Sovereignty in the Exercise of the Right to Self-Determination [1 ed.] 9789004328709, 9789004316058

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Sovereignty in the Exercise of the Right to Self-Determination

Queen Mary Studies in International Law Edited by Malgosia Fitzmaurice Phoebe Okowa Sarah Singer

volume 27

The titles published in this series are listed at brill.com/qmil

Sovereignty in the Exercise of the Right to Self-Determination By

Jane A. Hofbauer

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Hofbauer, Jane, author. Title: Sovereignty in the exercise of the right to self-determination / by Jane A. Hofbauer. Description: Leiden ; Boston : Brill, 2016. | Series: Queen Mary studies in international law, issn 1877-4822 ; volume 27 | Includes bibliographical references and index. Identifiers: lccn 2016033571 (print) | lccn 2016033715 (ebook) | isbn 9789004316058 (hardback : alk. paper) | isbn 9789004328709 (e-book) Subjects: lcsh: Self-determination, National. | Sovereignty. Classification: lcc kz1269 .h64 2016 (print) | lcc kz1269 (ebook) | ddc 341.26--dc23 lc record available at https://lccn.loc.gov/2016033571.

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1877-4822 isbn 978-90-04-31605-8 (hardback) isbn 978-90-04-32870-9 (e-book) Copyright 2016 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Lucida sidera

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Contents Acknowledgments xi List of Abbreviations xii 1 Sovereignty and the Right to Self-Determination through an Evolutionary Lense: An Introduction 1 1.1 Developing International Law 4 1.2 Using Interpretation for the Development of International Law 6 1.3 The Use of Legal Concepts with Uncertain Meaning 14 1.4 Sovereignty and the Principle of Self-Determination 15 1.5 Structure of the Book 17 2 Defining Peoples 19 2.1 Why the Need for a Definition? 20 2.2 Peoples as Civitas 25 2.3 Peoples as National, Ethnic-Cultural Entities 26 2.4  Peoples as Evolving Subjects of the Principle of Self-Determination? 26 2.5 Qualifying as Subjects of Peoples’ Rights 31 2.5.1 Defining Peoples as Subjects of the African Charter’s Collective Rights 32 2.5.2 Indigenous Peoples as Peoples 36 2.6 Peoples as Distinct from Other Categories 57 2.7 The Rights Applicable to Peoples 58 2.8 Outlook 60 3 The Right to Self-Determination 62 3.1 Early Historical Development of the Principle of Self-Determination 63 3.2 Normative Confirmation of the Principle of Self-Determination 64 3.3 Defining the Core of Self-Determination 68 3.3.1 Preliminary Assessment of the Contents of Self-Determination 68 3.3.2 The Political Dimensions – External and Internal Self-Determination 69 3.3.3 Economic, Social and Cultural Self-Determination 78 3.4 Self-Determination – A Right of All Peoples? 81

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4 The Full Independence of Peoples 84 4.1 The Sovereign Territorial State – A Final Concept Governing International Law? 85 4.1.1 Setting Out the Rules 89 4.1.2 Interplay between the Principles 91 4.1.3 The Principles of Sovereign Equality of States, Self-Determination and Statehood 91 4.2 Defining Statehood 94 4.2.1 Doctrine 94 4.2.2 Traditional Criteria of Statehood as Reflected in Practice 98 4.2.3 Further Criteria as Reflected in Practice – Effectiveness versus Legality 104 4.2.4 ‘Ad hoc’ Criteria Deduced from the Nature of International Law 116 4.2.5 Conclusions on the Criteria of Statehood 120 4.3 Achieving Full Independence – The Right to Secession 121 4.3.1 Secession as a Primary Right 124 4.3.2 Secession as a Remedial Right 125 4.3.3 The International Court of Justice and Its Silence 132 4.3.4 Indigenous Peoples as Addressees of the Right to SelfDetermination – Can Indigenous Peoples Enjoy the Right to Secede? 137 4.4 Conclusions – Reflective Requirement of Peoples within the Criteria of Statehood 145 5 The De Facto Independence of Peoples 148 5.1 Autonomy and Self-Government – Identifying Benchmark Criteria 150 5.1.1 Core Elements 151 5.1.2 A Right to Autonomy? International and Domestic Perspectives and Claims 155 5.2 Subjects Entitled to Autonomy 159 5.2.1 Autonomy as a Means to Protect the Rights of Minorities – Blurred Lines 159 5.2.2 Autonomy as a Means to Protect the Rights of Peoples in Their Exercise of Self-Determination – Necessary Content 163 5.2.3 Autonomy as a Means to Protect the Rights of Indigenous Peoples – A Right to Negotiate for Survival 166

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5.3 Transcending Categories: Greenland 172 5.3.1 Exercising Self-Determination in the Traditional Sense – O Independence, Where Art Thou? 172 5.3.2 Legal Entitlements 185 5.4 Conclusions 192 6 The Spatial Independence of Peoples 195 6.1 The Principle of Permanent Sovereignty over Natural Resources – Origins and Evolution 199 6.1.1 Initiative Sparks – United Nations General Assembly Resolution 1803 (xvii) 199 6.1.2 Responding to a Changing World Order 203 6.2 Rights and Duties of Permanent Sovereignty over Natural Resources – Revisited from a Current Perspective 209 6.2.1 The Sovereign Right to Freely Dispose, Use and Exploit Natural Resources and the Freedom to Choose One’s Own Economic, Environmental and Developmental Policies – Reasoning Principles and Extent 209 6.2.2 The Duties of Permanent Sovereignty over Natural Resources 213 6.2.3 The Duty of a State to Exercise Permanent Sovereignty over Natural Resources in the Interest of National Development and the Well-Being of the People 214 6.2.4 The Duty to Respect Others 216 6.3 Defining the Scope – Objects and Subjects of the Principle 223 6.4 Permanent Sovereignty over Natural Resources as a Spatial Tool for Independence of Peoples/Indigenous Peoples? 227 6.4.1 Indigenous Peoples – Inherent Obligations within Permanent Sovereignty over Natural Resources 230 6.4.2 Indigenous Peoples as Right-Bearers – Locating ‘Sovereignty’ in Permanent Sovereignty over Natural Resources 233 6.4.3 Normative Framework of Indigenous Permanent Sovereignty over Natural Resources 239 6.5 The Right to Free, Prior and Informed Consent (fpic) 244 6.5.1 The Historical Development of the Right to fpic 244 6.5.2 fpic as an Indigenous Right 246 6.5.3 Free, Prior and Informed Consent – Determining Content 254 6.6 Free, Prior and Informed Consent (fpic) in Jurisprudence 257 6.6.1 United Nations Human Rights Treaty Bodies 257

