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Abstract
This article focuses on key issues and recent developments concerning indigenous peoples' involvement in international decision making affecting their rights and interests. Based on a human rights-based approach to participation, it suggests that while a number of positive steps have been taken to allow indigenous peoples the possibility to take part to, and influence, relevant intergovernmental decision-making processes, there's a need to provide their own self-governing institutions and organisations with a more influential status than that granted to civil society organisations (CSOs) generally, whereby they can exercise different levels of participatory rights, depending upon the nature of the indigenous rights and interests at stake, and on the anticipated impact of the proposed decisions on them.
Notes
The term ‘international governance’, as defined in 1995 by the UN Commission on Global Governance, and used in this article, refers to ‘the sum of the many ways individuals and institutions, public and private, manage their common affairs. … It includes formal institutions and regimes … as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest’; Our Global Neighbourhood, Report of the Commission on Global Governance (Oxford: Oxford University Press, 1995). See J.N. Rosenau, ‘Governance in the Twenty-First Century’, Global Governance 1 (1995): 13–43; J.N. Clarke and G.R. Edwards, ‘Introduction’, in Global Governance in the Twenty-First Century, ed., J.N. Clarke and G.J.R. Edwar (Basingstoke: MacMillan Publishers, 2004), 1–20; M. Behrens, ‘Global Governance’, in Governance – Regieren in Komplexen Regelsystemen, ed. A. Benz (Wiesbaden: VS Verlag für Sozialwissen), 103–24. On the concept of ‘civil society actors’, see, for instance, M. Walzer, ‘The Concept of Civil Society’, in Toward a Global Civil Society, ed. M. Walzer (Oxford: Berghahn Books, 1995), 7; and, in the same volume, J. Cohen, ‘Interpreting the Notion of Civil Society’, 36.
See generally H. Gherari and S. Szurek, eds., L‘Émergence de la Societe Civile Internationale: Vers la Privatisation du Droit International? (Paris: Editions Pedone, 2001); L. Perez-Prat Durban, Sociedad Civil y Derecho Internacional (Valencia: Tirant Lo Blanch, 2004); T. Treves et al., eds., Civil Society, International Courts and Compliance Bodies (Cambridge: Cambridge University Press, 2005); B.K. Woodward, Global Civil Society in International Lawmaking and Global Governance: Theory and Practice (Leiden: Martinus Nijhoff Publishers, 2010).
See P. Willetts, ‘From “Consultative Arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN’, Global Governance 6 (2000): 191–212; E. Rebasti, ‘Beyond Consultative Status: Which Legal Framework for Enhanced Interaction between NGOs and Intergovernmental Organisation?’, in NGOs in International Law: Efficiency in Flexibility?, eds., P.M. Dupuy and L. Vierucci (Cheltenham: Edward Elgar, 2008): 21; A. Peters, ‘Membership in the Global Constitutional Community’, in The Constitutionalization of International Law, eds., J. Klabbers, A. Peters and G. Ulfstein (Oxford: Oxford University Press, 2009), 219.
See generally A. Vedder, ed., NGO Involvement in International Governance and Policy: Sources of Legitimacy (Leiden: Martinus Nijhoff Publishers, 2007), 1–16. See also K. Anderson, ‘The Ottawa Convention Banning Landmines, the Role of International Non-Governmental Organisations and the Idea of International Civil Society’, European Journal of International Law 11 (2000): 91–120; S. Charnovitz, ‘The Emergence of Democratic Participation in Global Governance’, Indiana Journal of Global and Legal Studies 10 (2003): 47.
See H. Cullen and K. Morrow, ‘International Civil Society in International Law: The Growth of NGO Participation’, Non-State Actors and International Law 1 (2001): 7–39; A. Alkoby, ‘Non-State Actors and the Legitimacy of International Environmental Law’, Non-State Actors and International Law 3 (2003): 23–98; M. Zurn, ‘Global Governance and Legitimacy Problems’, Government and Opposition 39 (2004): 260–287. When speaking about ‘legitimacy’ we refer to the justification of IPO participation and influence in international legal processes. As Edwards put it ‘legitimacy is generally understood as the right to be and do something in society’, in NGOs Rights and Responsibilities: A New Deal for Global Governance (London: Foreign Policy Centre, 2000), 20. More generally, in international law and politics, the concept of ‘legitimacy’ is associated to the justification of authority. See D. Bodansky, ‘The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?’, American Journal of International Law 93 (1999): 596–624, 600 et seq.
