Right to self-determination Deiniion of terms and scope

RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 25 cultural development. This is only the non-material dimension of the right to self-determina- tion, which has a material dimension to it – the right of a people to their territory, to the lands it encompasses and to the resources these hold. The two dimensions are inextricable from each other, especially when it comes to the exercise of self-governance.

2. Right to self-government

The right of a people to freely determine its political status, in theory, includes the right to form an independent state that stands on equal footing with other nation-states, or otherwise, to define its mode of associating with an existing state wherein it enjoys the same rights as the other constituent peoples of that state. Thus, the right to self-government directly translates into the right of peoples to govern themselves without external influence. This right covers a wide range of options: • seceding outright from a state and creating their own state; • joining a federation of states as one constituent and co-equal state; • constituting an autonomous political unit wherein it exercises a degree of self-rule within a broader nation-state; and • asserting specific rights as defined by the basic laws and through specific processes of the nation-state. The UNDRIP provisions on the right to self-determination and self-government are among the most contentious. This was seen during the drafting process of the UNDRIP until the stage of its final adoption. During implementation, too, this may pose challenges, particularly because the right is easily prone to be interpreted as a threat to the national sovereignty and territorial integrity of UN member-states. There is no explicit UNDRIP provision that refers to an indigenous people’s right to create an independent state. Indeed, Article 46 clearly states: Nothing in this Declaration may be…construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States. But the underlying concept of the right to self-determination and indigenous peoples’ rights in general may, in certain respects, support the legal and moral bases for a people to create their own state. Whether this extent of self-determination applies to a given situation depends on historical, political, legal and other contexts. For indigenous peoples whose occupancy of their homeland territories remains intact, the right to self-government is best exercised on a territorial basis. It can be applied over a formal- ly-delineated and usually contiguous geographic area: national, federal, intermediate regional, state, provincial or local district, prefecture, municipality, etc., according to the hierarchy of political divisions adopted by nation-states. • In some cases, the territorial boundaries of indigenous self-government units within na- tion-states coincide with the boundaries of general administrative units such as regions, provinces, districts, etc.. Example: the provinces that now constitute the Autonomous Re- gion of Muslim Mindanao ARMM in the Philippines. Module-1 RIGHTS AIPP AIPP Regional Capacity Building Program - Training Manual on the UNDRIP 26 In other situations, the scope of an indigenous self-government system may be a defined socio-political or ethnic but non-territorial constituency, whereby the units are not clearly de- marcated into contiguous geographic areas. Examples: • The Saami in Norway, Sweden and Finland do not have territorially demarcated self-government units, but have a Saami Parliament each in the aforesaid three countries. • Similarly, there is an Assembly of First Nations in Ottawa, Canada, where indigenous chiefs from all over Canada meet.

3. National and international contexts

The right to self-determination and self-government may be said to operate in international contexts, insofar as they are applied to cases that may involve fundamental changes in the po- litical relationship between an indigenous people or a conglomerate of indigenous peoples and one or more nation-states. Examples include Greenland as an autonomous region with the option to declare full independence vis-à-vis Denmark; or East Timor winning full political inde- pendence and international recognition vis-à-vis Indonesia. In national contexts, indigenous peoples exercise some degree of self-rule over some defined geographic area or political constituency within the boundaries of the overlying nation-state.

4. Essence

The essence of the right to self-determination is actually embodied in just two words: con- sent and control. • Consent This is the freedom of a people to say yes or no, to accept or reject any proposal, project, pro- gram or policy, any activity or action that has any sort of implication on their individual lives and their life as a community, and on their territory, the lands this encompasses, the other resources it holds. A people can exercise this freedom within any context, whether or not the people are self-governing. • Control A people, however, may be able to exercise greater power – i.e., the power of control. More than just having the freedom to react positively or negatively to the initiatives of others, they can actively some use the word pro-actively set their own guidelines or rules, formulate their own laws and policies, outline their own programs and projects, and get these enforced or imple- mented. They are able to exercise full sovereignty over their life as a community, their territory, the lands it encompasses and the other resources it holds. Such a people fully enjoy the right to self-determination because they are fully self-governing. UN DECLARATIONS AND STUDIES Martínez, Miguel Alfonso Rapporteur. 1999. Study on Treaties, Agreements and Oth- er Constructive Arrangements between States and Indigenous Populations ECN.4 Sub.2199920, 22 June 1999. Module-1