Benedict Kingsbury

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Negotiations on international normative instruments relating to indigenous peoples have repeatedly become ensnared in the question: Does the international law of self-determination apply to indigenous peoples? Although there are glimmerings of future change, the political debate has revolved around the binary issue of the complete applicability or inapplicability of the existing international law concept of self-determination. Representatives of indigenous peoples in international negotiations have insisted, as a large group of them put it in a 1993 demarche to the UN Working Group on Indigenous Populations, that “the right of self-determination is the heart and soul of the declaration. We will not consent to any language which limits or curtails the right of self determination.” These representatives of indigenous peoples proposed that the UN draft Declaration on the Rights of Indigenous Peoples incorporate a version of common Article 1 of the International Covenant on Civil and Political Rights (CCPR) and the International Covenant on Economic, Social and Cultural Rights (CESCR), modified by changing the opening word from “All” to “Indigenous” so as to state expressly that the right of self-determination belonged to indigenous peoples. The five members of the Working Group adopted this indigenous proposal verbatim in Article 3 of the draft: “Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Representatives of many UN Member States met this with categorical opposition, asserting that these groups are not “peoples” and have no international law right of self-determination. For some state governments, self-determination is a principle upholding independent states, and any application of it to groups within states would undermine the state.