This paradigm of the NGO–IGO relationship had its origins in 1946, when the United Nations Economic and Social Council (ECOSOC) adopted its first comprehensive resolution on consultative arrangements with NGOs. In the following decades, it informed the regulation of civil society participation in various UN specialised agencies and in almost all existing intergovernmental organisations, including the Council of Europe, the Organisation of the American States and the African Union. On the early UN arrangements for consultation with NGOs, see extensively C. Pei-heng, Non-Governmental Organisations at the United Nations. Identity, Role and Function (New York: Praeger, 1981), 85. For an analysis of the evolution of the legal arrangements for NGO involvement within UN specialised agencies and major intergovernmental organisations, see A.K. Lindblom, Non-Governmental Organisations in International Law (Cambridge: Cambridge University Press, 2005), 366; S. Ripisky and P. Van den Bossche, NGO Involvement in International Organisations (London: British Institute of International and Comparative Law, 2007).
In the regard, the Report of the Panel of Eminent Persons on United Nations–Civil Society Relations (Cardoso Report) highlights that ‘a clear paradox is emerging: while the substance of politics is fast globalizing, the process of politics is not; its principal institutions … remain firmly rooted at the national or local level. The weak influence of traditional democracy in matters of global governance is one reason why citizens in much of the world are urging greater democratic accountability of international organisations’, Report of the Panel of Eminent Persons on United Nations-Civil Society Relations, We the People, Civil Society, the United Nations and Global Governance, A/58/817, 11 June 2004, 9. See P. Tussie and D. Riggirozzi, ‘Pressing Ahead with New Procedures For Old Machinery: Global Governance and Civil Society’, in Global Governance and the United Nations System, ed., V. Rittberger (Tokyo: United Nations University Press, 2001), 158–180.
See Willetts, ‘From “Consultative Arrangements” to “Partnership’; Rebasti, ‘Beyond Consultative Status’.
The new ‘participatory’ status provides for the ‘involvement’ of non-governmental organisations in the decision of the council policies and programmes, rather than simply ‘consultation’ (see Resolution 8/2003: Participatory Status for International Non-Governmental Organisations with the Council of Europe, adopted on 19 November 2004, and compare it with the former Resolution 38/1993: Relations between the Council of Europe and International Non-Governmental Organisations, adopted on 18 October 1993).
The recent review of the rules of procedures for civil society involvement within the Organisation of the American States have taken steps towards ‘stronger CSO participation’ and ‘increased partnership’ (OAS Permanent Council, Review of the Rules of Procedures for Civil Society Participation within the Organisation of the American States, CP/CISC-106/04, 31 March 2004).
Preamble, ECOSOCC Statutes, adopted by the African Union General Assembly with decision AU/Dec.42 (III), Decision on Economic, Social and Cultural Council, 8 July 2004. See Mutasa, ‘The African Union – Civil Society Contract: An Act of Democracy?’, Civil Society Observer, 2004, www.un-ngls.org/orf/cso/cso5/cso5print.htm.
The World Bank promotes ‘dialogue’ and ‘partnership’ between civil society and governments, dialogues with CSOs on issues, policies and programmes, by listening to their perspectives and inviting suggestions, and ‘partners’ directly with CSOs, ‘contracting technical assistance, funding civil society initiatives, and managing joint programs’. See Approach to the World Bank's Engagement with Civil Society, www.worldbank.org. See also Issues and Options for Improving engagement Between the World Bank and Civil Society Organisations, paper issued by the External Affairs, Communications and United Nations Vice Presidency, the Environmentally and Socially Sustainable Development Network Vice Presidency and the Country Services Network Vice Presidency, March 2005, www.worldbank.org/civilsociety.
