The Rights of Indigenous Peoples and the Development Process

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1 HUMAN RIGHTS QUARTERLY The Rights of Indigenous Peoples and the Development Process Helen Quane* ABSTRACT The need for a human rights dimension to the development process is recognized by a growing number of states and international organizations. The tendency so far has been to focus on rights in a general sense, although there is some recognition of the need to consider the rights of indigenous peoples in a development context. The integration of these rights into development programs can encounter difficulties partly because of the uncertainty surrounding the scope of some of the more important rights claimed by indigenous peoples. The article examines the scope of these rights under international law and explores some of their potential implications for the development process. It argues that while some of these human rights claims are not yet recognized under international law, the position is continually evolving. It also argues that the increasing recognition of several rights, especially the right to effective participation, may help to address the sense of marginalization traditionally experienced by indigenous peoples from the development process. I. INTRODUCTION The need for a rights dimension to the development process is recognized by a growing number of states and international organizations. 1 Increasingly, states and international organizations are using human rights criteria * Helen Quane is Lecturer in Law, University of Wales, Swansea, United Kingdom. 1. See, e.g., Press Release, European Union Council, The European Community s Development Policy: Statement by the Council and the Commission, adopted at the 2304th Council Meeting, 20, Doc. No /00 (10 Nov. 2000), available at ue.eu.int/ uedocs/cms_data/docs/pressdata/en/gena/12929.en0.html; DEPARTMENT FOR INTERNATIONAL Human Rights Quarterly 27 (2005) by The Johns Hopkins University Press

2 2005 Indigenous Peoples & the Development Process 653 in planning, implementing, and evaluating development programs. Some have gone so far as to adopt an explicitly rights-based approach to development 2 in their development aid programs. 3 This growing trend represents a radical shift from the position that prevailed up until a decade or so ago when human rights and development were generally regarded as two separate, though parallel, processes. 4 This meant that states did not tend to integrate human rights considerations into their development programs and were largely unaccountable for the human rights implications of these programs. While the current rights-focus represents a considerable advance from this position, it is still at a relatively early stage in its development. Many aspects of this new approach have to be worked out at both a policy and an operational level. This may explain why the emphasis to date has been on rights in a general sense. Nevertheless, some evidence suggests that the rights of indigenous peoples may be given greater consideration in the formulation and implementation of development programs that affect them. The World Bank, for example, is undertaking a major review of its policy on indigenous peoples. 5 Other international organizations, such as the European DEVELOPMENT, REALISING HUMAN RIGHTS FOR POOR PEOPLE: STRATEGIES FOR ACHIEVING THE INTERNATIONAL DEVELOPMENT TARGETS (2000), available at (hereinafter Human Rights for Poor People). See also Copenhagen Declaration on Social Development and Programme of Action of the World Summit for Social Development, adopted 12 Mar. 1995, at Annex I, 28 29, U.N. Doc. A/CONF.166/9 (1995), available at UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP), HUMAN DEVELOPMENT REPORT 2000: HUMAN RIGHTS AND HUMAN DEVELOP- MENT (2000), available at 2. This has been defined within the UN as a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. See United Nations, Office of the United Nations High Commissioner for Human Rights, Human Rights in Development: Rights-based Approaches, available at development/approaches-04.html. 3. For example, South Africa. 4. There were some notable exceptions, such as when development was recognized as a human right by the UN General Assembly. See Declaration on the Right to Development, G. A. Res. 41/128, U.N. GAOR, 41st Sess., Supp. No. 53, Annex, U.N. Doc. A/ RES/41/128 (1986), available at 5. See The World Bank Operational Manual, Operational Policies, Indigenous Peoples (Draft OP 4.10), available at DocName/RevisedDraftOperationalPolicyonIndigenousPeoplesRevisedDraftOP410/ $FILE/Revised+Draft+OP pdf; Summary of Consultations with External Stakeholders regarding the World Bank Draft Indigenous Peoples Policy (Draft OP/BP 4.10), available at SummaryofExternalConsultation-English/$FILE/SumExtConsult pdf. (The World Bank Operational Model is hereinafter referred to as the Draft Indigenous Peoples Policy.)

