INDIGENOUS PEOPLES AND SELF-DETERMINATION IN SETTLER STATES

E-International Relations, 2014

Ironically, while the last century was heralded for decolonization, many indigenous peoples have “only recently been subjected to outside domination”with the expansion of state systems following the Second World War. By the late 20th Century there were 3000-5000 indigenous peoples, whose sovereignty had been erased, “subsumed within… fewer than 200”states. In recent years, an international declaration has been sought, in an effort to elevate the status of indigenous peoples and ensure their continued survival. Ratified in 2007, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is the final product of these efforts. This Declaration was described by many as a victory and a “milestone”in international indigenous struggles. Unfortunately, this milestone is fraught with problems. UNDRIP is, at best, a devastating compromise for indigenous people, and at worst, it is an insidious attempt by state actors to maintain the structures of international injustice.

Journal of the History of International Law / Revue d’histoire du droit international, 2020

When the United Nations General Assembly passed the Declaration on the Rights of Indigenous Peoples in 2007, it introduced into the international legal lexicon a new dimension to the concept of self-determination. The declaration emphasizes indigenous peoples’ distinctive rights to land, culture, language, and collective identity. It does not propose political independence or sovereign statehood, instead insisting on indigenous peoples’ equal rights of citizenship within existing nation-states. The distinct dimension of self-determination that the declaration introduces is one that speaks of indigenous peoples’ particular colonial histories of dispossession and the restoration of their rights and identities in the present, but without disrupting the political continuity of the states that surround them. It is reparative rather than revolutionary. In this article, I examine the construction and contestation of an indigenous right to self-determination both in relation to earlier definitions, and among and between the peoples and states who drafted the declaration.

International Journal on Minority & Group Rights, 2007

” in Minorities within Minorities: Equality, Rights and Diversity, Avigail Eisenberg and Jeff Spinner-Halev, eds,, 2004

This chapter gives the basic outline of the Draft Declaration’s treatment of self-determination and argues that this view of self-determination is correct. Self-determination is a human right and this human right is the same right that underpins the rights of states. Treating an interest of peoples like self-determination as a constitutive element of human dignity raises practical worries about the stability of the international system, and philosophical worries about potential conflicts between individuals and peoples. But it also casts state sovereignty itself in a different light. This new light has interesting consequences both for international law and for philosophical debates about minorities within minorities. In particular, it allows one to think about questions about internal minorities as ultimately questions about legitimacy and representation.

Teaching Federalism: Multidimensional Approaches , 2023

According to the United Nations Permanent Forum on Indigenous Issues, more than 470 million indigenous people live in 90 countries across the world (UNPFII 2010). Many of those countries are federations. While culturally diverse (they speak more than 4,000 languages), indigenous peoples of the Americas, Africa and Asia share a struggle to maintain their distinctive identities, political systems, and unique relationship with their ancestral lands. Indigenous peoples also have in common an experience with colonialism in its diverse forms, from forced displacements due to pressures from extractive industries, such as mining or hydro-development, to overt discrimination and political violence perpetrated by states that have long sought to assimilate them. Although they continue to face tremendous challenges, indigenous peoples have shown remarkable resilience. Today, their rights are recognized in a growing number of national constitutions and laws, as well as international legal instruments. Adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 was a key milestone. Although not legally binding, UNDRIP carries considerable moral weight, thanks to its broad support (only four countries voted against it, Australia, Canada, New Zealand and the United States, all of which have since expressed support). Most significantly, UNDRIP establishes the status of indigenous peoples as peoples, in the international sense, with the corresponding right to self-determination (Article 3). Although Article 46 of UNDRIP qualifies this right by reaffirming the territorial integrity of existing states, the principle that indigenous peoples should be free to control their lands, protect their cultures and maintain their pre-existing self-governing institutions is now well established (Lightfoot 2016).

International Community Law Review, 2016

Indigenous peoples in Australia have been adversely affected by the process of colonisation by the British Crown. Despite Australia’s adoption of the United Nations Declaration on the Rights of Indigenous Peoples (‘Declaration’), there is little evidence that it is an effective means of redressing the historical wrongs suffered by Indigenous communities in Australia. This essay outlines the experience of Indigenous peoples in Australia and examines the utility of the Declaration in international law. While observing that Indigenous peoples have had limited engagement with the Declaration, there is still potential for the Declaration to affect change through its underpinning principles of the right to self-determination and the status of Indigenous peoples as distinct political groups.

International Journal of Human Rights, 2019

Since the adoption of the UN Declaration on the Rights of Indigenous Peoples, indigenous peoples’ agency and ideas of development have become more central to wider development processes. This change finds its roots in the concept of ‘self-determined development’ (SDD), which has been fortified by the adoption of UNDRIP. SDD is built around key norms of UNDRIP, such as the rights of self-determination, free, prior and informed consent, the links between cultural rights and development and rights pertaining to land and natural resources. The normative shift towards SDD is surveyed in this article by looking at three topics: the jurisprudence of regional human rights courts on case law concerning development on indigenous peoples’ land; the advocacy of indigenous peoples around the indicators of the Sustainable Development Goals; and the adoption of community bio-cultural protocols by indigenous peoples to regulate development of their land, natural resources and cultural heritage. In each example, UNDRIP has influenced positive changes in law and policy concerning indigenous peoples’ views on development.