The Civil Society Advisory Committee to UNDP was created in 2000. For an overview see UNDP Civil Society Division, ‘National Civil Society Advisory Committees To United Nations Country Teams: Assessment Report’, 30 November 2009, www.content.undp.org/go/cms-service; and visit www.beta.undp.org/undp/en/home/migration/partners/civil_society/advisorycommittee.html.
Major groups' sectors are: children and youth, farmers, indigenous peoples, local authorities, NGOs, scientific and technological community, women, business and industry, workers and trade unions. For an overview, visit www.un.org/esa/dsd/dsd_aofw_mg/mg_csdbackinfo.shtml.
Rebasti, ‘Beyond Consultative Status’, 64.
Peters, ‘Membership in the Global Constitutional Community’, 221.
For a more extensive account of the relevant debate, see Charnovitz, ‘The Emergence of Democratic Participation in Global Governance’; S. Charnovitz, ‘Non-Governmental Organisations and International Law’, American Journal of International Law 100 (2006), 348; A.K. Lindblom, Non-Governmental Organisations in International Law, 28; Vedder, ed., NGO Involvement in International Governance and Policy; Peters, ‘Membership in the Global Constitutional Community’, 235.
For a more comprehensive explanation of these arguments see for instance J.P. Spiro, ‘Accounting for NGOs’, Chicago Journal of International Law 3 (2002): 161; K. Anderson, ‘The Ottawa Convention Banning Landmines’; W. Scholtz, ‘Northern NGOs, Southern NGOs and International Environmental Law: The Common Interest of Humankind is the Interest of Northern Mankind’, South African Yearbook of International Law, 2007, 247.
Ripisky and Van den Bossche, NGO Involvement in International Organisations, 13.
A. Peters, ‘Dual Democracy’, in The Constitutionalization of International Law, eds J. Klabbers, A. Peters and G. Ulfstein. (Oxford: Oxford University Press, 2009), 317.
But see E.B. Bluemel, ‘Separating Instrumental from Intrinsic Rights: Towards an Understanding of Indigenous Participation in International Rule-Making’, American Indian Law Review 30 (2005–2006): 55; C. Charters, ‘A Self-Determination Approach to Justifying Indigenous People Participation in International Law and Policy Making’, International Journal on Minority and Group Rights (2010): 215–240.
See B. Kingsbury, ‘First Amendment Liberalism as Global Legal Architecture: Ascriptive Groups and the Problems of the Liberal NGO Model of International Civil Society’, Chicago Journal of International Law 3 (2002): 183. (distinguishing between indigenous organisations behaving as NGOs and ‘ascriptive groups’ exercising governmental powers).
F. Yamin, ‘NGOs and International Environmental Law: A Critical Evaluation of Their Roles and Responsibilities’, Review of European Community and International Environmental Law 10 (2001): 149, 154.
NGOs lack a univocal definition in international practice or in the academic debate. For a more extensive analysis of their main characteristic features, see, for instance, H.K. Rechenberg, ‘Non-Governmental Organisations’, in Encyclopaedia of Public International Law, vol. 3, ed. R. Bernhardt (Amsterdam: North-Holland, 1997), 612–618; P. Willetts, ‘What is a Non-Governmental Organisation?’, in UNESCO Encyclopaedia of Life Support Systems (2002), www.staff.city.ac.uk/p.willetts/cs-ntwks/ngo-art.htm. K. Martens, ‘Mission Impossible? Defining Nongovernmental Organisations’, Voluntas: International Journal of Voluntary and Non-Profit Organisations 13 (2002): 271–285.
The WCIP was established in 1975 and dissolved in 1996. See B. Maiguashca, ‘The Role of Ideas in a Changing World Order: The International Indigenous Movement. 1975–1990’, CERLAC Occasional Paper, June 1994, 24–26, www.yorku.ca/cerlac/documents/Maiguaschca.pdf.
The Saami Council was founded in 1956 and is one of the indigenous NGOs that has existed longest. Further information can be found in the website of the Saami Council: www.saamicouncil.net.
The Indian Council of South America was established in 1980. For further information visit the website: www.puebloindio.org/CISA/cisa.htm.
For more information visit the webpage: www.tanipe.org.
