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Part I The UNDRIP’s Relationship to Existing International Law, Ch.3 Relationship to Human Rights, and Related International Instruments

Martin Scheinin, Mattias Åhrén

From: The UN Declaration on the Rights of Indigenous Peoples: A Commentary

Edited By: Jessie Hohmann, Marc Weller

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 30 October 2020

Subject(s):
Indigenous peoples

(p. 63) Chapter 3.  Relationship to Human Rights, and Related International Instruments

1.  Introduction

This chapter seeks to assess how the UN Declaration on the Rights of Indigenous Peoples1 (UNDRIP) fits within the international legal system in general. Such an exercise will necessarily also have to include an assessment of the legal status of the Declaration. In doing so, the analysis will place particular focus on the boundaries and relationships between the international legal system and human rights in general, on the one hand, and human rights of Indigenous peoples, communities, and individuals, as recognized in the UNDRIP, on the other. The need for such an assessment springs in large part from the UNDRIP’s strong focus on Indigenous peoples’ rights as ‘peoples’.2 That peoples are no longer exclusively understood as aggregate populations of States or territories, but can in addition be defined in terms of common ethnicity and culture, is at least arguably a new feature in international law. We certainly applaud this recent progression. At the same time, we think that this development has occurred without sufficient attention being paid to how these ‘new’ peoples’ rights relate to the rights of (i) States and (ii) individual members of the people.

In many respects, the general approach taken by the UNDRIP towards Indigenous rights is natural. The Declaration’s strong emphasis on collective and in particular peoples’ rights is reflective of what has been a key feature of the Indigenous rights regime essentially since its inception. Largely from the very day Indigenous peoples’ representatives started to address the United Nations in order to claim recognition of and respect for their rights, the focus of such claims has been on allowing Indigenous peoples the possibility to preserve, maintain, and develop their own distinct societies, existing side by side with the majority society.3 In other words, political rights—or sovereign rights if one wants—have always been at the forefront of the Indigenous rights regime. In that way, Indigenous peoples’ rights distinguish themselves from those that apply to minority groups that are primarily individual rights, ie they are, at least formally, rights of individual members of such groups.4

(p. 64) Thus, when placing emphasis on peoples’ rights, the UNDRIP follows in the tradition of the Indigenous rights discourse in general, as reflected first and foremost in Article 3 of the Declaration. This provision, borrowing language from common Article 1 of the 1966 twin Covenants,5 proclaims that:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.

As some have been eager to point out, the UNDRIP, formally speaking, remains a legally non-binding instrument. Notwithstanding, several of the Declaration’s provisions and general positions, including its Article 3 and the acceptance of peoples’ rights in general, must be understood to be reflective of customary international law.6 The UNDRIP thus confirms that Indigenous peoples have emerged as peoples, also for international law purposes.7 That substantial parts of the UNDRIP are reflective of customary international law is further highlighted by the fact that many of its provisions are based on widely ratified treaty law standards, such as the two Covenants of 1966, including the mentioned Article 1 on peoples’ right to self-determination, and the UN Convention on the Elimination of all Forms of Racial Discrimination (ICERD).8

The UN General Assembly’s (GA) adoption of the UNDRIP under the more demanding category of a Declaration (instead of a simple resolution),9 with overwhelming support, and coupled with the important subsequent endorsements by the four States that at the time of adoption voted against the Declaration, provides strong support for the contention that many of the substantive provisions of the UNDRIP reflect and express norms of customary international law.10 For instance, one of the more central provisions in the Declaration, namely Article 26 on Indigenous peoples’ (or rather communities’) property rights over territories and natural resources traditionally used by them, is surely reflective (p. 65) of customary international law, a claim that can increasingly also be made with regard to Article 28 on the right to restitution.

At the same time, it would be erroneous to state that the UNDRIP in its totality adequately represents customary international law, and even more so to say that the instrument as such has become legally binding. What is more—and this is at the core of this Chapter—it is unlikely that such a course of development could materialize in the foreseeable future. As touched upon, this is due to certain inherent tensions between Indigenous peoples’ rights and certain key features of the international legal system. These tensions were not resolved, indeed to some extent perhaps not even seriously noted, during the elaborations on the UNDRIP, and were therefore as a result brought into the text of the instrument itself.

As touched upon, and as elaborated on further below, the mentioned inherent tensions between Indigenous peoples’ rights and the international legal system in general are chiefly an outcome of the fact that recent developments within international law—as reflected in the UNDRIP—have witnessed Indigenous peoples emerging as self-determining polities. As such, Indigenous peoples have seemingly come to carry certain features normally and traditionally associated only with States. This development has occurred, however, without there having been any real clarification as to how these new ‘State-like features’ of Indigenous peoples should, and could, be accommodated for within the international legal system at large, including within the human rights framework. To be more precise, in our view, these features/tensions are first and foremost the following four, as reflected in the UNDRIP.

1.1  What Is the Relationship between Indigenous Peoples’ Right to Self-Determination and States’ Sovereign Rights, Including Their Right to Respect for Their Territorial Integrity?

The above-cited Article 3 of the UNDRIP on Indigenous peoples’ right to self-determination appears verbatim in the Declaration as it did in the very first draft of the instrument. That no changes were made to Article 3 during the Declaration process shall in no way, however, be taken as a token of the provision being uncontroversial. On the contrary, what position the UNDRIP should take on the right to self-determination was highly contentious throughout the process, for various reasons.11 One concern expressed by some States towards the very end of the UNDRIP deliberations was that a right to self-determination of Indigenous peoples as enshrined in Article 3 of the Declaration might be interpreted as authorizing secession by Indigenous peoples from the States within which they reside today, or that the provision might at least inspire such movements. These expressed fears match well the argument that has been made that States’ inhospitality towards an expanded understanding of the right to self-determination has been motivated partly by an assumption that the right encompasses a right to statehood, or at least could be understood to do so by the new beneficiaries of the right.12 To allay these (p. 66) expressed concerns and break the impasse, language was eventually borrowed from the Friendly Relations Declaration,13 principle 5, paragraph 7, and inserted as a new Article 46(1) of the UNDRIP. In this manner, the Declaration was furnished with an explicit reference to the principle of respect for the territorial integrity of States. Article 46(1) reads as follows:

Article 46

  1. 1.  Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States.

This was probably from a practical point of view a sound solution, as it removed one obstacle for having the UNDRIP adopted. There is, however, a principal problem with this seemingly convenient political solution, namely that the Friendly Relations Declaration, and the principle of respect for the territorial integrity of States more broadly, address, at least as conventionally understood, relationships between sovereign States, and not between peoples, nor between peoples and States.

The attempt to subject Indigenous peoples to a principle conventionally reserved for State-to-State relations is illustrative of the broader problem alluded to above. As Indigenous peoples have emerged as international polities with rights as such—including self-determining and self-governing rights—States may see a need, or at least harbour an interest, to subject Indigenous peoples to the same obligations that apply to other recognized international polities, ie to States. But this perceived need or interest does not change the fact that subjecting non-State actors to such obligations constitutes a novelty in international law and is arguably controversial, a fact to which the UNDRIP is apparently blind. Section 2 below elaborates on this issue.

1.2  What Is the Relationship between Indigenous Peoples’ Right to Self-Determination and the Jurisdiction Exercised Today by States Internally?

As mentioned, Article 3 of the UNDRIP proclaims that Indigenous peoples have the right to self-determination. The immediately following Articles 4 and 5 then proceed to elaborate that this right should first and foremost be exercised through autonomy and self-governing arrangements with Indigenous peoples’ own political institutions as principal actors.

The right to self-determination envisioned by the UNDRIP should be contrasted with the right to consultation. The latter right, as enshrined, for example, in ILO Convention 169 Concerning Indigenous and Tribal Peoples14 Article 6, is a right to process only. True, the right to consultation does place obligations on the consultor to engage in good faith with the consultee with the aim of reaching common ground. Notwithstanding, if, despite serious and honest efforts, no consent can be found, decision-making power ultimately (p. 67) always vests with the consultor. The scope and content of the right to self-determination, on the other hand, including as enshrined in the UNDRIP, must conceptually go beyond that of the right to consultation.15 ‘Go beyond’ in this context would mean that, unlike the right to consultation, the right to self-determination shifts decision-making power in some instances from the State (the former consultor) to the Indigenous people (the former consultee). In other words, the right to self-determination, when applied to Indigenous peoples, requires a transfer of jurisdiction from State political bodies to Indigenous peoples’ representative institutions.