The UN General Assembly passed the UN Declaration on the Rights of Indigenous Peoples (DRIP) in September 2007. Since then the DRIP has become the focal point of indigenous activism at the international – and domestic – levels. Proponents of the DRIP have claimed that it moves international law into a “post-Eurocentric” position, and that for the first time, the rights of indigenous peoples have been recognized by the international community. This paper questions these assumptions using Glen Sean Coulthard’s critique of a politics of recognition framework. From this perspective, it becomes clear that the DRIP fails to recognize a distinct, indigenous subjectivity as separate from that of prior bearers of human rights, and further entrenches the colonial relationship of domination between states and indigenous peoples by requiring that indigenous peoples’ claims be brought before states in order to be accepted or rejected according to “white liberty and white justice.”

Indigenous Nations & Peoples Law eJournal, Center for Indigenous Law, Governance and Citizenship, Syracuse University College of Law, 2013

"This LL.M. thesis provides legal arguments for, amongst other things, the inclusion of Indigenous and Tribal Peoples as Members of the United Nations (equal to States, but not required to form States) through an equality- and dignity-based examination of UN Decolonization, 'friendly relations', and self-determination. The arguments contained within also provide an examination of the violations of International Law resulting from, amongst other topics addressed, discrimination committed by the United Nations and States against Indigenous and Tribal Peoples via State-Indigenous governing relationships. Limited access to justice and limited actualized rights in regards to Indigenous Peoples’ self-determination are discussed with reference to Tribal/Indigenous/State shared histories, legal personality, the International Court of Justice and judicial procedure and remedy, State anti-discrimination laws, the UN and its relationship to international trade and business, the codification of international human rights and criminal law, mental health (with special attention to high Indigenous suicide rates in 'developed' States, colonialism and discrimination), current UN definitions of 'aggression', 'war', 'colonialism' and 'conflict' (with suggestions of definition revisions), State abuse towards Indigenous and Tribal Peoples, segregation and exclusion, and apartheid and cultural genocide as resulting from State-Indigenous inequality as experienced by Indigenous and Tribal Peoples. UN definitions of ‘development’ are challenged and held accountable for cultural discrimination and death. Recommendations with an emphasis on healing include amendment of the UN Charter and suggested General Assembly Resolutions, as well as equal international leadership opportunity for traditional and chosen Indigenous and Tribal legal and governing cultures, subsistence-based lifeways and traditional Indigenous and Tribal healers with a focus on the right to cultural integrity, traditional Indigenous and Tribal lands, including the right to say 'no' to non-native land-grabbing, resource exploitation and State abuses. The argument that State territorial integrity includes Indigenous and Tribal traditional lands is also countered. The original version of this LL.M. thesis was submitted to the Master's of Law program 'International Law of Human Rights and Criminal Justice' at Utrecht University, the Netherlands, 22 August 2012. This online version was uploaded 5 March 2013." See also (background paper): https://www.academia.edu/101121793/Indigenous_Peoples_Decolonization_and_Self_Determination_and_the_Human_Rights_Regime_in_International_Relations ... Distributed in: INDIGENOUS NATIONS & PEOPLES LAW eJOURNAL, Vol. 9, No. 10: Mar 29, 2013, Center for Indigenous Law, Governance and Citizenship, Syracuse University College of Law PUBLIC INTERNATIONAL LAW eJOURNAL, Vol. 8, No. 45: Apr 9, 2013, ALAN SYKES, EDITOR, Professor of Law, Stanford University - Law School HUMAN RIGHTS & THE GLOBAL ECONOMY eJOURNAL, Vol. 7, No. 30: Mar 20, 2013, MARTHA F. DAVIS, EDITOR, Associate Dean, Professor of Law and Co-Director, Program on Human Rights and the Global Economy, Northeastern University - School of Law, RASHMI DYAL-CHAND, EDITOR, Professor of Law, Northeastern University - School of Law, WENDY E. PARMET, EDITOR, George J. and Kathleen Waters Matthews Distinguished University Professor of Law, Northeastern University - School of Law LAW & CULTURE eJOURNAL, Vol. 7, No. 19: Mar 26, 2013, BRUCE L. HAY, EDITOR Professor of Law, Harvard Law School, REVA B. SIEGEL, EDITOR, Nicholas deB. Katzenbach Professor of Law, Yale University - Law School , University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law LAW, NORMS & INFORMAL ORDER eJOURNAL, Vol. 9, No. 12: Mar 21, 2013, RICHARD H. MCADAMS, EDITOR, Bernard D. Meltzer Professor, University of Chicago Law School LAW & SOCIETY: INTERNATIONAL & COMPARATIVE LAW eJOURNAL, Sponsored by: Indiana University Maurer School of Law, Vol. 8, No. 54: Mar 22, 2013, CHRISTIANA OCHOA, EDITOR, Professor of Law, Indiana University Maurer School of Law PUBLIC INTERNATIONAL LAW eJOURNAL, Vol. 8, No. 45: Apr 9, 2013, ALAN SYKES, EDITOR, Professor of Law, Stanford University - Law School CONFLICT STUDIES eJOURNAL, Vol. 7, No. 38: Aug 21, 2013, KELLY M. KADERA, EDITOR Associate Professor, University of Iowa - Department of Political Science, BRIAN H. LAI, EDITOR, Associate Professor, University of Iowa - Department of Political Science POLITICAL INSTITUTIONS: INTERNATIONAL INSTITUTIONS eJOURNAL, Vol. 7, No. 46: Mar 18, 2013, DAVID A. LAKE, EDITOR, Professor, UC San Diego Social Responsibility of Business eJournals: Vol. 2, No. 159: 27 Nov 2013, LAW, INTERNATIONAL AFFAIRS & CSR eJOURNAL, EDITOR, Timothy M. Devinney, Professor of International Business University of Manchester - Alliance Manchester Business School