Right to self-government Laws and Policies Related to the Recogniion of the Right

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 32 compelled the Indian state into negoti- ating with them and granting them au- tonomous states. In appending a Sixth Schedule and a Seventh Schedule to its Constitution, India also granted non-Mizo peoples in Mizoram, and the various in- digenous peoples in Tripura, Meghalaya, Assam and Arunachal Pradesh self-gov- ernment through Autonomous District Councils ADCs. In Jharkhand, also in India, the indig- enous peoples have been successful in es- tablishing their own state, but they are yet to achieve recognition of their traditional leaders and adequate representation in local government units called panchayats. REFERENCES AND FURTHER READINGS Constitution of India: Sixth Schedule [Articles 2442 and 2751]: Provisions as to the Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram. Erni, Christian. “Autonomous Districts: The Sixth Schedule to the Constitution of India.” Paper prepared for presentation by the International Work Group for Indigenous Af- fairs at the Workshop on Self Determination, 5 to 8 September 2009, Kathmandu, Ne- pal. Federal law of India: Panchayats Extension to the Scheduled Areas Act 1996. State law: Jharkhand Panchayati Raj Act 1996.

3. Treaties

The relationship between indigenous peoples and states is often reduced to written agree- ments variously styled as treaties, accords or agreements. • In the United States, Canada and New Zealand, agreements between indigenous peoples and governments are called “treaties”, and thereby an element of the international character of the agreements is acknowledged. Under U.S. law, provisions of treaties are regarded as part of domestic law and are hence enforceable through litigation in the domestic courts. In New Zealand, the Waitangi Tribunal was established to implement the provisions of the Treaty of Waitangi of 1840. Module-1 Members of the Jharkhand Save the Forest Movement JJBA at a meeing in Gilua villag, Kuchai block, Sarai- kela-Kharswan district. Photo by Chris Erni In discussing laws and policies related to the right to self-govern- ment, emphasize the fact that self-governance is relevant not only at the higher but as much at the local levels. Ask the participants to give examples of a law or policy that allows indigenous commu- nities to exercise this right at the village level or similar levels. Note to trainers RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 33 • Nepal has a similar system with a very high status accorded to international agreements. This is likewise the case with several countries in Latin America and a few countries in Eu- rope. • In most other countries, the provisions of international treaties or other intra-state politi- cal agreements may not be directly enforced in the domestic courts of law. • In some countries in Asia, governments have entered into political agreements with indig- enous peoples, e.g., the Mizo Accord 1985, India, the Chittagong Hill Tracts Accord 1997, Bangladesh. In many cases, non-implementation of the provisions of accords is a crucial feature in the denial of indigenous peoples’ rights, such as in the case of the Chittagong Hill Tracts. FOR FURTHER READING Roy, Raja Devasish. 2008. “The Chittagong Hill Tracts ‘Peace’ Accord: Whose Peace?” in Danilo Geiger, ed. Frontier Encounters: Indigenous Communities and Settlers in Asia and Latin America Copenhagen: International Work Group for Indigenous Affairs: 483-532. Boltjes, Miek, ed. 2007. Implementing Negotiated Agreements: The Real Challenge to Intra-State Peace The Hague: T.M.C. Asser Press.

C. Challenges in Implementaion

1. The right to self-determination

While certain aspects of the right to self-determination can be understood within a legal context and implemented through a human rights body or domestic court of law, certain other aspects of this right may only be exercised in a political rather than a legal context. These include the ultimate exercise of the right to self-determination through victory in a war of liberation, or through negotiated political settlement, or a combination of both. For example, while the independence of India and Pakistan was actually legislated upon by the British parliament through the Act of Indian Independence 1947, Bangladesh exercised its right in the political sense and became independent from Pakistan through a war of liberation. Once Bangladesh became independent in fact in 1971, and member states of the UN started to recognize it, and later provide UN membership, it mattered little what the legal status of Bangla- desh was under Pakistani law. For international contexts of the exercise of this right, see: • the status of Greenland in its relations with the European Community and the member- ship of the ICC and Saami Council, along with USA, Canada, Iceland, Denmark, Sweden and Norway in the Arctic Council; • the inclusion of indigenous peoples’ representatives in national delegations such as Can- ada and Norway to international meetings such as the Convention on Biological Diversity and UN bodies; • the recognition of the Chin National Front, NSCN, as signatories in the international agree- ment on land mines. Module-1