General Situaion REALITIES ON THE GROUND

AIPP Regional Capacity Building Program - Training Modules on the UNDRIP Gaps Analysis UNDRIP NATIONAL OR GAPS CONSIDERATIONS OPTIONS PROVISIONS ON LOCAL LAWS IMPLICATIONS RECOMMENDATIONS SELF- OR POLICIES DETERMINATION AND SELF- GOVERNMENT Paragraph or Specific laws, Specific laws, Can current laws, What needs to be Article number policies policies NOT policies be used to done? How? By conforming conforming support indigenous whom? Where? with UNDRIP with UNDRIP peoples’ positions When? For how or interests? Are long? there loopholes in the law that can be used for or against indigenous peoples? Should the matter be approached legally? Or politically? On self-determination On self-government

B. Laws and Policies Related to the Recogniion of the Right

1. Right to self-determination

There are few examples in national laws of an explicit recognition of the right to self-de- termination, in its most comprehensive definition that allow peoples to create an independent state. Such examples include the Constitution of the defunct Soviet Union, the Panglong Agree- ment in Burma and the case of Sabah and Sarawak in the 1950s, when the Federation of Malaysia had just been founded. However, there are several examples of the recognition of the right to self-determination in the more specific context of autonomy and self-government see below.

2. Right to self-government

The indigenous peoples of India have strived for years to achieve self-government. The peoples of Nagaland, Manipur and Mizoram were able to achieve this through struggles that 31 RIGHTS AIPP Module-1 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