3 654 HUMAN RIGHTS QUARTERLY Vol. 27 Union 6 and the Asian Development Bank, 7 as well as several donor states, have adopted policies on indigenous peoples and development programs. 8 The UN has also undertaken a range of activities in this area, including publishing a report in January 2003 on the impact of large-scale development projects on the rights and interests of indigenous peoples. 9 This trend could result in a more systematic integration of the rights of indigenous peoples into development programs. Because indigenous peoples tend to be among the poorest and most marginalized from the development process, this could help to protect the identity and interests of these peoples and alleviate poverty. 10 Clearly, good reasons exist for integrating the rights of indigenous peoples into development programs, but the process could encounter several problems. These stem from the uncertainty surrounding the scope of indigenous rights under international law, the collective nature of some of these rights, and their potential implications not only for development programs, but also for the territorial integrity and political unity of the state. Take, for example, the right to self-determination. Self-determination is central to all the claims of indigenous peoples. 11 Indigenous peoples argue that self-determination is vital to enable them to exercise real control over their own affairs and to ensure their continued existence as distinct peoples. 12 In the present context, it is important to note that self-determina- 6. See generally Press Release, European Union Council resolution, Indigenous Peoples within the Framework of the Development Cooperation of the Community and the Member States, EU Doc. No /98 (30 Nov. 1998), available at ue.eu.int/uedocs/ cms_data/docs/pressdata/en/gena/13461.en8.htm. 7. See generally ASIAN DEVELOPMENT BANK, POLICY ON INDIGENOUS PEOPLES (1998), available at 8. For example, Canada and Finland. 9. Human Rights and Indigenous Issues: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolpho Stavenhagen, Submitted in Accordance with Commission Resolution 2001/57, U.N. ESCOR, Comm n on Hum. Rts., 59th Sess., Agenda Item 15, 6 79, U.N. Doc. E/ CN.4/2003/90 (2003). 10. Human Rights and Indigenous Issues: Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolpho Stavenhagen, Submitted Pursuant to Commission Resolution 2001/65, U.N. ESCOR, Comm n on Hum. Rts., 58th Sess., Agenda Item 15, 34 37, U.N. Doc. E/CN.4/ 2002/97 (2002). 11. See, e.g., Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm n on Hum. Rts., 54th Sess., Agenda Item 25, 24, U.N. Doc. E/CN.4/1998/106 (1997) (hereinafter Working Group Report 1998/106). 12. See, e.g., Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm n on Hum. Rts., 57th Sess., Agenda Item 15, 56, 86, U.N. Doc. E/CN.4/2001/85 (2001) (hereinafter Working Group Report 2001/85); Report of the Working Group Established in Accordance with

4 2005 Indigenous Peoples & the Development Process 655 tion is regarded as being intrinsically connected with the recognition of indigenous peoples right to land and natural resources. 13 However, there is considerable uncertainty about the scope of the right to self-determination under international law. In particular, it is unclear whether indigenous peoples have a right to self-determination that they can exercise separately from the rest of the population of the state. In addition to this, a right to self-determination for indigenous peoples could have significant implications for the state. The collective nature of the right could encourage secessionist claims that could have a considerable impact on the political unity and territorial integrity of the state. The right could also have far-reaching implications on a state s development policy particularly where the indigenous people occupy land rich in natural resources and invoke their right to self-determination to prevent the state from exploiting these resources. These concerns arise not only in relation to self-determination but also, albeit to varying degrees, to other rights claimed by indigenous peoples. Consequently, states and international organizations committed to integrating the rights of indigenous peoples into development programs need to consider the scope of these rights under international law and their potential implications. The present article sets out to examine some of the aforementioned issues. Its principal objective is to clarify the scope of some of the more important rights claimed by indigenous peoples in a development context. It also considers the potential impact of these rights on the development process and the obligations they impose on the states in which indigenous peoples reside, on donor states, and on international financial institutions like the World Bank and the International Monetary Fund (IMF). This examination of the rights of indigenous peoples is based on several international instruments. The emphasis is on universal instruments that are concerned expressly with indigenous peoples. These include the Draft UN Declaration on the Rights of Indigenous Peoples (Draft UN Declaration), which is currently being considered by an inter-sessional working group of the Commission on Human Rights. It is significant that indigenous peoples as well as states participate in the work of this group. The instrument is not intended to be legally binding but it would, if adopted, establish important minimum standards in this area. The article also examines the International Labour Organisation s Indigenous and Tribal Peoples Convention No. 169 of 1989 (ILO Convention 169). This contains the most detailed, legally binding instrument on the rights of indigenous peoples. Although it has Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm n on Hum. Rts., 56th Sess., Agenda Item 15, 55, U.N. Doc. E/CN.4/2000/84 (1999) (hereinafter Working Group Report 2000/84). 13. See Working Group Report 2000/84, supra note 12, 72.

