All peoples have the rights of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
The right of self-determination has also been recognized in other international and regional human rights instruments such as Part VII of the Helsinki Final Act 1975 and Article 20 of the African Charter of Human and Peoples` Rights as well as the Declaration on the Granting of Independence to Colonial Territories and Peoples.1 It has been endorsed by the International Court of Justice.2 Furthermore, the scope and content of the right of self- determination has been elaborated upon by the United Nations Human Rights Committee3 and Committee on the Elimination of Racial Discrimination4 as well as international jurists and human rights experts.5 Moreover, the United Nations system has undertaken a number of special studies on the right of self-determination, such as studies prepared by Hector Gros Espiell and Aureliu Cristescu.6
1UN General Assembly Resolution 1514 (XV) of 14 December 1960.
2See the Namibia case (1971) ICJ 16 and the Western Sahara case (1975) ICJ 12.
3General Comment No. 12 of the Human Rights Committee, made at its twenty-first session, 1984. UN document: HRI/GEN/1/Rev.3.
4UN document: CERD/C/49/CRP.2/Add.7 of 5 July 1996.
5For example see: Brownlie, Principles of Public International Law (4th ed. 1991) Oxford University Press, p. 513; Cassesse, International Law in a Divided World (1986) Oxford University Press, p. 136; Crawford (ed.), The Rights of Peoples (1988) Oxford University Press, p. 166; Hannum, Rethinking Self-Determination (1993) – Virginia Journal of International Law, Volume 34, Number 1, Fall 1993; and Sieghart, The International Law of Human Rights (1992) Clarendon Press, Oxford.
6Hector Gros Espiell (1980), Special Study on the Right to Self-Determination – Implementation of United Nations Resolutions, (E/CN.4/Sub.2/405/Rev.1)United Nations Publication, New York; and Aureliu Cristescu (1981), Special Study on the Right to Self- Determination – Historical and Current Development on the Basis of United Nations Instruments, (E/CN.4/Sub.2/404/Rev.1), United Nations Publication, New York.
The principle of “all peoples right of self-determination” offer two difficult challenges: (1) the identification of the group of “people” and (2) the identification of what “the people” can “determine by itself.”
The term “people”
The term “peoples” is not defined in international law. The lack of consensus is due not to intellectual failure to define the term but reflects the fact that the meaning of the term is closely linked to sensitive political and legal factors, in particular the fundamental question pertaining to the right of self-determination.
However, peoples are often described as a group of individual human beings who enjoy some or all of the following common features: (1) a common historical tradition; (2) ethnic identity; (3) cultural homogeneity; (4) linguistic unity; (5) religious or ideological affinity; (5) territorial connection; and (6) common economic life. Moreover, it should also be said that there must be will or consciousness to be a people, and institutions to express the identity of the people.
The concept of “indigenous peoples”
There is no international agreement on the definition of indigenous peoples. In the draft United Nations declaration on the rights of indigenous peoples, the term “indigenous peoples” is used, although some governments oppose the usage of the term “peoples” in the indigenous context.1 Most countries currently seeking to address indigenous issues tend to view definition within the context of its national constitutional and historical framework rather than as an issue of universal character. The international discourse related to the concept of “indigenous peoples” has been addressing the two main questions: (1) who should be identified as “indigenous”, and (2) the terminology of the terms “people”, “peoples” and “populations.”
Although, there is no general agreement on the definition, or the need for a definition of indigenous peoples at the international level, there have been several attempts to define or describe indigenous peoples.
The Special Rapporteur of the Sub-Commission, José Martinez Cobo, formulated a “working definition” in his Study of the Problem of Discrimination against Indigenous Populations, which states that:
1The draft United Nations Declaration on the Rights of Indigenous Peoples, as agreed upon by the members of the Working Group on Indigenous Populations at its eleventh session in 1994, is contained in United Nations document: E/CN.4/Sub.2/1994/2/Add.1 of 20 April 1994.
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.”1
1 José Martínez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, E/CN.4/Sub.2/1986/7/Add.4, para 379.
Moreover, the Special Rapporteur outlined a list of factors which may be relevant for defining indigenous peoples and identifying their historical continuity. He expresses the view that such a historical continuity may consist of the continuation, for an extended period reaching into the present, of one or more of the following factors: (1) Occupation of ancestral lands, or at least of part of them; (2) Common ancestry with the original occupants of these lands; (3) Culture in general, or in specific manifestations, (4) Language; (5) Residence in certain parts of the country, or in certain regions of the world.