INDIGENOUS ELECTORAL REPRESENTATION IN INTERNATIONAL HUMAN RIGHTS LAW

Transcription

1 1 INDIGENOUS ELECTORAL REPRESENTATION IN INTERNATIONAL HUMAN RIGHTS LAW Catherine Iorns Magallanes Introduction Indigenous peoples have been arguing in domestic and international fora that they need some form of guaranteed political representation at the highest levels of (local and national) state government. 1 This claim has been supported by some domestic political theorists and upheld in international human rights law as a form of indigenous self determination. Some states have taken steps to accord indigenous peoples some such powers of government in their domestic systems. With the inclusion of political representation as a subject within the area of indigenous human rights norms and discourse, I thought it useful to examine whether (and if so, how) indigenous peoples rights were included as a subject within the emerging right of democratic political participation. This paper attempts a brief analysis of the intersection of indigenous peoples rights and rights of political participation in international human rights law. It addresses: 1. The nature of individual and group rights in domestic liberal theory; 2. Approaches within democratic political theory to the protection of indigenous rights; 1 Will Kymlicka suggests that [o]ne of the most common demands of minority cultures is for greater representation within the political process Will Kymlicka The Rights of Minority Cultures (Oxford University Press, New York, 1995) 16.

2 2 Human Rights Research 3. International legal recognition of indigenous rights to political participation in decision making; and 4. The emerging right of political participation in international law. The paper describes developments in these areas and identifies what appear to be trends. It focuses on perceived convergences and divergences between the two areas of international human rights law, those relating to indigenous peoples and democratic political participation. It suggests that there appears to be more divergence than convergence between the two areas, and that argument thus needs to be directed at achieving more consistency. The Nature of Individual and Group Rights Human rights have traditionally had a focus on the individual rather than the group. The primary reason for this is that the concept of humans possessing rights was developed by liberal theorists as a means of solving a particular historical problem: the oppression, privilege and social duties of the feudalist state. The liberals had a vision of human dignity: one of equal concern and respect being accorded to individuals, with each individual being born with natural or human rights to autonomy, or freedom and equality. Entitlement to equal concern and respect requires standards of treatment simply because one is a human being and not because of, for example, one s status or the role that one plays in society. As a result, the rights devised have been primarily negative, civil and political rights protecting individual freedom or autonomy from the power of the state. Despite theorists from various traditions liberal and otherwise emphasising equality of some sort, 2 they at least initially neglected the rights of several social groups, including women, slaves and minorities. 3 One 2 For example, John Stewart Mill Considerations on Representative Government (1861) and Hobhouse (1909) are the most well known liberal theorists, although even Locke emphasised equality and the rights necessary to implement it. See, for example, Jack Donnelly Universal Human Rights in Theory and Practice (Cornell University Press, New York, 1989) ch 5; Eugene Kamenka Human Rights: Peoples Rights in James Crawford (ed) The Rights of Peoples (Oxford University Press, New York, 1988) For example, particularly in the 17th and 18th centuries, liberal theorists considered most smaller nations and minorities backward and in need of assimilation in order to achieve progress and participation in modernity. See, for example, John Stewart Mill Considerations on Representative Government

3 Indigenous Electoral Representation 3 particular feature of these theories is that they both justified assimilating minorities within states and, most importantly, colonising other peoples overseas. 4 While the ethnocentric views gave way to recognition that all human beings including minorities were entitled to the dignity and respect that liberalism stressed, they were still the rights of individuals. This is because rights which exist by virtue of being human can presumably only belong to an individual human being, and because it is individuals who ultimately suffer the conditions of oppression which human rights are designed to remedy. In contrast, the notion of group rights relates to the protection of the existence of the groups themselves as well as the individual rights of their members. Where groups are recognised as having rights, the focus of liberalism is again on the rights necessary to remedy oppression from larger powers, which will typically be the state. For example, group rights are not usually conceived as protecting a group from its members. Thus most group rights are conceived of as rights of individuals as members of groups to belong to and maintain the group in question. Cultural rights, for example, which have been developed in the twentieth century, are largely rights against the state and the wider community accorded to individuals to practice their culture their way of life. Participation in one s own particular whether minority or majority culture is now regarded as essential to human dignity. Indigenous peoples are particularly vociferous in arguing that peoples' or group rights are essential for the protection of their cultures and existence as peoples. As with other human rights claims, their claims stem from the treatment they have suffered at the hands of states and dominant majorities within them and from what they consider necessary to remedy that (1861). Marxists and socialists have also been hostile to the claims of minority groups, ostensibly on the grounds of internationalism. As Will Kymlicka notes, such views were shared by virtually all theorists in the nineteenth century, on both the right and left. He suggests that it is misleading to blame individualism or Marxist internationalism: Instead, it reflects a rather blatant form of ethnocentric nationalism : Will Kymlicka The Rights of Minority Cultures (Oxford University Press, New York, 1995) 6. See, generally, Vernon Van Dyke The Individual, the State and Ethnic Communities in Political Theory (1977) 29 World Politics See, for example, John Stewart Mill Considerations on Representative Government (1861). And, Kymlicka, above, 6. See, generally, Van Dyke, above.

