Webinar cycle on the Right to self-determination of indigenous peoples – Perspectives and practices 100 years after Deskaheh

Review of the 2nd webinar of 1 June 2023 – The right to self-determination and fundamental rights

The second webinar in the series devoted to the right to self-determination of indigenous peoples – Perspectives and practices 100 years after Deskaheh was held on 1 June 2023 from 4.20pm to 8pm.

It was introduced by the two project leaders:

• Leslie Cloud, responsable de la ligne peuples autochtones de la Chaire Normandie pour la Paix, a tout d’abord rappelé la finalité du cycle et la nécessité de rendre hommage à l’histoire de Deskaheh. Alors qu’il se rendit en 1923 à Genève devant la Société des Nations pour y faire reconnaître son peuple comme nation souveraine à égalité avec les autres États, les portes restèrent closes, ce qui constitua une véritable trahison du droit international à l’égard des peuples autochtones. Isabelle Schulte-Tenckhoff était revenue, à l’occasion du 1^er webinaire, sur cet épisode malheureux. Dans le prolongement de cette conférence introductive, trois interventions, dont la vidéo et le résumé sont disponibles sur le site de la Chaire Normandie pour la paix, ont été réalisées dans ce premier webinaire sur les liens entre droit à l’autodétermination et relations entre Nations à l’aune des traités conclus avec les peuples autochtones. Elle a ensuite rappelé que les revendications portées par Deskaheh sont encore celles de nombreux autochtones, comme le lui a exprimé récemment un grand leader aymara, Tomas Condori. Elle a ensuite partagé plusieurs informations liées à l’actualité du droit à l’autodétermination et des commémorations de la venue de Deskaheh à Genève il y a cent ans:
  • the events organised this year by the city of Geneva,
  • the rebroadcast of the presentation given by Mohawk leader Kenneth Deer at the summer university organised by the Normandy Chair for Peace in September 2022,
  • the existence of a Centre on the Great Law of Peace, the historic constitution of the Haudenosaunee Confederacy,
  • the recent Mapuche mobilisations in Chile in front of the Moneda and at various embassies to put forward their demands for the application of historic treaties, in particular the Tapihue Treaty, which presupposes the survival of Mapuche sovereignty. This echoes a more general reflection on what the notion of indigenous sovereignty might mean today.
• Zérah Brémond then presented the purpose of this 2nd webinar, which was to examine how indigenous peoples can use international and regional human rights instruments to assert their right to self-determination. He also announced that three other webinars would be held at the end of 2023 on the right to self-determination within the State, the right to self-determination outside the State and the relationship between the right to self-determination and the environment. He ended his speech by reminding the audience that the webinar was being recorded, but that it was of course possible for anyone taking the floor to ask for the recording to be suspended. The general idea is to encourage discussion and bring together people interested in indigenous issues.

Projet Deskaheh - Webinaire 2 5 - Droit à l'autodétermination et droits fondamentaux

Following these introductory remarks, Luc Leriche gave the first presentation on “Recognition of the right to self-determination of indigenous peoples in international law: an ambivalent process?

He began by returning to the notion of ambivalence, a concept defined by the American professor Nathaniel Berman. In relation to the question of the right to self-determination, the aim is to highlight the potential double discourse of public international law in this area, particularly since the claims made by Deskaheh to the League of Nations in 1923.

The rejection of Deskaheh’s request reflects one of the first ambivalences in international law at the time with regard to indigenous peoples, in that, while on the one hand indigenous peoples appeared as independent nations entitled to conclude treaties, they were also perceived as entities unable to determine their own destiny. As a result, at the beginning of the XXth century, indigenous peoples were seen as mere subjects of domestic law. This state of affairs was not expressly challenged in 1945 by the Charter of the United Nations or by General Assembly Resolution 1514, indigenous peoples being the forgotten victims of the decolonisation process. Similarly, the adoption in 1957 of ILO Convention 107 on the Rights of Indigenous and Tribal Peoples maintained this state of affairs, with the sole aim of “homogenising” the populations of the States parties through a process of assimilation of indigenous communities.

The rejection of Deskaheh’s request reflects one of the first ambivalences in international law at the time with regard to indigenous peoples, in that, while on the one hand indigenous peoples appeared as independent nations entitled to conclude treaties, they were also perceived as entities unable to determine their own destiny. As a result, at the beginning of the XXth century, indigenous peoples were seen as mere subjects of domestic law. This state of affairs was not expressly challenged in 1945 by the Charter of the United Nations or by General Assembly Resolution 1514, indigenous peoples being the forgotten victims of the decolonisation process. Similarly, the adoption in 1957 of ILO Convention 107 on the Rights of Indigenous and Tribal Peoples maintained this state of affairs, with the sole aim of “homogenising” the populations of the States parties through a process of assimilation of indigenous communities.