The consequences of the understanding of the right to self-determination outlined here is a novelty within international law. Never before has a human right required States to cede jurisdiction normally associated with them to another polity within the State. The UNDRIP does, however, offer little guidance as to how far-reaching this duty (and the corresponding right) actually is.16 In the absence of clearer instructions, there are fairly few signs of such jurisdiction having been transferred from States to Indigenous peoples during the more than ten years that have passed since the adoption of the UNDRIP. This begs the question: how is a right to self-determination that applies not to the aggregate populations of States, but rather to a sub-segments thereof, to be realized—or is this very right itself too much of a novelty for one to expect it to be properly implemented within a foreseeable future? Section 3 below addresses this issue.

1.3  ‘Collectivization’ of Rights that are Traditionally Understood to Apply to Individuals Only

The two questions above address situations where Indigenous peoples having emerged as international legal subjects, thereby at least arguably coming close to taking on certain roles normally associated with States, create friction between Indigenous peoples’ rights and precisely the rights (and interests) of States. This third point, and our final one immediately below, now turn the attention to two situations where Indigenous peoples taking on the described role instead results in tension with the human rights system’s conventional focus on the rights of individuals.

As mentioned, the UNDRIP’s clear focus on collective, rather than individual, rights sits well with the history of the Indigenous rights regime, and certainly responds to the position generally taken by Indigenous peoples’ representatives during the elaboration of the Declaration. Still, this aspect of the Declaration also implies that the UNDRIP, at least if judging by its wording, ‘collectivizes’ a number of human rights conventionally understood to apply to individuals only. This aspect of the Declaration is even present in the context of the right of non-discrimination, a right that is generally considered to be a cornerstone of the human rights system and thus to carry the status of jus cogens.17 Indeed, if the right to self-determination is considered the principal peoples’ right, the right to non-discrimination is arguably the chief right of individuals in the UNDRIP.

(p. 68) The principal non-discrimination provisions in the UNDRIP are Articles 1 and 2,18 which read as follows:

Article 1

Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.

Article 2

Indigenous peoples and individuals are free and equal to all other peoples and individuals have the right to be free from any kind of discrimination, in the exercise of these rights, in particular that based on their indigenous origin or identity.

The conventional understanding of the right to non-discrimination as a right that attaches to individuals only is in line with the liberal political philosophy theory that underpinned the classical international legal system.19 Article 2 of the UNDRIP follows in this liberal tradition when proclaiming that Indigenous individuals are equal to all other individuals and shall be free from discrimination. But it equally clearly breaks with the same tradition when suggesting that the entitlement to equality goes beyond individuals and applies to Indigenous peoples also. The same could be said of Article 1 which, although not explicitly referring to ‘equality’ or ‘discrimination’, still clearly has a non-discrimination connotation when proclaiming that Indigenous peoples are entitled to the full enjoyment of all human rights and freedoms.20

The UNDRIP thus not only confirms that Indigenous peoples are international legal polities, with rights that normally attach to such polities, such as those of self-determination and development, it also suggests that Indigenous peoples are beneficiaries of collectivized versions of the right to non-discrimination and other rights normally understood to attach to individuals only.21 The UNDRIP does so without offering much explanation as to how this new approach is supposed to fit within the human rights system in general. Maintaining that the right to non-discrimination applies to peoples is clearly at odds with the traditional individual nature of the human rights system and also, it has been argued, contradicts the notion of the universality of human rights, as also reflected in interpretative statements delivered in connection with the adoption of the UNDRIP.22

Section 4, below, returns to the potential unresolved tension between the conventional individual nature of human rights and the UNDRIP’s ‘collectivization’ of the right (p. 69) to non-discrimination (and other human rights conventionally understood to attach to individuals only).

1.4  Absence of a General Human Rights ‘Safeguard Clause’ in the UNDRIP

That the recognition of human rights of Indigenous peoples as such potentially creates friction with the conventional human rights system might to some come across as a legal–technical issue. However, in our view, that is not necessarily the case. Rather, it attains apparent practical relevance when one considers the relationship between Indigenous peoples’ collective human rights, and in particular the right to self-determination, on the one hand, and the human rights of individual members of the group, on the other.

State sovereignty has the capacity to limit its own applicability. States have voluntarily limited what actions they can take with reference to their sovereignty, through the creation of international law. This feature of State sovereignty is not least relevant within the sphere of the human rights, which, as mentioned, conventionally meant human rights of the individual.23 In this way, the human rights system has come to place checks and balances on States’ exercise of their jurisdiction in order to ensure for individuals (and groups) certain minimum standards and rights.

As discussed in brief above and as elaborated below, the UNDRIP, in particular through underscoring that Indigenous peoples are beneficiaries of the right to self-determination, seemingly confirms that under international law parts of the jurisdiction normally associated with States shall be transferred to Indigenous peoples. Moreover, as touched upon above and as further shown below, the Declaration also proclaims that Indigenous peoples are holders of other human rights that have conventionally been associated with individuals only. The UNDRIP provides Indigenous peoples with these ‘sovereign’ and other peoples’ rights without, or at least without explicitly, placing the corresponding obligations upon Indigenous peoples that would attach to States when they are exercising their sovereignty, that is, the obligation to respect and ensure the human rights of their citizens, which in an Indigenous context translates to the individual members of the group. In fact, Article 35 of the UNDRIP contains a provision that could be understood as having the almost opposite intent. Article 35 reads:

Indigenous peoples have the right to determine the responsibilities of individuals to their communities.24

(p. 70) The UNDRIP’s recognition of Indigenous peoples’ rights, and in particular sovereign/self-determining rights, without explanation as to how such rights relate to the rights of the individual members of the group, possibly caters for a friction between the two sets of rights. Section 5, below, elaborates on the risk for such tensions and how, if appearing, these can be eased.

1.5  Tentative Conclusion

It is our belief that should all of the rights enshrined in the UNDRIP be effectively implemented, and the Indigenous rights regime fit more smoothly into the international legal system in general, the issues outlined above need to be addressed and hopefully resolved. There is a need for a coherent and authoritative institutionalized practice of interpretation that can at least partly remedy some contradictions in the text of the UNDRIP and hence evolve the current practice beyond mere textual interpretation of the Declaration. Moreover, such an authoritative institutionalized practice would need to be backed up by explicit or tacit approval by States. Without such a development, we find it hard to see how the UNDRIP itself could become an international instrument with independent legally binding force, rather than an aggregate of a number of separate norms that each on their own need justification in order to be defended as legally binding.25 The below analysis constitutes a first attempt to ignite such a discussion.

2.  On the Relationship between Indigenous Peoples’ Right to Self-Determination and States’ Sovereign Rights, Including Their Right to Territorial Integrity

It was highlighted above that Article 46(1) of the UNDRIP provides that nothing in the Declaration may be construed as authorizing or encouraging any action by any State, people, group, or person which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. As further mentioned, Article 46(1) borrows this language from Principle 5, paragraph 7, of the GA Friendly Relations Declaration, but in doing so tweaks it in one significant respect. Principle 5, paragraph 7, as that Declaration in general, only obliges States to respect the territorial integrity of other States. According to the Friendly Relations Declaration, peoples are bestowed with rights,26 but not with obligations. In stark contrast, Article 46(1), through the addition of the reference to peoples, groups, and persons (which thus does not appear in Principle 5, paragraph 7), appears to oblige also such subjects to respect the territorial integrity of States.

The Friendly Relations Declaration elaborates on the UN Charter, including on its Article 1(2), which identifies as the second of the World Organization’s three objectives the development of friendly relations among nations based on respect for equal rights and self-determination of peoples. The use in Article 1(2) of the term ‘nations’ is as a reference to States. That said, the Charter did not preclude, and subsequent developments have indeed confirmed, that there may be situations where there are more than one ‘people’ (p. 71) within the territory of a State, and that a people’s territory can also stretch across State borders. The use of the word ‘peoples’ as the rights-holder in Article 1(2) entails that the right of self-determination is not a right of States (or their rulers), but of the people or peoples within a State.

Several UN Charter provisions spell out in more detail Member States’ obligations towards the territorial integrity of other States. One may in particular in this context make reference to Article 2(4), pursuant to which all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, and also refrain from acting in any other manner inconsistent with the purposes of the United Nations. This provision clearly addresses States in their international relations when proclaiming their duty to refrain from the use of force against the territorial integrity of another State. Equally clearly, Article 4(2) has no application, however, in respect of the relationship between a State and its own people, or its own peoples when there are more than one people within the State.

