The UN Declaration on the Rights of Indigenous People

Introduction

The rights of Minorities and indigenous peoples have received considerable attention from the International law and consequently from scholars and commentators writing on international law. As such, this topic provides good scope for a literature review. As there are many strands and themes involved in the literature pertaining to this issue, this literature review is thematically organised to allow for a review of secondary literature and primary sources that are of relevance to this issue.

In particular, the areas of significance are rights of self-determination, land rights, right of preservation of language and culture, and these rights have received a substantial amount of attention in the literature. The starting point however, is defining minorities and indigenous people, which is also an important theme in the literature. The literature review accordingly starts with the theme of defining minorities and indigenous people. Then the literature review

Kevin Alan David MacDonald, “Indigenous People and Developmental Goals: A Global Snapshot”, in in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)

The author says that defining indigenous people is one of the three elements that go to finding a global perspective on indigenous peoples’ development, the others being data availability and representability of the data. The author explains that defining indigeneity is essential for the purpose of empirical assessment of indigenous development because one needs to first understand whose development is being assessed. The author helps to clarify the regional conceptions of indigenous people in Africa, Asia, Latin America, Pacific and North America. The author has identified different indigenous people of these regions and also provided an overview of their social and economic conditions.

Jerome M Levi and Bjorn Maybury-Lewis, “Becoming Indigenous: Identity, Heterogeinity in a Global Movement”, in Gillette H. Hall, Harry Anthony Patrinos (Eds.), Indigenous Peoples, Poverty, and Development (Cambridge: Cambridge University Press 2012)

The authors provide an historical overview and background of the formation of international law interest in the identification and definition of indigeneity. The authors also discuss critically the indigenous rights movement and its culmination into the 2006 UN Declaration on the rights of indigenous people.

Emilia Papoutsi, “Minorities under International Law: How protected they are?”, (2014) 2(1) Journal of Social Welfare and Human Rights 305.

The author uses international law and scholarly work to reassess the definition of minorities. The author also shows how there are now differences drawn between old and new minorities. The new minorities are created due to the movement of migrants to newer nations, where they are in minority.

Siegfried Weissner, “Indigenous Self-determination, Culture and Land: A Reassessment in Light of the 2007 UN Declaration on the Rights of Indigenous People”, in Elvira Pulitano, Indigenous Rights in the Age of the UN Declaration (Cambridge: Cambridge University Press 2012)

The author is very critical of the colonial and post-colonial effects on the culture and land rights of the indigenous people. The author links these rights to the right of self-determination and argues that until the indigenous people have a control over their governance, they cannot take control of their land, of which they have been dispossessed over a period of time. Moreover, the author says that loss of land and the Western domination has led to the gradual extinction of indigenous languages, culture and way of life. The author reassesses these rights of the indigenous people in the light of the 2006 UN Declaration.

David Kennedy, “Challenging Expert Rule: The Politics of Global Governance” (2007) 27 Sydney Journal of International Law 5-28, 17.

The author challenges the traditional notions of development in context of indigenous people. The traditional or rather Western notions of development are concentrated on globalisation of Western ideas and institutions. This is not necessary to the advantage of the indigenous communities of the world who may see such globalisation as a threat to their culture and languages, which may not survive in the face of Western domination.

Patrick Macklem, “Minority Rights in International Law”, (2008) 6 (3-4) Int J Constitutional Law 531.

The author takes a different approach to minority rights protection justification and offers an alternative account of why minority rights possess international significance. The author does not use religion, culture, and language justifications to show why international law protects minority rights and rather uses notions of international distributive justice to justify such protection. The author asks the central question: “Why should international human rights law vest members of a minority community—either individually or collectively—with rights securing a measure of autonomy from the state in which they live?” While the author does not directly answer this question, he does use substantial amount of literature, case law and UN measures to show that minorities represent a unique group of ‘individuals’ in international law, as there is a tenuous relationship between minority rights and human rights, as the latter have universal value and minority rights are at times more specific to certain individuals or groups of people. That is the reason why most international conventions are ambivalent on the issue of minority rights.

Dieter Kugelman, “The Protection of Minorities and Indigenous Peoples Respecting Cultural Diversity”, in A. von Bogdandy and R. Wolfrum, (eds.),Max Planck Yearbook of United Nations Law, Volume 11,. 233-263 (The Netherlands:Koninklijke Brill N.V. 2007)

This is a very extensive work involving the rights of minorities and indigenous people from the perspective of international law. There is more focus on the rights of minorities in this work. The author discusses the gaps in defining minorities in international law. The author also clarifies the differences between minorities and indigenous peoples as the latter may even be a majority in a given state. Special regard is given to the UN measures for the protection of rights of minorities.