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6.6.2 The Inter-American System 259 6.6.3 Other Regional Human Rights Bodies 272 6.6.4 Selected National Decisions and Practice 276 6.7 Conclusions 280 7 Concluding Remarks and Outlook 283 Annex 291 Table of Treaties, Conventions, Legislation, Resolutions, and Rules 305 Table of Cases 323 Bibliography 330 Index 360

Acknowledgments The story of this research project begins many years ago, and the writing has taken me across continents, from Reykjavik to Florence, Greenland to Kenya, Amsterdam to Vienna. Throughout this time, a number of wonderful colleagues, family and friends have continuously been supportive of my research and thinking process, listened to my thoughts and given me the confidence and strength to make this book see the light of day. I would like to therefore extend my thanks to everyone around me, but to a few in particular: First, I am especially grateful to my supervisors Professor Ursula Kriebaum and Professor René Kuppe, for supporting me during my doctoral studies and providing valuable feedback at various stages throughout the drafting process of my doctoral thesis, which constituted the basis for this book. I would also like to thank Professor Aðalheiður Jóhannsdóttir, who provided valuable advice particularly during the early stages of writing, and Professor Christina Binder and Professor Stephan Wittich, for continuously supporting my research and providing insightful guidance and comments on a number of aspects of the process. This also extends to Professor Malgosia Fitzmaurice, whose research and writings have not only been a valued source for my own research, but who has included this volume in the Queen Mary Studies in International Law series. Additionally, I am indebted to a number of friends and colleagues, some who have gone over parts and made instrumental comments, some who share my love for international law, and some who have provided invaluable support throughout the years, particularly Eva, Katharina, Philipp, Ralph, Andrea, Markus, Scarlett, Florian, Michael, Jose, Mary, Anna, Therese, Helene, Jakob, Berni, Julia, and John. Finally, I have to thank my family and friends for their enduring support, love and laughter, the discussions and conversations I led with them, the inspiration I received from them, and last but not least, for their distractions and craziness.

List of Abbreviations achr American Convention on Human Rights Art./Arts. Article/Articles AfCHPR African Commission on Human and Peoples’ Rights bit Bilateral Investment Treaty cbd Convention on Biological Diversity cerd Committee on the Elimination of Racial Discrimination cerds Charter of Economic Rights and Duties of States cescr Committee on Economic, Social and Cultural Rights Cf. confer csce Conference on Security and Cooperation in Europe dkk Danish Krone Doc. Document e.g. exempli gratia et al. et alia echr European Convention on Human Rights ecosoc Economic and Social Council ed./eds. editor/editors ECtHR European Court of Human Rights eec European Economic Community eu European Union fao Food and Agriculture Organization fpic Free, Prior and Informed Consent gaor General Assembly Official Records i.e. id est iccpr International Covenant on Civil and Political Rights icescr International Covenant on Economic, Social and Cultural Rights icj International Court of Justice ifc International Financial Corporation ilc International Law Commission ilm International Legal Materials ilo International Labour Organisation ilr International Law Reports Inter-Am.Ct.H.R. Inter-American Court of Human Rights nato North Atlantic Treaty Organization No. Number op Operational Policy osce Organization for Security and Cooperation in Europe p./pp. page/pages

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para./paras. paragraph/paragraphs pca Permanent Court of Arbitration pcij Permanent Court of International Justice pic Prior Informed Consent psnr Permanent Sovereignty over Natural Resources Res. Resolution Supp. Supplement un United Nations undrip United Nations Declaration on the Rights of Indigenous Peoples unep United Nations Environment Programme unesco United Nations Education Scientific and Cultural Organization unga United Nations General Assembly unmik United Nations Interim Administration Mission in Kosovo unpfii United Nations Permanent Forum on Indigenous Issues un-redd United Nations Programme on Reducing Emission from Deforestration and Forest Degradation unsc United Nations Security Council unts United Nations Treaty Series v. versus vclt Vienna Convention on the Law of Treaties vol. volume wgip United Nations Working Group on Indigenous Peoples

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Sovereignty and the Right to Self-Determination through an Evolutionary Lense: An Introduction The phrase is simply loaded with dynamite. It will raise hopes which can never be realized. It will, I fear, cost thousands of lives. In the end, it is bound to be discredited, to be called the dream of an idealist who failed to realize the danger until too late to check those who attempt to put the principle into force. What a calamity that the phrase was ever uttered! What misery it will cause! Think of the feelings of the author when he counts the dead who died because he uttered a phrase! Secretary of State, robert lansing1

∵ Normative uncertainty is ubiquitous in international law; major issues of international law even live from the state of uncertainty and propagate its ­maintenance. Law is a process,2 and one would be mistaken to consider it as static and detached from policy considerations. This becomes particularly clear when viewing international law as a legal system,3 in which uncertainty is inherent and owed inter alia to its constitutive elements. Hence, the absence of a centralized law-making organ and any clear-cut law-making methodology 1 R. Lansing, The Peace Negotiations, a Personal Narrative, 1921, pp. 97–98 (on President Woodrow Wilson’s 14 point document on self-determination presented to Congress in 1918). 2 See also R. Higgins, Problems and Process – International Law and How We Use It, 1994, p. 8: The choice is for a perception of international law as a process. […] [T]his entails harder work in identifying sources and applying norms, as nothing is mechanistic and context is always important. 3 J. Kammerhofer, Uncertainty in International Law – A Kelsenian Perspective, 2011, p. 2; W.M. Reisman, ‘On the Causes of Uncertainty and Volatility in International Law’, in The Shifting Allocation of Authority in International Law – Considering Sovereignty, Supremacy and Subsidiarity: Essays in Honours of Professor Ruth Lapidoth, T. Broude/Y. Shany eds., 2008, p. 33.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_002