In summary, the UN Charter undoubtedly provides that: (i) the principle of territorial integrity of States only applies to State-to-State relationships; and (ii) the principle of self-determination attaches to peoples and not to States. Both these positions have been confirmed by subsequent sources. With regard to the fact that the obligation to respect a State’s right to territorial integrity applies only to other States, reference can, in addition to the Friendly Relations Declaration, for example, be made to the International Court of Justice (ICJ) Advisory Opinion on the Accordance with international law of the unilateral declaration of independence in respect of Kosovo of 22 July 2010, as well as to the Canadian Supreme Court’s Ruling in the so-called Quebec Secession Case.27 As to peoples being the only beneficiaries of the right to self-determination (as opposed to States), confirmation is provided by, in addition to the mentioned Article 3 of the UNDRIP and common Article 1 of the 1966 Covenants, extensive case law of the Committee on Economic, Social and Cultural Rights and, in particular, of the Human Rights Committee.

Against the backdrop of the above, one can label Article 46(1) of the UNDRIP as nonsensical. In rendering Indigenous peoples (and groups and individuals) subject to the principle of territorial integrity of States, the provision is certainly an odd creature which completely breaks with a well-established and cardinal principle within the international legal framework.

The outlined position that the UN Charter and other legal sources take on the principle that only States have the duty to respect the territorial integrity of other States and that the right to self-determination attaches to peoples and not States has the implication that international law does not prohibit a quest by a people or other groups for autonomy and self-determination, including through secession. Although international law does not give a right to a people or a group to secede, save, it has at least been argued, in extreme circumstances, international law does not prohibit secession either and definitely does not prohibit a quest for secession.28 This is naturally true for Indigenous peoples as (p. 72) well. An aspiration by an Indigenous people for secession is perfectly compatible with international law and so is a quest for the establishment of an autonomous region, with far-reaching powers which correspondingly reduce the powers of the central government. That is the case irrespective of the fact that an internal quest for secession, by its very nature, puts in question the existing State borders. From a factual perspective, the described aspirations can clearly be viewed as threats to the ‘territorial integrity’ or ‘political unity’ of a ‘sovereign and independent State’. But they nonetheless do not amount to such threats as a matter of international law when expressed and campaigned for through means that on their own do not violate international law—as, for instance, acts of terrorism undoubtedly would—and by individuals and groups within the State in question, including by any Indigenous people or population of the country concerned.

Some might argue that the practical relevance of the inclusion of Article 46(1) is limited, since secession is not a feasible option for most Indigenous peoples and few of them harbour such ambitions. Still, although this assumption may be correct, in our opinion, the wording of the provision may nonetheless be viewed as problematic, for both principled and practical reasons.

From a principled perspective, Article 46(1) suggests that Indigenous peoples, populations, and groups carry obligations under international law that do not attach to non-Indigenous analogous collectives. The provision in other words takes a discriminatory approach towards Indigenous peoples and other Indigenous groups, something that seemingly is hard to justify. Why should Indigenous peoples, populations, and groups not be entitled to pursue a quest for secession or far-reaching autonomy within the State when this avenue is open to other peoples, communities, and groups?

From a practical point of view, although the number of Indigenous peoples with secessionist aspirations may be limited, should there be such peoples that nonetheless are considering this alternative, it might be of great importance that this road remains open. Indeed, if the situation in the State within which they find themselves residing is grave enough, secession might be the only meaningful way for them to exercise their right to self-determination. That in such situations, Indigenous peoples, unlike non-Indigenous collectives, should be prevented from attempting this path, potentially with the support of the international community, appears to make little sense, and could potentially be seriously harmful to an Indigenous people in such a situation.

Article 46(1) becomes particularly troublesome against the backdrop that Indigenous peoples are beneficiaries of the right to self-determination. As seen, in connection with calling on States to respect the principle of territorial integrity of States, both the UN Charter and the Friendly Relations Declaration highlight the importance of the self-determination of peoples. Both instruments are further clear that the former principle which obliges States to respect the territorial integrity of other States must not be understood to impede peoples in their exercise of the (principle and) right to self-determination. That being the case, in our view one cannot reasonably argue, as the wording of Article 46(1) of the UNDRIP suggests, that Indigenous peoples in exercising their right to self-determination are prevented from taking actions open to other collectives.

(p. 73) Based on the above, we draw the conclusion that the reference to ‘territorial integrity’, etc. in Article 46(1) only makes sense when its addressee is understood to be another State, a group of States, and possibly individuals and groups of individuals siding with such aspirations by other States. Despite the wording of this provision, one cannot conclude that international law provides that Indigenous peoples, populations, and groups, unlike non-Indigenous such collectives, themselves are prevented from seeking to secede, nor from aspiring to have far-reaching autonomy arrangements within the State established. As mentioned, not all UNDRIP provisions are reflective of international customary law. In our view, Article 46(1), if understood literally, is clearly an example of when such is not the case, given its discriminatory nature and given that it contradicts, rather than conforms with, well-established international law. As further stated above, we accept that Indigenous peoples having emerged as international legal subjects will require creative solutions as to how such peoples and their rights relate to States and their rights and interests. But the sweeping and discriminatory approach taken by Article 46(1) is not such a creative solution and should not be accepted as law if it were relied upon to impose obligations upon Indigenous peoples in respect of the State in which they live.

3.  On the Relationship between Indigenous Peoples’ Right to Self-Determination and the Jurisdiction Today Exercised by States Internally

As the introductory section touches upon, when the right to self-determination emerged in the international legal system, it was perceived to attach to peoples only in the meaning of aggregate populations of States or territories. That said, as discussed in Section 2, immediately above, it was a conscious choice to render peoples, rather than States, the formal subjects of the right.29 And importantly for the present purposes, that the right to self-determination was geared towards peoples rather than States spurred a debate on peoples’ rights, including on who constitute peoples for international legal purposes.30 Thus, already at the time when the international normative order embraced a right to self-determination of peoples, it was foreseen that the understanding of what groups qualify as ‘peoples’ need not be static, but rather has the capacity to evolve and encompass subjects other than the aggregate populations of States or territories.

As the above has further alluded to, probably nowhere has the debate on ‘peoples’ and ‘peoples’ rights’ been more intense than within the Indigenous rights regime. Here a key question early on became whether Indigenous peoples are peoples also for international legal purposes, with rights as such, including the right to self-determination. As also concluded above, this question has recently been answered in the affirmative, as confirmed by Article 3 of the UNDRIP. Thus, the prediction made when the right to self-determination was deliberately geared towards peoples and not States, ie that the legal understanding of the former concept has the capacity to evolve and embrace also (p. 74) peoples other than populations that have formed States, has been confirmed, at least as far as Indigenous peoples are concerned.

It is thus clear that Indigenous peoples have become beneficiaries of the right to self-determination. Less obvious is what is embedded in the internal aspect of that right when applied not to the aggregate population of a State, but to a segment of that population, ie to an Indigenous people. When exercised by peoples in the meaning of aggregate populations of States, the internal aspect of the right to self-determination largely means a right of all citizens of the State to participate in the political life of the State, on an equal basis. As we conclude in Section 1, that cannot, however, be the content and scope of the same right when applied to Indigenous peoples that are in a minority situation as compared to the dominant population of a State. Such an understanding would render the right largely meaningless to them. Rather, when applied to Indigenous peoples, the internal aspect of the right to self-determination is a right first and foremost to be exercised through self-governance and autonomy arrangements, as reflected in Article 4 of the UNDRIP.31 Up and until this point, international legal sources offer sufficient guidance. These sources are, however, essentially silent as to what is the more precise scope and content of Indigenous peoples’ self-governance and autonomy rights. Neither have there, to our knowledge, been many attempts by States to advance the understanding of the right to self-determination when applied to Indigenous peoples during the decade since the UNDRIP was adopted. Rather, the right to self-determination is often confused with that of consultation.

In our view, this is an untenable situation. We do understand that it is a complex and challenging journey for States to work with Indigenous peoples in chiselling out how the right to self-determination can be effectively implemented at the domestic level. But that is no justification for back-tracking on the right. As mentioned, the right to self-determination was one of the most hard fought in the UNDRIP process, and it can be said to underpin the entire instrument. It undermines much of what was sought with the Declaration that States after almost a quarter of a century of negotiations with Indigenous peoples are currently doing next to nothing to realize one of the greatest promises of the Declaration. Due to the lack of advancements on the domestic level, there is a need for international institutions to step up. We can identify at least two ways in which this can be done.