See extensively Human Rights Council, Report of the Expert Mechanism on the Rights of Indigenous Peoples: Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, UN Doc. A/HRC/EMRIP/2010/2 (17 May 2010), paras. 51–53.
See B. Aguirre Beltràn, Formas de Gobierno Indigena (Mexico: Universidad Veracruzana, Instituto Nacional Indigenista, 1991). For studies on indigenous institutions and legal systems within, for instance, Latin America and Africa, see V. Cabedo Mallol, Constitucionalismo y Derecho Indígena en América Latina (Valencia: Polytechnic University of Valencia Press, 2004); O. Vaughan, ed., Tradition and Politics: Indigenous Political Structures in Africa (Trenton, NJ: Africa World Press, 2005).
Human Rights Council, Progress Report on the Study on Indigenous Peoples, xxix.
On the Saami Parliaments see K. Mynti, ‘The Nordic Parliaments’, in Operationalizing the Rights of Indigenous Peoples to Self-Determination, ed., P. Akiko and M. Scheinin (Åbo, Finland: Institute for Human Rights, 2000), 203–221; E. Josefsen, ‘The Saami and the National Parliaments-Channels for Political Influence’, Journal of Indigenous Peoples 2 (2007): 7, also available at www.ipu.org/splz-e/chiapas10/saami.pdf.
See generally D.W. Elliott, Law and Aboriginal Peoples in Canada (Concord, ON: Captus Press, 2005); Y.D. Belanger, Aboriginal Self-Government in Canada. Current Trends and Issues (Saskatoon: Purich, 2008).
See Minority Rights Group International, ‘World Directory of Minorities and Indigenous Peoples – Chile: Rapanui’ (2008), http://www.unhcr.org/refworld/docid/49749d3ec.html.
See J.M. Apgar, ‘Adaptive Capacity for Endogenous Development of Kuna Yala, an Indigenous Biocultural System’ (2010), www.learningforsustainability.net/pubs/Marina/Apgar_phd.pdf.
On the right of indigenous peoples to autonomy or self-governance, see J. Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, Cornell International Law Journal 35 (2001-2002): 307–353. See also M. Asch, ‘Aboriginal Self-Government and the Construction of Canadian Constitutional Identity’, Alberta Law Review 30 (1992): 464–491; E.G. Broderstad, ‘Political Autonomy and Integration of Authority: The Understanding of Saami Self-Determination’, International Journal on Minority and Cultural Rights 8 (2001): 151–175.
UN General Assembly Resolution 61/295: Declaration on the Rights of Indigenous Peoples, UN Doc. A/61/67, Annex, 13 September 2007, Articles 4 and 18.
International Labour Organisation, Convention on Indigenous and Tribal Peoples in Independent Countries, 1989, No. 169, adopted on 27 June 1989 and entered into force on 5 September 1991, Article 8.
Permanent Council of the Organisation of the American States, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples: Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, 20 January 2011, Article 20.
For a critical reconstruction of relevant domestic and international practice see S.J. Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 2004), 103, and S.J. Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’, in Making the Declaration Work. The United Nation Declaration on the Rights of Indigenous Peoples, ed., C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009), 184. See also E.I. Daes, ‘Some Considerations on the Right of Indigenous Peoples to Self-Determination’, Transnational Law and Contemporary Problems 2 (1993): 1; B. Kingsbury, ‘Reconstructing Self-Determination: A Relational Approach’, in Operationalizing the Right of Indigenous Peoples to Self-Determination, eds. Aikio and Scheinin (Turku: Åbo Academy University Institute for Human Rights, 2000), 19; P.J. Magnarella, ‘The Evolving Right of Self-Determination of Indigenous Peoples’, St. Thomas Law Review 14 (2001–2002), 425; and the critical analysis by T. Koivurova, ‘From High Hopes to Disillusionment: Indigenous Peoples’ Struggle to (Re)Gain their Right to Self-Determination', International Journal of Minority and Group Rights 15 (2008): 1–26.
