Indigenous peoples' courts: egalitarian juridical pluralism, self-determination, and the United Nations declaration on the rights of indigenous peoples.

Author:Fromherz, Christopher J.

INTRODUCTION I. INTERNATIONAL LAW, SELF-DETERMINATION, AND MINORITY RIGHTS A. Overview of International Human Rights B. Self-Determination and Minority Rights in International Law 1. The Roots of Self-Determination and Minority Rights 2. The Modern Standard: External and Internal Self-Determination II. INTERPRETING INDIGENOUS PEOPLES' RIGHTS UNDER THE DRIP A. The Fall and Rise of Indigenous Peoples' Rights Under International Law B. A Method for Interpreting the Rights Conferred Under the DRIP 1. A Trinity of Rights 2. Fleshing Out Article 3 III. EGALITARIAN JURIDICAL PLURALISM: A TEST CASE A. Egalitarian Juridical Pluralism in Context B. Is Egalitarian Juridical Pluralism an "Appropriate" Exercise of Article 34? C. Indigenous Courts, Egalitarian Juridical Pluralism, and the Objections Registered by the Opposing States CONCLUSION INTRODUCTION

On September 13, 2007, the United Nations General Assembly (GA) overwhelmingly adopted the United Nations Declaration on the Rights of Indigenous Peoples (DRIP), which recognized, inter alia, the rights of such peoples to "self-determination," "autonomy or self-government," and the development or maintenance of "juridical systems or customs, in accordance with international human rights standards." (1) The Declaration is arguably the single most important development in the history of international law relating to indigenous peoples. (2) On the date of its passage in the GA, a statement issued by the office of Ban Ki-moon, Secretary-General of the UN, called it "a triumph for indigenous peoples around the world" and noted that it "mark[ed] a historic moment when UN Member States and indigenous peoples ... reconciled with their painful histories and ... resolved to move forward together on the path of human rights, justice and development for all." (3)

Like the 1948 Universal Declaration of Human Rights (UDHR) (4) and other GA declarations addressing specific human rights concerns, (5) the DRIP is generally considered an aspirational document that broadly declares a set of rights and morally obligates all declaring states to implement and enforce those rights. (6) And, like past human rights declarations, the DRIP lays a foundation for the creation of future binding international law, expressed primarily through multilateral treaties based on the DRIP's principles and secondarily through the development of customary international law. (7) That said, the DRIP is not, in and of itself, legally binding on states, and violations of the rights declared therein are not necessarily judicially enforceable against states in international courts. (8)

Because of the DRIP's presumptively nonbinding character, its enforcement is largely, if not exclusively, dependent on its voluntary acceptance and implementation by UN member states. In this sense, the overwhelming international support for the DRIP--by 143 states (9)--suggests that it may be used, in the words of Mr. Ban, "to urgently advance the work of integrating the rights of indigenous peoples into international human rights and development agendas ... so as to ensure that the vision behind the Declaration becomes a reality." (10)

Unlike some other UN human rights declarations--but, ironically, not unlike the watershed UDHR--the DRIP did not enjoy universal support. (11) Four states voted against it: Australia, Canada, New Zealand, and the United States. (12) While Canada's long-standing support for the DRIP only waned after the rise of a new government in 2006, (13) the opposition of Australia, New Zealand, and the United States to the approved text has been more consistent. (14) In addition, Canada's stated reasons for opposing the DRIP appear to be somewhat distinct from those expressed by the latter three. (15) Noting "significant concerns with respect to the wording of the [adopted] text," Canada's Ambassador to the UN, John McNee, focused on three specific areas when speaking to the GA on September 13, 2007: "the provisions on lands, territories and resources;" the provisions on "free, prior and informed consent when used as a veto;" and "dissatisfaction with the process." (16)

