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The right to self-determination, as asserted in the Covenant on Civil and Political Rights as well as the Covenant on Economic, Social, and Cultural Rights, provides a substantial portion of the intellectual underpinning for the protection of individual human rights.1 It presents the notion that individuals are guaranteed the right to decide their own paths in life without undue burdens by the state. However, the term “self-determination” also holds more specific meanings, one of which can include the right to independence and sovereignty. The key debate for indigenous rights touches on the latter.
Harking back to the previous discussion of group versus individual rights, group rights have grown out of provisions from the decidedly state-centric and individualistic Covenants on Civil and Political Rights and on Economic, Social, and Cultural Rights. While these covenants primarily dealt with securing individual rights, they also affirmed the right to self-determination to all “peoples.” States continue to interpret this clause narrowly, thereby excluding indigenous groups from this right, but the lack of clarity in the covenants regarding the definition of “all peoples” has created a wedge for indigenous groups to use to press for their group rights.2
This raises the question of what, precisely, self-determination means. There are four orders of self-determination that experts refer to.
The first is characterized by decolonization whereby a people overcome foreign rule to achieve independence within internationally recognized borders, such as happened throughout Africa in the 1960s, or in India when it won its independence from Britain in 1947.
The second-order involves the achievement of independence of states or republics within a federal system, such as occurred for the former states of the Soviet Union (Estonia, Lithuania, Belarus, etc.).
Third-order self-determination occurs with the struggle for independence by a subunit of a unitary state, such as Kosovo from Bosnia, or Quebec from Canada. These movements for secession from an existing unitary state are often met with fierce resistance by the threatened state and are generally not recognized as legitimate under international law.
Finally, the fourth-order would be efforts by indigenous peoples to obtain self-determination.3
In addition to these varying units seeking self-determination, each may be striving for varying degrees of independence. For instance, some groups may be pressing for political and civil rights within the broader political structure that already exists. Others may seek greater independence for autonomous action in realms such as education policy and land rights, as well as autonomous political structures, and yet remain under the larger authority of the state.
Finally, independent state-hood may be the ultimate desire meaning the group would obtain complete control over certain internationally recognized territory. For an additional discussion of self-determination in this Issue in Depth, as applied to East Timor, see “International Covenant on Civil and Political Rights.”
These degrees of independence lie at the heart of the debate over indigenous rights. Not all indigenous peoples seek the same level of autonomy, while existing states are often extremely concerned about any possibility of indigenous peoples obtaining full independence. One of the prime tenets of international law is that a nation state’s national unity and territorial integrity are guaranteed.
Therefore, the drive for self-determination that would provide absolute independence is not permitted because it would involve the break-up of an existing state.4 In such an instance, the claim to self-determination of the indigenous group would collide with the right of the people in the modern territorial state to self-determination because the indigenous claim could dissolve the larger state. This reasoning is precisely why many states continue to oppose the adoption of the draft Declaration on the Rights of Indigenous Peoples by the UN General Assembly.
However, many indigenous peoples are not actually seeking full independence, in part out of recognition that such a goal is nearly impossible. Rather, what they often seek is to “generate enforceable limits on encroachment by the state and to protect domains of traditional life.”5 In essence, the goal becomes the creation of a relatively autonomous zone within the existing state founded on a relationship of respect for the traditions of the indigenous people within their autonomous region. Under such an arrangement, the state retains its territorial integrity while the indigenous group gains protections for its unique traditions and increased control over its internal affairs.
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