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provide fertile ground for principles capable of responding to political changes and is reflective of the common interest of the international community.4 ­International law, in a sense, therefore presents itself as a constant reflection or mirroring of its determining subjects and is highly susceptible to development and change. Going beyond these general remarks, two types of uncertainty may be ­distinguished for the purpose of this study. First, uncertainty as regards the existence of a norm per se. Examples throughout this study relate, e.g., to the question of a right to remedial secession. Uncertainty may, however, also refer to the content of an existing norm. Here, it is argued, normative uncertainty necessarily entails a certain degree of lex ferenda, inherent in its nature. As one of the many examples where this uncertainty plays out particularly evident5 the right to self-determination is the core focal point of this study. From the principle’s origin, as proclaimed during and in response to World War i, judicial bodies6 and scholars have struggled with defining and u ­ nderstanding 4 W.M. Reisman, ‘On the Causes of Uncertainty and Volatility in International Law’, in The Shifting Allocation of Authority in International Law – Considering Sovereignty, Supremacy and Subsidiarity: Essays in Honours of Professor Ruth Lapidoth, T. Broude/Y. Shany eds., 2008, p. 38. 5 Another example which has been named in such context would be the field of humanitarian intervention: [T]he ambiguous legal status of humanitarian intervention should be maintained, this normative uncertainty providing fertile ground for the gradual emergence, case by case, of a consensus amongst the international community concerning the humanitarian use of force. D. Zolo, ‘Humanitarian Militarism’, in The Philosophy of International Law, S. Besson/ J. ­Tasioulas eds., 2010, p. 563. 6 The beginning of this struggle was marked in the Aaland Islands case, where the principle was not yet even seen as a rule of international law (Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (October 1920), League of Nations Official Journal Special Supplement No. 3; Report presented to the Council of the League of Nations by the Commission of Rapporteurs, ln Council Doc. B7/21/68/106 (16 April 1921), p. 27). The International Court of Justice (icj) mentioned the principle of self-determination for the first time in its South West Africa Advisory Opinion in 1971, however, without further clarifying its scope. Instead, it makes reference to the principle in applying a ­‘development of international law in regard to non-self-governing territories’, as laid out in un General Assembly Resolution 1514, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council R ­ esolution 276 (1970), 1971 icj 16, p. 31, para. 52 (Advisory Opinion, 21 June). It has since referenced the principle of self-determination in several other of its Judgments and Advisory Opinions, see, e.g., Western Sahara, 1975 icj 12, pp. 31–33, paras. 54–59 (Advisory Opinion, 16 October); Case Concerning

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its normative status, precise scope and content, and, most importantly, the composition of its entitled subjects. However, this forms the ideal backdrop for the development of a norm which in itself is capable to adapt to the needs and expectations of the international community, and is responsive to a reconsidered understanding of sovereignty. Described even as lex obscura, i.e. law which is undefined and unclear as to its contents,7 it has been noted that ‘much of the support for the principle […] as a legal right and as a peremptory norm is couched in generalisations and little attempt is made to define the content of the right with any precision’.8 The consideration of international law as a process, and in a state of constant evolvement due to an inherent normative uncertainty, will be revisited several times throughout this study, mainly in identifying the underlying structural principles of the international legal system which apply in the given circumstances. But at this stage it shall also serve as a point of departure for the understanding of the evolutionary nature of international law. Thus, given the definitional gaps with regard to a number of concepts and legal categories addressed throughout this study, the nature of principles and their susceptibility to ‘process’ is particularly inviting for viewing their progressive development by means of evolutionary interpretation. For this purpose, a few preliminary remarks will be provided on the development of international law, particularly with regard to principles such as the principle of self-determination which, couched in general and loose terms, are susceptible to the evolvement of international relations.

the Frontier Dispute (Burkina Faso v. Mali), 1986 icj 554, pp. 566–567, para. 25 (Judgment, 22 December); Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 102, para. 29 (Judgment, 30 June); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136, pp. 182–183, para. 118, p. 199, paras. 156f. (Advisory Opinion, 9 July) (recognizing the application of the principle of self-determination outside the context of decolonization). Also other judicial bodies have struggled to come to terms with the contents of the principle of self-determination, see, inter alia, Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536; Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92 (October, 1995). For more details, see also especially Chapter 3. 7 On this see also Chapter 3, Section  3.2, referring to this classification by James Crawford, see J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 10. 8 J. Dugard, Recognition and the United Nations, 1987, p. 160.

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Developing International Law

International law to a large extent is created by its dominating determining forces – states.9 The absence of a central legislating power creates a delicate power-balance among states in how they shape the development of ­international law. Martti Koskenniemi describes this as international politics finding their continuation in the international legal system: ‘Modern international law is an elaborate framework for deferring substantive resolution elsewhere: into further procedure, interpretation, equity, context, and so on’.10 He relates the success of international law to its lack of determining rules or ready-made resolutions to future conflict.11 This finds reflection not only in the importance of obtaining (at least hypothetical or implied) consent in international law-making12 but also in the sources contained in Article 38 icj Statute.13 Thus, state will, expressed in 9 10 11 12

13

See also further on this Chapter 4, Section 4.1; cf. J. Klabbers, International Law, 2013, p. 21. M. Koskenniemi, ‘The Politics of International Law’, European Journal of International Law, vol. 1, 1990, p. 28. Ibid. Case of the S.S. Lotus (France v. Turkey) (Merits), 1927 pcij 5, p. 18 (ser. A.) No. 10 (­ Judgment, 7 September): International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in ­conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. A. Aust, Handbook of International Law, 2005, p. 4: ‘[International law] is based on the consent (express or implied) of states, and national self-interest’. See also N. Peterson, ‘The Role of Consent and Uncertainty in the Formation of Customary International Law’, Working Paper of the Max Planck Institute for Research on Collective Goods, Bonn 2011/4, p. 2; M. Lister, ‘The Legitimating Role of Consent in International Law’, Chicago Journal of International Law, vol. 11, no. 2, 2011, p. 1. Statute of the International Court of Justice, 26 June 1945, 1 unts 993, Art. 38: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules ­expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

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v­ arious ways, has a direct and clear influence on how normative provisions are being shaped and employed. As a results, international law-making presents itself as a continuous process.14 Within the United Nations, this is particularly evident in the tasks of the General Assembly to encourage the progressive development of international law and its codification,15 amorphous processes which in practice are difficult to keep entirely apart and have even been deemed to be mutually required to avoid the ‘fossilization of international law’.16 Additionally, the role of state will and the development of international law also finds especially clear linkage when confronted with the passage of time.17 As ultimately consent underlies the sources of international law, if this consent (or state behaviour) changes, over time often the legal framework generally will adapt. This process relates to the dialectical character of law, responding to a constant process of compromise (as in concluding agreements) and the consequent demands for ‘adjustment, amendment or replacement’.18 Examples are numerous,19 and therefore only the broad structure will be touched upon. First, and most clearly visible in the context of treaties, parties may agree to terminate a treaty, in conformity with its provision or at any time by consent of all the parties. A treaty may also become terminated or suspended by the conclusion of a later treaty, as a consequence of a material breach, due to a supervening impossibility of performance, a fundamental change of circumstances or the emergence of a new peremptory norm.20 Moreover, treaties can be modified either under the rules of the Vienna Convention on the Law of Treaties (vclt), or by the subsequent emergence of customary international law.21 Second, also in the case of customary international law, the 14 15 16 17 18