5 656 HUMAN RIGHTS QUARTERLY Vol. 27 been ratified by only a small number of states, 14 its impact extends beyond these states due to its influence on the funding policies of several development banks. Finally, the article examines the International Covenant on Civil and Political Rights 1966 (ICCPR) 15 because it contains the only truly universal, legally binding provision on the rights of indigenous peoples. 16 The article examines the rights set out in these instruments in accordance with established international law principles. This means that, as far as possible, these instruments are interpreted in light of their wording, context, objective, drafting history, and subsequent state practice. 17 The emphasis throughout this article is on these original sources, rather than on the academic literature. 18 In this way, the article may help to clarify some of the confusion surrounding these rights. This confusion is evident in the competing interpretations of indigenous rights advanced by indigenous peoples and states and is one reason for the current impasse on the Draft UN Declaration and the delay in adopting the World Bank s new Draft Policy on Indigenous Peoples. 19 The article begins with a brief examination of the definition of an indigenous people. It then examines the scope of several rights claimed by indigenous peoples. The emphasis is on rights of particular significance to indigenous peoples in a development context, namely, the right to selfdetermination, the right to participate in public affairs, and the right to enjoy one s culture. As previously noted, the right to self-determination underpins all other claims advanced by indigenous peoples. If they are successful in claiming this right, it could be used to exert greater control over development projects on ancestral lands such as the construction of dams, the extraction of mineral resources, and the use of traditional plants and indigenous knowledge for pharmaceutical products. In the present context, 14. There are seventeen states. 15. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 27, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976) (hereinafter ICCPR). 16. Id. The ICCPR has been ratified by at least 149 states. 17. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27, arts (1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679 (1969). 18. See generally S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (1996); HUMAN RIGHTS OF INDIGENOUS PEOPLES (Cynthia Price Cohen ed., 1998); OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION (Pekka Aikio & Martin Scheinin eds., 2000); INDIGENOUS HUMAN RIGHTS (Sam Garkawe et al. eds., 2001); PEOPLES AND MINORITIES IN INTERNATIONAL LAW (Catherine Brölmann et al. eds., 1993); Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 AM. J. INT L L. 414 (1998). 19. See Indigenous Peoples and the World Bank: Permanent Forum on Indigenous Issues (May 2003), available at

6 2005 Indigenous Peoples & the Development Process 657 the right to participate in public affairs could be significant in enabling indigenous peoples to participate effectively in the formulation of development projects that affect them. Finally, the right to enjoy one s own culture could have important implications in a development context given the close connection between lands traditionally owned or occupied by indigenous peoples and the preservation of their cultural identity. For this reason, the right to enjoy one s culture could have an impact on development projects affecting indigenous land and resources. The article examines the scope of the above rights under international law and considers some of their potential implications for the development process. It then examines the obligations these rights impose on the various actors in the development process, ranging from the states in which indigenous peoples reside, to donor states, to international financial institutions such as the World Bank. The article concludes with several observations about the interplay between the rights of indigenous peoples and the development process. II. DEFINING INDIGENOUS PEOPLES It should be noted at the outset that the term indigenous peoples is controversial. This is evident from the discussions currently taking place on the Draft UN Declaration. 20 Some states are opposed to using the term in the declaration because of its possible implications under international law. 21 In particular, they are concerned that the term implies that these groups have a right to self-determination because the right to self-determination is one that is exercised by a people. Others are concerned that it would imply that the rights in the declaration are to be exercised collectively. The collective nature of human rights and the potential for conflict with 20. Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 Mar. 1995, U.N. ESCOR, Comm n on Hum. Rts., 52d Sess., Agenda Item 3, 4, U.N. Doc. E/CN.4/1996/84 (1996) (hereinafter Working Group Report 1996/84); Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm n on Hum. Rts., 53d Sess., Agenda Item 24, 3, U.N. Doc. E/CN.4/1997/102 (1996) (hereinafter Working Group Report 1997/102); Working Group Report 1998/106, supra note 11, 4; Working Group Report 2000/84, supra note 12, 4; Working Group Report 2001/ 85, supra note 12, Annex I; Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm n on Hum. Rts., 59th Sess., Agenda Item 15, 3, 23, U.N. Doc. E/CN.4/2003/92 (2003) (hereinafter Working Group Report 2003/92). 21. Working Group Report 1996/84, supra note 20, 38; Working Group Report 2000/84, supra note 12, Annex I; Working Group Report 2001/85, supra note 12, Annex I; Working Group Report 2003/92, supra note 20, Annex.

