Indigenous Self-Determinaton and Decolonization of the International Imagination: A Plea

[I]t could be said that at heart of all the violations of our human rights has been the failure to respect our integrity, and the insistence in speaking for us, defining our needs and controlling our lives. Self determination is the river in which all other rights swim.

Michael Dodson, Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner ²

I. Human Rights and Dialogues of Recognition

The most basic point I would like to make is that the draft United Nations Declaration on the Rights of Indigenous Peoples (draft Declaration) is about recognition and about being human. It is about the right to be recognized as human whatever one’s difference, rather than having difference serve as a basis for exclusion from the rights to which all humans are supposed to be universally entitled.

Human rights have developed within the United Nations through a constant attention to two questions. The first question: what interests are so important that they are worthy of protection as universal values? We can call this the freedom question. The second question: who is worthy of recognition as being fully human? We can call this the equality question.

In fact, the content of human rights has evolved as a kind of constant dialogue between this freedom question and this equality question. Freedom says there should be a right to vote; equality replies: then, how can you exclude women? Freedom says that there should be a right to protection from physical harm; equality asks: so, why do you exclude children? Freedom says that there is a right to a fair hearing; equality responds: then, how is it that you can exclude refugees? Freedom says that there should be a right to health; equality replies: then, why is it that the poor are excluded? Freedom says that there should be fair working conditions; equality asks: how can it be that this right is less available to migrant workers?

For a half century, throughout the processes of the United Nations, freedom has also said that a people has the right to self-determination. All peoples. The prevailing understanding at the time of the drafting of the UN Charter—and I would emphasize that this was the understanding of the states that dominated that process—was that the right of peoples to self-determination contained in the Charter was, in essence, another way of referring to the right of the populations of current states (a good number of them colonial powers) to their sovereignty. Their own sovereignty. Almost from the first day after the adoption of the UN Charter, equality began to ask questions. The answers always were resisted at first, but, with time, the moral force of the equality argument resulted in the gradual inclusion of previously-excluded societies within the prevailing understandings of those entitled to be regarded as peoples.

However, the lines of arbitrary exclusion were not erased. They merely shifted. The understanding of colonialism was artificially narrowed to include only the most recent wave of colonization, primarily in Africa and Asia. In the meantime, old and new states began to argue that self-determination after decolonization was to mean either the right of populations of entire states to freedom from external domination and interference, or the right of entire populations to freedom from undemocratic rule (as defined in terms of liberal representative democracy of the one person, one vote kind). A few further concessions were made, namely in the case of minority racist rule (Namibia, South Africa, Rhodesia) and also in the case of the Palestinian people who the UN, in the late 1960s, began to treat as a people and no longer as merely falling into the category of refugees.

But the moral force of the argument based on equality and consistency cannot forever be kept barricaded behind arbitrary lines that continue to divide the world into the human and the not-so-human. Self-determination of peoples, as the UN has many times declared, is a human right (a collective human right, contrary to the view advanced by the...