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20 21

G.J.H. van Hoof, Rethinking the Sources of International Law, 1983, p. 206. Art. 13, Charter of the United Nations, 24 October 1945, 1 unts 26 (delegated to its subsidiary organ, the International Law Commission). Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), 2012 icj 99, p. 179, p. 285, para. 294 (Dissenting Opinion of Judge Cançado Trindade, 3 February). A.A. Cançado Trindade, International Law for Humankind – Towards a New Jus Gentium, 2010, p. 32. W.M. Reisman, ‘On the Causes of Uncertainty and Volatility in International Law’, in The Shifting Allocation of Authority in International Law – Considering Sovereignty, Supremacy and Subsidiarity: Essays in Honours of Professor Ruth Lapidoth, T. Broude/Y. Shany eds., 2008, pp. 39–40. An apparent example is the development of the law of the sea, especially regarding the breadth of the territorial sea, see R.R. Churchill/A.V. Lowe, The Law of the Sea, 3rd ed., 1999, pp. 79ff. Arts. 54, 59–62, 64, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331. M.E. Villiger, Customary International Law and Treaties – A Manual on the Theory and Practice of the Interrelation of Sources, 1997, p. 343.

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customary rule which came into existence may pass from this state in a similar fashion, e.g., by desuetude or modification. Additionally, a specialized treaty may be adopted or specialized customary international law may emerge.22 Thus, the effects of the passage of time on a normative provision can be gradual or more sudden, implicit in the system itself (i.e. change directly affected by the parties) or even brought upon by international courts in their application of international law.23 1.2

Using Interpretation for the Development of International Law

The most ‘institutionalized’24 method for the development of international law, albeit an epistemic tool, is interpretation, i.e. interpretation of a written, but also of an unwritten,25 normative provision. The primary purpose of interpretation thus is to serve as an instrument in the cognition of law.26 22

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International Law Commission, Report of the Sixtieth Session (2008), Annex A: Treaties over Time – in Particular: Subsequent Agreement and Practice, un Doc. A/63/10 (2008), para. 4; M.E. Villiger, Customary International Law and Treaties – A Manual on the Theory and Practice of the Interrelation of Sources, 1997, p. 55. P. Palchetti, ‘Interpreting “Generic Terms”: Between Respect for the Parties’ Original Intention and the Identification of the Ordinary Meaning’, in International Courts and the Development of International Law – Essays in Honour of Tullio Treves, N. Boschiero/T. Scovazzi/C. Pitea/C. Ragni eds., 2013, p. 91. Institutionalized is used to refer to the fact that quite often interpretation is the core task of international dispute settlement bodies. It is the closest they come to law-making, though in the words of the International Court of Justice: It is clear that the Court cannot legislate […] Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules […] The contention that the giving of an answer to the question posed would require the Court to legislate is based on a supposition that the present corpus juris is devoid of relevant rules in this matter. The Court could not accede to this argument; it states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend. Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 237, para. 18 (Advisory Opinion, 8 July). More often than not contemporary customary international law finds reflection in some sort of written document which then may be approached with tools of interpretation, even if not being an international convention, see T. Treves, ‘Customary International Law’, in Max Planck Encyclopedia of Public International Law, R. Wolfrum ed., 2012, vol. viii, pp. 937–938. J. Kammerhofer, Uncertainty in International Law – A Kelsenian Perspective, 2011, p. 87.

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Interpretation presents itself as an exercise utilized not only by the concerned parties, but also by international adjudicative bodies in their process of dispute settlement. A consequence thereof is that the judgments and awards obtained contribute significantly to the development of international law,27 despite the non-applicability of precedent in international law.28 While this is of course dependent on the quality of work, consistency of outcome as well as reception by states and parties concerned, law-making through interpretation is a natural outcome of a stable legal process.29 The necessity of adaption through interpretation is also referenced by the International Law Commission in its study on ‘Treaties over Time – in Particular: Subsequent Agreement and Practice’, where it pointed out that: As their context evolves, treaties face the danger of either being ‘frozen’ into a state in which they are less capable of fulfilling their object and purpose, or of losing their foundation in the agreement of the parties. The parties to a treaty normally wish to preserve their agreement, albeit in a manner which conforms to present-day exigencies. Subsequent agreement and subsequent practice aim at finding a flexible approach to treaty application and interpretation, one that is at the same time rational and predictable.30 As a preliminary step, when approaching interpretation, the ultimate objective of the exercise must be identified. In short, this can be said to be ‘the process 27 28

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H. Lauterpacht, The Development of International Law by the International Court, 1982, p. 5. Art. 59, Statute of the Permanent Court of International Justice, 19 December 1920, 6 lnts 379 (‘The decision of the Court has no binding force except between the parties and in respect of that particular case’.); Art. 59, Statute of the International Court of Justice, 26 June 1945, 1 unts 993 (‘The decision of the Court has no binding force except between the parties and in respect of that particular case’.); Nevertheless, almost all international courts and tribunals effectively espouse at least some nuanced doctrine of precedent or adherence to a jurisprudence constante. A. Reinisch/J. Hofbauer, ‘Jurisprudential CrossFertilization: Investment Arbitration and General International Adjudication and Arbitration’, The Global Community – Yearbook of International Law and Jurisprudence 2012 (Vol. i), 2013, pp. 194–195. See generally on this also G. Alfredsson, ‘Human Rights Commission and Treaty Bodies in the UN-System’, in Developments of International Law in Treaty Making, R. Wolfrum/ V. Röben eds., 2005, p. 559. International Law Commission, Report of the Sixtieth Session (2008), Annex A: Treaties over Time – in Particular: Subsequent Agreement and Practice (2008), un Doc. A/63/10, para. 14.

