Look back on the 1st webinar of the 28 March 2023: the right to self-determination and relations between Nations

Cycle of webinars on the right to self-determination of indigenous peoples, perspectives and practices 100 years after Deskaheh

A look back at the 1st webinar of the 28 March 2023: the right to self-determination and relations between Nations.

On March, 28 2023, from 4.30pm to 8pm, the first webinar in the series devoted to the right to self-determination of indigenous peoples – Perspectives and practices 100 years after Deskaheh was held.

Droit à l’autodetermination et relations entre nations

Webinaire organisé dans le cadre du cycle Cycle de webinaires sur le droit à l’autodétermination des peuples autochtones, perspectives et pratiques 100 ans après Deskaheh.

Ce cycle est coordonné par Leslie Cloud et Zérah Brémond et soutenu par le LexFEIM, l’Université Le Havre Normandie, la Chaire Normandie pour la Paix et l’Institut Francophone pour la Justice et la Démocratie

The cycle opened with introductory remarks from the various partners in the project and the organisers to explain its purpose:

• Pierre Chabal, Director of LexFEIM, announced the general objectives of the cycle: commemoration of a historical event (the arrival of Chief Deskaheh at the League of Nations in 1923) and reflection on the implications of the right to self-determination for indigenous peoples. He also announced the 5 webinars planned for 2023: the first two aimed to establish the sources of the right to self-determination (in the status of indigenous nation and in fundamental rights), the next three focusing on the content of this right (internal, external and in relation to environmental issues).
• Emilie Gaillard, Scientific Director of the CNRS Normandy Chair of Excellence for Peace, Law(s) of Future Generations, Peace and the Environment, emphasised the links between this cycle of webinars, which aims to understand the right to self-determination beyond Western frameworks, and the spirit of the Chair, which aims to decolonise legal thinking and ways of conceiving ‘Peace with the Earth’. In this respect, she presented the Chair’s indigenous peoples line, under the scientific direction of Leslie Cloud, as well as the various projects carried out with representatives of indigenous peoples (intergenerational dialogues, summer university, participation in a UN expert meeting on transitional justice and indigenous peoples, in the annual sessions of the United Nations Permanent Forum on Indigenous Issues (IPQA) and the organisation of parallel events within the framework of the IPQA).
• Niki Siampakou, research and training project manager at the Institut francophone pour la justice et la démocratie (Francophone Institute for Justice and Democracy) (IFJD), praised the progress of this project, which is in line with the IFJD’s other activities in the field of indigenous peoples’ rights (Summer University in 2019, special issue of the Transitional Justice Yearbook, project in the Central African Republic and exploratory process for the implementation of a truth commission on Indian homes in Guyana).
• Leslie Cloud, co-organiser of the cycle, recalled the difficulties encountered by indigenous peoples in obtaining recognition under international law of their right to self-determination. In particular, she underlined the shocking nature of the refusal of the League of Nations to hear the Iroquois Chief Deskaheh in 1923 and the Maori Chief Rapana in 1924 as representatives of their nations. As part of the commemoration of Deskaheh’s visit to the League of Nations, this series of webinars will provide a forum for indigenous and non-indigenous people to discuss this right.
• Zérah Brémond, co-organiser of the series, set out the expectations for the project: on the one hand, to provide an opportunity to revisit the theoretical and practical content of the right to self-determination of indigenous peoples, which cannot be summed up solely in the question of independence; on the other hand, to initiate a lasting collaboration between the various high-quality speakers who have agreed to take part. He mentioned the idea of creating a network of French lawyers specialising in the law of indigenous peoples.

Following these introductory remarks, Isabelle Schulte-Tenckhoff gave the opening lecture of the series, paying tribute to Deskaheh with a rich presentation on « Deskaheh’s Journey ». This lecture will be published in writing in the book to be published at the end of the cycle.

This was followed by a presentation by Leslie Cloud on « Treaties signed with the Mapuche and Rapanui: international relations? »

She began by highlighting the fact that, along with Argentina, Chile is one of the few Latin American countries to have signed such agreements. The initial observation is that these treaties were originally concluded under the colony, and then by the Chilean state, as part of a nation-to-nation relationship, before abandoning such instruments in the XXth and XXIst centuries (taking up a point made by Ms Schulte-Tenckhoff, she referred to a process of « internalisation » of relations between the indigenous nations and the Chilean state).

Her presentation was divided into two parts:

