As a result of decades of mobilization, the right to self-determination was progressively recognized in favor of indigenous peoples, based on the normative and jurisprudential framework of the IHRL. This recognition gained greater momentum in the context of overcoming the integrationist paradigm that prevailed for several years in constitutional systems, especially in Latin America. Starting in the 1980s, several countries on the continent adopted Political Charters that incorporated the multicultural paradigm into the approach to the relationship between indigenous peoples and States. At the international level, the overcoming of the integrationist paradigm was materialized with the adoption of Convention 169 of the International Labour Organization (ILO), in June 1989, strengthened by the UN Declaration on the Rights of Indigenous Peoples of 2007, and with a vast jurisprudence of supranational human rights bodies.
ILO Convention 169 internationalized the commitment to preserve indigenous cultures, recognizing their right to decide autonomously on their development priorities and to participate directly in any and all State decisions that affect them, through consultation and free, prior and informed consent (FPIC). Although it does not expressly establish the right to self-determination, it enshrines the autonomy of indigenous peoples to freely determine their ways of life and their priorities for economic, social, and cultural development. Express recognition of self-determination for indigenous peoples in an international instrument would only come in 2007, through the United Nations Declaration on the Rights of Indigenous Peoples, specifically in articles three and four [4]. This effort was followed by the American Declaration on the Rights of Indigenous Peoples, adopted by the OAS General Assembly in June 2016, whose Articles III and XXI enshrine the same fundamental right.
However, before the adoption of these instruments, international law and comparative constitutional law attributed multiple meanings to the term “self-determination” that denote, in general, the following situations: 1) the processes of decolonization; 2) the right of independence of a sovereign State from others (external self-determination); and 3) the right of peoples to freely determine their political status and to seek their own development within a given State (internal self-determination).
In its General Comment No. 12 of 1984, the Human Rights Committee emphasized the external aspect of this right. Subsequently, in 1996, the Committee on the Elimination of Racial Discrimination clarified, in General Comment No. 21, the internal aspect of self-determination, which entails that “all peoples have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development”. In turn, the Committee on Economic, Social and Cultural Rights has expressed its opinion on the right to self-determination provided for in Article 1 of the ICESCR in favor of indigenous peoples.
Inter-American Human Rights System (IAHRS)
The link between collective property rights and free, prior, and informed consent with the principle of indigenous self-determination has been recently recognized in the doctrine of the Inter-American Commission and the jurisprudence of the Inter-American Court (IACt-HR). The Court’s 2007 judgment in the Case of the Saramaka People v. Suriname is a landmark in this regard. In ruling on the right to free, prior and informed consent, the Court emphasized that it derives not only from ILO Convention 169, which has not been ratified by Suriname, but is inherent to indigenous self-determination contained in Article 1 of the ICCPR.
In the 2012 case of Sarayaku v. Ecuador, the IACt-HR was even more emphatic in ruling on the link between indigenous land rights and the right to self-determination. The ruling emphasizes that this link is indissociable from the cultural identity of indigenous peoples and noted that “States have an obligation to ensure that indigenous peoples are properly consulted on matters that affect or could affect their cultural and social life, in accordance with their values, traditions, customs and forms of organization”. The Court stressed that “cultural identity is a fundamental right – and one of a collective nature – of the indigenous communities, which should be respected in a multicultural, pluralistic and democratic society” (para. 217). In the Case of Kaliña and Lokono Peoples v. Suriname, the Court reiterated that the right to collective property of indigenous peoples must be interpreted in light of the obligations provided for in Article 1 of the ICESCR, and other international instruments that protect indigenous self-determination.
The Inter-American Commission on Human Rights has also addressed the right to self-determination through thematic reports, such as the 2013 report on Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas, the 2015 report on Indigenous Peoples, Communities of African Descent and Extractive Industries, and the report on the situation of the Indigenous and Tribal Peoples of the Pan-Amazon Region.
Despite the previously mentioned precedents and the recent tendency of the IAHRS’ bodies to address different rights of indigenous peoples on the basis of the principle of self-determination, the Universal Human Rights System continues to be the main source of norms and pronouncements in this area. In this sense, there is an expectation that the IAHRS bodies will develop more specific standards and echo the demands of indigenous organizations, so that the link with their territories and natural resources will be protected within the framework of their autonomy and self-determination.
Final considerations
Despite the tension that still exists between the right to self-determination and the principle of the territorial integrity of States, the IHRL has developed important standards on the internal aspect of self-determination, in order to extend its application to indigenous peoples and traditional communities within their States.
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Daniel Cerqueira | Radio Free (2020-08-20T21:57:24+00:00) Indigenous self-determination: Between International Law and tragedy. Retrieved from https://www.radiofree.org/2020/08/20/indigenous-self-determination-between-international-law-and-tragedy/
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