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of establishing the true meaning’31 of a provision. In particular, it is essential to decide whether the text of a document enjoys precedence with its objective meaning over true party intent or vice versa; in other words, whether objective versus subjective interpretation is preferred.32 Given that international law stems from the consent of parties, the intent of the parties will always play a determining role in discovering the meaning of a provision.33 In contrast, the vclt at first glance makes no direct reference to the intention of the parties. And though the vclt is not applicable retroactively, the rules regarding treaty interpretation (Articles 31, 32 vclt) have been recognized as constituting customary international law34 and have been applied to treaties concluded as far back as 1890.35 It has also been long recognized that the rules contained in the vclt apply to the Charter of the United Nations, an institutional treaty establishing an international organization.36

31 32

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35

36

O. Dörr, ‘Article 31. General Rule of Interpretation’, in Vienna Convention on the Law of Treaties – A Commentary, O. Dörr/K. Schmalenbach eds., 2012, p. 522. J. Kammerhofer, Uncertainty in International Law – A Kelsenian Perspective, 2011, p. 88, citing R. Bernhardt, Die Auslegung völkerrechtlicher Verträge insbesondere in der neueren Rechtsprechung internationaler Gerichte, 1963, p. 15. H. Lauterpacht, ‘Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties’, The British Yearbook of International Law, vol. 26, 1949, p. 83; J. Kammerhofer, Uncertainty in International Law – A Kelsenian Perspective, 2011, p. 88; similarly, U. Linderfalk, On the Interpretation of Treaties – The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties, 2007, p. 205, deriving this from the central role of ‘object and purpose’ in international treaty interpretation. Case Concerning Oil Platforms (Iran v. United States of America) (Preliminary Objection), 1996 icj 803, p. 812 (Judgment, 12 December); Case Concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) (Jurisdiction and Admissibility), 1995 icj 6, p. 18 (Judgment, 15 February); Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), 1994 icj 6, pp. 21–22, para. 41 (Judgment, 3 February); M. Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v. Nicaragua’, Leiden Journal of International Law, vol. 24, 2011, p. 205; R.K. Gardiner, International Law, 2003, p. 79. Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), 1999 icj 1045, p. 1059, para. 18 (Judgment, 13 December); Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), 2002 icj 625, p. 645, para. 37 (Judgment, 17 December); Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), 1994 icj 6, p. 21, para. 41 (Judgment, 3 February). S. Kadelbach, ‘The Interpretation of the Charter’, in The Charter of the United Nations: A Commentary, B. Simma/D.-E. Khan/G. Nolte/A. Paulus eds., 2012, p. 75; Art. 5, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331.

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Articles 31 and 32 vclt state: Article 31 General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ­ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32 Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, ­including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable. Treaty interpretation according to the rules contained in the vclt is therefore largely dominated by objective elements. According to Article 31 of the vclt, treaties shall be interpreted by giving the terms used their ordinary meaning in their context and in the light of its object and purpose.37 The first step in the 37

Art. 31(1), Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331; J.-M. Sorel/V. Boré Eveno, ‘Article 31’, in The Vienna Convention on the Law of Treaties – A Com-

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interpretation process is therefore to look at the text of the treaty.38 However, as laid out in Article 31(3) vclt, in the course of interpretation subsequent developments (agreements and practice) as well as any relevant rules of international law applicable in the relations between the parties shall be taken into account. In addition, time plays an issue. Here one could resort to interpreting a term according to its meaning at the date of conclusion, also known as the ­principle of contemporaneity.39 Yet, while the travaux préparatoires would therefore seem the most obvious first step to turn to in light of discerning the true ­intention of the parties, they have been ‘degraded’ to subsidiary means of interpretation by the drafters of the vclt.40 Instead, it must be reminded that treaties constitute living instruments.41 As the icj stated in Dispute Regarding Navigational and Related Rights: It is true that the terms used in a treaty must be interpreted in light of what is determined to have been the parties’ common intention, which is, by definition, contemporaneous with the treaty’s conclusion. […] This does not however signify that, where a term’s meaning is no longer the same as it was at the date of conclusion, no account should ever be taken of its meaning at the time when the treaty is to be interpreted for purposes of applying it. On the one hand, the subsequent practice of the

38

39

40

41

mentary, vol. i, O. Corten/P. Klein eds., 2011, p. 818; M.N. Shaw, International Law, 6th ed., 2008, p. 496; J. Crawford, Brownlie’s Principles of Public International Law, 8th ed., 2012, p. 380; U. Linderfalk, On the Interpretation of Treaties – The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties, 2007, p. 8. Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), 1994 icj 6, p. 21, para. 41 (Judgment, 3 February); O. Dörr, ‘Article 31. General Rule of Interpretation’, in Vienna Convention on the Law of Treaties – A Commentary, O. Dörr/K. Schmalenbach eds., 2012, p. 522. Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), 1952 icj 176, p. 189 (Judgment, 27 August); G. Fitzmaurice, ‘The Law and Procedure of the International Court of Justice, 1951–1954: General ­Principles and Sources of Law’, The British Yearbook of International Law, vol. 30, 1953, p. 5; I. ­Brownlie, Principles of Public International Law, 7th ed., 2008, p. 633. Art. 32, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331; Y. le Bouthillier, ‘Article 32’, in The Vienna Convention on the Law of Treaties – A Commentary, vol. i, O. Corten/P. Klein eds., 2011, p. 842. Pollux [this was E. Hambro’s pseudonym], ‘The Interpretation of the Charter’, The British Yearbook of International Law, vol. 23, 1946, p. 54; International Law Commission, Report of the Sixtieth Session (2008), Annex A: Treaties over Time – in Particular: Subsequent Agreement and Practice, un Doc. A/63/10 (2008), para. 7.