As one of the outcomes of the 2014 high-level plenary meeting of the GA, also known as the World Conference on Indigenous Peoples, the Assembly invited the Human Rights Council to review the mandate of among other existing mechanisms the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP), with a view to modifying and improving the EMRIP so that it can more effectively promote the implementation of the UNDRIP.32 This recommendation was largely motivated by a frustration among Indigenous peoples that little, or nothing, is being done to implement the right (p. 75) to self-determination agreed to by States in the UNDRIP process, and which was the most important part of the ‘bargain’ to Indigenous peoples. We think that it would be highly relevant for the EMRIP to be transformed into a body that could monitor States’ implementation of the UNDRIP. In doing so, it would be natural that EMRIP particularly focused on Articles 3 to 5 on Indigenous peoples’ right to self-determination, self-governance, and autonomy. In that way, there would be an international oversight mechanism that contributes to shaping the contours of the right to self-determination, when applied to Indigenous peoples. As mentioned, such a body is clearly needed should advancements be made in implementing Indigenous peoples’ right to self-determination on the domestic level.

However, another road may be less bumpy. The Human Rights Committee under the ICCPR (the Committee) has on numerous occasions been requested to handle complaints by Indigenous individuals or groups that the right to self-determination has been violated. Responding to these complaints, the Committee had, on a couple of occasions by 1990, taken the position to hold inadmissible such individual complaints that allege a violation of Article 1 of the ICCPR on the right to self-determination. The Committee’s rationale for taking this position is that the right to self-determination is a peoples’ right, wherefore individuals cannot—by definition—be victims of violations of that right.33 Notably, however, the Committee has more recently, rather than holding such complaints manifestly ill-founded, opted for translating them into complaints of a violation of the formally individual right to culture under Article 27 of the ICCPR.34 The position the Committee has taken not to allow individuals in general to make complaints that the right to self-determination has been violated makes sense as this is a peoples’ right, and since, at the time of the first inadmissibility decisions, it had not yet been established that Indigenous peoples are beneficiaries of that right. At the same time, it is notable that the Committee has been unwilling to simply throw out Indigenous complaints that the right to self-determination has been violated, but has rather demonstrated its willingness to consider such concerns in conjunction with the right to culture under Article 27.

The Committee has not (despite opportunities) ruled out that the Optional Protocol to the ICCPR allows the Committee to consider complaints of violations of the right to self-determination. The Committee has also allowed self-determination arguments to influence its position on whether the right to culture pursuant to Article 27, or the right to political participation under Article 25,35 has been violated. This interpretive approach emerged at a time when it was still unclear whether Indigenous peoples are beneficiaries of the right to self-determination. As it has since been confirmed that Indigenous peoples are indeed holders of this right, in our view, it makes sense that the Human Rights Committee accepts complaints submitted by Indigenous leaders who are documented and uncontested representatives of their people that the right to self-determination of the people has been violated. That would allow the Committee to enhance its contribution to the effective implementation of the right to self-determination when applied to (p. 76) Indigenous peoples, arguably the most important right in the Covenant over which the Human Rights Committee has been established to watch.36

4.  On the ‘Collectivization’ of the Right to Non-Discrimination and Other Human Rights Conventionally Understood to Apply to Individuals Only

The wording of the UNDRIP, and in particular Articles 1 and 2, suggests that the Declaration—in our view in stark contrast to hitherto established human rights law37—takes the position that the right to non-discrimination applies not only to individuals, including to individual members of Indigenous peoples, but also to Indigenous peoples as such.38

In its General Recommendation 32, the Committee on the Elimination of all Forms of Racial Discrimination (CERD) presents its principal position on how the right to non-discrimination relates to groups and their other human rights. In doing so, the CERD ‘observe[s] that the application of the principle of non-discrimination requires that the characteristics of groups be taken into consideration’. Some might want to interpret this statement as the CERD acknowledging a right to equality that not only indirectly, but also formally, extends protection to minority groups as such. This is, however, in our opinion, probably to stretch the position taken by the CERD on the applicability of the right to non-discrimination a little too far.

First, the CERD does not talk about a right of minority groups to equality. It ‘merely’ underlines that States shall take the characteristics of such groups into account in an equality context. In addition, the Committee does so through referring to the ‘principle’, rather than to the ‘right’, of non-discrimination. Presumably, this is a conscious choice of wording. Thus, there seems to be insufficient evidence to support a conclusion that the CERD has gone as far as suggesting that the Convention enshrines a formal collective right to equality. That is particularly so since, as argued above, to interpret General Recommendation 32 as acknowledging a collective right to equality of minority groups would deviate from the conventional understanding of the right in a rather dramatic manner. That the CERD should reach such a conclusion without clearly and substantially justifying its position therefore appears far-fetched.

In its General Recommendation 23, the CERD specifically targets the right to equality in an Indigenous peoples’ context. Here, the CERD employs language that clearly suggests that the right to equality enshrined in the ICERD can apply, not only (p. 77) indirectly, but also formally, to collectives, and more specifically to Indigenous peoples. The opening paragraph of General Recommendation 23 proclaims that ‘discrimination against Indigenous peoples falls under the scope of the Convention’.39 Thus understood, the right to equality is not only a right of Indigenous individuals to have all human rights applied to them on an equal basis with other individuals; it is also a right of Indigenous peoples to enjoy peoples’ rights on an equal basis with other peoples.40

However, parts of the above-mentioned—and subsequently adopted—General Recommendation 32 also explicitly address the situation of Indigenous peoples. In doing so, as discussed above, General Recommendation 32 notably refrains from echoing the earlier General Recommendation 23 proclamation that the right to equality applies not only indirectly, but also formally, to Indigenous peoples.41 Rather, the CERD explicitly distinguishes between collective human rights, on the one hand, and the right to equality, on the other. Albeit affirming that in an Indigenous (and minority) context, the latter right can only be effectively implemented if the characteristics of the group are taken into account, the Committee stops short of repeating the suggestion in General Recommendation 23 that Indigenous peoples have a formal right to equality. Neither do other international legal sources suggest that this right formally applies to Indigenous peoples (or other collectives).

One must thus conclude that a collective right to equality, including of Indigenous peoples, was unknown to international law at the time of the adoption of the UNDRIP. Yet, as mentioned, Articles 1 and 2 do proclaim that Indigenous peoples as such are beneficiaries of a formal right to equality. In our view, this leads to uncertainties. Is the intention to suggest a rather substantial drift towards recognition of collective rights in international law, or should, rather, the provisions, despite their wordings, be understood to entail something more modest? And if the latter, what? Certainly, the intention must be—in line with the UNDRIP’s general approach and the Indigenous rights regime as a whole—to render the right to equality more relevant to Indigenous peoples as collectives. But to what extent and in what manner?

In our view, the outlined lingering lack of clarity is not conducive to an effective realization of the rights contained in the UNDRIP. As indicated, the right to equality underpins many of the other rights enshrined in the Declaration. Therefore, it is useful to establish how this right should be understood in a Declaration context, in order to promote a concerted, systematic, and effective implementation of the rights set forth by the UNDRIP.

Doing so, we suggest that, in line with the above considerations, it is difficult to argue that the right to equality has yet evolved to take on an understanding that implies that the right applies formally to Indigenous peoples. Without further support in other international legal sources, one can hardly draw the conclusion that such a customary (p. 78) international norm has crystallized solely based on Articles 1 and 2 of the UNDRIP. The legal doctrine seems largely to concur with this assessment.42

As a consequence, despite their wording, Articles 1 and 2 of the UNDRIP should be understood more as proclaiming a general and principal affirmation of Indigenous peoples’ status as ‘peoples’ for international legal purposes than as containing explicit references to the right to equality as presently understood in international law. True, having emerged as ‘peoples’ for international legal purposes, it is only natural that Indigenous peoples are treated equally with other peoples. But that is not the same thing as to say that the right to equality as articulated, for example, in the ICERD formally applies to them. Importantly, however, that the right to non-discrimination does not formally apply to Indigenous peoples is not to say that such peoples are treated less favourably compared with other peoples, from an international legal perspective. As the right to equality does not apply to collectives in general, it does not attach to peoples in the meaning of aggregate populations of States either. Another matter is that both Indigenous and State-forming peoples have legitimate expectations to be treated on a par with other peoples. In other words, even if the right to non-discrimination does not formally apply to them, both Indigenous and State-forming peoples have good grounds to assume that they will be treated equally with other peoples.