7 658 HUMAN RIGHTS QUARTERLY Vol. 27 individual rights are unacceptable to some states. This explains why some states prefer to refer to persons belonging to indigenous peoples or to indigenous populations. Indigenous peoples, however, are committed to defining themselves as indigenous peoples. 22 Opinion remains divided on this issue. Whether one refers to these groups as indigenous peoples or indigenous populations, no universally accepted definition exists. There are several reasons for this. First, some states argue that the term indigenous peoples applies only to certain regions, notably, former European colonies in the Americas and Oceania and, therefore, does not apply universally. 23 Second, indigenous peoples and many states argue that the historical and ethnic complexity involved would make it impossible to devise a definition that would cover all appropriate situations and, consequently, a universal definition could be inflexible and exclusionary. 24 In the absence of a universally accepted definition, some states argue that the matter should be decided at the national level. 25 In contrast, indigenous peoples and several states support the principle of self-identification whereby it is left to the group itself to decide whether or not it is indigenous. 26 This is opposed by other states because of the alleged lack of objectivity inherent in such an approach 27 or because it could allow a wide range of groups to claim certain rights and benefits on the basis of defining themselves as indigenous. 28 The issue remains unresolved at least for the purposes of the Draft UN Declaration. The principle of self-identification has been recognized in ILO Convention The Convention applies to indigenous peoples although, significantly, the use of this term is said to be without any implications for any rights that might attach to that term under international law. 30 It also applies to tribal peoples, which helps to ensure that the Convention applies as widely as possible, including to those states that claim that indigenous peoples exist only in former European colonies. The Convention 22. Working Group Report 2001/85, supra note 12, Annex II. 23. Working Group Report 1996/84, supra note 20, 27 28; Working Group Report 1998/106, supra note 11, Working Group Report 1996/84, supra note 20, Id. 26. Id. 29, 67; Working Group Report 1997/102, supra note 20, 228, 136, Working Group Report 1996/84, supra note 20, Draft Report: Articles 7, 8, and 11 [of the Draft Declaration on the Rights of Indigenous Peoples}, U.N. ESCOR, Comm n on Hum. Rts., 14, U.N. Doc. E/CN.4/2002/WG.15/ CRP.8 (2002) (hereinafter Draft Declaration). 29. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), adopted 27 June 1989, art. 1(2), 28 I.L.M (entered into force 5 Sept. 1991), reprinted in IAN BROWNLIE, BASIC DOCUMENTS IN HUMAN RIGHTS 303 (3d ed. 1992) (hereinafter ILO Convention 169). 30. Id. art. 1(3).

8 2005 Indigenous Peoples & the Development Process 659 does not rely exclusively on the principle of self-identification because it also contains definitions of indigenous peoples and tribal peoples. 31 Indigenous peoples are defined as peoples in independent countries who are regarded as indigenous because of their descent from the populations that inhabited the country, or a geographical region to which the country belongs at the time of conquest or colonization, or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural, or political institutions. 32 This idea of a continuous link with a precolonial or preinvasion society, as well as the possession of distinct political, economic, social, and cultural institutions, is mirrored in the definition proposed by UN Special Rapporteur Martinez Cobo. 33 However, he referred to several additional factors omitted from the ILO Convention, notably: (a) the important link between ancestral territories and the identity of indigenous peoples, (b) the fact that indigenous peoples consider themselves distinct from the rest of the population and want to preserve their distinct identity, and (c) the nondominant status of these peoples. Cobo s definition is one of the most commonly used. It is a useful working definition, but it should be borne in mind that there is no universally accepted definition and that in the absence of such a definition, the preference among indigenous peoples and several states is for self-identification. III. THE RIGHTS OF INDIGENOUS PEOPLES UNDER INTERNATIONAL LAW A. The Right to Self-Determination The right to self-determination is well established in international law. 34 It enables a people to freely determine their political status, to pursue their 31. Id. art. 1(1). 32. Id. art. 1(1)(b). 33. Study of the Problem of Discrimination against Indigenous Populations, Vol. 5: Conclusions, Proposals and Recommendations by Jose R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. ESCOR, Subcomm n on Prev. of Discrim. & Protect. of Min., 34, U.N. Doc. E/CN.4/Sub.2/1986/7. Add.4 (1987). 34. See U.N. CHARTER art. 1, 2, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans 1153 (entered into force 24 Oct. 1945); ICCPR, supra note 15, art. 1; International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 1, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) (hereinafter ICESCR); Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22d plen. mtg., part I, art 1, 2, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M.

9 660 HUMAN RIGHTS QUARTERLY Vol. 27 economic, social, and cultural development, and to dispose of their natural wealth and resources. 35 The right has both internal and external dimensions. The right to external self-determination is largely concerned with the right to determine a territory s international status, while internal self-determination is concerned with the right to determine its government and policies. Recognition of a right to self-determination for indigenous peoples could have a significant impact on the development process. If indigenous peoples constitute a people for the purpose of self-determination, they may have the right to freely dispose of their natural wealth and resources. This could have far-reaching implications for the economic well-being of a state, especially where the group concerned is territorially cohesive, concentrated in an area rich in natural resources, and claiming the right to self-determination in order to secede from the state. 36 While the above example concerns the right to external self-determination, others concern the right to internal self-determination. For example, a territorially cohesive group may not want to secede from the state but may want some form of territorial autonomy. This is often the case with indigenous peoples. This scenario can still pose difficulties for the state, particularly when the state wants to exploit natural resources in an autonomous region where the indigenous people oppose such development. Given these potential implications, it is important to determine whether indigenous peoples have a right to self-determination under international law. It is useful to begin with the position under general international law before examining the recent discussions of the issue during the negotiations on the Draft UN Declaration. Under current international instruments, distinct ethnic, linguistic, or religious groups within states do not appear to have a legal right to external or internal self-determination. An examination of the wording, context, drafting history, and subsequent practice of the relevant provisions of the UN Charter, the ICCPR, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and General Assembly Resolution 2625 (XXV) tends to support this view. 37 This view might seem over cautious, especially when one considers recent events in Central and Eastern Europe. It is also at 1661 (1993); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. (June 21), 52, available at icjwww/idecisions/isummaries/inamsummary htm. 35. ICCPR, supra note 15, art For example, the attempted secession of Katanga from the newly independent Congo from For a more detailed discussion of these instruments, see Helen Quane, The UN and the Evolving Right to Self-Determination, 47 INT L & COMP. L. Q. 537, , (1998).