4 4 Human Rights Research oppression. In addition, they claim that a human rights approach to group rights is essential as they see their identity as fundamentally tied to the group, and that individual human rights are not enough to protect that. 5 States have been reluctant to recognise group rights in international human rights law because of the difficulties that remain with accommodating indigenous demands in the existing liberal paradigm. 6 But the indigenous argument is that this is a different type of problem to that which prompted the development of liberalism; it thus needs a different solution, one which may alter the liberal paradigm. Interestingly, in the area of democratic rights, which has been a cornerstone of liberalism, the arguments for accommodation of group rights have been responded to relatively favourably in democratic theory (although there is a much slower uptake of them in practice). Democratic Rights and Indigenous Peoples In modern liberal democracies democracy is identified with the concept of majority rule. While it is justified in differing ways, it is recognised as being at least a practical requirement: while government may rest on the consent of all of the governed, effective government requires decisive decision making, which is justified if it carries the support of a majority. However, the fear of abuse of power by the majority has also given rise to constitutionalism, designed to limit the power of those in government. Such limits restrain and control the exercise of authority by restricting the scope of majority rule, the substance of matters to be ruled upon, and/or the procedure by which majority rule can be effected. There are many constitutional devices adopted to restrain majorities, including those that focus on the structure of the state (eg federalism), on the division of powers between different decision making bodies (eg checks and balances, the separation of powers, and judicial review), on the structure of the legislative body (eg bicameralism), on the 5 Even Jack Donnelly suggests that a human rights approach may be the most appropriate way to protect indigenous peoples rights, even while he does not think that it is the case for other group rights. See, for example, Jack Donnelly Universal Human Rights in Theory and Practice (Cornell University Press, New York, 1989) The primary difficulty to date has been the conflict between these group rights and other individual rights. This is due to problems such as with the definition of beneficiaries of group rights and with their implementation: many group rights are implemented by limiting the basic rights of individuals, indigenous or otherwise.

5 Indigenous Electoral Representation 5 electoral system (eg proportional electoral systems), on decision making processes within deliberative bodies (eg qualified majorities and veto rights), as well as on the substance of possible decisions (eg bills of rights). Despite such restraints on democratic majorities, indigenous peoples complain that they are insufficient. They complain both that their human rights have been infringed within liberal democracies containing such constitutional rights protections, and that they need positive protection for the existence of their group. Many argue that traditional, individualistic conceptions of democracy are insufficient for the protection of their group needs and rights and that different approaches and measures need to be adopted. Both indigenous peoples and political theorists have identified various possible alternative approaches, ranging from separate government to special accommodations within national governments. Those special accommodations include, inter alia, measures of autonomy (akin to models of federalism), guaranteed parliamentary representation, entrenched rights, veto powers, and proportional voting systems. 7 One democratic device that 7 The various approaches do not pretend to remove or assimilate the differences between groups but regulate possible conflict between them through democratic devices. Two of the more popular models of democracy among political theorists are the closely related consociational and consensus models, both of which aim to share and limit political power. The most significant work on both of these models is by Arend Lijphart. His most significant work on consociationalism is Arend Lijphart Democracy in Plural Societies: A Comparative Exploration (Yale University Press, Connecticut, 1977) (Democracy in Plural Societies). His work which describes consensus democracy is Arend Lijphart Democracies: Patterns of Majoritarian and Consensus Government in 21 Countries (Yale University Press, Connecticut, 1984) (Democracies). In more detail, consociational and consensus democracy replace simple majority rule with the principle of proportionality, both in the creation and operation of governments. There are four commonly accepted characteristics that are designed to cumulatively share, disperse, distribute, delegate and limit political power: a coalition of the leaders of significant groups in the society, veto rights in certain circumstances, proportionality, and autonomy over local affairs. Neither consociational nor consensus democracy prescribes any particular constitutional model, although some constitutional features are clearly more conducive to consociationalism and consensus than others (for example, parliamentary rather than presidential systems, election on the basis of proportional representation rather than first past the post, and federalism rather than unitary states, where