The debates surrounding the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) ultimately led to the enshrinement of the right to self-determination of indigenous peoples, focusing on its internal dimension, as can be seen from a cross-reading of articles 3, 4 and 46 of the text. It is nevertheless questionable whether this Declaration really puts an end to this ambivalence. In terms of fundamental rights, and in particular the express recognition of indigenous peoples’ right to self-determination, the Declaration is an undeniable step forward. But a more critical approach sees the Declaration as perpetuating ambivalence, with the State’s legitimacy and sovereignty over indigenous territories being preserved. Consequently, according to this approach, it is up to the State to define the scope and limits of the rights guaranteed by the Declaration. According to some indigenous authors, indigenous peoples should be able to exercise self-determination outside the colonial State framework without necessarily leading to the dislocation of existing States.

Proposals have been made along these lines, such as the Matike Mai report, in which the Maori suggest a constitutional transformation of sovereignty in New Zealand so as to give them domestic decision-making powers equivalent to those of existing State institutions. This would enable the establishment of an « indigenous centre », to use the term coined by Australian professor Irène Watson, in other words a centre without interference from the State. This ‘decolonial scheme’ was then developed at a series of conferences organised in 2022 at the University of Auckland.

Following the lecture, a number of discussions took place with the other speakers and the audience, notably on the international status of indigenous peoples and the prospects for redefining sovereignty in the light of indigenous peoples’ right to self-determination and their own legal systems. The debates also covered terminological aspects, in particular the desirability of a « linguistic revolution », as Philippe Karpe put it.

The floor was then given to Karine Rinaldi, who spoke on « The manifestations of the right to self-determination of indigenous peoples in the jurisprudence of the United Nations treaty bodies ».

She began by recalling the reference to the right to self-determination in Article 1 of the two 1966 Covenants. For the time being, only the Human Rights Committee (CCPR), responsible for monitoring the application of the International Covenant on Civil and Political Rights, has been able to develop case law relating to this right. However, the non-justiciable nature of Article 1 of the Covenant has been noted.

This is evident from the 1984 communication A.D. v. Canada. The Committee had developed an ambiguous position in this case, insofar as it dismissed the application as inadmissible: the applicant, a Micmac leader, was considered not to be entitled to represent his community. The Court emphasised the ambiguous nature of this solution, as the inadmissibility ground could appear to be a means of avoiding the substantive issue, in this case the justiciability of Article 1 of the Covenant on the right to self-determination. The case of Lubicon Lake Band v. Canada, resolved by the CCPR in 1990, confirmed the non-justiciability of this article, but nevertheless admitted its indirect applicability in relation to violations of articles in Part 3 of the Covenant.

The different dimensions of the right to self-determination could, however, lead to its indirect enforceability by virtue of the rights guaranteed by other international human rights conventions. Consequently, interesting case law has been issued not only by the CCPR, but also by the Committee on the Elimination of Racial Discrimination (CERD) and the Committee on the Elimination of Discrimination against Women (CIDAW).

Firstly, this applies to the territorial dimension of the right to self-determination, with a number of cases protecting several attributes of the right of indigenous peoples to territory:

• Francis Hopu v. France (CCPR), resolved in 1997, concerning the construction of a hotel on an ancestral burial ground;
• Poma Poma v. Peru (CCPR), resolved in 2009, concerning a river diversion project severely affecting an indigenous Aymara community. The Committee found a violation of Article 27 (right to cultural life) due to the lack of free, prior and informed consent of the people concerned;
• Lars-Anders Agren v Sweden (CERD), resolved in 2020, confirming previous case law and strengthening the right to indigenous property by giving it a cultural dimension;
• Campo Agua’e v. Paraguay (CCPR), resolved in 2021, which concerned the development of activities harmful to the environment on which the applicant indigenous communities depended (violation of articles 17 and 27 of the Covenant).

In addition, the preservation of the right to self-determination may include the right to self-identification, as demonstrated in the Jeremy Eugene Matson v. Canada (CIDAW) decision of 2022. The applicant complained that he had lost his Aboriginal status as a result of the transmission conditions set by Canadian law, which excluded the transmissibility of status for women marrying non-Aboriginal men. CIDAW then asked Canada to amend its legislation to respect the principle of self-identification.

The right to self-determination also seems to be guaranteed by the right to political participation without interference. This has been demonstrated in three cases involving Finland, where legislation was designed to allow non-Sami to participate in decision-making by the Sami Parliament.