10 2005 Indigenous Peoples & the Development Process 661 odds with a growing body of opinion in the academic literature that suggests that groups within states have a right to internal, and possibly external, selfdetermination. Arguably, this cautious approach can be defended, especially if one examines the literature in light of the relevant state practice. The importance of state practice cannot be underestimated, even in this age of globalization, because it remains the only means by which new rules of customary international law can be created. In recent years, some of the leading authorities in the field have argued that groups within states can invoke the right to self-determination. 38 While they accept that self-determination does not entail independence outside the colonial context, some admit the possibility that these groups may have a right to independence if they are subject to gross oppression by the state. 39 For the most part, they argue that self-determination for these groups encompasses a range of options within the territory of the state, such as effective participation in public life or having one s identity reflected in political institutions. Arguably, this context-dependent concept of selfdetermination is problematic for several reasons. First, this concept of self-determination suggests either that all peoples do not have an equal right to self-determination or that the right can be subject to restrictions. The first proposition is difficult to reconcile with the principle of equal rights and self-determination of peoples set out in the UN Charter. 40 The second is less controversial but also problematic. Once a right to self-determination is recognized for groups within states, these groups may be reluctant to accept limits on this right. In any event, one would have to clarify the nature and basis of any limitations on the right to self-determination given the absence of any reference to limitations on the right in the relevant international instruments. This would be particularly relevant in a development context in which competing self-determination claims could be advanced, for example, to instigate or block the building of a hydroelectric dam on lands owned or traditionally occupied by indigenous peoples. A second, and more fundamental, difficulty with a context-dependent 38. See, e.g., ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL, (1995); James Crawford, The Right of Self-Determination in International Law: Its Development and Future, in PEOPLES RIGHTS 7, 57, (Philip Alston ed., 2001); Thomas M. Franck et al., Expert Opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N. Shaw and C. Tomuschat, The Territorial Integrity of Québec in the Event of the Attainment of Sovereignty, reproduced in ANNE F. BAYEFSKY, SELF-DETERMINATION IN INTERNATIONAL LAW: QUEBEC AND LESSONS LEARNED 241, (2000). 39. See, e.g., Crawford, supra note 38, at 57; Thomas M. Franck: Opinion Directed at Question 2 of the Reference, reproduced in BAYEFSKY, supra note 38, at 75, 79; Alain Pellet, Legal Opinion on Certain Questions of International Law Raised by the Reference, in BAYEFSKY, supra note 38, at 85, UN Charter, supra note 34, arts. 1(2), 55.

11 662 HUMAN RIGHTS QUARTERLY Vol. 27 concept of self-determination is that it is difficult to reconcile with state practice. Recent events in Kosovo, for example, are cited in support of a right to independence for oppressed minorities as a form of remedial selfdetermination. 41 Arguably, the emphasis in Kosovo was on maintaining the territorial integrity of the state and ending the conflict rather than on recognizing any right to self-determination for the Kosovo Albanians. 42 If the gross violations of the rights of the Kosovo Albanians did not give rise to a remedial right to self-determination, then it is difficult to think of circumstances that would give rise to such a right. Recent developments, such as granting various forms of autonomy to minorities, 43 are also cited to support the proposition that groups within states have a right to internal self-determination. The difficulty with this argument is that it tends to underplay two factors. One is the fact that when some form of autonomy is granted to minorities, it is usually by virtue of the wishes of the majority of the population concerned. 44 Consequently, the grant of autonomy is arguably more a reflection of the right of the entire population of the state to exercise its right to self-determination, in this instance, to determine its internal structures of government, than any recognition of a right to self-determination for the minority concerned. Second, while states are increasingly willing to adopt new forms of constitutional arrangements to accommodate the interests of minorities, they are unwilling to refer to these arrangements as a form of internal selfdetermination for these minorities. 45 Consequently, even though these arrangements may correspond to the political principle or substance of internal self-determination, state practice suggests that it is doubtful whether they represent any extension of the legal principle of self-determination This suggests that, at present, groups within states do not have a separate right to self-determination under international law. However, recent discussions on the Draft UN Declaration suggest that this position 41. See, e.g., YASH GHAI, PUBLIC PARTICIPATION AND MINORITIES 9 (2001). 42. See Philip Alston, Peoples Rights: Their Rise and Fall, in PEOPLES RIGHTS, supra note 38, at ; Helen Quane, A Right to Self-Determination for the Kosovo Albanians?, 13 LEIDEN J.INT L L. 219 (2000). 43. See, e.g., Report of the CSCE Meeting of Experts on National Minorities, Geneva 1991, Conference for Security and Cooperation in Europe, 6 7 (1 19 July 1991), available at Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Conference for Security and Cooperation in Europe, 35 (5 29 June 1990), available at This is evident from the state reports submitted under the ICCPR, supra note 15; see also Helen Quane, Rights-Based Approaches to Inter-Communal Conflict: An analysis of the International Community s Approach using Northern Ireland as a Case-Study, (2002) (unpublished Ph.D. Thesis, University of London) (on file with author). 45. Quane, supra note 44 at ,