Declaration on the Rights of Indigenous Peoples, Article 4. See E.I. Daes, ‘The Concepts of Self-Determination and Autonomy of Indigenous Peoples in the Draft United Nations Declaration on the Rights of Indigenous Peoples’, St. Thomas Law Review 14 (2001–2002): 259 ff.; Anaya, ‘The Right of Indigenous Peoples to Self-Determination in the Post-Declaration Era’, 190 ff.
Draft American Declaration on the Rights of Indigenous Peoples.
See Anaya, Indigenous Peoples and International Law, 152; R.A. Miller, ‘Collective Discursive Democracy as the Indigenous Right to Self-Determination’, American Indian Law Review 31 (2006–2007): 341; J. Gilbert, ‘Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples’, International Journal on Minority and Group Rights 14 (2007): 207–230, 221. See also Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, para. 21: ‘Moreover, in the light of the fact that many indigenous institutions have been undermined in discriminatory historical processes that have resulted in an asymmetry in the relationship between States and indigenous peoples, it is of crucial importance that States support the development of indigenous peoples’ own institutions and initiatives and, when appropriate, provide these with the necessary resources'.
This view is supported by the broad interpretation of the notion of ‘culture’, which several international instruments and bodies have applied to indigenous peoples, as the several ways in which the characteristic identity of a group finds expression, including language, spirituality, family and social relations, juridical and political systems, economic activities and use of territories. See O.R. Ruiz Chiriboga, ‘The Right to Cultural Identity of Indigenous Peoples and Minorities: A Look from the Interamerican System’, Sur-International Journal of Human Rights 42 (2006): 43.
See B. Maiguashca, The Roles of Ideas in a Changing World Order: The International Indigenous Movement (1975–1990), Centre for Research on Latin American and the Caribbean (CERLAC) Working Paper, June 1994, www.yorku.ca/cerlac/documents/Maiguaschca.pdf. See also R. Niezen, The Origins of Indigenism. Human Rights and the Politics of Identity (Berkeley: University of California Press, 2003), 29–52.
Dealing with indigenous peoples' participation within the UN during the 1970s, Augusto Willemsen Diaz, official of the Human Rights Centre of the United Nations in Geneva, writes: ‘My indigenous friends stated that they had no way of participating in UN sessions as they were not accredited, and would be ejected if they turned up. I suggested that this problem could initially be overcome by participating as non-governmental organisations (NGOS), for which they could seek official UN consultative status. Of course I knew full well that indigenous peoples were not NGOs per se but I suggested that it was perhaps a way of making their voice and information, their points of view, complaints and suggestions heard within UN bodies and organs, until such time as they could obtain recognition in another form more akin to their true nature as indigenous peoples’, A. Willemsen Diaz, ‘How Indigenous Peoples’ Rights Reached the UN', in eds. C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009), 16, 20.
The Commission on Human Rights established special procedures for participation in the Open-Ended Working Group on the DRIPS on the part of indigenous organisations, to ensure that those entities which did not have consultative status with ECOSOC could be involved in the drafting process. Furthermore, an unprecedented informal procedural agreement was reached between states and indigenous peoples in order to allow a broader incorporation of indigenous representatives in the negotiations. As a result, such representatives participated fully and very actively as proponents and direct drafters in meetings of the Open-Ended Working Group. They could present documents prepared by themselves and make oral statements and proposals on issues they considered of importance. See E.I. Daes, ‘The Participation of Indigenous Peoples within United Nations System's Political Institutions’, Lecture at the Castan Centre for Human Rights, May 2004, www.hroc.gov.au/about/media/speeches/social-justice/un-political-institutions.htlm. Willemsen-Diaz, ‘How Indigenous Peoples’ Rights Reached the UN', 16–31, 25; A. Eide, ‘The Indigenous Peoples, the Working Group on Indigenous Population and the Adoption of the UN Declaration on the Rights of Indigenous Peoples’, in Making the Declaration Work, eds. C. Charters and R. Stavenhagen (Copenhagen: IWGIA, 2009), 32–47, 34.
The fund was established pursuant to General Assembly resolution 40/131 of 13 December 1985. For further information, visit the webpage: www2.ohchr.org/english/about/funds/indigenous.