Having accepted that the right to equality is yet to formally attach to Indigenous (and other) peoples, the next step is to recognize that this ‘shortcoming’ might be of less practical relevance. The right to non-discrimination (as applied to individuals) has more recently evolved to take on a second facet that has resulted in the direct protection extended by the right to individual members of a group also providing an indirect protection of the Indigenous people as such. Today, the right to equality requires not only analogous treatment of analogous situations, but also differential treatment of those who are culturally different compared with the majority population.43 This second facet of the right to non-discrimination entails that, for all practical purposes, the right protects groups as such, albeit indirectly. On the collective level, the formal right to differential treatment on the individual level corresponds to an informal right of the group to receive protection for its cultural characteristics. If members of an Indigenous people receive education, health care, social services, etc. that are respectful of and promote their cultural identities, then this will also further and protect the cultural identity of the group as such. Thus understood, the right to equality protects the cultural identity of Indigenous peoples as such, and it becomes a less relevant question whether or not the right applies formally to such peoples.44

The articulated conclusion finds broad support in the legal doctrine.45 It is also in line with Diminitrina Petrova’s and Bhiku Parekh’s observations, independent of one another, (p. 79) that racial discrimination—by definition—presupposes the existence of ethnic and/or racial groups in society. Even if an individual might be the victim of racial discrimination, he or she is not so because of his or her own characteristics, but because of association with a particular group. Consequently, racial discrimination cannot be disassociated from the group as such. It simply cannot be discussed in individual terms.46

In our view, the outlined understanding of the right to equality, as enshrined in the UNDRIP, simultaneously serves the purposes of ensuring that the right (i) fits within the human rights system in general and (ii) promotes and protects the collective cultural identity of Indigenous peoples as such (albeit indirectly, and in addition to protecting individual members of the group). However, whether accepting this interpretation or not, it is important that common ground is found on how the ‘collectivized’ human rights in the UNDRIP square with the larger human rights system. If not, tensions between collective and individual human rights will continue to hamper the effective, coherent, and systematic realization of the rights contained in the Declaration.

5.  Absence of a General Human Rights ‘Safeguard Clause’

We are certainly not the first to point out that the recognition of collective (or group) rights can create tensions with the individual human rights of some members of the group. Indeed, concerns as to the impact of collective rights on the well-being of individual members of the group is one of the most often raised arguments against recognizing collective rights altogether,47 something that is not at all the assertion here.48

But even if recognizing and supporting the UNDRIP’s strong focus on Indigenous peoples’ collective rights—in line with the Indigenous rights regime in general—it may be troubling that the Declaration does not contain an explicit general human rights safeguard clause that ensures that such collective rights are exercised with respect for the human rights of the members of the group. Article 1, discussed above, promises that ‘Indigenous peoples’ have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms. Yet, this clause is deficient in identifying its addressee(s). Clearly, States would by default be the duty-bearers, but can Indigenous (p. 80) peoples be on both sides of the equation, as rights-holders and as duty-bearers? Further, Article 44 assures that all UNDRIP rights and freedoms are equally guaranteed to male and female Indigenous individuals.49 Again, the provision fails to identify the duty-bearers. In the UNDRIP, there is no clause on the protection of individual human rights in relation to the exercise of powers by the Indigenous people itself, including the powers that stem from the collective rights of the group. This omission of safeguards for individual rights is related to the UNDRIP’s emphasis on collective rights, reflected also in its Article 33, which assures to Indigenous peoples the right to determine the responsibilities of individuals in respect of their communities.

We wish to underline that our concern with the presumed absence of a human rights safeguard clause in the UNDRIP is not only with welfare of the members of the people, but also with the rights of Indigenous peoples as such. It is highly unlikely that Indigenous peoples’ right to self-determination under Article 3 will be accepted by States and may hence fail unless it is accompanied by a recognition that power comes with responsibilities, that the exercise of the right of self-determination (Article 3), including through arrangements for autonomy or self-government (Article 4), amounts to an exercise of public authority in relation to the members of the group. States cannot reasonably be expected fully to respect the self-determination rights of Indigenous peoples unless they feel confident that the latter will respect human rights. States themselves have human rights obligations under international law against which they will be held accountable at the international level and also before their own courts, even if human rights violations are a result of Indigenous peoples within the State exercising their right to self-determination. In short, this attribution of State responsibility may serve as justification for States to assert that Indigenous self-determination must not compromise individual human rights. Otherwise States cannot be expected to accept self-determination rights.

It follows from the above that the UNDRIP should contain a safeguard clause, and in our view one can indeed be read into the Declaration. The UNDRIP contains sufficient elements that allow and perhaps even necessitate an interpretive construction according to which a general human rights safeguard clause is read into its text. Above all, we refer to Article 46(2), which reads:

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

True, even this provision is not explicit about the duty-bearers and could be interpreted, as human rights instruments generally are, as addressing the obligations of the State. Nevertheless, as it opens with a reference to the exercise of rights enshrined in the UNDRIP, one has to infer that the primary addressee and hence the subject of human rights obligations here is not the State, but those who enjoy collective rights under the UNDRIP, namely Indigenous peoples and their decision-making structures. The second and third sentence of the provision are then more ambiguous, or less helpful, in the current context, as they refer to limitations placed on UNDRIP rights, ie primarily upon (p. 81) the collective rights of Indigenous peoples, rather than limitations of ‘human rights’ or of ‘individual human rights’, which would have come much closer to what we mean by a human rights safeguard clause.

In the drafting process of the UNDRIP, some proposals were made towards a more explicit or comprehensive human rights safeguard clause. In 1996, the Netherlands government expressed concern about a possible ‘imbalance between individual and collective rights’ in the Declaration and proposed considering the inclusion of a ‘general safeguard clause for individual rights’. Article 8(2) in the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was suggested as a model for such a clause.50 The idea also had some support from the side of Indigenous peoples, as reflected in a 2004 proposal by the Sami Council and the Sami Parliamentary Council. According to this proposal, the Indigenous rights savings clause of Article 45 of the UNDRIP would have been complemented with a paragraph 2 with a savings clause for individual rights, according to which the exercise of (primarily collective) UNDRIP rights ‘shall not prejudice the enjoyment by all persons of universally recognized human rights and fundamental freedoms’.51 The inclusion of the word ‘persons’ in this formulation goes one step further towards explicit recognition of the duty of Indigenous peoples (who will ‘exercise’ UNDRIP rights) to respect the individual human rights of their members, as compared to the final text of the first sentence of Article 46(2) as quoted above. This drafting history of the last-mentioned provision, however, in our view affirms that the clause can be relied upon in the much-needed interpretive construction of an implied fully-fledged human rights safeguard clause.

Furthermore, as to the ‘context’ in which Article 46(2) is to be interpreted, the UNDRIP Preamble contains several elements that are relevant for a discussion on the relationship of the instrument as a whole to the broader system of international law and international human rights. The very first preambular paragraph refers to the ‘purposes and principles’ of the UN Charter. Notably, Preambular Paragraph 16 then explicitly refers to the twin Covenants of 1966 and, as is understandable in a non-treaty instrument, also to the final document of the 1993 Vienna World Conference on Human Rights when addressing the issue of the right of self-determination.52 Preambular Paragraph 19, in turn, encourages States to comply with and effectively implement all of their obligations as they apply to Indigenous peoples under international instruments, in particular those related to human rights, in consultation and cooperation with the peoples concerned. The two following paragraphs (Preambular Paragraphs 20 and 21) address and emphasize the role of the United Nations in promoting and protecting the rights of Indigenous peoples. Without trying to be exhaustive in identifying pertinent elements in the UNDRIP Preamble, reference must also be made to the above-mentioned Preambular Paragraph 22,53 where it is once more affirmed that Indigenous individuals are entitled without discrimination to all human rights recognized in international law.

(p. 82) In summary, in our view, the wording of Article 46(2) of the UNDRIP, understood in light of the Preamble and recalling the drafting history of the provision, must be understood as a general human rights safeguard clause that provides that Indigenous peoples’ collective rights, including the right to self-determination, must be exercised in a manner that respects the human rights of the individual members of the group. However, this conclusion does not only follow from a textual and contextual interpretation, but, as indicated, also, and perhaps primarily, from necessity.

Indigenous peoples’ rights, and in particular the right to self-determination, must be viewed as a form of exercise of public power, as these rights, as seen above,54 materialize as a result of public power being transferred from States to Indigenous peoples, or such powers being finally acknowledged by States as inherent in the recognition of Indigenous peoples as peoples. As public power when exercised by States is subject to human rights obligations, it would appear fully justified and even necessary that the same applies, at least in principle, when those same or analogous public powers are exercised by Indigenous peoples.55

The above leads to the conclusion that when jurisdiction is shifted to them, Indigenous peoples should be obliged to respect the human rights of their individual members, in the same way that States are obligated to respect the human rights of their citizens.56 Without the acceptance of this principle, Indigenous self-determination is likely to fail, not least because many States may invoke their human rights obligations as justification for not allowing Indigenous peoples to determine their own fate.