UN Declaration on Right of Indigenous People, 2006

This is the most significant international law response to indigenous people signed on 13th September 2007 by the UN General Assembly. The UNDRIP was adopted by an overwhelming majority of the General Assembly with 144 members voting in favour of the UNDRIP and only 4 members voting against it. It is noteworthy that the declaration was a result of over a decade of work done towards international consensus on the rights of indigenous people. The Declaration concerns the safeguarding of certain rights of indigenous people, such as the right against genocide, exploitation and forced assimilation, the right against calculated dispossession of the resources and involuntary removal from their lands as well as the right to safeguard their language, culture and religion.

The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, proclaimed by the General Assembly in 1992

The Declaration provides that minorities possess rights to enjoy their own culture, to practice their own religion, and to use their own language; to participate in cultural, religious, social, economic, and public life; to participate in decisions on the national and, where appropriate, regional level; and to associate with other members of their group and with persons belonging to other minorities.

UN General Assembly Resolutions for indigenous people

UN Declaration on the Right to Development 1986 is relevant to indigenous and minority people and their rights. General Assembly Resolution on Rights of Indigenous peoples on 23 December 2015, underlines the need to intensify for the elimination of violence against indigenous peoples.

World Conference on Indigenous Peoples, held in New York (22 and 23 September 2014)

The outcome document of the high-level plenary meeting of the General Assembly was the result of the outcome document and this reiterated the important and continuing role of the United Nations in promoting and protecting the rights of indigenous peoples

The Framework Convention for the Protection of National Minorities of the Council of Europe

This is an extensive Convention under the aegis of the European Union and many of the substantive rights of minorities are provided under this Convention. The Convention makes it a duty for state parties to protect those who are minorities in their states.

Conclusion

The international law measures are involved in protecting the rights of minorities as well as indigenous persons. These measures define minorities and indigenous persons as well as provide the substantive rights of minorities and indigenous persons.

The secondary literature contains descriptive as well as critical analysis of the rights of minorities and indigenous persons. There are many themes that are seen in the literature, some of which have been covered under the literature review. Predominantly, the rights of self-determination, land and culture are extensively dealt with. This implies that these are some of the most important concerns with respect to minority and indigenous peoples rights.

This essay examines the issues raised by Shepherd’s acts of genocide and use of force against the Orange people and Hound’s use of force against Shepherd. The essay analyses the jurisdiction of the ICJ over the dispute between Shepherd, Orangeland and Hound. The essay also examines the powers of the UNSC and to what extent the UNSC can exercise its powers in the given situation.

The first section of this essay briefly explains the general concepts of international law that are involved in the problem. The next section discusses the jurisdiction of the ICJ and whether the ICJ can admit the cases against Shepherd. The section following that discusses UNSC powers, particularly under Chapter VII of the UN Charter, and evaluates the extent to which these powers can be exercised by the UNSC in the given situation.

This essay argues that the ICJ cannot exercise its jurisdiction over Shepherd unless Shepherd consents to such jurisdiction. However, the UNSC can definitely take coercive measures under Chapter VII of the UN Charter under collective security provisions.

2. International Law Concepts Involved in the Situation

Some of the central concepts of international law that are involved in this case are discussed briefly in this section.

(A) Self-determination

Self-determination has become relevant in the wake of freedom movements and anti- colonialism, particularly after the Second World War. It is not only seen as a principle, but also as an important collective or third generation right. Brownlie writes that self- determination has been understood as the right of peoples under colonial, foreign, or alien domination to self-government, whether through formation of a new state, association in a federal state or autonomy or assimilation in a unitary or non-federal state. 2 In the late 20th century, most of the states in the world that had hitherto been under colonial occupation, had now become independent. Due to this the continued application of the right to self determination has been doubtful and subject to much debate.

(B) Prohibition of Use of Force

TThe UN Charter prohibits use of force, 3 save for self defence and actions taken under UNSC authorisation for collective security. However, in recent times, certain actions have been justified by states or international organisations or commentators on humanitarian grounds.

(C) Principle of Non-intervention

The principle of non-intervention is provided in the UN Charter to ensure that no state shall intervene in the matters if any other state. 5 The scholarship and international law on the issue of intervention on humanitarian grounds however, is as yet not clearly definitive.

(D) Genocide

The Convention on the Prevention and Punishment of the Crime of Genocide 1948 (Genocide Convention), article II defines the crime of genocide to include killing, causing serious bodily or mental injury, inflicting conditions of life calculated to bring about physical destruction, or force measures to prevent births with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. 6 In this case, Orange people are a ethnic minority in Shepherd. Therefore, the Convention can be applied to the situation.