Economic and Social Council, Resolution 2000/22, Establishment of a Permanent Forum on Indigenous Issues, UN. Doc. E/RES/2000/22, 28 July 2000. According to its mandate, the forum discusses issues relating to indigenous rights and development, disseminates information on relevant issues, and makes recommendations to the council, UN member states and other UN organs, for possible future action in the field. See generally J. Carey and S. Wiessner, ‘A New United Nations Subsidiary Organ: The Permanent Forum on Indigenous Issues’, American Society of International Law Insight, April 2001, www.asil.org.
The seven socio-cultural regions are Africa; Asia; Central and South America and the Caribbean; the Arctic; Central and Eastern Europe, Russian Federation, Central Asia and Transcaucasia; North America; and the Pacific.
Declaration on the Establishment of the Arctic Council (the Ottawa Declaration), 19 September 1996, para. 1.
Ibid., para. 2, which provides that ‘[t]he Inuit Circumpolar Conference, the Saami Council and the Association of Indigenous Minorities in the Far North, Siberia, the Far East of the Russian Federation are Permanent Participants in the Arctic Council. Permanent participation is equally open to other Arctic organisations of indigenous peoples with majority Arctic indigenous constituency’. In order to be eligible to become a permanent participant, an organisation must be ‘representing: (a) single indigenous people resident in more than one Arctic State; or (b) more than one Arctic indigenous people resident in a single Arctic State’.
Arctic Council Rules of Procedure, rules 4, 5 and 19. According to the Declaration on the Establishment of the Arctic Council, furthermore, an Indigenous Peoples' Secretariat (IPS), serves the function of facilitating the participation of indigenous peoples' organisations within the council, enhancing their capacity to pursue its objectives and supporting the dialogue among the permanent participants and the council bodies (see Arctic Council, Indigenous Peoples' Secretariat, Terms of Reference and Procedural Guidelines, 3 November 2001).
See, on this point, T. Koivurova and H. Heinämäki, ‘The Participation of Indigenous Peoples in International Norm-Making in the Arctic’, Polar Record 42 (2006): 101–109. See also L. Heinämäki, ‘Rethinking the Status of Indigenous Peoples in International Environmental Decision-Making: Pondering the Role of Arctic Indigenous Peoples and the Challenge of Climate Change’, in Climate Governance in the Arctic ed. T. Koivurova et al. (Dordrecht: Springer, 2009), 207–262, 247–248.
See specifically ‘Contribution from the Secretariat of the Convention on Biological Diversity to the study on “Indigenous Peoples and the Right to Participate in Decision Making” undertaken by the Expert Mechanism on the Rights of Indigenous Peoples’ (2009), www2.ohchr.org/english/issues/indigenous/contributions/CBD.doc.
See UN Permanent Forum on Indigenous Issues, Information Received from the United Nations System and other Intergovernmental Organisations: Secretariat of the Convention on Biological Diversity and World Intellectual Property Organisation, 13 February 2008, UN Doc. E/C.19/2008/4/Add.13, paras. 42–45.
Establishment of the WIPO Voluntary Fund for Accredited Indigenous and Local Communities, Annex to document WO/GA/32/6 as approved by the WIPO General Assembly (32nd session) and as subsequently amended by WIPO General Assembly (39th session), 2005.
Ibid.
For this and further information visit the website of the World Bank, www.worldbank.org.
Kingsbury, ‘First Amendment Liberalism as Global Legal Architecture’.
Bluemel, ‘Separating Instrumental from Intrinsic Rights’, 88, observing that: ‘Precisely because existing theories of participation do not properly sync with indigenous demands or intrinsic rights to participate, indigenous participation can only be deemed legitimate if based upon the proper normative framework; to establish such a framework requires an analysis of why indigenous participation is both necessary and appropriate’.
Anaya, Indigenous Peoples and International Law, 153, observing that ‘it is evident that this requirement [effective participation] applies not only to decision making within the framework of domestic or municipal processes but also to decision making within the international realm’; Charters, ‘A Self-Determination Approach’, 236.
We the People, Civil Society, the United Nations and Global Governance, 24.
Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, para. 2.