Sovereignty and Self-Determination: An Introduction

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­ arties, within the meaning of Article 31 (3) (b) of the Vienna Convention, p can result in a departure from the original intent on the basis of a tacit agreement between the parties. On the other hand, there are situations in which the parties’ intent upon conclusion of the treaty was, or may be presumed to have been, to give the terms used – or some of them – a meaning or content capable of evolving, not one fixed once and for all, so as to make allowance for, among other things, developments in international law. In such instances it is indeed in order to respect the parties’ common intention at the time the treaty was concluded, not to depart from it, that account should be taken of the meaning acquired by the terms in question upon each occasion on which the treaty is to be applied. […] [W]here the parties have used generic terms in a treaty, the parties necessarily having been aware that the meaning of the terms was likely to evolve over time, and where the treaty has been entered into for a very long period or is ‘of continuing duration’, the parties must be presumed, as a general rule, to have intended those terms to have an ­evolving meaning.42 This is also known as ‘dynamic interpretation’ or ‘evolutionary interpretation’.43 The previous use of a term in a given context therefore does not preclude an altered application under changed legal or factual circumstances in a later instance. Both the principle of contemporaneity and the principle of evolutionary interpretation derive their validity from the original intent of the parties,44 the latter therefore not challenging the results of interpretation but offering a tool of incorporating recent developments into the application of the term. Bearing this in mind, instruments which have been concluded in earlier times therefore might be revisited from a current perspective. The battle between the principle of contemporaneity and evolutionary interpretation reflects two diverse approaches towards law. Law as stability and the effort to conserve the normative provisions it establishes at one point of time, versus law as an ­organic order, 42 43

44

Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. ­Nicaragua), 2009 icj 213, pp. 242–243, paras. 63–66 (Judgment, 13 July). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 31, para. 53 (Advisory Opinion, 21 June); P.-M. Dupuy, ‘Evolutionary Interpretation of Treaties: ­Between Memory and Prophecy’, in The Law of Treaties beyond the Vienna Convention, E. Cannizzaro ed., 2011, p. 123. V. Gowlland-Debbas, ‘The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case’, American Journal of International Law, vol. 88, no. 4, 1994, p. 666.

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adaptable and susceptible to evolution.45 The necessity to provide for such an aid for the application of international law has been recognized in early judicial decisions, recalling that the interpretation of certain aspects of a treaty will depend ‘upon the development of international relations’.46 Evolutionary interpretation seeks to enable the parties or a judge to ‘­redefine the meaning of a treaty without altering its nature’47 and to legitimize departing from the original meaning of certain terms by interpreting the will of the parties as to include future adjustments. Consequently, in those circumstances in which the drafters, for example, have used generic terms, and have not provided any further clarifications concerning their meaning, an evolution in the understanding of that generic term may be presumed to be encompassed by the original intent to conclude the provisions.48 Pierre-Marie Dupuy has termed this ‘evolutionary interpretation served by memory’.49 Though the method of evolutionary interpretation has been used by many different international adjudicative bodies,50 and has been said to be 45

P.-M. Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in The Law of Treaties beyond the Vienna Convention, E. Cannizzaro ed., 2011, p. 123. 46 Nationality Decrees Issued in Tunis and Morocco, 1923 pcij 7, p. 24 (ser. B) No. 4 (Advisory Opinion, 7 February). 47 P.-M. Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in The Law of Treaties beyond the Vienna Convention, E. Cannizzaro ed., 2011, p. 123. 48 Aegean Sea Continental Shelf (Greece v. Turkey), 1978 icj 3, p. 32, para. 77 (Judgment, 19 December); P. Palchetti, ‘Interpreting “Generic Terms”: Between Respect for the ­Parties’ Original Intention and the Identification of the Ordinary Meaning’, in International Courts and the Development of International Law – Essays in Honour of Tullio Treves, N. Boschiero/T. Scovazzi/C. Pitea/C. Ragni eds., p. 92; M. Dawidowicz, ‘The Effect of the Passage of Time on the Interpretation of Treaties: Some Reflections on Costa Rica v. N ­ icaragua’, Leiden Journal of International Law, vol. 24, 2011, p. 204. 49 P.-M. Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in The Law of Treaties beyond the Vienna Convention, E. Cannizzaro ed., 2011, p. 126. 50 See, inter alia, Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009 icj 213, pp. 242–243, paras. 63–66 (Judgment, 13 July); similarly see also Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 31, para. 53 (Advisory Opinion, 21 June); Aegean Sea Continental Shelf (Greece v. Turkey), 1978 icj 3, p. 32, para. 77 (Judgment, 19 December); United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, Appellate Body Report (12 October 1998), para. 129; China-Measures Affecting Trading Rights and Distribution Services for Certain Publication and Audiovisual Entertainment Products, WT/DS363/ AB/R, Appellate Body Report (21 December 2009), para. 396; Iron Rhine (‘IJzeren Rijn’) Railways (Belgium v. Netherlands), pca, Award (24 May 2005), para. 80; Case of the ­Kichwa

Sovereignty and Self-Determination: An Introduction

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c­ onsistent with the established rules of treaty interpretation contained in ­Articles 31, 32 vclt,51 there has also been much debate on how far evolutionary interpretation may depart from these rules.52 While in theory its legitimacy lies in ­construing the parties’ consent to encompass a dynamic evolvement of international law, critics maintain that in principle the judge thereby is equipped with a (too) wide discretion in departing from the original consent as expressed in the terms of the treaty.53 In particular, one might question when the use of a term carries with it the notion that it is generic and therefore is susceptible to evolutionary interpretation. Discussing the legal basis for the permissibility of evolutionary interpretation, it has been argued that it roots in Article 31(1) vclt, as ensuring ‘an application of the treaty that would be effective in terms of its object and purpose’,54 or even in Article 31(3)(b) vclt, as a category of subsequent practice.55 However, the more convincing attempt of couching the method in Article 31 vclt was described in Kasikili/Sedudu Islands, where Judge Higgins defined ‘generic term’ as ‘a known legal term, whose content the parties expected would change through time’.56 Pinning the possibility of evolutionary interpretation to legal concepts approximates this method to the approach taken in

51

52

53 54 55

56

­Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R., para. 161 (Judgment, 27 June 2012). The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am.Ct.H.R., para. 114 (1 October 1999); Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R., para. 161 (Judgment, 27 June 2012). H. Thirlway, ‘Reflections on lex ferenda’, Netherlands Yearbook of International Law, vol. 32, 2001, p. 24; M. Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties’, Hague Yearbook of International Law, 2008, Part. i, p. 101; P. Palchetti, ‘Interpreting “Generic Terms”: Between Respect for the Parties’ Original Intention and the Identification of the Ordinary Meaning’, in International Courts and the Development of International Law – Essays in Honour of Tullio Treves, N. Boschiero/T. Scovazzi/C. Pitea/C. Ragni eds., 2013, p. 94. P.-M. Dupuy, ‘Evolutionary Interpretation of Treaties: Between Memory and Prophecy’, in The Law of Treaties beyond the Vienna Convention, E. Cannizzaro ed., 2011, p. 127. Iron Rhine (‘IJzeren Rijn’) Railways (Belgium v. Netherlands), pca, Award (24 May 2005), para. 80. However, Julian Arato also rightly points out that one concept is based on interpreting the original intent of the parties, the other based on the subsequent intent, see J. Arato, ‘Subsequent Practice and Evolutive Interpretation: Techniques of Treaty Interpretation Over Time and Their Diverse Consequences’, The Law and Practice of International Courts and Tribunals, vol. 9, 2010, p. 446. Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), 1999 icj 1045, p. 1113, para. 2 (Declaration of Judge Higgins, 13 December).

