Collective Discursive Democracy as the Indigenous Right to Self-Determination

Abstract

There are radically conflicting perspectives on indigenous peoples' right to self-determination in international law. On one hand, indigenous advocates regard self-determination as a (if not the) fundamental and non-negotiable element of the international law regime concerned with indigenous rights. On the other hand, many states, including some of the states most significantly confronted with indigenous issues, are categorically opposed to granting indigenous peoples a right to self-determination.

In support of their position, indigenous peoples have asserted two convincing arguments. First, they argue that denying indigenous peoples the same international law right to self-determination enjoyed by other peoples constitutes another manifestation of the racism and cultural chauvinism that has characterized international law's historical disregard for indigenous peoples.

Second, they argue that limiting the application of self-determination to the decolonization movement of the post-World War H years, and excluding its application to the present indigenous rights movement, requires the illogical and a historical claim that indigenous peoples in settler states were not the victims of European colonization.

For their part, States rightfully counter that self-determination can lead, and in its practice often has led, to secession. They argue that this conflicts with the post-war international legal order's emphasis on the sovereignty and territorial integrity of states. States contend that, above all else, the United Nations Charter stands for these principles. States urge that this foundation was reiterated, in response to ever more frequent assertions of a right to self-determination, in the preamble of the General Assembly's 1970 Declaration on Principles of International Law Concerning Friendly Relations, which declared: "any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter."

Both sides can now claim a victory. One of the first acts of the newly created United Nations Human Rights Council was to approve the United Nations Declaration on the Rights of Indigenous Peoples and forward it to the General Assembly for consideration at the end of 2006.10 Article 3 of the UN Declaration provides: "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. States, however, can point to the Proposed American Declaration on the Rights of Indigenous Peoples, which makes no mention of self-determination.

This stalemate is facilitated, in part, by the imprecise, inconclusive and ill-defined nature of the international law right to self-determination. One scholar referred to the field as a "conceptual morass." S. James Anaya's survey of self-determination in his keynote address at this symposium was impressive, especially considering the ambiguities plaguing the right of self-determination.

Anaya outlined the diverse perspectives on self-determination (including his own distinct and, arguably, minority view ). But, international lawyers understand that no one quite knows what the right to self-determination means - or worse, everyone knows what the right to self-determination means to them. The positive sources of law referencing self-determination do not provide much precision. The literature is voluminous, complex and confounding: Does self-determination have an internal or external orientation? What is a "people"? Does self-determination have democratic content? Is self-determination Wilsonian or Marxist-Leninist?

Was self-determination's application limited to the decolonization of "salt water" colonies and, thus, of no relevance to the colonial experience of settler states? Does self-determination promote or defeat feminist claims and other discourses about "difference" being carried out in international law? Does self-determination promote or erode statehood? Can one distinguish self-determination law and rhetoric? However the international law right to self-determination might be defined, it is clear that its potential secessionist implications stand in tension with states' claims to sovereignty and territorial integrity. Lori Graham has suggested that this tension will be "the defining issue in international law for the 21st century."

With respect to indigenous peoples' claims to self-determination, Part II of this article argues for resolving this tension by striking a compromise to the advantage of states and against an indigenous right to self-determination that includes a right to secede. It will argue that self-determination in its external/secessionistm anifestation is undemocratic. After making this claim, Part III will argue instead for internal self-determination in the indigenous peoples context, proposing an adaptation of Habermas's discourse theory of democracy for application between collectives, like indigenous peoples and the states in which they reside, as the means to protect indigenous peoples' human rights and fundamental freedoms. Part IV will close by arguing that the UN Declaration is consistent with this approach to indigenous self-determination.

Keywords: Human Rights, international law

JEL Classification: K10, K33