Summary: Working Group on the Right of Peoples to Self- Determination and Conflict Prevention

Introduction to the Rights of Peoples to Self-Determination under International Law

This opening session of the Working Group on the Right of Peoples to Self-Determination and Conflict Prevention sought to lay a common foundation for the week’s dialogue by clarifying the use of the fundamental term ‘peoples’ and by highlighting the failure of past UN mechanisms and documentation to afford indigenous peoples human rights equal to those of others. The opinion was expressed that unless serious amendments were made to the current mechanism, the new millennium would see more bloodshed in the name of liberation. 

Mr. Nicolas Guerrero of Mandat International emphasized that this working group had made significant efforts to incorporate the views of various indigenous peoples.

Professor M .G. Kohen of the Graduate Institute for International Studies presented a general overview of the legal understanding of the ‘rights of people to self-determination’ and examined the tremendous scope for ambiguity and misinterpretation in current legislation. He remarked that the sociological use of the term ‘peoples’ is not the legal use of the term. Furthermore, not all international law can be read in the same manner. The term ‘peoples’ was not a judicial term until 1945 and consequently it is impossible to read pre-1945 international law in terms of ‘peoples’.

Professor Kohen elaborated on the various conventions for defining ‘peoples’, but rejected them all as strict definitions in their own right. All such definitions, said Professor Kohen, imply some sort of discrimination. To define indigenous people in a less ambiguous, more solid legal language would inevitably result in new discrimination in new quarters.

Offering a way forward, Professor Kohen proposed a case-by-case mechanism considering internal and external concerns, but with a somewhat provocative emphasis on what he termed the ‘Territorialism of People’. A significant part of the process is international recognition, he noted, and suggested that in issues of self-determination, if a ‘people’ is recognized as such internationally then that helps to define it legally.

Yet, as Ms. Mililani Trask, President of Na Koa Ikaika O Ka Lahui Hawaii and herself a native Hawaiian, made clear, there is no mechanism for the recognition of indigenous peoples on the international stage. The International Court only recognizes States and not "would-be states".

Ms. Trask began her passionate speech with a statement that there is a human rights crisis emerging and at stake is the fundamental principle that human rights are universal. If self-determination is the right of all peoples (according to the Human Rights Convention), then the present situation is one whereby ‘peoples’ does not include all humans.

According to Ms. Trask, the UN system denies the world’s 300 million indigenous peoples the same human rights as others, according to international human rights law. Previous UN documents (ref. ILO107, ILO169) have not only been contradictory, but have also implemented double standards that were condemned as racist by Ms. Trask. Even when indigenous peoples are actually afforded recognition as ‘peoples’, a footnote is added that denies the application of this use of ‘people’ as a term in international law. This, she says, makes a mockery of the universality of human rights.

In Ms. Trask’s view, this is to be expected because international law is a Euro/Western-centric creation. The right of self-determination is also a right of peoples to decide their political stance, but this right is not automatically afforded to non-Western and indigenous peoples because of the constraints of current international law.

Indeed, even the limited support offered by the system to indigenous peoples is not upheld. With the creation of the UN, all colonies were granted the continuing right to vote for independence (including Alaska & Hawaii). This right is seldom realised. The rights of indigenous peoples are languishing within a system that is neither accessible nor appropriate for them. Ending her speech, Ms. Trask delivered a strong warning that failure to honour the principle of universal human rights must result in many further conflicts for liberation.

Slowly progress is made
The present system is not entirely without merit though. As Chair Mr. Julian Burger (UNHCR) pointed out, the present level of investigation into the effectiveness of human rights legislation for indigenous peoples was in itself unthinkable twenty years ago. The rights of indigenous people can be successfully and peacefully recognized by States as the recent ‘Greenland Home Rule’ and Kuna Yala (Panama) schemes have proved.

Of critical importance will be the outcomes of the Draft Declaration of the ‘UN Working Group on Indigenous Peoples’ and the UNESCO Dialogue that seek to more clearly define human rights with emphasis upon cultural identity.

Self-determination by peaceful means
George Seagal of UNWILLING raised the interesting question of whether the ‘right of all peoples to self-determination’ was not an open invitation to terrorists and should be given the caveat of ‘…self-determination by peaceful means’. The response was presented by Ms. Trask who agreed with the caveat but noted that amendments of UN conventions were not easily achieved.

Conclusions
This introductory session saw agreement that past legislation had failed to uphold universal human rights and that the recognition of indigenous peoples and their right to self-determination was not adequately supported by existing legislation. Differences were expressed in the universal validity of the present international laws, but all agreed that respect for all and co-operation between States and indigenous peoples was the key to all self-determination issues.

There was no agreement on the strength of the likelihood of future conflicts for independence, though no one suggested that future conflicts were unlikely without changes to international law.

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