Having clarified the fundamental issue, we want to point out that when discussing the human rights obligations of Indigenous peoples and their organs of self-determination, one should note that only the most fundamental human rights are absolute. Most human rights open up for limitations in their applicability, provided that certain conditions are met. In line with the logic above, this aspect of human rights must be present also in the relationship between Indigenous peoples vis-à-vis individual members of the group. When exercising their peoples’ rights, Indigenous peoples, similarly to States, must be entitled to limit the individual human rights of their members. Permissible limitations should be seen as governed by the same principles and same criteria that bind States when they limit individual human rights and are to be taken into account in any ‘balancing’ between rights or between rights and other interests. The requirements for permissible limitations upon human rights are:

  1. (1)  proper legal basis—accessible and foreseeable in abstracto regulation of an issue, instead of ad hoc arbitrary decisions in individual cases without advance warning;

  2. (2)  a legitimate aim being served by the limitation—a further guarantee against arbitrariness or abuse of power in bad faith;

  3. (3)  respect for the essence (the inviolable core) of any human right;

  4. (p. 83) (4)  necessity—a proclaimed legitimate aim is not sufficient, but it must be demonstrated or demonstrable that the envisaged limitation will result in an actual benefit towards meeting that aim;

  5. (5)  proportionality—the negative impact on the human right that is subject to a limitation must remain proportionate in comparison to the actual benefit obtained towards serving the identified legitimate aim that is used to justify the limitation.57

States must respect all of these cumulative conditions when they restrict the human rights of individuals. When States cede some of their powers to Indigenous peoples, as they should in recognition of Indigenous self-determination, Indigenous peoples must assume the same duty to respect the conditions for permissible limitations, if the powers they seek to exercise over their members should be accepted as lawful and legitimate. In fact, under their international human rights obligations, States would not even be allowed to cede their powers over individuals to Indigenous peoples without exercising due diligence that those powers will be exercised without making the State itself responsible, at the level of international law, for violating human rights through being complicit in internationally wrongful acts perpetrated by an Indigenous group in the exercise of their powers over their individual members. This implies—even if it may come across as a paradox to some—that it is in fact in Indigenous peoples’ own interest to assume the same human rights obligations accepted by States in the form of international human rights treaties, as otherwise States would not be in a position to cede jurisdiction to Indigenous peoples.

Importantly, the understanding of the criteria and principles that must be fulfilled in order for an Indigenous people to lawfully limit the human rights of members listed above must take into account the fact that the right is now applied not in a State– individual, but in an Indigenous people–individual context. In particular, the fact that Indigenous peoples, generally speaking, place considerably more importance on the collective, and thus on collective rights, compared with most other cultures should be taken into account, in particular when applying the legitimate aim and proportionality criteria. The weight given to the collective and to collective rights in an Indigenous culture must be allowed to impact the assessment of both whether a legitimate social need is present and whether the negative impact of the individual is proportionate to that aim. We underline that this is nothing new or controversial. The legitimate aim and proportionality test should always take the social context into account.

It is reflective of the history of dispossession and colonization that today the criterion that may appear as the greatest challenge to Indigenous self-determination and its legitimate consequence of justifying some limitations upon individual rights is the very first one, the requirement of a proper legal basis. For instance, before the European Court of Human Rights, States usually find it quite easy to convince the Court that an interference with one of the rights enshrined in the Convention was ‘prescribed by law’. The State is the presumed legislator with general jurisdiction in all matters and within its geographical territory, and for this purpose States almost invariably have an elected parliament that exercises legislative powers. By referring to a law passed by parliament as the legal basis for (p. 84) a restriction upon a human right, a State usually easily passes the first test that requires a legal basis for a restriction.

When Indigenous peoples exercise self-determination and end up imposing limitations on the human rights of their individual members, the requirement of a proper legal basis must be applied in a flexible manner. Not only written legislation, but also the customary law of the Indigenous people must be accepted as ‘law’. Likewise, legislation by the State that recognizes Indigenous self-determination in a matter should be seen as constituting a proper legal basis for decision-making by the group, provided that the other requirements listed above are met.

The right of an Indigenous people to determine its own borders, ie its membership criteria, is an important test case for the position developed here. Article 9 of the UNDRIP protects the right of Indigenous individuals to belong to an Indigenous community or nation, ‘in accordance with the traditions and customs of the community or nation concerned’, without discrimination of any kind. Clearly, the primary addressee of this provision as the corresponding duty-bearer is the Indigenous people itself and its decision-making organs. Articles 3, 4, 5, and 33(1) of the UNDRIP strongly support the right of the group to decide about its membership, while Article 9 together with a general human rights safeguard clause inferred from Article 46(2) would protect the individual when those powers are exercised by the group. We find it the most compelling reading of all these provisions taken together that the decision-making organs of an Indigenous people should have the authority to determine who is a member of the group, subject to an obligation to avoid discrimination or arbitrariness. The political, or even judicial, organs of the State should exercise deference and resist the temptation to adjudicate any emerging disputes concerning individual membership. Rather, they should encourage and facilitate efforts to take eventual disputes to the international level for discussion and resolution.

Above, it was proposed that the first sentence of Article 46(2) of the UNDRIP constitutes the strongest textual basis for reading a general human rights safeguard clause into the Declaration through interpretation. It is also important to recall Article 43, according to which ‘the rights recognized herein’ constitute the ‘minimum standards for the survival, dignity and well-being of the Indigenous peoples of the world’, as well as Article 44, which makes it clear that all UNDRIP rights are equally guaranteed to male and female Indigenous individuals.58 In a systematic reading of the UNDRIP, these provisions, taken together, support the view that a general human rights safeguard clause is to be implied, even if not written into the text.

6.  Conclusion

This chapter has addressed the relationship between the UNDRIP and the general framework of international human rights law through four issues. Doing so, we have discussed primarily Articles 3 and 46 of the UNDRIP, read together with the UNDRIP as a whole and in particular Articles 1, 2, 44, and 45. The four themes were first presented in introductory Section 1 of this chapter, whereafter we devoted Sections 2 to 5 separately on each one of them.

(p. 85) Section 2 addressed the relationship between Indigenous peoples’ right to self-determination as peoples, and States’ sovereign rights, including their right to respect for their territorial integrity. Article 3 of the UNDRIP, proclaiming that Indigenous peoples have the right to self-determination, was subject to the biggest controversies in the drafting of the Declaration, the resolution of which was a sine qua non for reaching agreement. While the inclusion of the right of self-determination was a historical breakthrough for the Indigenous peoples of the whole world, it is burdened by compromises and uncertainties that will affect its impact and implementation. Article 3 was ‘softened’ by including in immediately following Article 4 phrases about ‘autonomy’ and ‘self-government’ and in Article 46(1) a strongly worded provision that appears to prioritize the sovereignty and territorial integrity of States. As explained in our chapter, however, this latter provision may not have the effect sought by some States through its inclusion, as the notion of territorial integrity in international law applies to relationships between States and to the prohibition against the use of armed force in them. Its inclusion in the UNDRIP is hence more symbolic than of real consequence. We have above proposed the conclusion that the reference to ‘territorial integrity’, etc. in Article 46(1) of the UNDRIP only makes sense when its addressee is understood to be another State, a group of States, and possibly individuals and groups of individuals siding with such aspirations by other States. The provision does not negate Article 3 of the UNDRIP, a cornerstone of the Declaration, and does not preclude an Indigenous people from pursuing the option of secession as one of the possible modalities of their self-determination, through means that are compatible with international law. The drafters created ambiguity and internal tension through the seeming disharmony between the two Articles. A proper understanding of the principle of territorial integrity in international law will nevertheless help in settling the seeming incoherence.

Also, Section 3 discussed the right of self-determination by asking: what is the relationship between Indigenous peoples’ right to self-determination and the jurisdiction exercised today by States internally? We defend the view that self-determination rights by Indigenous peoples must go beyond a mere right of consultation, as enshrined, for instance, in ILO Convention 169, and it needs to be understood that nation-States will either transfer some of their powers to Indigenous peoples or alternatively acknowledge that Indigenous peoples’ self-determining powers and jurisdiction are inherent in the status of Indigenous peoples as subjects of peoples’ rights. While the conceptual issue now appears clear, we see a need for effective monitoring mechanisms for the right of self-determination, in order to explore and settle its proper contours in relation to powers traditionally exercised by States. The UN-level EMRIP may evolve in that direction, but we also flag that the Human Rights Committee has a mandate to interpret the right of self-determination under Article 1 of the ICCPR, including through complaints submitted by Indigenous peoples and despite the challenge of on occasion needing to adjudicate on a collective right through a procedure that was created for individual complaints of human rights violations. A similar role may emerge also for the Committee on Economic, Social and Cultural Rights under Article 1 of the International Covenant on Economic, Social and Cultural Rights, which is now entrusted with a complaints procedure.