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Article 31(3)(c) vclt (‘any relevant rules of international law applicable in the relations between the parties’). That is, as law develops, so may the legal concepts associated therewith. Hence, it is natural to assume the parties’ intent to cover the evolutionary meaning of the selected term.57 1.3

The Use of Legal Concepts with Uncertain Meaning

As the International Law Commission’s Study Group on Fragmentation stated, especially when concerned with open or evolving concepts, the rules of international law evolving subsequent to the adoption of the treaty may be taken into account in determining the meaning of the terms used. It lists three categories where this especially applies: (a) the concept is one which implies taking into account subsequent technical, economic or legal developments; (b) the concept sets up an obligation for further progressive development for the parties; or (c) the concept has a very general nature or is expressed in such general terms that it must take into account changing circumstances.58 While the report does not give explicit examples in the text, the footnote relating to subpoint (a) of this section refers to passages by the International Court of Justice in Gabčikovo Nagymaros regarding the incorporation of emerging norms of international law, in particular new environmental norms,59 and to elaborations by the Permanent Court of Arbitration tribunal in Iron Rhine (‘IJzeren Rijn’) Railways regarding the use of new technical developments in the context of the operation of a railway.60

57

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59 60

Similarly P. Palchetti, ‘Interpreting “Generic Terms”: Between Respect for the Parties’ ­ riginal Intention and the Identification of the Ordinary Meaning’, in International O Courts and the Development of International Law – Essays in Honour of Tullio Treves, N. Boschiero/T. Scovazzi/C. Pitea/C. Ragni eds., 2013, p. 95. International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties arising from the Diversification and ­Expansion of International Law’, Yearbook of the International Law Commission, un Doc. A/61/10 (2006), para. 23 [footnotes omitted]. Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7, at pp. 67–68, para. 112 (Judgment, 25 September). Iron Rhine (‘IJzeren Rijn’) Railways (Belgium v. Netherlands), pca, Award (24 May 2005), paras. 82–83.

Sovereignty and Self-Determination: An Introduction

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Subpoint (b) does not have any footnote accompanying it. The footnote relating to subpoint (c) refers to the icj’s South-West Africa Advisory Opinion where the Court found the concept of ‘sacred trust’ to be by definition evolutionary and therefore affected by the subsequent development of law, by the Charter of the United Nations and by customary international law.61 It also again includes a reference to the Court’s discussion in Gabčikovo Nagymaros on new environmental norms.62 In his Separate Opinion to the latter judgment, Judge Bedjaoui made the point of distinguishing between the evolution in the definition of a concept, which in South-West Africa was necessary to avoid archaic elements, and the evolution of law applicable to a concept, where he emphasized that this required relying on the traditional rules of interpretation rather than achieving a ‘distorted revision’ of the treaty at all costs.63 The need for a careful application of the technique of evolutionary treaty interpretation therefore becomes clear. For the purposes of this study the main point deserving attention, though, is that an altered understanding of international relations, the composition of the modern global community, and sovereign governance structures have an impact on the concepts of peoples and the rights associated therewith. What might initially seem as an oxymoron, is that the category of norms which are termed ‘principles’ – i.e. the principle of self-determination, the principle of permanent sovereignty over natural resources etc. – implies their categorization as norms of fundamental importance; and generally they are accepted as such. But at the same time, due to their nature as principles, their content remains general, loose, and always contains a certain degree of uncertainty. However, precisely this enables their use in a variety of (sometimes even conflicting) manners and thereby fosters their development. Not only is this the starting point of this study, but it shall be proven throughout the analyses conducted in the following chapters. 1.4

Sovereignty and the Principle of Self-Determination

The quest to determine the extent of sovereignty within the principle of ­self-determination stems from the correlation of, on the one hand, perceiving 61

62 63

Legal Consequences for States of the Continued Presence of South Africa in Namibia (SouthWest Arica) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, at p. 31, para. 53 (Advisory Opinion, 21 June). Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7, at pp. 76–80, paras. 132–147 (Judgment, 25 September). Ibid., at pp. 122–123, paras. 9–12 (Separate Opinion of Judge Bedjaoui, 25 September).

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sovereignty as a concept describing the functional power of a governing entity and, on the other hand, the extension of subjects who are entitled to participate in international relations. Hence, on the basis of these two overlapping assertions, the right to self-determination – one of the core norms of international law and therefore arguably reflective of certain values the international community wishes to represent64 – functions as the primary tool to realize the sovereignty of ‘peoples’. In its multilayered dimensions, self-determination provides the legal framework to enable peoples to participate as actors in the international system. This can take place through a number of different models, and in exercise of varying degrees of independence. For the purpose of this study, a primary focus is the determination of such independence with regard to the traditional attributes assigned to the normative understanding65 of the term sovereignty, i.e. non-interference and full authority over a certain portion of territory.66 The fields selected thus range from the right to statehood by exercise of the right to (external) self-determination, the right to exercise forms of autonomy as a form of de facto independence, and the right to a type of ‘spatial’ independence, exemplified through the principles of permanent sovereignty over natural resources (psnr), and free, prior and informed consent (fpic). As is demonstrated throughout the study, their development is exemplary of instruments which were deliberately left undetermined, thus fostering their evolution in international law through the passage of time, interpretation and political processes. The research conducted not only strives to identify the (as argued, intentional) uncertainties within each of these principles, but also to assess the (non-discretionary) limits to their normative evolution.

64 See, e.g., S.R. Ratner, The Thin Justice of International Law – A Moral Reckoning of the Law of Nations, 2015, p. 2. 65 Cf. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 32. 66 This rests on the elements of sovereignty as discussed in the widely cited definition by Judge Huber in the Island of Palmas arbitration, Island of Palmas (United States of ­America v. Netherlands), 2 riaa 829, p. 838 (Award, 4 April 1928), but also on the understanding of sovereignty by the Permanent Court of International Justice and the International Court of Justice. See, e.g., Legal Status of Eastern Greenland (Denmark v. Norway), 1933 pcij 22, pp. 45–46 (ser. A/B) No. 53 (Judgment, 5 April): ‘the intention and will to act as sovereign, as some actual exercise or display of such authority’. (confirmed in Western Sahara, 1975 icj 12, p. 43, para. 92 (Advisory Opinion, 16 October)); Reparations for Injuries suffered in the Service of the United Nations, 1949 icj 174, p. 180 (Advisory Opinion, 11 April): ‘Whereas a State possesses the totality of international rights and duties recognized by international law…’.