(E) State Recognition and Admission into the UN

A new state or a territory that has declared itself a state needs admittance into the UNGA tas per the provisions of the UN Charter. The final call on this matter is of the Security Council and the General Assembly. 7 In this case, Orangeland has not been admitted into the UN and it has received recognition only from Hound.

3. Jurisdiction of the International Court of Justice

The International Court of Justice (ICJ) is the principal judicial organ of the UN. 8 All the state parties to the UN Charter are ipso facto parties to the Statute of the Permanent Court of International Justice (ICJ Statute). 9 The ICJ judgements are binding upon the states who are the parties to the decision. 10 In case a state does not comply with the decision, the UNSC is empowered to take necessary and appropriate steps to enforce the judgement.

Despite the laudatory provisions with respect to the ICJ in the UN Charter, the ICJ’s jurisdiction is actually restricted and limited. In the Armed Activities on the Territory of the Congo, the ICJ stated:

one of the fundamental principles of [the Statute of the Court] is that it cannot decide a dispute between States without the consent of those States to its jurisdiction; and . . . the Court therefore has jurisdiction only between States parties to a dispute who not only have access to the Court but also have accepted the jurisdiction of the Court, either in general form or for the individual dispute concerned.

The ICJ has two kinds of jurisdiction- contentious and advisory. Contentious jurisdiction is confined to state parties and the decision given here are final and binding. 13 Advisory jurisdiction of the court involves the court giving an opinion at the request of any body that is authorised to seek such opinion.

As mentioned above, the jurisdiction of the ICJ is limited and restricted. In the first place, the contentious jurisdiction of the court can only be exercised where both the parties to the disputes have accepted such contentious jurisdiction of the court. Such acceptance can be given under the optional clause.

States may even accept the jurisdiction of the ICJ in bilateral treaties as between themselves, where they agree to submit disputes arising out of the treaty to the ICJ. 16 Or states may give their consent after the dispute has arisen between them to admit the dispute to the ICJ jurisdiction. This is also called a compromis.

To summarise, the two principal bases of ICJ’s compulsory jurisdiction are: (a) treaties in which jurisdiction over disputes between the parties is provided to the Court (ICJ Statute, Art. 36(1)); and (b) the ‘optional clause’ whereby states ‘may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation, the jurisdiction of the Court ....’ (ICJ Statute, Art. 36(2)).

Where consent has been given in a prior treaty, whether bilateral or multilateral, which is still in force when Court proceedings are commenced and which is applicable to the dispute in question, the Court has jurisdiction even if the respondent State is opposed to the Court hearing the case. The requirement of consent is satisfied by the prior agreement which cannot be overridden by subsequent opposition. 19 Thus in Questions of Interpretation of 1971 Montreal Convention arising from Aerial Incident at Lockerbie (Libyan Arab Jamahiriyah v. U.K.), 20 and Questions of Interpretation of 1971 Montreal Convention arising from Aerial Incident at Lockerbie (Libyan Arab Jamahiriyah v. U.S.A.), 21 .the court shot down objections to its jurisdiction as it had already been accepted by the parties prior to the arising of the dispute.

Alexandrov summarises the way in which ICJ’s jurisdiction can be exercised over a state in two essential steps. First step is membership of the Statute of the Court. The second step is an independent act of consent or acceptance of the Court’s jurisdiction. In Ambatielos Case 22 the ICJ observed that “in the absence of a clear agreement between the Parties, . . . the Court has no jurisdiction to go into . . . the merits’’

In the present situation, both Orangeland and Hound seek to bring proceedings against Shepherd for the various allegations of violations of international law (genocide, international humanitarian law, human rights of the Orange people). Hound and Shepherd are parties to the ICJ Statute. Orangeland is a part of Shepherd and has unilaterally declared itself independent. But that by itself will not give it membership of the UN and ICJ. A new state’s membership of the UN and consequently ICJ depends upon the admission of the state into the UN as per the UN Charter. In this case, that has not happened, therefore Orangeland not being a state cannot be a party to a contentious case before the ICJ.

ICJ can only admit the case by Hound against Shepherd, if Shepherd consents to the admissibility of this dispute to the ICJ. Merely by being parties to the ICJ Statute, the compulsory jurisdiction of the ICJ cannot be invoked by Hound against Shepherd. As we have established in this section, irrespective of the violations of international law, ICJ’s jurisdiction in contentious cases can only be allowed if both the state parties to the dispute consent to it. Such consent may have been given under article 36 (1) or (2). That is not clear at this point. Even now that the dispute has arisen, ICJ’s jurisdiction may be consented to by Shepherd. Unless that happens, ICJ cannot admit the cases against Shepherd.