6 6 Human Rights Research indigenous peoples are increasingly arguing for is guaranteed political representation. 8 A key aim is an increase in indigenous power and control at national, regional and local levels through indigenous political participation, by the individual and the group. 9 There are two reasons given for the choice of this device. The first is instrumental. Only through such high level political participation in decisions that concern them, they argue, will their rights be able to be regional autonomy is adopted for geographically based groups). See Arend Lijphart, Democracy in Plural Societies, above, 224. Note that some of the devices suggested by political theorists as being appropriate are not necessarily applicable to indigenous peoples. Critics have argued, for example, that consociationalism is less likely to solve conflict that is based on ethnicity. See, for example, B Barry Political Accommodation and Consociational Democracy (1975) British Journal of Political Science 471. See also, B Barry The Consociational Model and its Dangers (1975) European Journal of Political Research 393. Nor is it helpful for resolving class conflict. See, for example, the Marxist analysis offered by L Graziano The Historic Compromise and Consociational Democracy (1980) Political Science Review 345. Further, the relevance of either model to the resolution of conflicts specifically concerning indigenous or tribal peoples needs further exploration. In Arend Lijphart s work, for example, such conflicts were not considered significant enough to even categorise some such countries as having plural, or divided, societies. See Arend Lijphart Democracies, above. Will Kymlicka has paid attention to indigenous peoples in particular and discussed how their position is different from most other national minorities; but he also argues that more work needs to be done on this: Will Kymlicka Multicultural Citizenship (Clarendon Press, Oxford, 1995); Will Kymlicka and Shapiro (eds) Ethnicity and Group Rights: Nomos XXXIX (New York University Press, New York, 1997); Will Kymlicka American Multiculturalism and the Nations Within in Duncan Ivison, Paul Pattison and Will Sanders (eds) Political Theory and the Rights of Indigenous Peoples (Cambridge University Press, Australia, 2000) Note that this may be in addition to other devices such as autonomy over local affairs. 9 Note that the theories do not focus on the ability to implement different measures in practice. Notably, the reliance on the existence of political elites may make it difficult or at least slow to implement in many countries with indigenous peoples, because of the historical exclusion of such peoples from national politics. Indeed, Hans Daalder argues that consociationalism, for example, generally requires a history of compromise and cooperation between the relevant elites: Hans Daalder The Consociational Democracy Theme (1974) 26 World Politics 610.

7 Indigenous Electoral Representation 7 protected both the traditional, liberal, individualistic human rights and the more contentious modern concepts of group rights. The second reason focuses more on the group than the individual: that a key aspect of indigenous self determination is self government. For most indigenous peoples, self determination will be exercised through selfgovernment within the states in which they live rather than through secession and formation of an independent indigenous state. So discussion has turned to how to achieve self determination through self government within the modern democratic state. In this respect, indigenous peoples have argued that self government entails control over internal and local affairs. Especially where the indigenous peoples do not exercise complete autonomy, many of these internal affairs are currently governed by the wider mainstream government. And even where indigenous peoples exercise degrees of local autonomy, their physical location within the wider state necessarily entails that a wider range of matters which concern them are decided outside that sphere of autonomy. Thus, in order for indigenous peoples to be self governing and to achieve self determination, they need to hold a greater degree of control within the mainstream state. As control is exercised from the top, they argue that they need to be participating in the decisions at the highest political levels. From a self determination perspective, this needs to be a guaranteed feature of the constitutional and political landscape and not one left to the whim of nonindigenous voters. Such participation thus needs to be enshrined in constitutional legislation as guaranteed political representation. Thus, both democratic theory primarily designed to protect the rights of individuals and self determination theory designed to protect the group as well as the individuals in it have suggested the same conclusion. Indigenous peoples need some form of guaranteed political representation at the highest levels of mainstream politics and government, at local and national levels. International Law and Indigenous Peoples In the international sphere the primary locus of debate over the extent and content of indigenous rights in international law has been the UN sponsored Draft Declaration on the Rights of Indigenous Peoples. During this drafting process, indigenous peoples have made claims about the content of the Draft

