Indigenous "Sovereignty" and International Law: Revised Strategies for Pursuing "Self-Determination"

Many writers . . . are specialists in human rights, rather than general international law, and specialists in indigenous peoples rather than human rights. Some . . . of these super-specialists suffer from super tunnel vision. It does not seem to occur to them that their subject of special interest belongs to a much wider world of normative development and, what is more, a world in which the concepts lying to hand have more fluency and political acceptability.

—Ian Brownlie ¹

I. Introduction

The indigenous community greeted the United Nations’ decision to officially proclaim 1993 as the “International Year of the World’s Indigenous Peoples” rather warily. A mere twelve years had passed since the United Nations had created the Working Group on Indigenous Populations to formally address global indigenous issues. Over a much broader historical time span, many indigenous movements around the world have gained little more than symbolic international action in response to their quests for cultural, social, economic, and political autonomy. However, UN recognition reflects the increased globalization of indigenous rights movements. ²

The 1993 celebration of the indigenous population, just one year after the quincentennial of Columbus’ arrival in the Western Hemisphere, provides an ideal backdrop against which to examine past efforts by colonial powers to subjugate indigenous populations and current strategies used by indigenous groups to combat these existing relationships. Within this framework, one can examine the future prospects for indigenous rights in the international community.

This paper seeks to expound upon Brownlie’s above quotation in order to demonstrate that some “super-specialists” regarding indigenous and human rights groups have used misguided strategies. Such specialists often manifest a lack of precision in their use of the international human rights lexicon, particularly in their attempts to further the “right of self-determination” and enhance the degree of “sovereignty” of indigenous populations. Not only are other concepts available which these specialists can use to further their agendas, but strategies are possible which would not threaten the territorial integrity or political sovereignty of a majority of states in the international system.

Essentially, the struggle between indigenous groups and state actors in the international system does not revolve around the extension of the right of self-determination to these groups as traditionally conceived under international law. ³ As Douglas Sanders and others acknowledge, ⁴ most of these groups seek not to secede from the territories of the states in which they reside, but rather to wield greater control over matters such as natural resources, environmental preservation of their homelands, education, use of language, and bureaucratic administration (call it autonomy for present purposes) in order to ensure their group’s cultural preservation and integrity. ⁵ Self-determination, as presently understood under international law, is not a prerequisite for cultural preservation. The existing body of human rights law is sufficient to ensure that all indigenous groups in the international system have recourse under international norms which, if respected, will ensure their cultural survival. ⁶ It is to these currently existing human rights treaties and documents that indigenous groups should appeal. ⁷

The erosion of state sovereignty in the international system has long been apparent. ⁸ Within the international system one sees an emerging norm: all states must adhere to a minimum international community standard regarding treatment of their own populations, including their indigenous populations. ⁹ But demanding respect for this minimum standard is quite different from proposing and pursuing strategies that ultimately challenge the political sovereignty and territorial integrity of nearly every state in the international system. In pursuing such a course of action, indigenous groups and their leaders should expect not only intractability on the part of host states, but outright hostility. As Brownlie presciently notes, there are concepts with more “fluency and political acceptability” which will achieve the same desired ends of cultural preservation.

This paper argues that calls for self-determination, for an absolute right to self-identification, and for sovereignty only exacerbate tensions between indigenous groups and states. We examine the debate surrounding what constitutes an indigenous group, and we survey the various ways in...