One point is pertinent here. As per Article IX of the Genocide Convention, all disputes including those related to state responsibility for genocide are to be submitted to the ICJ. Moreover, even where the states may have made reservations to Article IX but have accepted the general jurisdiction of the ICJ under the optional clause, the ICJ may hear the case against such a state. 24 In the present case, Shepherd has made a reservation to Article IX but has not accepted the general jurisdiction of the ICJ under optional clause.

4. Security Council - Powers under Chapter VI and VII of the UN Charter

The UN Charter, art. 24(1) gives the primary responsibility for the maintenance of international peace and security to the UNSC. Under Chapter VII of the UN Charter, UNSC can take certain measures involving use of military force against states who have breached peace or threatened to breach peace. These are collective security functions of the UNSC. Adam Roberts and Dominick Zaum define collective security as a system in which each state “accepts that the security of one is the concern of all, and agrees to join in a collective response to threats to, and breaches of, the peace.” 25 The UNSC is the bedrock of collective security in the UN and to that end the UNSC has been given special and additional powers that are not given to any other organ of the UN.

Whether an acts constitutes a threat to peace is a question for factual and political judgement, and not just a legal one. 26 The UNSC can consider and determine whether an act of the state amounts to a threat to peace or a breach of peace under UN Charter, art.39. The UNSC has in certain situations made declarations under art.39. Thus, intrastate violence (Balkan War before Yugoslavia’s fragmentation), 27 violation of human rights or international humanitarian law 28 and acts of terrorism, 29 have been held to be threats or breaches of peace by the UNSC under art.39. 30 The Argentine invasion of Falklands was declared to be a breach of peace by the UNSC and the Iraqi invasion of Kuwait was also similarly declared to be a breach of peace.

An important consideration at this time is whether a state has committed an act of aggression against the other state. The UNGA Resolution 3314 in 1974 is relevant here because it defines aggression. It provides that aggression is:

the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state or in any manner inconsistent with the Charter of the United Nations, as set out in this definition. the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a state, of an act of aggression, which by its character, gravity and scale, constitutes a manifest violation of the Charter.

There is an important distinction between the two definitions. The UNGA definition is addressed to state, while the ICC definition is addressed to a ‘person in position’, therefore refers to the political leaders of a state or even military generals who may be in an effective power position. As far as the UNSC is concerned, once it determines that there is a threat to peace or breach of peace under article 39, it may then decide upon the measures that it will take to correct the situation. These measures may be those that do not involve use of force (article 41) or measures that involve the use of force (article 42). Measures under article 41 are usually in the nature of economic sanctions. Measures under article 42 involve use of force. Since 1991, the measures involving use of force have been used repeatedly by the UNSC. An example of the same is Operation Desert Storm, 33 that was the name given to the military action taken under UNSC to repel the Iraqi forces from Kuwait in 1990. In actuality these actions of the UNSC have been carried out by member states who have been authorised by the UNSC through its resolutions under the UN Charter, Chapter VII provisions. This is a model of ‘delegated enforcement action’, and although it is not specifically mentioned in the UN Charter, the UNSC has authorised military action against an ‘aggressor’ state by other able and willing states. 34 The UN Charter, article 43 provides:

All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

As per this provision, the UNSC is to ask member states to make their armed forces available to the UNSC for collective security purpose. However, no such agreements as envisaged by article 43 have ever been concluded. 36 It is clear that the UNSC has the necessary powers to deal with the present situation in Shepherd, Orangeland and Hound. However, whether the UNSC will actually take the measures or not will depend on the declaration of the UNSC under article 39 that there is a threat or breach of peace. As this decision requires the concurring votes of each of the five permanent members, a veto by any one of the members can stop the resolution for being passed. It is also a fact that the UNSC members are motivated by realism and world politics, due to which collective security has also been called at times ‘selective security’. 37 These criticisms of the UNSC notwithstanding, the UNSC is capable of making a declaration against both Shepherd and Orangeland under article 39 and take appropriate economic or military measures against them.

Conclusion

In the present situation, the ICJ’s jurisdiction over Shepherd, despite the genuine allegations of human rights violations or the violation of international humanitarian law, is limited. Shepherd must consent to the ICJ jurisdiction before the case can be admitted against it. However, the UNSC will be well within its powers and functions if it declared Shepherd’s actions as breach of peace and subsequently takes coercive or military action under collective security provisions of article.

Bibliography