• Une première partie dans laquelle elle revient sur les traités conclus avec les Mapuche-Reche et les Rapanui comprenant :
  • On the one hand, the « parlamentos-koyangtvn » (treaty-parliaments) concluded between the Mapuche and the Spanish Crown, in order to establish relative peace between nations. As a result, these agreements recognised the sovereignty of a Mapuche territory that still existed at the time of independence (in this case, south of the bio-bio river). A parlamento general was signed with the Chilean state in 1825, recognising Mapuche sovereignty over their territory.
  • On the other hand, the Agreement of Will concluded in 1888 with Rapanui representatives was intended, from the point of view of the Chilean state, to formalise the transfer of sovereignty to Chile, which does not, however, correspond to the Rapanui perspective. Controversy persists over the various translations of the treaty into the Napanui – Tahitian language. In this respect, the Rapanui oral tradition speaks of a symbolic gesture by King Atamu Tekena, who is said to have gathered earth with grass, putting the earth in his pocket and handing over only the grass to the Chilean representatives.
• Une seconde partie analyse la dynamique du phénomène d’internalisation des relations entre autochtones et État chilien :
  • Firstly, in the form of laws that violate historic treaties. The same is true of constitutional norms that deny the existence of indigenous territories. The laws of 2 December 1852 and 4 July 1866 formalised the plan to integrate Mapuche territory into the Chilean state, in violation of the Parlamento General de Tapihue. The same was true of the Agreement of Will, which was disregarded by the granting of concessions on Easter Island (in particular, in 1933, the entire Rapanui territory was incorporated into the Chilean public domain).
  • She then highlighted the recurrent failure of strategies aimed at enforcing treaties before Chilean courts. The Mapuche, on the advice of lawyer José Lincoqueo Huenuman, had been able to challenge the application of the laws of 1852 and 1866 in their territory, on the grounds that they contradicted the guidelines laid down by the parlamentos . However, this strategy was rejected by the Chilean courts on the grounds that to grant this request would be to split Chile in two. The Rapanui’s application to invoke the Agreement of Will was also rejected on the grounds that the Chilean State held title to the island by virtue of its status as occupier and not by virtue of the Agreement. Having exhausted domestic remedies, a petition seeking justice and reparation for all the human rights violations suffered by the Rapanui since the signing of the Agreement of Intent was submitted to the Inter-American Commission on Human Rights in 2015. It is currently pending admissibility in 2021.

She concluded her presentation by looking at the prospects offered by past treaties for today’s indigenous peoples, particularly in support of recognition and respect for their right to self-determination. The contributions of international and inter-American law on indigenous peoples, as well as those of the United Nations Martinez study on treaties, are used in particular. In this context, she wonders how much credence should be given to the statement by the current Chilean President G. Boric to « recover and update the Treaty of Will » with the Rapanui. Finally, there is the question of the mechanisms that could be envisaged to resolve disputes over the implementation of treaties.

Following the presentation, discussions ensued with a number of participants before Ghislain Otis spoke on « Indigenous treaties: an indigenous juspluralist perspective ».

According to Ghislain Otis, the proposed approach to treaties is sui generis in that it is neither based on an international law approach nor on a domestic law approach. However, he pointed out that the first treaties were clearly treaties between nations, whereas those concluded in the XIXth century with « Indian subjects » were based on domestic law.

The pluralist approach accepts that the indigenous legal order has its own « endo-validity » that is not dependent on international recognition or the state order. The treaty is therefore an indigenous process in its own right, through which indigenous operators take charge of the coexistence of their order with exogenous orders (state or international). The consequence of this phenomenon of articulation would necessarily imply a bi-juridical interpretation of treaties, in the light of both State and indigenous concepts.

Ghislain Otis also pointed out that certain matters must remain outside the scope of treaties because they are fundamental and consubstantial to the very existence of the indigenous legal system. The example of the Nisga’a Final Agreement is mentioned as specifically covering matters that must remain outside the treaty. The consequence is that such matters do not have to be raised before the organs of the State legal order. This reflects a logic of avoiding the State.

Consequently, the matters that could be covered by treaties would be those that would require externalisation in order to benefit from protection by State instruments. This applies in particular to issues relating to land and resources: the State order thus appears to be a lever for ensuring that these provisions are effective to some extent.

In conclusion, Ghislain Otis emphasised that legal pluralism can be confusing in that it leads to the coexistence of several legal truths on the same situation: the indigenous qualification, the state qualification and the international qualification. The treaty therefore enables indigenous operators to pacify relations between the various protagonists of legal pluralism.

Another rich phase of discussion preceded the final presentation of the webinar, given by François Féral on « Treaties to be concluded with the Kanak: founding relationships? »

He began by returning to the notion of « treaty » in the specific context of French colonisation, which was largely confined to relations between states, while noting that « protectorate treaties » were nevertheless concluded in the Pacific, in Polynesia and Wallis and Futuna in particular. He also pointed out that these treaties were often concluded in the context of power struggles, and were not really respected. In his view, these treaties were merely false agreements designed to lead to the unilateral colonisation of the territories concerned.

He went on to explain that there had been no such attempts in New Caledonia, where possession had been completely unilateral and most Kanak land had been despoiled. Traces of treaties can, however, be found in the Matignon and Nouméa Accords, despite the fact that New Caledonia was a settlement colony in which several population groups coexisted. The preamble to the Nouméa Accord refers to the need to restore to the Kanak people their confiscated identity, implying recognition of their sovereignty. This is seen as a « prerequisite » for the establishment of shared sovereignty.

According to François Féral, although the Kanak legal system now seems to be based on custom, the Kanak people are still able to add content to their legal system without the intervention of the State. This is particularly true in the Loyalty Islands, where all land is customary.

In conclusion, he pointed out that during the French colonial period the very notion of a treaty had a negative connotation, while emphasising that the permanence of a Kanak legal order suggested that there might be a process enabling the indigenous legal order to be maintained.

This last presentation brought the webinar to a close after further rich exchanges between the audience and the participants.

The next webinar on “The right to self-determination and fundamental rights” is scheduled for Thursday 1 June from 4.20pm to 8pm.

We look forward to sharing our thoughts with you at the next event!