By contrast, in a joint statement made on October 16, 2006, after the adoption of the draft DRIP by the Human Rights Council, Australia, New Zealand, and the United States focused on a more fundamental concern with the DRIP: self-determination. (17) These states called the draft DRIP text "confusing, unworkable, contradictory and deeply flawed" and asserted that the right of self-determination, declared in Article 3, "could be misrepresented as conferring a unilateral right of self-determination and possible secession upon a specific subset of the national populace, thus threatening the political unity, territorial integrity and the stability of existing UN Member States." (18) Other concerns raised in the joint statement seem to stem from this central worry that unilateral self-determination could lead to secession. (19)

The final version of the DRIP adopted by the GA contains a provision, Article 46(1), that specifically forecloses the possibility of such a broad misrepresentation of the conferred self-determination right: "Nothing in this Declaration may be ... construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States." (20) Given Article 46(1) and the general disfavor with which international law views the recognition of newly formed states, any worry about the DRIP being used in an even marginally effective way to invoke "secession" rights seems extreme at best. However, other rights implied by self-determination--those short of secession and not otherwise threatening the territorial integrity or political unity of states--are arguably still unilaterally conferred on indigenous peoples.

Perhaps due to the inclusion of Article 46(1) in the final version of the DRIP, New Zealand did not invoke self-determination concerns in explaining its continued opposition to the Declaration on September 13. Rather, it stated that it "fully support[ed] the principles and aspirations" of the DRIP; noting the incompatibility of four specific provisions in the text with its constitution and laws, it also justified its "no" vote based on its view that the DRIP is more than an aspirational document and has, in itself, binding "legal effect" (21) (a view contrary to that of most states, including the United States). As such, it seemed to believe that it would be legally bound under international law to guarantee rights (e.g., land rights and informed consent rights) that it found incompatible with its domestic law. (22)

Unlike New Zealand, and despite the addition of Article 46(1), Australia and the United States continued, in explaining their votes against the DRIP, to invoke opposition to the Article 3 self-determination right. Noting that it has "long expressed its dissatisfaction with the references to self-determination in the declaration," Australia proceeded to define self-determination as limited to two scenarios, both of which it believed were inapposite to indigenous peoples: "decolonization and the break-up of States into smaller States with clearly defined population groups"; and situations "where a particular group within a defined territory is disenfranchised and is denied political or civil rights." (23) Australia further asserted that self-determination is "not a right that attaches to an undefined subgroup of a population seeking to obtain political independence." (24) Seemingly ignoring the presence and function of Article 46(1), though mimicking its language, Australia concluded its discussion of self-determination by stating that it "does not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government." (25)

For its part, the United States' analysis of Article 3 self-determination in opposing the DRIP was more subtle, though apparently just as central to its thinking. In continuing to call the DRIP "confusing" and "flawed," the United States noted that the right to self-determination is addressed in Common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) (26) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), (27) where it is "understood by some to include the right to full independence under certain circumstances." (28)

While acknowledging earlier in its explanation that "[u]nder [its] domestic law, the United States government recognizes Indian tribes as political entities with inherent powers of self-government as first peoples" and that the "federal government has a government-to-government relationship with Indian tribes," (29) the United States asserted that "[u]nder existing Common Article 1 legal obligations, indigenous peoples generally are not entitled to independence nor any right of self-government within the nation-state." (30)

The United States declared that the mandate of the Working Group on the DRIP, which had been created by the Economic and Social Council (ECOSOC) in accordance with a GA resolution, (31) was not "to qualify, limit, or expand" the Common Article 1 obligations legally binding on states with regard to self-determination rights, but rather "to articulate a new concept, i.e., self-government within the nation-state." (32) Noting that this "self-government" concept is "not the same concept as the right contained in [C]ommon Article 1," the United States concluded that it was "wholly inappropriate ... [to] reproduc[e] [C]ommon Article 1 in Article 3 of the text with no intention that Article 3 mean the same thing as [C]ommon Article 1, nor that it be considered to explain or modify the scope of existing [C]ommon Article 1 legal obligations." (33) Because the United States...

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