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Law journal exploring Indigenous peoples rights


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The UN Declaration on the Rights of Indigenous Peoples of 13 September 2007 revisits the notion of ‘self-determination’ which has been the subject of great debate in international law over several decades and which still presents a quandary to international lawyers. As the representatives of indigenous peoples mentioned in a letter to the Working Group on Indigenous Populations in 1993, ‘the right of self-determination is the heart and soul of the declaration’. Was the insertion of the right to self-determination in the Declaration intended to be understood in a broader sense as granting the right to indigenous peoples who fulfil certain conditions in the Declaration, to secede? In other words, is the right to ‘self-determination’, as contained in the Declaration, akin to a right to secession or is it akin to the right to ‘self-determination’ as contained in the United Nations Charter and in common article 1 of the two international Covenants? The notion of self-determination brings with it several issues for resolution. One such issue is the precise nature of self-determination in international law: Is it determinate or does it evolve over time? Can it be used for purposes of secession where the sovereign state does not guarantee such rights to indigenous people; or can it be used as justification for the secession of indigenous peoples where their right of self-determination within the state has been violated? It is argued in this article that the notion of ‘self-determination’ as used in the Declaration must be distinguished from ‘self-determination’ as used in the other international instruments, as a mere declaration cannot modify a norm of international law contained in international conventions and covenants. Since the Declaration does not provide sanctions for non-compliance, the author further argues that, where states do not conform, the sanction may well be the same as that for self-determination in general, amounting to what is much feared by states: the possible dismemberment of a state entity along indigenous lines. To arrive at this, the author analyses the notion of ‘self-determination’, on the one hand, and the ensuing development into the notion of the right to ‘secession’, on the other, before concluding that indigenous peoples who do not enjoy their indigenous rights within the state under the scope of internal self-determination, may exercise their right to external self-determination, and in the course of exercising their right to external self-determination, they may make claims to their right of ‘secession’.

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