12 2005 Indigenous Peoples & the Development Process 663 may be changing, at least in respect to indigenous peoples. Article 3 of the Draft Declaration recognizes a right to self-determination for indigenous peoples. 46 It provides that they can freely determine their political status and freely pursue their economic, social and cultural development. 47 Article 31 provides that one way of exercising the right is through some form of autonomy or self-government for indigenous peoples in their internal affairs. Notwithstanding this, the issue of self-determination is the most contentious one between states and indigenous peoples participating in discussions of the Draft. States have adopted different positions on Article 3. In addition to this, some have changed their positions over time. The United States, for example, originally took the position that indigenous peoples did not have a right to self-determination under international law and opposed Article Now, the United States is prepared to accept a limited right to internal self-determination for indigenous peoples. 49 Most of the states are prepared to accept a right to self-determination for indigenous peoples, provided that it does not threaten the territorial integrity of the state. 50 This means that indigenous peoples will only have a right to internal selfdetermination in normal circumstances. 51 Indigenous peoples, for their part, are reluctant to accept any limitations on their right to self-determination. 52 They argue that they have a right to self-determination under existing international law and that to place restrictions on their right would be discriminatory. They also argue that state concerns about threats to territorial integrity are unfounded because most indigenous peoples have no desire for secession. Nevertheless, it is important for them to retain the option of external self-determination should 46. Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples, U.N. ESCOR, Comm n on Hum. Rts., Subcomm n on Prev. of Discrim. & Prot. of Min., 46th Sess., Agenda Item 15, 2, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994). 47. Id. 48. Working Group Report 2000/84, supra note 12, Working Group Report 2003/92, supra note 20, Working Group Report 1996/84, supra note 20, 45 46; Working Group Report 1997/102, supra note 20, 45, 312, 314, 317, 318, 320, 330, 332, 336; Working Group Report 1998/106, supra note 11, 44; Working Group Report 2000/84, supra note 12, 50, 53, 56, 61, 63, 64, 67, 70, 73, 74, 78, 80, 81; Working Group Report 2001/85, supra note 12, 62, 64, 69, 70, 76, 82, 83, 85, 90, 92, Some states accept that if they commit gross violations of human rights or fail to represent indigenous peoples, then indigenous peoples do not have to respect the territorial integrity of the state and can secede. In these circumstances, indigenous peoples would have a right to external self-determination. See Working Group Report 2003/92, supra note 20, Annex. 52. Working Group Report 1996/84, supra note 20, 47; Working Group Report 1998/ 106, supra note 11, 44; Working Group Report 2000/84, supra note 12, 43; Working Group Report 2001/85, supra note 12, 71; Working Group Report 2003/92, supra note 20, 24.

13 664 HUMAN RIGHTS QUARTERLY Vol. 27 circumstances change. Some, for example, are concerned about the potential implications of Quebec seceding from Canada for the indigenous peoples living in Quebec. 53 While indigenous peoples want to retain the Draft Declaration in its current form, a certain willingness has arisen in recent years to address state concerns about territorial integrity. 54 Several indigenous peoples are prepared to include a reference to General Assembly Resolution 2625 (XXV), which provides that the territorial integrity of a state will be upheld if the state complies with the principle of selfdetermination and is thus representative of all peoples without distinction. 55 An impasse on Article 3 still exists. To a certain extent, this may be due to a dispute over a matter of form rather than substance. Some states are prepared to accept Article 3 as it stands, on the understanding that the territorial integrity of the state will be protected by Article 45, which prohibits any activities contrary to the UN Charter (including respect for the principle of territorial integrity). 56 Others want to include an express reference to the need to respect the principle of territorial integrity. 57 In 2003, Norway submitted a proposal to address outstanding concerns on this issue. 58 It proposed including a reference to General Assembly Resolution 2625 (XXV). 59 The proposal was welcomed by government delegations and some indigenous peoples, 60 although a consensus has not yet been reached on this issue. Originally, it was intended that the Draft Declaration would be adopted by the end of 2004, but this is questionable in view of the current impasse and the fact that there is still some opposition to Article Even if the Draft Declaration is not adopted in the near future, the discussions about Article 3 are significant. They indicate that more and more states are willing to recognize a right to internal self-determination for indigenous peoples. The states concerned are states in which the overwhelming majority of the world s indigenous peoples reside. 62 Consequently, the approach adopted by these states is very significant in terms of developing a new rule of 53. Working Group Report 1997/102, supra note 20, Working Group Report 1998/106, supra note 11, 44; Working Group Report 2001/ 85, supra note 12, 92, Working Group Report 2003/92, supra note 20, Working Group Report 1997/102, supra note 20, 330; Working Group Report 2001/ 85, supra note 12, 70; Working Group Report 2003/92, supra note 20, Id. 22, Annex. 58. Id Id. 60. Id Working Group Report 1997/102, supra note 20, Canada, New Zealand, United States, Argentina, Brazil, Chile, Ecuador, Finland, Colombia, Guatemala, Peru, Norway, Philippines, Bolivia, Venezuela, Fiji, Russian Federation, Mexico, Denmark, and Sweden. Australia has shifted from its original