The third issue discussed in this chapter is related to the move from individual to collective rights when the UNDRIP is assessed as a human rights instrument. In Section 4, we asked whether the UNDRIP not only entails the introduction of collective rights, but also the ‘collectivization’ of those rights that are traditionally understood to apply to (p. 86) individuals only. Dealing with the right of non-discrimination as a case study, we engaged in a discussion about the ICERD and in particular General Recommendation 32 by the CERD. Our position is that it would be premature to read the UNDRIP as affirming that the right to equality has evolved to such an extent as to apply also formally to Indigenous peoples as collective beneficiaries of the right of non-discrimination. We further concluded, however, that when formally applied to individual members of Indigenous peoples, the right to equality already protects the cultural identity of Indigenous peoples as such, albeit indirectly, wherefore it becomes a less relevant question whether the right of non-discrimination applies also formally to such peoples, as a collective legal right.

Finally, Section 5 addressed the seeming absence of a general human rights ‘safeguard clause’ in the Declaration. In spite of some proposals to that effect, Article 45 of the UNDRIP did not come to include an explicit clause on the duty of Indigenous peoples, as beneficiaries of collective rights, to respect individual human rights. While we acknowledge that the drafting could have been clearer, we elaborate the position that Article 46(2) of the UNDRIP should be interpreted as including such a safeguard clause, read in the light of the Preamble and other provisions of the Declaration and its drafting history. In our view a clear acknowledgement, by States and Indigenous peoples, of the need to read a guarantee for individual human rights into the text of the UNDRIP will be essential for the success of the Declaration as a whole: as States have international human rights obligations and will be held internationally accountable for them, Indigenous peoples can expect States to accept their self-determination rights, and the ensuing reduction of their own powers in matters governed by Indigenous self-determination, only if Indigenous peoples and their decision-making structures have a commitment to respect and ensure individual human rights.

Footnotes:

1  UNGA Res 61/295.

2  Reference is made to the conceptual discussion in Chapter 1 of this volume, by Joshua Castellino and Cathal Doyle. See also M Scheinin, ‘What Are Indigenous Peoples?’ in N Ghanea and A Xanthaki (eds), Minorities, Peoples and Self-Determination: Essays in Honour of Patrick Thornberry (Martinus Nijhoff 2005) 3–13; M Scheinin, ‘Minority Rights, Additional Rights or Added Protection?’ in M Bergsmø (ed), Human Rights and Criminal Justice for the Downtrodden: Essays in Honour of Asbøjrn Eide (Martinus Nijhoff 2003) 487–504.

3  See UNDRIP, second recital of the Preamble and Art 5.

4  The importance of the distinction between Indigenous and minority rights is well illustrated by the differences between the UNDRIP and the principal international instrument on minority rights, the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. The latter instrument, as the title suggests, in contrast to the UNDRIP, focuses on the rights of members of the group, rather than on rights of the group as such. Within treaty regimes, a discussion on individual and collective dimensions of minority rights is well known under Art 27 of the International Covenant on Civil and Political Rights (ICCPR), including as reflected in General Comment 23 and case law by the Human Rights Committee.

5  UNGA Res 2200 A (XXI), 993 UNTS 3 and 999 UNTS 171 (16 December 1966).

6  M Barelli, ‘The Role of Soft Law in the International Legal System: The Case of the United Nations Declaration on the Rights of Indigenous Peoples’ (2009) 58(4) ICLQ 957, 966; J Rehman, ‘Between the Devil and the Deep Blue Sea: Indigenous Peoples as the Pawns in the US “War on Terror” and the Jihad of Osama Bin Laden’ in S Allen and A Xanthaki (eds), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart 2011) 561.

7  To be clear, UNDRIP Art 3 only addresses the rights of Indigenous peoples. Consequently, the argument presented here does not stretch beyond asserting that Indigenous peoples have emerged as international legal subjects with rights as such. Whether other non-State-forming ‘peoples’ united by a common ethnicity and culture, but which are not Indigenous, are, or perhaps rather should be, recognized as peoples for international legal purposes is thus beyond the scope of this chapter. For an argument that such groups should be acknowledged as qualifying for peoplehood, see W Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy’ in Allen and Xanthaki (n 6).

8  UNGA Res 2106 (XX), 660 UNTS 195 (21 December 1965).

9  The Office of Legal Affairs of the UN Secretariat has underlined that when the GA opts to adopt an instrument in the Declaration format, there is ‘a strong expectation that Members of the international community will abide by it’. See UN Doc E/CN.4/L.6101-2 (1962).

10  CJ Fromherz, ‘Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples’ (2007–2008) 156 U Pennsylvania L Rev 1341, 1344; C Baldwin and C Morel, ‘Using the United Nations Declaration on the Rights of Indigenous Peoples in Litigation’ in Allen and Xanthaki (n 6) 123–24.

11  For a detailed and in-depth outline of deliberations that eventually resulted in the GA’s adoption of the UNDRIP, see Chapter 2 by S James Anaya and Luis Rodríguez-Piñero in this volume.

12  SJ Anaya, Indigenous Peoples in International Law (2nd edn, Oxford University Press 2004) 7–8; D Raič, Statehood and the Law of Self-Determination (Brill 2002) 242–43; H Hannum, Autonomy, Sovereignty and Self-Determination: Autonomy: The Accommodation of Conflicting Rights (rev edn, University of Pennsylvania Press 1996) 96, 473.

13  Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, GA Res 2625, UN General Assembly Official Records, 25th Sess, Supp 28 (1971), 9 ILM 1292.

14  Adopted by the ILO General Assembly on 27 June 1989; 72 ILO Official Bull 59.

15  See Vienna Convention on the Law of Treaties Art 31(1), mutatis mutandis; and also M Åhrén, Indigenous Peoples’ Status in the International Legal System (Oxford University Press 2016) 74–76, 133–38.

16  A few notable exceptions include UNDRIP Arts 19 and 32.

17  A Cassese, International Law (2nd edn, Oxford University Press 2005) 65; I Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 489.

18  In the context of the UNDRIP’s take on the right to non-discrimination, reference could also be made to Preambular Para 22 of the Declaration. This provision is not, however, further dealt with in this chapter. See also Art 21, which proclaims that Indigenous peoples have a right to non-discrimination when it comes to economic and social conditions.

19  See, generally, Chapter 7 in this publication by Kirsty Gover.

20  Here, we leave aside the somewhat awkward and potentially confusing drafting of both provisions, eg, the interchangeable references to rights of individuals and peoples where it is not entirely clear what legal subject is entitled to what rights.

21  Other UNDRIP provisions that attach rights normally associated with individuals to Indigenous peoples include the right to practise spiritual and religious traditions and ceremonies (Art 12), the right to use, revitalize, and transmit their languages (Art 13), labour rights (Art 17), and the right to determine one’s identity (Art 33).

22  See Chapter 7 in this volume, by Kirsty Gover.

23  Cassese (n 17) 98, 123; Brownlie (n 17) 291–3; F Mégret, ‘International Law as Law’ in J Crawford and M Koskenniemi (eds), International Law (Cambridge University Press 2012) 67, 83; Raič (n 12) 25–6; F Hinsley, Sovereignty (Basic Books 1966) 219; J Castellino, ‘The Protection of Minorities and Indigenous Peoples in International Law’ (2010) 17(3) Int’l J Minority & Group Rights 393, 409; SJ Anaya, ‘The Capacity of International Law’ in W Kymlicka (ed), The Rights of Minority Cultures (Oxford University Press 1995) 326–27.

24  In this context, it is worth noting UNDRIP Art 45, which provides that ‘[n]othing in this Declaration may be construed as diminishing or extinguishing the rights indigenous peoples have now or may acquire in the future’. In conformity with the other provisions of the UNDRIP, this clause was written as a savings clause in respect of the collective rights of indigenous peoples and thus not as a clause aimed at protecting the human rights of individual members of indigenous peoples in respect of the exercise of power or authority in relation to the members of the group. Hence, Art 45 does not amount to a ‘safeguard clause’ in the meaning discussed here. When relating the UNDRIP to international human rights law and general international law, it will therefore be necessary to read into its text an implied clause on the duty of Indigenous peoples to respect the human rights of their members, as elaborated below.

