic society.


3. The provisions set forth in this Declaration shall be interpreted in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith.


In line with the approach adopted by the UN treaty bodies, Article 46.2 imposes strict conditions of proportionality and necessity on any provisions, whether national or international, which purport to limit or restrict indigenous peoples’ cultural rights. Individual human rights cannot therefore automatically trump the cultural integrity of the group but neither can the group automatically trump the individual. A balance is required.53


The final text of Article 46 should go some way to assuage concerns about the potential vulnerability of disempowered groups, such as women and children, within self-governing indigenous communities. However, the potentially problematic impact of late additions to the text, from the perspective of indigenous peoples, should be noted. Until the very final stages of the drafting process it was clear that the human rights standards to which indigenous peoples would be expected to adhere were those enshrined within international law. Suggestions that indigenous peoples should be subjected to domestic law raised clear objections not just from indigenous peoples but from state delegations who generally appeared to agree that the appropriate standards by which indigenous peoples should be bound were the ‘universal standards’ enshrined in international human rights law and not the potentially more restrictive standards enshrined in the municipal law of states.54 This approach was welcomed as a significant improvement on ILO Convention No. 169 which explicitly subjects the rights of indigenous peoples to national legislation. However, the late insertion of the caveat in Article 46.2 that the rights of indigenous peoples may be subject to such limitations ‘as are determined by law’ creates an ambiguity, suggesting that indigenous peoples’ rights may be subjected to national as well as international law. This interpretation found some favour with states addressing the General Assembly during the debate on the adoption of the Declaration.55 However, such a broad interpretation of Article 46.2 is deeply problematic. It would run counter to the whole tenor of the Declaration, represent a considerable challenge to indigenous legal and political autonomy, once again ‘domesticate’ the indigenous problem to the will of states and fundamentally undermine the right to self-determination. It therefore needs to be resisted.


Self-Determination and Human Rights


International human rights law provides a clear and fairly consistent answer to commentators who are concerned about the rights and interests of vulnerable individuals living within indigenous communities. Whilst international human rights law is increasingly sympathetic to the importance of collective rights, such rights, even within the Declaration, will only be protected insofar as they can be shown to be consistent with existing international human rights standards. This balancing approach to reconciling the collective and individual rights of indigenous peoples is closely modelled on the approach which the international community has adopted with respect to the collective rights and interests of ethnic, religious and linguistic minorities. However, indigenous peoples’ right to self-determination as enshrined in Article 3 of the Declaration adds an important additional dimension to the debate.


The prevailing approach of the international community to the individual and collective rights of indigenous peoples is based upon certain core assumptions about the structuring of relationships between indigenous individuals, indigenous communities and the state. These assumptions fail to give sufficient recognition to the distinctive status of indigenous peoples and the fundamentally different nature of the right to self-determination when compared to all other collective rights which may be held by minority groups. Self-determination is qualitatively different. It promises to confer on indigenous peoples not just a right to cultural integrity but a right to exercise ‘sovereign’ powers over their own internal affairs. Autonomous indigenous groups exercising a right to self-determination are therefore in a fundamentally different position from a minority group: they have a sovereign authority to determine for themselves the social, cultural and political values by which they wish to live. They have a right, in other words, to determine their own legal and political systems. It is therefore strongly questionable whether the application of international human rights standards to this new autonomous political body can really be that simple. It is certainly arguable that the right to self-determination, as a peremptory norm of international law, takes priority over all other international standards, thereby giving indigenous peoples the right to accept or reject any existing international human rights norms they regard as inconsistent with their own distinctive value systems.56


International law can, however, provide an answer to this dilemma. The fact that indigenous peoples have a right to self-determination does not absolve them of the responsibility of upholding and protecting the rights and interests of indigenous individuals living within their respective territories – in fact quite the opposite.57 The right of indigenous peoples to self-determination may well be a peremptory norm of international law. There are, however, others, including the right of individuals to be protected from the systematic violation of their basic human rights. There is nothing within the doctrines of international law to suggest one peremptory norm should trump the other.


There is, moreover, much that can be said at the level of principle in favour of the general proposition that indigenous peoples should not be exempted or absolved from compliance with existing international human rights standards. At stake for indigenous peoples is the fundamental question of how they see their future role within the international community. In short, indigenous peoples must ask themselves whether they want to be part of this world, or stand apart from it. Indigenous peoples have fought hard for recognition of their international personality: to be accepted as subjects of international law. To be accepted as legitimate actors on the international stage is not however a cost-free exercise. If indigenous peoples want to be accepted under international law as quasi-sovereign entities exercising autonomous power over their own people, they will be expected to accept the duties and responsibilities which are now accepted as an integral part of holding such a status. This is not to reject the argument that before there can be meaningful interaction with the international community indigenous peoples must first be able to re-establish their own integrity as ‘independent’ autonomous nations. However, if political, economic, social and cultural autonomy can be delivered by self-determination, the future relationship between indigenous peoples and the wider international community will need to be addressed.


The right to self-determination dictates that the duty to protect the basic fundamental rights and interests of Aboriginal individuals properly rests, in the first instance, with indigenous governments exercising sovereign powers and acting in accordance with their own cultural values and traditions. Although not engaging with the language of self-determination, Anaya comes close to this position, arguing that ‘[i]n any assessment of whether a particular cultural practice is prohibited rather than protected, the cultural group concerned should be accorded a certain deference for its own interpretive and decision-making processes in the application of human rights norms, just as states are accorded such deference’.58 It is, however, clear that even according such deference to Aboriginal governments, the international community will not abandon its concern for potentially vulnerable individuals living within self-governing communities. In today’s increasingly global society where the discourse of international human rights has become firmly entrenched within the legal and political mores of even the most powerful states, ‘sovereignty’ is no longer regarded as absolute.59 It is a relative concept, qualified most notably by human rights considerations. Even the world’s most powerful states have accepted the requirement to surrender absolute control over their internal affairs, agreeing to subject the way in which they treat their own citizens to the scrutiny of other states in accordance with internationally recognized minimum standards. The question must be asked why Aboriginal governments exercising autonomous political powers and seeking to take their rightful place on the domestic and/or international stage should be treated any differently. International law’s constantly evolving understanding of the right to self-determination accords with this approach.


Self-Determination and the Protection of Individual Rights under International Law

The ‘external’ right to self-determination as traditionally understood and applied in the context of states and former colonies had little to say about the protection of individual human rights once the right to self-determination had been exercised and the independence of the state established. International law’s apparent indifference to the potentially precarious situation of vulnerable individuals, such as women and children, within self-determining communities, has been the subject of persuasive academic critique.60 As Charlesworth and Chinkin point out, ‘apparently successful claims to self-determination typically fail to deliver the same level of personal freedom and autonomy for women as for men’. Indeed, they contend that ‘in many cases it emerges that achievement of national self-determination has led to a regression in the position of women’.61