By Medes Malaihollo

Medes is a currently completing a Legal Research Master and LLM in Public International at the University of Groningen.

In international law, the doctrine of international legal personality determines which actors bear rights and obligations. Although states have often been considered as its  primary subjects, contemporary international law contains numerous rights and  obligations related to non-state actors. In light of this, arguments have been presented  that new international legal persons have come into existence such as international  organisations, individuals and collective groups. While these non-state actors are  recognised as participants in international law, it remains unclear as to what extent  they can participate in the creation of international legal norms. In that sense, not  much has changed: “it is primarily states that are capable of creating international legal  norms”. 

With that being said, it seems that indigenous peoples, as non-state actors, would have  to constitute a state to fully participate in the international law-making process.  However, few indigenous peoples have ambitions of statehood, and without this legal status, they are very much excluded from participating on the international plane.  Accordingly, one may duly wonder whether international law does in fact provide  possibilities for an indigenous people to participate at the international level. This post  argues that it does, namely through a vital international norm of these communities:  the right to self-determination. 

Indigenous peoples and self-determination 

According to contemporary international law, indigenous peoples are considered to be  one of the subjects of the right to self-determination. Although many working  definitions of an indigenous people have been proposed over time, an accurate  understanding has been provided by the ILA Committee on the Rights of Indigenous  Peoples. According to the Committee, two criteria are crucial to determine a  community as an indigenous people: a special relationship with the ancestral lands,  and self-identification as both ‘indigenous’ and as a ‘people’. These two criteria  perfectly reflect what is known as the collective individuality of a community; a  concept commonly used to determine a subgroup within a state attaining the status of  ‘peoplehood’. According to Van den Driest, the collective individuality of a community  includes two elements: an objective element and a subjective element. The objective  element refers to objectively identifiable common features of the group which  distinguish them from other groups. Examples are the common history, common  ethnic identity or origin, common language, common culture and common religion or  ideology. The subjective element pertains to a belief of being a distinct group from  other groups inhabiting the globe, and the wish to be recognised as such. In other  words, a subgroup in a state can only be considered as a ‘people’ if it is able to clearly  show a collective identity of its own, and expressly wishes to maintain, strengthen and  develop this. For example, the Sámi and the Endorois fulfill both criteria of the concept  of collective individuality and, hence, can be qualified as indigenous peoples. That way, 

they concern the ‘self’ to which the right to self-determination attaches, whereas this is  not the case for an ethnic or national minority within a state.  

As indigenous peoples unambiguously have the right to self-determination, the  question remains as to how this right applies to them. Broadly speaking, the right to  self-determination can be exercised in two ways: either internally within an existing  state (internal self-determination) or externally towards the international community  as a whole (external self-determination). Internal self-determination deals with the  right of a people to freely determine its political status and economic, social and  cultural developments within the political and legal framework of a state. Accordingly,  this dimension of the right is commonly associated with the concepts of autonomy and self-government. External self-determination, in contrast, is mostly associated with secession, the establishment of a state and its legal independence. 

For indigenous peoples, the exercise of the right to self-determination is limited to its  internal dimension. They do not have a right to external self-determination. Such  understanding can be read in Articles 3, 4 and 46(1) of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which reflect existing customary  international law. Recent studies by the UN Permanent Forum on Indigenous Issues and the UN Special Rapporteur on the Rights of Indigenous Peoples illustrate  numerous examples of indigenous peoples shaping their own destinies and governing  themselves. For instance, territorial autonomy is exercised by indigenous peoples in  Nunavut (Canada), Guna Yala (Panama) and the Navaho Reservation (United States).  Furthermore, Sámi Parliaments have been established in Norway, Sweden and Finland  that function as representative bodies and facilitate consultation with the Sámi people  on matters affecting them. Various indigenous peoples, thus, have been exercising  their right to internal self-determination. However, this does not entail a right to  unilateral secession. Indigenous peoples, consequently, cannot participate in  international law-making based on the right to external self-determination. Nonetheless, the right to internal self-determination still has a part to play in the  international law-making process. 