14 2005 Indigenous Peoples & the Development Process 665 customary international law. Discussions concerning Article 3 suggest that there is an increasing acceptance that indigenous peoples have a right to internal self-determination. Even if this has not yet crystallized into a new rule of international law, it suggests that such a rule may be in the process of formation. 63 It is submitted that it may be only a matter of time before a legal right to internal self-determination for indigenous peoples emerges. The question then arises as to what internal self-determination for indigenous peoples will mean, particularly in a development context. Several states have commented on this issue during the discussions of the Draft UN Declaration. They referred to indigenous peoples participating fully in decisions affecting them, 64 making decisions about their own affairs, or having some form of territorial autonomy. 65 This would suggest, at the very least, that indigenous peoples should be consulted about development projects that affect them. The Norwegian proposal referred to earlier 66 is also of interest in the present context because it mentions state concerns about whether land and natural resources were to be regarded as an integral part of the right of indigenous peoples to self-determination. The proposal tries to address these concerns by redrafting Article 31 so that it refers to the right of indigenous peoples to autonomy without specifying the areas in which the right could be exercised. As currently drafted, Article 31 stipulates that autonomy applies in matters relating to internal affairs including economic activities, land and resources management, and entry onto ancestral lands by nonmembers. Arguably, the more general and open-ended formulation proposed by Norway would ensure that the nature and degree of autonomy exercised by indigenous peoples would be a matter for negotiation at the national level, rather than being determined at the international level. Presumably, this would preclude any automatic veto by indigenous peoples over development projects affecting their land or natural resources. position that it could not accept Article 3 because it implied a right to independence to its current position that Article 3 needs to be more precise. See generally Working Group Report 2003/92, supra note 20, Working Group Report 1996/84, supra note 20, 43 44; Working Group Report 1998/106, supra note 11, 44; Working Group Report 2000/84, supra note 12, 49, 53, 81. See also recent references by the UN Human Rights Committee to selfdetermination of indigenous peoples although one has to be cautious in attaching too much legal significance to these comments. Elizabeth Evatt, Realising Human Rights: Utilising UN Mechanisms, in INDIGENOUS HUMAN RIGHTS, supra note 18, at 181, ; Benedict Kingsbury, Reconstructing Self-Determination: A Relational Approach, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION, supra note 18, at 19, Working Group Report 2000/84, supra note 12, 53, 81; Working Group Report 2001/85, supra note 12, 82, Id Supra note 58, and accompanying text.

15 666 HUMAN RIGHTS QUARTERLY Vol. 27 In response to this aspect of the Norwegian proposal, indigenous representatives stated that they preferred to maintain Article 31 s current text. They argued that the current text was useful to identify the different elements that could make up an autonomy arrangement since it was often in that area that most misunderstandings arose between indigenous peoples and States. 67 This might suggest that indigenous peoples are prepared to negotiate on the issue, but the matter is not free from doubt. Other provisions of the declaration suggest that indigenous peoples must give their free and informed consent prior to the approval of any development projects affecting their lands or other resources. 68 Clearly, this is an area in which the law is still evolving. Because selfdetermination traditionally applies only to the entire population of a state or colony, international law has not had to deal with this type of situation before. This means that the entire population of a state can, by virtue of its right to self-determination, decide on how to dispose of its wealth and natural resources. The recognition of a right to internal self-determination for indigenous peoples implies that they also have a right to dispose of natural resources and wealth, albeit, only within their lands and territories. This opens up the possibility of a conflict between the two forms of selfdetermination coexisting within the same state. The majority of the population may want to extract valuable natural resources from land owned or traditionally occupied by indigenous peoples, while the latter may invoke their right to self-determination to oppose such development. Because the right of indigenous peoples to internal self-determination is not yet recognized in international law, it is perhaps not surprising that no legal guidelines exist on how to deal with this conflict. However, it is doubtful whether the right of indigenous peoples to self-determination will automatically trump the right of the rest of the population. This is evident from the opposition of several states to the idea that indigenous peoples can veto development projects on their lands, as well as from several statements that the state needs to manage natural resources in the interests of the entire population of the state. 69 This is also the position adopted by the World Bank. 70 Arguably, where a conflict arises, the matter will have to be decided by negotiation, which should lead to striking a balance between the interests of all concerned. 67. Working Group Report 2003/92, supra note 20, See infra notes 89 94, and accompanying text. 69. Working Group Report 1996/84, supra note 20, 83, 85; Working Group Report 2000/84, supra note 12, See WORLD BANK, SUMMARY OF CONSULTATIONS (2002), available at lnweb18.worldbank.org/ ESSD/sdvext.nsf/63ByDocName/SummaryofExternalConsultation-English/$FILE/ SumExtConsult pdf.