Lastly, she raised the issue of the potential replacement of civil registrars by traditional indigenous authorities, as exemplified by the case of Yaku Perez Guartambel v Ecuador, which was resolved by CERD in 2022. At issue was the Ecuadorian State’s refusal to recognise a marriage concluded solely according to traditional indigenous rules. The Committee granted the applicants’ request, finding that the recognition of traditional marriage was justified by the legal pluralism in force in Ecuador. It also considered that this resulted from the « right of indigenous peoples to autonomy and self-government ».

The discussions that followed the speech focused in particular on the references that could be used by the UN committees (Philippe Karpe mentioned the publication of the latest issue of CIERA on the interpretation of the UNDRIP) and on the issue of representation, with the notable example of peoples in voluntary isolation. Mr Gervais Nzoa also mentioned the contribution of other UN bodies specialising in indigenous issues. The perspectives of these jurisprudences in the context of French overseas territories were questioned in the online discussion forum, particularly in New Caledonia where custom is limited to the civil sphere.

After a short break, the floor was given to Aurélie Laurent, who spoke on « The right to self-determination of indigenous peoples in regional human rights protection systems: an indirect right? ».

She began by emphasising the great legal effectiveness that regional human rights protection systems can have, in this case the European, American and African human rights systems. At first glance, there seems to be nothing about indigenous peoples in the conventions. Moreover, the question arises as to whether the right to self-determination is a human right.

She went on to point out the difficulty of defining self-determination, which, on an individual level, could be embodied simply in the word freedom, and on a collective level, could echo more political concepts such as autonomy or sovereignty. Self-determination can also be defined in terms of its political, economic, social, cultural and even legal components.

Consequently, the right to self-determination can initially be described as a controversial regional fundamental right.

This is due firstly to the fact that it is a right that is difficult to recognise.

It is not currently mentioned in the inter-American system, despite Colombia’s original desire to see it so. However, it highlights the contribution of the American Declaration on the Rights of Indigenous Peoples, adopted in 2016, which effectively recognises the right to self-determination of indigenous peoples. For its part, the Court has been able to refer to Article 1 of the ICCPR and ICESCR for the purposes of interpreting Article 21 of the Convention on the Right to Property. The Inter-American Commission also issued a report in 2015 in which it reviewed the components of the right to self-determination.

In the African system, there is a formal reference to this right in the Charter, but it refers more generally to all peoples. The African Court has nevertheless accepted that this right may apply to “sub-State groups”, provided that the territorial sovereignty of the State is not called into question.

In the European system, things are much more limited, there’s only on case from 1975 known as X v Netherlands expressly referring to this right. The applicant complained on this basis about the conditions under which Suriname became independent. The Court rejected the application on the grounds that the right to self-determination did not fall within the scope of the rights guaranteed by the Convention, and that the application appeared to be « ludicrous » from the Court’s point of view.

She then discussed various obstacles to the recognition of the right to self-determination in regional protection systems:

• firstly, because of the text, which may be more or less explicit on this issue;
• secondly, the fact that, as an international court, it seems unlikely to accept a claim based on the right to external self-determination, which could destabilise the continent;
• similarly, in the case of courts specialising in human rights, the courts do not intend to go down the road of complete/global self-determination, since they intend first and foremost to raise the question of accountability vis-à-vis a particular State for protecting human rights;
• moreover, since the conventions are subsidiary instruments, this implies leaving room for manoeuvre to States, which seems a priori to be an obstacle to a claim based on the right to self-determination;
• Finally, there is the question of the effectiveness of decisions.

The right to self-determination may nevertheless constitute a key principle that gives added value to the protection of fundamental rights. She therefore set out to demonstrate, in a second step, that the right to self-determination of indigenous peoples would be a possible interpretative paradigm for regional fundamental rights.

On the one hand, this emerges from the substantive rights that can be adapted in the light of self-determination:

• identification, identity and the right to legal personality ;
• with regard to indigenous land rights, the right to self-determination may be reflected in the granting of jurisdiction. She indeed mentioned the contribution of the Our Land v. Argentina case, decided in 2020 by the Inter-American Court of Human Rights. However, she emphasised the ambiguity of this type of decision, which leads to a demand for greater intervention by the State, which does not necessarily reflect a logic of free determination;
• in the area of freedom of expression, with the example of the case on indigenous radio stations in Guatemala decided by the IACHR in 2021, in which the Court formally based its finding of violation on the principle of self-determination.