The UN Indigenous Declaration expressively calls for the effective involvement of indigenous peoples ‘in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures’ (Article 18). ILO Convention No. 169 requires effective means by which indigenous peoples ‘can freely participate … at all level of decision-making having an impact on them’ (Article 6). The draft American declaration provides indigenous communities with a right ‘to participate fully and effectively in decision-making at all levels in relation to matters that may directly affect their rights, lives and destiny’ (Article 20). Likewise, Principle 20 of the Vienna Declaration and Programme of Action asks for ‘the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them’ (Vienna Declaration and Programme of Action, Adopted 12 July 1993, World Conference on Human Rights on 14–25 June 1993, UN Doc. A/CONF.157/23).
See Human Rights Council, Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya, A/HRC/12/34, 15 July 2009, para. 41, and Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, paras. 30 ff. See also Anaya, Indigenous Peoples and International Law, 156; M. Bennett, ‘Indigenity as Self-Determination’, Indigenous Law Journal 4 (2005): 75. Leading international scholars have supported a ‘procedural’ interpretation of self-determination. In this regard, for example, Klabbers writes that: ‘The point, then, is to re-consider self-determination as a procedural norm: decisions affecting groups of people should be taken, at the very least, with those groups having been consulted’, in J. Klabbers, ‘The Right to be Taken Seriously: Self-Determination in International Law’, Human Rights Quarterly 28 (2006); 186–206, also available at www.helsinki.fi/eci/publications/JKYOGJA.pdf. See also, similarly, I.M. Young, Inclusion and Democracy (Oxford: Oxford University Press, 2004), observing that ‘the self-determination of peoples requires that the peoples have the right to participate in designing and implementing intergovernmental institutions aimed at minimizing domination’, 265; I.M. Young, ‘Two Concepts of Self-determination’, in Ethnicity, Nationalism and Minority Rights ed., S. May et al. (Cambridge: Cambridge University Press, 2004), 176.
The UN Committee on the Elimination of Racial Discrimination (CERD) has called upon states to ‘ensure that members of indigenous peoples have equal rights in respect of effective participation in public life’. See, for instance, CERD, General Recommendation XXIII on Indigenous Peoples, UN. Doc. CERD/C751/misc13/Rev14 (1997), para. 4. The Human Rights Committee (HRC) has interpreted the right to cultural identity under Article 27 of the International Covenant on Civil and Political Rights as requiring measures to ensure the ‘effective participation’ of members of indigenous communities in decisions that affect them. See, for instance, HRC, General Comment No. 23 (Article 27), UN. Doc. CCPR/C/21/Rev.1/Add.5 (1994), para. 7.
Charters, ‘A Self-Determination Approach’, 231.
See M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and Self-Determination, eds. N. Ghanea and A. Xanthaki (Leiden: Martinus Nijhoff Publishers, 2005), 3–14, 8, observing that: ‘It should be emphasized that there might be other “external” forms of self-determination that are not subjects to the very demanding conditions international law attaches to secession, for instance the right to represent internationally an indigenous peoples in relevant international negotiations or conferences’; and A. Xanthaki, ‘The Right of Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination, eds. Ghanea and Xanthaki, 15–34, 25.
Report of the International Conference of Experts on the Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention, 21–27 November 1998 UNESCO (Division of Human Rights), 29.
According to the Expert Committee of the Draft Nordic Saami Convention, indigenous peoples are entitled to exercise their external self-determination via representation in inter-state affairs in international relations, see M. Ahren, M. Henriksen and J.B. Scheinin, ‘The Nordic Saami Convention: International Human Rights, Self-Determination and other Central Provisions’, Gáldu Čála – Journal of indigenous Peoples Rights 3 (2007): 82. Likewise, Section 6 of the Act on the Sami Parliament in Finland stipulates that the Saami Parliament shall represent the Saami at the national as well as the international level (Act on the Saami Parliament, 974/1995, Ministry of Justice, Finland).
M. Shaw, International Law (Cambridge: Cambridge University Press, 2003), 220. See Resolution 3280 (XXIX) of 10 December 1974 on ‘Co-operation between the United Nations and the Organization of African Unity’, Resolution 35/167 of 15 December 1980; and Resolution 37/104 of 16 December 1982 on ‘Observer status of national liberation movements recognized by the Organization of African Unity and/or by the League of Arab States’.
