Self-Determination and Indigenous Peoples in International Law

Abstract

In an era of pragmatism, dominated by institutions in international law, scholars have so far failed to move away from longstanding elitist attitudes and practices regarding the politics of power inherent in international relations and in international law. To no surprise, questions of universality and particularity keep recurring with little hope of resolution. This is especially evident in the arena of international human rights law, where human rights discourse claims universality while remaining deeply embedded in the colonial sources of the international legal order. At the same time, such rights discourses offer promises of liberation by mobilizing marginalized peoples everywhere. By focusing on indigenous1 rights in international law, this investigation seeks to engage with a larger contemporary inquiry into the universalist aspirations of the public international legal order and the continued debate over the possibility of globally accepted human rights. As a result of a state-centred international legal order, the unresolved status of indigenous claims unfolds in the context of a global struggle over universal human rights, where indigenous rights do not seem to be easily recognizable in either the national or international arena. This analysis will examine the struggle over the recognition of indigenous peoples as subjects under public international law and their right to self determination as expressed in Articles 1 and 55 of the UN Charter, as well as in common Article 1 of the International Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural Rights (CESCR). Three guiding questions will orient the analysis. First, Part II will address whether the established human rights discourse can serve as a strategic tool for indigenous peoples, or whether it works to delegitimize indigenous discourses and world views. Second, Part III examines the difference, if any, between the present situation of indigenous peoples in international law from that of previous historical periods. And finally, Part IV asks whether a contradiction exists between the right to self-determination as a liberating, legal instrument, and the current politics of national reconciliation that purport to bring peace and security.