8 8 Human Rights Research Declaration and states have responded. States have responded favourably to some indigenous claims while rejecting others. The claim raising the most opposition from states is that for a general statement of a right of self determination for indigenous peoples. Most states flatly refuse to countenance such a statement because of the fear that it could lead to argument that indigenous peoples have the right to secede from the states within which they live. On the other hand, most states have accepted that indigenous peoples have a right of internal self determination ie a right to be exercised solely within the states in which they already live. For example, in the debate over the wording of Draft Declaration Article 3, which simply states that indigenous peoples have the right of self determination, as in Article 1 of the International Covenants, most states have not accepted it as it stands, but a majority have been happy to accept it if it was qualified in some way to limit it to internal self determination within states. Debate over the wording and intended coverage of an indigenous right of self determination has continued for more than ten years. While this debate has not been finalised, progress has been made over the years such that today there is fairly widespread acceptance of an internal right of selfdetermination, limited to coverage of governance issues within states. In 1993, the Chair of the Working Group on Indigenous Peoples, Mme Erica Irene Daes, described the application of a right of self determination to indigenous peoples as meaning: 10 that the existing State has the duty to accommodate the aspirations of indigenous peoples through institutional reforms designed to share power democratically. It also means that indigenous peoples have the duty to try to reach an agreement, in good faith, on sharing power within the existing State, and to exercise the right to self determination by this means and other peaceful ways, to the extent possible. Furthermore, the right of self determination of indigenous peoples should ordinarily be interpreted as the right to negotiate freely their status and representation in the State in which they live. A key theme of the Draft Declaration is indigenous control over and/or participation in decisions affecting them. The focus is primarily on self 10 A E I Daes Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples (UN Doc E/CN.4/Sub.2/1993/26/Add.1, 19 July 1993) 5.

9 Indigenous Electoral Representation 9 government through separate indigenous institutions, although several states have rejected autonomy as a right, preferring instead stronger rights of participation in national government (eg New Zealand, 11 Norway, 12 Morocco, Argentina, Japan, Ecuador). 13 According to Anaya, what we can take as accepted in international law is a right of belated state building, deriving from or constituting a key part of indigenous self determination. 14 Belated state building involves the redefinition of relations between indigenous peoples and the state, including redefined powers of decision making. (It is belated because indigenous peoples were historically excluded from discussions which led to the current states being initially built.) Details are expected to be left to states and indigenous peoples to negotiate in good faith, depending on their historical and current circumstances. It is expected that negotiations would range from historical grievances (such as land and resource losses) to future political decisionmaking and power sharing. While no particular forms of power sharing are prescribed, it is expected that some form of guaranteed indigenous political representation be adopted, whether this is via separate, autonomous institutions or included within mainstream institutions. What is important for the purposes of this paper is that there is an emerging international human rights norm that indigenous peoples are entitled to belated state building within their states, which entitles some form of 11 See Statement by New Zealand Government to the United Nations Working Group of the Commission on Human Rights (UN Doc E/CN.4/1995/WG.15/2 and Add.1, 26 July 1994). 12 See Statement by Norway s representative, Mr Petter Ville, to the United Nations Working Group of the Commission on Human Rights (UN Doc E/CN.4/1995/WG.15/2 and Add.1, 1994): On the question of self determination it is our position that this notion in the context of a declaration on the rights of indigenous peoples, has to be understood as self determination within the framework of existing states. The emphasis should be on political and democratic participation in the decision making process in questions affecting indigenous peoples. 13 For all these countries statements, see Submissions to the Working Group of the Commission on Human Rights (UN Doc E/CN.4/1995/WG.15/2 and Add.1, 1995). Note that, in 1995, Canada was also with this group of states; but Canada changed its position in S James Anaya Indigenous Peoples in International Law (Oxford University Press, New York, 1996) 130.