16 2005 Indigenous Peoples & the Development Process 667 In striking a balance between these competing interests, those involved in development projects affecting indigenous peoples should consider several factors of a substantive and procedural nature. Substantively, they should consider: (1) whether the development project has a legitimate aim, (2) the potential impact of the project on the rights and interests of indigenous peoples, (3) whether any negative impact on indigenous peoples is necessary, and (4) the minimum required to achieve the legitimate aim. 71 Procedurally, those involved in development projects should ensure the effective participation of indigenous peoples in the formulation and implementation of development projects affecting them. While these factors are not legally binding, they provide some guidance on how to proceed if a right to internal self-determination for indigenous peoples is recognized in international law. B. The Right to Participate in Public Affairs The right to participate in public affairs is also relevant to determining whether indigenous peoples can participate in the formulation and implementation of development policies that affect them. At a more general level, the right to participate is relevant to ensuring that governments are accountable for their policies (including development policies) and for the allocation of public funding. Participation is also a core principle in the development aid programs of some donor states. 72 The right to participate in public affairs is recognized in Article 25 of the ICCPR. The right applies only to citizens of a state, which can be a problem for some indigenous peoples, due to the way in which some states citizenship laws are drafted. However, the more problematic feature of Article 25 is its scope. Article 25 s wording 73 suggests that its primary concern is the right to participate in elections without discrimination. While this may result in the election of representatives of indigenous peoples, there is no guarantee that it will do so. This means that Article 25 will not 71. These factors are based on the approach commonly adopted in international human rights instruments when faced with a conflict between competing rights and interests. 72. See, e.g., Human Rights for Poor People, supra note See ICCPR, supra note 15. Article 25 provides that Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: a. To take part in the conduct of public affairs, directly or through freely chosen representatives; b. To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; c. To have access, on general terms of equality, to public service in his country.

17 668 HUMAN RIGHTS QUARTERLY Vol. 27 guarantee that the interests of indigenous peoples are represented in government or in the formulation of development policy. 74 The wording and drafting history 75 of Article 25 suggest that states have no obligation to adopt political structures that would ensure the effective participation of indigenous peoples in public life. This is also evident from a survey undertaken by the present author of the reports submitted by 100 states on how they comply with the ICCPR. Most states simply describe their electoral systems and their political structures to show that they respect the right to participate in public life. 76 Occasionally, states refer to the establishment of structures of self-government or the granting of various forms of cultural autonomy for indigenous peoples, 77 but it is evident from the reports 78 that this is due to the states own discretion rather than any perceived obligation under Article 25. The lack of a state obligation to ensure effective participation in public life is consistent with the UN Human Rights Committee s interpretation of Article This Committee monitors state compliance with the ICCPR. 80 In Mikmaq People v. Canada, 81 the Mikmaq people claimed that the Canadian government s failure to invite them to a constitutional conference on aboriginal matters violated their rights under Article 25. The Committee rejected the application. It stated that Article 25 did not guarantee any directly affected group the unconditional right to choose the means of participation in public life. Instead, it was for the constitutional system of each state to provide for the means of participation. In other words, it was for the entire people of the state, in the exercise of their right to selfdetermination, to decide on the constitutional system and the means of participation. The case of the Mikmaq people highlights the difference between the right to self-determination and the right to participation. If a group has the right to self-determination, it has the right to determine the structures of participation. If it has a right to participation, it only has the right to participate in existing structures without discrimination. This helps to 74. See also GHAI, supra note 41, at See MARC J. BOSSUYT, GUIDE TO THE TRAVAUX PREPARATOIRES OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 470 (1987). 76. See Quane, supra note 44, at Id. 78. Id. 79. See General Comment Adopted by the Human Rights Committee Under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights, U.N. ESCOR, Hum. Rts. Comm., U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996). 80. ICCPR, supra note 15, arts. 40, Report of the Human Rights Committee, U.N. GAOR, Hum. Rts. Comm., 47th sess., Suppl. no. 40, at 205, U.N. Doc. A/47/40 (1992).

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