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January 18, 2013

Reading In Pursuit of the Right to Self-Determination, a 2001 anthology edited by Y.N. Kly and D. Kly, the collected papers of the first international conference on the right to self-determination examined in part the indigenous movement as a means of democratizing the UN and the international system. With the 2007 adoption of the UN Declaration on the Rights of Indigenous Peoples, this movement continues to challenge the modern state system that denies the fulfillment of these rights. As First Nations in Canada this week threatened to interrupt the flow of timber, oil and hydropower extracted from their territories without their consent, this seemed like a propitious time to reflect on the history of the UN vis-a-vis its role in the development of this aspect of the international human rights regime.

As noted by Andre Frankovits, the words self-determination appear in the 1948 UN Charter as an enunciated principle, as well as in the 1960 preambles to the International Covenants on Economic, Cultural and Social Rights/Civil and Political Rights, but with a major caveat in the Declaration on the Right to Development, “aimed at preventing any definition that is not based on the gaining of independence of the former colonies of the European powers.” Which shifted the focus away from the rights of peoples to those of governments.

Nevertheless, the UN did recognize that colonial, foreign and racist domination were situations in which the right to self-determination is applicable. It just wasn’t prepared at the time to recognize that indigenous nations were in this situation.

As Frederick Kirgis, Jr. wrote, there are degrees of self-determination, the legitimacy of each claim proportional to the level of democratic participation allowed by the government concerned. As Dr. Peter Wilenski observed, realization of the right to self-determination entails the continuing right to participate fully in the political process by which they are governed. But, as international legal scholar Christian Tomuschat notes, the emergence of international human rights law amounted to the general recognition that states that fundamentally fail to live up to their essential commitments lose legitimacy. Thus, the movement toward codification in constitutions of international human rights, and the creation of international courts and tribunals, has been to encourage state accountability.

As Erica-Irene A. Daes observed, the fundamental condition for realizing the right of self-determination in practice is trust between peoples, which is impossible without cooperation, dialogue and respect. As Kenneth Deer remarked, the whole idea that indigenous peoples don’t have the right to self-determination is racially based, and is ingrained into the very fabric of all the institutions of the Americas.

Article 1 of the 1976 International Covenant on Civil and Political Rights states that all peoples have the right to self-determination, and by virtue of that right to freely determine their political status and freely pursue their economic, social and cultural development. Even in 2013, six years after the 2007 UN Declaration on the Rights of Indigenous Peoples, the UN is unable to cope with the contradiction between the self-determination of indigenous nations and the sovereignty of modern states. Perhaps as Dina Gilio-Whitaker suggested recently in a column at Indian Country Today, indigenous self-determination for American Indian tribes could take the form of associated nations, exercising treaties and compacts that elevate their level of self-determination while advancing toward recognition of their international political status. An incremental approach that is nonetheless decolonizing.

As S.V. Kirubaharan noted, Western liberalism has always emphasized individual liberties, not the collective rights of indigenous peoples that are essential to their culture and lives. As the rights that give meaning to their lives, their destruction constitutes in essence a crime against humanity; when systematically terminated by a modern state, a de facto genocide.

As Majid Tramboo observed, democracy may mean little to an indigenous people whose political culture and traditions are different from those of the state. As such, the current conflict in Canada serves as a laboratory for the UN and its member states to break the conceptual impasse posed by state-centric bias.

The eyes of the world are watching.


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