A. Cassese, International Law (Oxford: Oxford University Press, 2005), 140.
The PLO has been granted observer status at the UN in 1974 (Res. 3237, 22 November 1974). It has been conferred additional rights and privileges of participation in 1998 (A/Res/52/250,
7 July 1998). See A.F. Kassim, Palestine Liberation Organization (PLO), in Max Planck Encyclopedia of Public International Law, ed., R. Wolfrum (2009), www.mpepil.com.
‘Justice arguments’, as defined by J.A. Connolly, ‘Introduction’, in Indigenous Rights: The International Library of Essays on Rights, ed., J.A. Connolly (Farnham: Ashgate, 2009), 22, are justifications for indigenous rights that appeal to considerations of justice and call ‘for the implementation of an indigenous rights regime capable of remedying the injustices, past or present, which have afflicted indigenous peoples at the hands of non-indigenous societies’.
See M. Bennett, ‘Indigenity as Self-Determination’; P. Macklem, ‘Indigenous Recognition in International Law: Theoretical Observations’, Michigan Journal of International Law 30 (2008): 177.
See Daes, ‘The Participation of Indigenous Peoples’.
Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, supra, para. 41.
Bluemel, ‘Separating Instrumental from Intrinsic Rights’, 88; Charters, ‘A Self-Determination Approach’, 222–223.
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, para. 43, specifying that ‘[s]uch a differentiated effect occurs when the interests or conditions of indigenous peoples that are particular to them are implicated in the decision, even when the decision may have a broader impact, as in the case of certain legislation’.
Ibid., para. 46.
ILO Convention No. 169, Article 6.2.
UN Indigenous Declaration on the Rights of Indigenous Peoples, Article 19.
As to the practice of the HRC, the CERD and the CESCR, see for instance, respectively, Concluding Observation on Panama, 17/04/2008, UN Doc. CCPR/C/PAN/CO/3, para. 21; Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ecuador, 21/03/2003, UN Doc. CERD/C/62/CO/2, para. 16; Concluding Observations on Ecuador, 7/06/2004, UN Doc. E/C.12/1/Add.100, para. 35.
Ibid., para. 45.
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, para. 47. See also S.J. Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural Resources Extraction: The More Fundamental Issue of What Rights Indigenous People have in Lands and Resources', Arizona Journal of International and Comparative Law 22 (2005): 15; J. Cariño, ‘Indigenous Peoples’ Right to Free, Prior and Informed Consent: Reflections on Concepts and Practice', Arizona Journal of International and Comparative Law 22 (2005): 19; Clavero, ‘The Indigenous Right of Participation and International Development Policies’, 41.
UN Indigenous Declaration on the Rights of Indigenous Peoples, Articles 10 and 29, respectively.
Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, 28 November 2007, Series C No. 185. See E. Tramontana, ‘The Contribution of the Inter-American Court of Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources’, in Minority Groups Across Legal Settings: Global and Regional Dimensions, eds. Guliyeva and Pentassuglia, 241–263.
Charters, ‘A Self-Determination Approach’, 222.
On the role of self-regulation in response to the problems raised by the increasing involvement of CSAs in intergovernmental fora, see Rebasti, ‘Beyond Consultative Status’, 55–56.
Progress Report on the Study on Indigenous Peoples and the Right to Participate in Decision-Making, paras. 59–60 and 99. In this regard, it is important to recall that Articles 7 of the Convention on the Elimination of All Forms of Discrimination against Women establishes the women's right to participation in the political and public life on equal terms with that of men, and Article 8 maintain the right of women to take part, without any discrimination, in the work of international organisations and have the opportunity to represent their governments at the international level. Furthermore, Article 22 of the UN Indigenous Declaration on the Rights of Indigenous Peoples ensures that indigenous women should be protected against all forms of discrimination.
Quotas for ensuring the representation of women and youth among its different civil society members have been established, for example, by the ECOSOCC of the African Union. See Rebasti, ‘Beyond Consultative Status’, 50.
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, para. 51.