By comparison, there is not much in the way of the ECHR, although in the future it might be possible to envisage remedies enabling the right to self-determination to be asserted sector by sector, as an interpretative paradigm.

Such a development could also be developed in relation to procedural rights, in order to create channels for jurisdictional dialogue, particularly in environmental matters. The Council of Europe is currently discussing a draft protocol to enable “every individual, group and people” to benefit from a healthy and sustainable environment. Developments could be expected in terms of the right to prior consultation in the light of the case law of the Inter-American Court of Human Rights.

She concluded by emphasising that such victories can be small steps towards progressive self-determination.

The discussion led to a broadening of the debate on the question of the right to a traditional way of life in the context of the case law of the ECHR, as well as on the advisability of increasing the number of appeals to the Court (particularly by the Kanaks, as François Féral points out) in order to give it the opportunity to develop its case law and raise the profile of indigenous peoples. The scope of international soft law instruments and their persuasive effect on the case law of regional human rights courts was also discussed. In the online discussion area, Gervais Nzoa emphasised the importance of being aware of and mobilising the various mechanisms for promoting and protecting the rights of indigenous peoples available at local and international level, in accordance with the UNDRIP, the conclusions of the World Conference, the case law of regional courts, the UN treaty bodies and the recommendations of the Permanent Forum on Indigenous Issues, the UN Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on the Rights of Indigenous Peoples.

Finally, Florian Aumond was given the floor to speak on « The right to self-determination, the basis of the right of uncontacted indigenous peoples to voluntary isolation ».

He began by highlighting the relatively late stage at which the issue of uncontacted indigenous peoples has been taken into account at international level. The high concentration of these peoples in Latin America has led to a focus on international reference texts, particularly within the American Commission on Human Rights, which adopted a major resolution on the subject in 2013. This led to a change in terminology, giving priority to the concept of “peoples in voluntary isolation”, which implies a choice to remain in isolation and echoes a logic of self-determination. This choice of isolation is fundamentally based on the principle of non-contact.

Firstly, he discussed the problematic nature of linking the principle of non-contact to the right to self-determination.

This is so, on the one hand, in the light of the principle of autonomy.

While, on the one hand, peoples in voluntary isolation undeniably enjoy internal territorial autonomy, the fact is that the State remains internationally entitled to enforce its law in the territory concerned in relation to non-indigenous third parties. But the principle of non-contact prevents State law from being effective in the territory of peoples in voluntary isolation.

The ambiguity therefore lies in the fact that, despite the principle of non-contact, there is no absolute prohibition on the State entering the territory.

The same applies to the principle of participation.

While the principle of participation presupposes the right of indigenous peoples to participate in the governance of the State concerned, it cannot logically be envisaged in the case of peoples in voluntary isolation.

Despite these difficulties in linking the principle of non-contact to the right to self-determination, it nevertheless appears to be a necessary and specific expression of it.

Firstly, he pointed out that the right to self-determination is a non-exclusive basis for the principle of non-contact.

This principle can be based on the right to “physical survival”, as contact can give rise to direct violence (against peoples or those who try to contact them) and indirect violence (viruses, epidemics, pollution, etc.).

On the other hand, it may be based on the right to “cultural survival”, as contact may be seen as a potential vehicle for forced assimilation, contrary to Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples.

Secondly, however, it notes that the right to self-determination remains a key foundation of the principle of non-contact.

This is apparent first of all from the fact that non-contact is the expression of voluntary isolation. There is thus a positive aspect to a people’s expression of its wish not to be contacted that goes beyond the strict issue of protection. Also, on the question of the right to participate, he stresses the fact that not participating is a choice that does not call into question the right to participate. In this respect, it is worth noting that it is always possible for these peoples to break out of their isolation.

Related to this is the fact that non-contact is an expression of relative isolation. This raises the question of the ways in which these peoples can assert their rights: in this sense, it is possible for them to be in contact with certain peoples likely to represent them.

In conclusion, the question of peoples in voluntary isolation gives rise to numerous debates as to the consistency of the right to self-determination.

The discussions that followed focused in particular on the ways in which these peoples can appeal to international and regional courts, and on the conditions under which States can intervene on the territory of peoples in voluntary isolation, in particular when they are required to take positive measures to ensure that their rights are respected.

Gourmo Lo’s final presentation on “The right to self-determination of the “indigenous” peoples of Western Sahara before the African Court on Human and Peoples’ Rights” could not be held due to the speaker’s unavailability. However, this topic should be the subject of a written paper in the book based on the cycle, to be published in 2024.

The next webinar on “The right to self-determination in the State” is scheduled for Thursday 5 October from 4:15 pm to 8 pm.

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