Remembering the country of their birth: indigenous peoples and territoriality.

• Author: Lam, Maivan Clech

The successive forces of mercantilism and colonialism that first surged out of Europe in the 15th century unleashed, over the next 500 years, a seismic shake-up of the native societies of the New World, Asia, Africa, and the Pacific. In the cases of Asia and Africa, the colonizers, if not also their influence, were in the main repulsed through nationalist movements that burgeoned while Europe fought World War II, and that delivered formal political independence in the decades following the founding of the United Nations in 1945. Where, however, westerners came not only to extract resources but also to settle en masse, as in the Americas, Australia, and Aotearoa/New Zealand, native societies barely survived, let alone found the opportunity to reconstitute into something like their former selves. In any event, western governments made sure as the war wound down that that opportunity would never effectively materialize, for either set of disrupted societies. In July 1944, a month before formal discussions began in Dumbarton Oaks on the creation

of a new world organization to replace the defunct League of Nations, representatives of 45 states, most dominated at the time by either the United States or the United Kingdom, met in Bretton Woods, New Hampshire, to lay out a postwar economic world order, manifest today as global capitalism, that would safeguard the extensive extra-territorial economic interests of the west against the formidable threat then posed to them by the looming convergence of two ascending ideologies: Soviet socialism and Third World nationalism. (2)

A stratagem that the trans-Atlantic states settled on to undercut these ideologies was the large-scale proffer, fraught with conditions and consequences, of American capital to a cash-strapped postwar world in dire need of reconstruction funds. The institutions that the alliance created to control the use of that capital included the International Bank for Reconstruction and Development (now the World Bank), the International Monetary Fund (IMF), and, three years later, the General Agreement on Tariffs and Trade; now the World Trade Organization (WTO). (3) To date, the Bretton Woods scheme has served its authors exceedingly well. Global capitalism runs the world, generating excessive wealth for some, comfortable sufficiency for many, and unbearable poverty for the rest, all the while rearranging natural and cultural landscapes at will or, as needed, at the side of the American imperium. (4) In the process, what ties there remain in the postcolonial world that still bind human beings close to the lands of their birth--ties spun from cultural communities' intimate knowledge of, and profound dependence on, their natural environments--are mindlessly slashed, if not severed.

In this story the peoples--comprising over 350 million individuals and 5,000 ethnolinguistic groups--whom international fora today recognize as indigenous are, virtually by default, those last wrenched from, or harassed in, their native spaces. As a consequence, they assert more vigorously than others earlier displaced their attachments and rights to homelands still experienced, or remembered, in the main as sufficient, animate, and meaningful. Jose R. Martinez Cobo, the Special Rapporteur appointed in 1971 by the UN Commission on Human Rights (UNCHR) to conduct its first-ever study of indigenous peoples, identified this land-rootedness as the primary marker of indigenous identity. He wrote, in his now classic description of indigenous peoples:

Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems. (5) Cobo's description simultaneously captured the fundamental and unchanging message that indigenous delegations from around the world carried, beginning in the 1960s, to international fora where they seek international legal and institutional protection, impelled by the depredations of global capitalism in their territories as well as by the attendant impotence if not connivance of their enclosing states. (6) The message indigenous peoples deliver is a simple one: their ability to survive as distinctive peoples is inextricably tied to their right to occupy their traditional territories and control their resources. Translating the rights language of the message into its political correlate, indigenous peoples are in fact claiming territoriality, an attribute normally associated with sovereign statehood or independence to which, paradoxically, only a few aspire. (7)

The right of a people to preserve their distinctive culture, while not yet formalized as a treaty right, is arguably an emerging tenet of customary international law as the 1981 United Nations Educational, Scientific, and Cultural Organization (UNESCO) Declaration of San Jose suggests:

Ethnocide means that an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, whether collectively or individually. This involves an extreme form of massive violation of human rights and, in particular, the right of ethnic groups to respect for their cultural identity.... We declare that ethnocide, that is cultural genocide, is a violation of international law equivalent to genocide ... (8) Either way, indigenous representatives in international fora emphasize that territoriality is the sine qua non condition of their physical as well as cultural survival. For this reason, they insist that their rights to self-determination, and to control over territories and resources they traditionally occupied or used, be memorialized in instruments of international law. This paper assesses the response of the international law-malting community to that message. It reviews a number of relevant developments in international fora; explains the key legal issues being contested in light of the paradigmatic dimensions of international law that they implicate; and ends with a call for states and the broader international community to embrace and elaborate a territorial prerogative for indigenous peoples.

DEVELOPMENTS IN INTERNATIONAL FORA (9)

The first recorded intervention by an indigenous advocate in an international forum occurred in 1922 when Chief Deskaheh, a leader of the Six Nations Iroquois Confederacy, petitioned the League of Nations in Geneva to prevent Canada from taking over Irnquois lands. Deskaheh's mission failed, but not before the sympathetic Dutch, Panamanian, Estonian, and Persian delegates of the day administered sound rebukes to the United Kingdom and Canada for their treatment of the indigenous peoples under their rule. (10) When, two decades later, an Iroquois delegation again tried to address a world body, at the founding of the UN in San Francisco, the U.S. warded off the attempt by arguing that the UN could not receive submissions from private parties, only from states. (11) The next development of note in this area happened in 1957, when the International Labour Organization (ILO), on its own initiative and with little evident indigenous input, adopted the well-intentioned but markedly assimilationist Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (ILO Convention 107). Notwithstanding its limitation, ILO Convention 107 performed the valuable task of inscribing for the first time in international law the category of indigenous and tribal peoples, whom it correctly represented as deserving of special attention. (12)

Sustained indigenous participation in international bodies did not materialize until the 1970s, and then primarily in NGO fora. By 1982, however, the UN Commission on Human Rights, urged on by ever more activist NGO communities, as well as by the findings of its own Special Rapporteur Cobo, set up a Working Group on Indigenous Populations (WGIP) composed of five independent experts, albeit appointed by states, whom it entrusted with a dual mandate: to monitor developments affecting indigenous peoples, and to formulate standards to guide the behavior of states toward them. From its inception, the WGIP attracted an impressive number of indigenous participants, but remarkably few states, to its summer sessions in Geneva. As a result, when the WGIP experts in 1994 completed and unanimously recommended their standard-setting UN Draft Declaration on the Rights of Indigenous Peoples (DD) to the Sub-Commission on Prevention of Discrimination and Protection of Minorities (Sub-Commission), which in turn unanimously passed it on to the UNCHR, the text was found to have incorporated the main demands of indigenous representatives.

From the indigenous perspective, the DD's most prized provisions are those relating to self-determination and territoriality. Two articles, placed far apart, specifically mention self-determination: (13)

Article 3. 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. Article 31. Indigenous peoples, as a specific form of exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, including culture, religion, education, information, media, health, housing, employment, social welfare, economic activities, land and resources management, environment and entry by non-members, as well as...