10 10 Human Rights Research guaranteed political powers over decision making. This right is made independently of any reference to political theory as to how best to achieve this end, because discussions simply do not focus on this level of detail in the drafting of international standards. However, this is certainly consistent with the domestic level, Western political theory that indigenous peoples require some form of guaranteed political representation and power of decisionmaking as a human rights concern. International Legal Rights to Political Participation Human rights law has long recognised the right of a people to be governed by consent. For example, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both require that the will of the people shall be the basis of the authority of government and that this shall be exercised through the free choice of representatives via periodic and genuine elections, with universal and equal suffrage and secret ballot. However, despite what appear to be clear standards, the substance of the right has also long been contested on political grounds. For example, not all states have always agreed what counts as free or periodic elections. There have been theories competing with Western liberal democratic theory based on the dictatorship of the proletariat and/or Third World modernisation. 15 Many of these disagreements were based on the ideological differences behind the Cold War. After the Cold War, attitudes toward the Western, liberal theories of democratic governance changed. In 1992 an emerging right to Western style democracy in international human rights law was identified. 16 The argument was that government by true consent of the governed was becoming a global entitlement, and that the content of the emerging norm centred on Western interpretations of democracy: free, open, multi party electoral parliamentary democracy. 17 The focus in 1992 was on free and fair elections, with a role of the international community being to assist states in achieving democratic elections and to monitor and certify whether or not states measured up. 15 Thomas M Franck The Emerging Right to Democratic Governance [1992] Am J Int l L 46, Franck, above; Gregory H Fox The Right to Political Participation in International Law [1992] 17 Yale J Int l L Franck, above, 49.

11 Indigenous Electoral Representation 11 In the last decade, international legal scholars and states, through the United Nations, have confirmed that there is such a human right in international law. 18 Moreover, there is widespread agreement on what the right entails. For example, it requires: 19 that elections be held at periodic intervals freely available and non discriminatory candidature for office party pluralism that neither parties nor candidates can be rejected based on ideology or other discriminating norms access to the mass media for opposition parties on a nondiscriminatory basis secret ballots (even in states with high percentages of illiterate voters) universal suffrage voters to have freedom to choose between candidates votes to be fairly counted. While such a standard was defined in 1990 by the Conference on Security and Cooperation in Europe, it was considered at the time to be ahead of human rights law. 20 Now human rights law is thought to have caught up. It is notable especially for the purposes of this paper that the content of the right as described above addresses only aspects of the conduct of elections for government. There is no standard or requirement as to the type of electoral system to be adopted, or the constitutional protections for minorities. 21 Thus, under this right it is theoretically and legally possible to have a democracy where free and fair elections take place, but where other 18 See, for example, Thomas M Franck The Democratic Entitlement (1995) 29 U Rich L Rev 1; Gregory H Fox Election Monitoring: The International Legal Setting (2001) 19 Wisconsin Int l LJ Franck The Emerging Right to Democratic Governance, above, 67; Fox Election Monitoring: The International Legal Setting, above, See, for example, Meron Democracy and the Rule of Law (1990) 153 World Affairs 23, 24: as noted in Franck The Emerging Right to Democratic Governance, above, 67 at footnote Gregory H Fox The Right to Political Participation in International Law 17 Yale J Int l L 539, 556, footnote 72 and accompanying text.