Participation as an appropriate expression of self-determination As the right to internal self-determination forms the anchor of the viability of an  indigenous people, the exercise of this right needs to be guaranteed at all times. That  way, the right to internal self-determination does not simply concern an end-result. It needs to be understood in terms of process and legitimacy, due to its two core aspects:  the collective identity and the freely expressed will of a people. Accordingly, the right  to self-determination as exercised by indigenous peoples concerns a procedural norm that continuously operates on a normative spectrum. This means that a state is  required to provide a system in which an indigenous people can make meaningful  choices in matters that have a serious impact on them. Indigenous participation in a  law-making process is an appropriate expression of this. The law-making process and  its results, after all, become more legitimate if an indigenous people is included in the  creation of the law. Nevertheless, the question remains: what is the scope of  participation then? 

According to Charters, the extent of the participation of an indigenous people in a law making process depends on the impact that such process and its results have on the  exercise of the right to self-determination. As this depends on the given circumstances  of each case, Charters defines this as a contextual-participation approach. This approach puts the degree of participation of an indigenous people in a law-making  process on a scale ranging from a high-end of full participation, to a lower end of no  participation at all. If a law-making process and its results heavily affect the core  aspects of the right to self-determination, an indigenous people would have a strong  claim to participate in the law-making process. For example, a domestic law that  provides private actors to exploit natural resources on indigenous lands, but does not  respect indigenous governance structures, would seriously affect the freely expressed  will of a people to determine its own future on its traditional lands. In such case, a high  degree of indigenous participation would legitimise the law-making process and its results, which provides an indigenous people a stronger claim to participate. However,  if a law-making process has little to no impact on the right to self-determination, an indigenous people would have a weaker claim to participate.  

Be that as it may, indigenous peoples are not affected by domestic laws only.  International law can also affect their way of life and the way how they can make  meaningful choices in determining their own future. As such, Charters explains that  the contextual-participation approach can be applied to an international law-making  process as well. Again, the greater the impact that a legal instrument has on the right  to self-determination of an indigenous people, the stronger its claim to participation in  the creation of the instrument. On the international level, this could lead to a degree of  participation by indigenous peoples that is similar to the degree that states participate  in an international law-making process. A good example of this is the extent to which  indigenous peoples had been involved in the negotiations of the UNDRIP. As the  negotiations of the Declaration had such an impact on their rights, and especially on  their right to self-determination, indigenous peoples’ participation clearly was to be  put at the high-end of the participation spectrum. Without this, the Declaration  otherwise would be meaningless. 

A valid objection, however, is that an increased participation by indigenous peoples at  the international level provides them with a second bite of the apple. They, after all,  have two chances to be involved in the international law-making process: first,  domestically through the state, which functions as their representative in international  relations, and, secondly, through direct participation at the international level.  Nonetheless, this critique loses its meaning when it is to be put into context, especially  when it comes to the matter of consent given by indigenous peoples. If a state  represents an indigenous people, but does so without its consent on matters that  seriously affect them, their right to self-determination would be frustrated. In such a  situation, the state cannot legitimately represent an indigenous people. Accordingly,  indigenous participation at the international level is justified.  

Conclusion 

Indigenous peoples clearly have the right to self-determination. However, this does not  entail a right to unilateral secession from the parent state. Indigenous peoples,  consequently, are restricted from participation in international law-making in the way that states do. Be that as it may, the right to self-determination is a procedural right  that is continuously exercised, in which a contextual-participation approach can be  read. That is to say, participation of an indigenous people is legitimised to a particular  degree depending on the way an international law-making process affects their rights,  especially their right to self-determination. Such an approach takes into consideration  political realities and, at the same time, balances this with indigenous peoples’  entitlement to determine their own future. By contextualising participation of indigenous peoples in international law-making, one can truly expect it to have a  meaning in furthering community values and humanising international law. Moreover,  due to its flexibility there are good prospects for adopting such an approach in  international law, especially during the global health crisis the international  community is currently facing.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]