25  We reiterate that several UNDRIP provisions already today reflect binding international customary law. The case here is that for this to be said of the Declaration in its entirety as a comprehensive and coherent instrument outlining what rights Indigenous peoples (as well as Indigenous communities and individuals) possess under international law, some further work is needed.

26  See in particular Principle 5 on equal rights and self-determination of peoples.

27  International Court of Justice, Reports of Judgments, Advisory Opinions, and Orders 2010, 403; Reference re Secession of Quebec [1998] 2 SCR 217. See also M Åhrén, M Scheinin, and JB Henriksen, ‘The Nordic Sami Convention: International Human Rights, Self-Determination and Other Central Provisions’ (2007) 3 Gáldu Čála: J Indigenous Peoples Rights 1.

28  J Crawford, The Creation of States in International Law (2nd edn, Oxford University Press 2006) 383–418; A Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press 1995) 167, 283, 334, 349; A Buchanan, ‘The Morality of Secession’ in Kymlicka (n 23) 352; C Tomuschat, ‘Secession and Self-Determination’ in MG Kohen (ed), Secession: International Law Perspectives (Cambridge University Press 2006) 35–36, 84–86; A Tancredi, ‘A Normative “Due Process” in the Creation of States through Secession’ in Kohen (ibid) 175–84; P Thornberry, ‘Self-Determination and Indigenous Peoples: Objections and Responses’ in P Aikio and M Scheinin (eds), Operationalizing Self-Determination (Institute for Human Rights, Åbo Akademi University 2002) 53.

29  Crawford (n 28) 125–6; Cassese (n 28) 143–44, 242, 285; I Brownlie, ‘The Rights of Peoples in Modern International Law’ in J Crawford (ed), The Rights of Peoples (Clarendon Press 1988) 3–5.

30  For instance, Antonio Cassese has observed that the acceptance of a right to self-determination of peoples in international law ‘set in motion a restructuring and redefinition of the world community’s basic “rules of the game” ’: see Cassese (n 28) 1; and also P Alston, Peoples’ Rights (Oxford University Press 2005) 1.

31  For concurring opinions see, among others, Anaya (n 12) 140–1; S Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples’ (2008) 41 Vanderbilt J Transn’l L 1141, 1156–57; J Gilbert, ‘Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples’ (2007) 14 Int’l J Minority & Group Rights 207; M Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20(1) EJIL 111; A Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’ in Ghanea and Xanthaki (n 2) 22–23.

32  Outcome document of the high-level plenary meeting of the General Assembly known as the World Conference on Indigenous Peoples, UN Doc A/RES/69/2, para 28.

33  The Committee first took this position in Kitok v Sweden, Comm No 197/1985, para 6.3, and has since repeated it on a few occasions. See, eg, Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, Comm No 167/1984, para 13.3.

34  See the same cases (n 33), and also Apirana Mahuika and Others v New Zealand, Comm No 547/1993, para 2.

35  Marie-Hélène Gillot and Others v France, Comm No 932/2000, paras 13, 16.

36  Compared with the Human Rights Committee, the Committee on Economic, Social and Cultural Rights (CESCR) has less experience addressing the right to self-determination of Indigenous peoples, partly due to the fact that individual complaints to the latter body have only recently been allowed. However, as such complaints are now permissible, it is possible that the CESCR could in the future take on a similar role to that we here propose the Human Rights Committee takes on.

37  For a possibly different opinion, see, however, Chapter 7 by Kirsty Gover in this volume.

38  This section focuses on the right to non-discrimination, as one of the principal individual human rights. The analysis and arguments presented in this section can, however, be expected to apply, mutatis mutandis, also to other human rights contained in the UNDRIP that are conventionally understood to attach to individuals only, but that the Declaration seemingly seeks to ‘collectivize’.

39  Emphasis added.

40  cf K Tomasevski, ‘Indicators’ in A Eide, C Krause, and A Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd edn, Martinus Nijhoff, 2001) 533; A Eide, ‘The Use of Indicators in the Practice of the Committee on Economic, Social and Cultural Rights’ in ibid 549.

41  cf T Makkonen, ‘Equal in Law, Unequal in Fact: Racial and Ethnic Discrimination and the Legal Response thereto in Europe’ (Doctoral Dissertation presented at the Faculty of Law at the University of Helsinki, 5 March 2010) 95.

42  For instance, Timo Makkonen concludes that the right to equality, irrespective of recent developments, formally remains individual in nature. See Makkonen (n 41) 178–79.

43  See, eg, the European Court on Human Rights ruling in Nachova and Others v Bulgaria [GC] (2005) 42 EHRR 933; and, in particular, in Thlimmenos v Greece (2001) 31 EHRR 411, 44. See also Makkonen (n 41) 127–28.

44  For a more expansive outline of the contemporary understanding of the right to equality of individuals and the relationship between this right and indirect protection of the cultural identity of Indigenous peoples as such, see Åhrén (n 15), Sections 7.4–7.6.

45  See P Thornberry, ‘Integrating the UN Declaration on the Rights of Indigenous Peoples into CERD Practice’ in Allen and Xanthaki (n 6) 64; C McCrudden, ‘The New Concept of Equality’ (2003 ERA Forum, vol 4, No 3) 22–23; S Wheatley, Democracy, Minorities and International Law (Cambridge University Press 2005) 22; D Lea, Property Rights, Indigenous People and the Developing World: Issues from Aboriginal Entitlement to Intellectual Ownership Rights (Martinus Nijhoff 2008) 20; J Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’ in Ghanea and Xanthaki (n 2) 61; M Hartney, ‘Some Confusion Concerning Collective Rights’ in Kymlicka (n 23) 220; R Stavenhagen, ‘Cultural Rights: A Social Science Perspective’ in Eide et al (n 40) 98; Anaya (n 12) 139; Makkonen (n 41) 180–81.

46  See D Petrova, ‘Racial Discrimination and the Rights of Minority Cultures’ in S Fredman (ed), Discrimination and Human Rights: The Case of Racism (Oxford University Press 2001) 67; B Parekh, ‘Redistribution or Recognition? A Misguided Debate’ in S May, T Modood, and J Squires (eds), Ethnicity, Nationalism and Minority Rights (Cambridge University Press 2004) 210. cf also Chapter 7 in this volume, by Kirsty Gover.

47  For discussions on potential negative impacts of collective rights on individual members of the group, see, eg, DM Weinstock, ‘Liberalism, Multiculturalism, and the Problem of Internal Minorities’ in S Laden and D Owen (eds), Multiculturalism and Political Theory (Cambridge University Press 2007) 246–47; A Shachar, ‘Feminism and Multiculturalism: Mapping the Terrain’ in ibid 115–47; A Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge University Press 2001) 2–3, 19, 28–29; J Spinner-Halev, ‘Multiculturalism and Its Critics’ in JS Dryzek, B Honig, and A Phillips (eds), The Oxford Handbook of Political Theory (Oxford University Press 2006) 549; C Kukathas, ‘Are There Any Cultural Rights?’ in Kymlicka (n 23) 236; SM Okin, ‘Is Multiculturalism Bad for Women?’ (1997) 22(5) Boston Rev 25, 26; A Xanthaki, Indigenous Rights and United Nations Standards: Self-Determination, Culture and Land (Cambridge University Press 2007) 20–21.

48  See further below.

49  See here also Chapter 7 in this volume, by Kirsty Gover.

50  See UN Doc E/CN.4/1997/102 (10 December 1996) para 109.

51  See UN Doc E/CN.4/2004/WG.15/CRP.5 (28 October 2004).

52  ‘Acknowledging that the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, as well as the Vienna Declaration and Programme of Action, affirm the fundamental importance of the right to self-determination of all peoples, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.’

53  See n 18 above.

54  See Section 3.

55  For a more thorough elaboration of this position, see M Scheinin, ‘How to Resolve Conflicts between Individual and Collective Rights?’ in M Scheinin and R Toivanen (eds), Rethinking Non-Discrimination and Minority Rights (Åbo Akademi University Institute for Human Rights and Deutsches Institut für Menschenrechte 2004) 219–38.

56  In this context, the fact that States have human rights obligations not only towards their own citizens, but also towards other persons within their jurisdiction, lacks relevance.

57  There are many competing and overlapping doctrinal constructions concerning permissible limitations on human rights. The concise five-element formula presented here is built upon General Comment 27 by the Human Rights Committee, addressing permissible limitations on the freedom of movement (ICCPR Art 12), but at the same time presenting a general framework. See UN HRComm, CCPR General Comment 27: Article 12 (Freedom of Movement) UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999).

58  For the role of equality and non-discrimination in the UNDRIP, see Chapter 7 in this volume, by Kirsty Gover.