12 12 Human Rights Research civil rights are not protected fully. 22 It is claimed, instead, that democracy is a master right at the top of the human rights pyramid. 23 Like selfdetermination, it is a pre requisite for other human rights being protected. I suggest, however, that while this definition of the content of a right of democratic participation is necessary, it is not sufficient as a master right for indigenous peoples, and it is not sufficient for indigenous peoples democratic participation (let alone their other human rights). This lack of concern with the choice of a particular electoral system is not new; it was identified during the drafting of the ICCPR, on the basis that each country should be free to adopt the system best in accord with its particular situation. So there is deliberately not even any suggestion in international human rights law about how best to protect the human rights of minorities or indigenous peoples in domestic constitutional laws or systems. This is borne out in the application of international law, when we see how United Nations election monitoring is conducted. 24 International election monitors will enter a country, often months before elections, to help ensure its laws are adequate to ensure free and fair elections, that the campaign is conducted accordingly, as well as the procedures of voting and counting. In some missions, whole new constitutions have been required as new states have been born (eg Namibia, East Timor) or undemocratic constitutions have been replaced. However, the focus has still been on election procedures rather than on the system to be adopted; that is, despite the fact that international advisers may be assisting with the creation of a new electoral system as well as procedures, 25 only the procedures are covered by international human rights standards. 22 Fox Election Monitoring: The International Legal Setting, above, 317: quoting Fareed Zakaria The Rise of Illiberal Democracies (November/December 1997) Foreign Affairs Farer The Human Right to Participate in Government: Toward an Operational Definition (1988) 82 Am Soc y Int l Proc 505: as noted in Fox Election Monitoring: The International Legal Setting, above, footnote While the activities of United Nations elections monitors are not formally linked to the international legal standards, the rights protected by the election monitors are identical to those protected by the international legal right to democracy as described in this paper. 25 See, for example, Yves Beigbeder International Monitoring of Plebiscites, Referenda and National Elections: Self Determination and Transition to

13 Comments on Developments Indigenous Electoral Representation 13 While the above descriptions of the developments in human rights theory and international law are only in summary, I suggest that I have provided enough information to be able to make comments on the emerging international law. Starting with the right to political participation itself, I notice that the focus of this right of democracy is the individual. It is not concerned with duties of citizens to the state but with their rights vis à vis government. Moreover, the rights do not include substantive protections from government but are procedural and relate to the public aspects of civil society. In these senses, the right is quintessentially and paradigmatically liberal. As discussed above, indigenous peoples do not consider that liberal individual rights are enough for their protection as peoples. They need more by way of substantive protections of group rights. They need attention to be paid to the political participation of their group, not just the individuals in it. I suggest that there should be more attention paid to the substantive governance rights not just the procedural. The current gap has a number of problems. For example, it is ostensibly objective and neutral with respect to different systems. However, one should be suspicious of this given its completely liberal, individualistic focus. Supposed objectivity and neutrality have not accorded indigenous peoples the protection they argue they require for the group because of the assumption that the individual is the subject of protection against the state. If substantive standards are not included as part of this human rights law, then it is left to states domestic affairs and/or other areas of human rights law to monitor. It is better to put a good structure in place in advance than permit a system that allows for a state s oppression of indigenous peoples, leaving the indigenous people to complain after the fact. We need to be suspicious of claims that something is not a matter for international monitoring. If indigenous political participation is left unregulated by international law, for example not a matter for assessment by election monitors or Democracy (Martinus Nijhoff, Holland, 1994) 263: topics of advice and training by international experts include constitutional and legislative reform, institutionbuilding, independence of the judiciary, as well as the more typical advice on election laws and conduct.

14 14 Human Rights Research constitutional advisors, then the options and decision making processes are less visible and likely to be less structured. They are more likely to be subject to advice based on the personal experience of the relevant monitor or adviser, or the adoption of the most visible and well known protection mechanisms, whether or not that is consistent with best practice for indigenous peoples. For example, first past the post (FPP) electoral systems, as found in the UK and US, have been shown to provide more stable government than proportional representation (PR) systems. However, the power they provide majority interests more easily overrides the rights and interests of minority groups. Yet, as well known, stable democracies, the UK and US provide powerful examples for emerging democracies to emulate. Perhaps it is because of this that FPP systems appear to be more common than PR systems in the emerging democracies. 26 In order to counter the power of the majority in an FPP system a state will often use constitutional mechanisms such as Bills of Rights to protect the rights of minorities. Indeed, there has been a proliferation of Bills of Rights world wide. But, as discussed above, Bills of Rights are not enough to protect the range of indigenous peoples rights, whereas many liberal human rights advocates think that indigenous peoples can be sufficiently protected through the sole use of such mechanisms. While the individual examples of emerging democracies may well have each adopted the best electoral system for their country situation, I suggest that considerations about group rights protection need to be more visibly integrated into the international standards on electoral participation. I thus suggest that more attention needs to be paid to integrating the various different aspects of international human rights law. If indigenous peoples rights are not to be limited to the periphery of international human rights law as an afterthought then they need to be integrated throughout all the relevant areas of human rights law. If guaranteed political representation is emerging as a group right in the development of indigenous human rights, then it needs to be integrated into the development of the right of political participation. Such integration is particularly important when the instrumental value of the right of political participation is considered: having certified free and fair elections gives legitimacy to the government concerned. If democratic 26 See Beigbeder, above.

15 Indigenous Electoral Representation 15 legitimacy is used as a tool by international law institutions wielding power to exact consequences for non compliance, then we need to be clear about what is included in the right to political participation, and that everything that needs to be included is. 27 If states are being judged on the fairness and representativeness of their democratic systems, then institutional standards concerning the representation of indigenous peoples should be included in that judgement. The practice of election monitoring is both a creature of international law and its source. If we can change what is implemented on the ground like the advice on electoral systems then we can affect the development of international law norms. Consideration of indigenous political participation can be integrated into the activities of UN election monitoring now, on the basis of the developments in indigenous human rights through the activities of the UN Commission on Human Rights and the Sub Commission on Minorities. UN election and constitutional advisers could actively suggest that particular electoral systems be altered to provide better representation for indigenous peoples. They could provide different options for doing so, much as different options for other methods of human rights protection are provided by constitutional advisers. As such practice developed, it would contribute to the development of the human right of political participation. Most notably, this would be seen to include standards in relation to the political participation of indigenous peoples as groups, not just as individuals. If you stand back from the detail of the law of political participation itself, then two other trends become apparent. First, the who that is entitled to the right of political participation is the people of the whole territory not subgroups within it. This fits with the state assertions that only whole populations of a defined territory have the right to exercise selfdetermination, but goes against indigenous claims that they have an inherent right of self determination, separate from that of the territory as a whole. This correlation with states views would not be enough on its own to evidence a hardening of states self determination approach, but the right of political participation has also been expressly described as the exercise of the right of self determination. 28 This does not help indigenous peoples and their 27 Gregory H Fox Election Monitoring: The International Legal Setting (2001) 19 Wisconsin Int l LJ 295, See Thomas M Franck The Emerging Right to Democratic Governance [1992] Am J Int l L 46, 52: Self determination is the historic root from which the

16 16 Human Rights Research claim for recognition of their inherent right to self determination as a people separate from that of the surrounding state. Indigenous people make this claim even if they do generally only claim an internal exercise of that right. Secondly, it does, on the other hand, fit in with another trend in relation to self determination, that it is increasingly being seen as an internal right and is not primarily about secession and the formation of independent states, but concerned with the internal issues of constitution and governance of a state. This is consistent with indigenous peoples claims for a right to belated statebuilding as the key aspect of their self determination. This also helps their claim that a general right of indigenous self determination should be recognised, as they can argue that it is accepted that self determination is a primary internal right. (It just does not help the argument that they have a right of self determination separate from the people of the territory as a whole.) Conclusion The right to democratic governance is often termed a right to political participation. But, for indigenous peoples, a right to political participation ought to mean more than just procedural rights in relation to the election itself. Indigenous peoples require more substantive results in relation to the powers of decision making. So indigenous political participation requires the tailoring of the electoral system perhaps through an exercise of belated state building to accommodate their special needs and emerging entitlements. This paper has compared the trends in the development of the two separate areas of international human rights law: rights of indigenous peoples and of electoral participation. It has identified a major divergence between the two areas: that group rights to political participation even if it requires major constitutional change have been accepted in the area of indigenous rights but they appear to be being ignored in the strictly liberal political participation rights. While these two areas diverge, the right of political participation converges with state arguments about the development of the right of self determination. But, again, these are at odds with indigenous arguments about the development of indigenous peoples human rights. It is thus arguable that these factors mean that the new right of political democratic entitlement grew. Further, the two are related today, particularly in the determination of the legitimacy of a state s government.

17 Indigenous Electoral Representation 17 participation is emerging in a way that is inimical to indigenous peoples interests. I suggest that argument and action need to be directed at changing that.

18 18 Human Rights Research