Sovereignty and Self-Determination: An Introduction

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It is argued that each of these instruments can be invoked by peoples to participate in international relations, shifting the approach from a state-­ centered to a more humanized understanding of international law. Moreover, on this basis, it will be determined whether the assertion that international law has arrived (or possibly will arrive) at a re-conceptualized understanding of state-like subjects – resulting in the distribution of (sovereign) power among ­multiple diverse stakeholders – is in fact met by law. In other words, it is questioned whether the right to self-determination – in any of its facets – can or does result in the transfer of sovereign rights onto peoples. By the analysis of the instruments listed above, the premise that peoples are entitled to sovereign rights is tested against a wide spectrum of international law issues, touching upon inter alia the fields of statehood, human rights, investment law, economic rights, environmental law, the rights of minorities, and indigenous rights. Additionally, many of these aspects are heavily ­influenced by political power struggles and extralegal elements. Finally, even though the scope of the category ‘peoples’ remains disputed, this study does not attempt to provide final definitions67 to the categories peoples, indigenous peoples, sovereignty or even statehood, but in discussing these issues (and particularly their evolvement over time) rather strives to offer an answer to the question whether the right to self-determination – in any of its facets – can or does result in the transfer of sovereign rights onto peoples. 1.5

Structure of the Book

Following the introductory Chapter, the book is structured into six parts. The first two Chapters establish the study’s broad understanding of the right to self-determination as applied to (indigenous) peoples (Chapters 2 and 3), ­followed by three Chapters focusing on the application of these theoretical underpinnings in the respective category of independence. The substantive sections (Chapters 4, 5 and 6) of the book have three ­primary objectives. First, providing an in-depth analysis of each legal category analyzed. Second, and no less important, reflecting on the historical and 67

While there exists extensive scholarly literature on sovereignty in political theory as well as law, on self-determination in regard to its status and extent, and on the rights of peoples and indigenous peoples, dogmatic approaches are often matched by studies from a (vertical and not horizontal) human rights perspective, which are again matched by state opposition. Each approach is singularly caught up in the fact that categories, principles and rights are referred to which lack definite contours.

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­political background against which the current normative status of the underlying principles of the international community has developed. This shall provide a basis for the assessment of how political factors play a role in the development of the respective fields. In addition, each category will be s­ crutinized as to its potential to install sovereign authority in peoples/indigenous peoples. Chapter 4 focuses on the full independence of peoples, i.e. it provides an oversight of the current concept of statehood and the classic understanding of sovereignty, with a look at the structures of international law that are influenced thereby. The connection of statehood and its defining criteria with the category of peoples are analyzed. In addition, the role of self-determination in achieving statehood is determined, particularly through an assessment of the legality of secession, for peoples as well as indigenous peoples. ­Chapter 5 provides an overview of the meaning of autonomy (within an existing state) and assesses the internal dimension of self-determination in creating a de facto independence. As an exemplary case study, Greenland has been chosen, in particular in light of its historical circumstances and cultural make-up which result in claims to sovereignty both under classic international law as a colonized people and in terms of indigenous rights. Finally, the economic and procedural aspects of the right to self-determination are highlighted by addressing two closely related principles, permanent sovereignty over natural resources (psnr) and free, prior and informed consent (fpic) (Chapter 6). These two principles serve as examples for a scenario of spatial independence, in particular related to the field of natural resources. By providing an outline of the most important elements of psnr, a special focus is laid on the extent of economic independence associated therewith. As provided for in the Annex, the constitutional and domestic legislation of member states to ilo Convention No. 169 is resorted to in order to assess whether psnr in fact transfers permanent sovereignty over natural resources to (indigenous) peoples. Furthermore, Chapter 6 assesses the status and scope of the principle of fpic, with close attention to how the elements of ‘consent’ by the affected peoples has been applied by international and regional human rights bodies and national courts. By contrasting theory and case-law, the content of the elements of fpic will be determined, in particular in order to provide an answer to the question whether fpic can lead to spatial sovereign governance. A final Chapter (Chapter 7) concludes.

chapter 2

Defining Peoples A nation is built when the communities that comprise it make commitments to it, when they forego choices and opportunities on behalf of a nation, when the communities that comprise it make compromises, when they offer each other guarantees, when they make transfers and perhaps most pointedly, when they receive from others the benefits of national solidarity. The threads of a thousand acts of accommodation are the fabric of a nation. Attorney General of Saskatchewan1

∵ Ius gentium, le droit des gens, derecho de gentes, Völkerrecht… these all translate to peoples’ rights. International law inherently seems to take the needs and concerns of peoples into consideration. But for a long time, this call has been forgotten, neglected or misargued. As has been stated by a representative of the indigenous community at the fifteenth session of the Working Group on Indigenous Populations: This limited conception of peoples largely ignores the multiple, overlapping spheres of community, authority, and interdependency that actually exist in human experience. This vision corresponds with the traditional Western perspective that limits humanity to two perceptual categories – the individual and the state – and which views states according to a model of mutually exclusive spheres of territory, community and centralized authority.2 1 Oral Submission by the Attorney General of Saskatchewan in Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, ­Supreme Court of Canada, 20 August 1998, 115 ilr 536, p. 574, para. 96. 2 Statement by Dalee Sambo Dorough, human rights specialist, to the fifteenth session of the wgip in 1997, reprinted in R. Morgan, Transforming Law and Institution: Indigenous Peoples, the United Nations and Human Rights, 2011, p. 127 [emphasis added]. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_003

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The loosening up of the closed system of states as the sole subjects of international law has led to the (re-)utilization of the term peoples for describing the bearers of a wide variety of rights, ranging from self-determination to the right of existence, from the right to development to permanent sovereignty over natural resources. As is discussed throughout this book, this originates in a variety of evolvements throughout the past century. And, as can be stated from past experiences, this development is far from concluded. Although a commonly accepted definition of ‘a people’ would simplify many matters in this regard and clarify many difficulties in the application of the abovementioned rights, what defines peoples has been debated over centuries. A number of questions remain open and subject to discussion. Focus will be laid in particular on the following two issues: First, what constitutes a people and who possesses the characteristics of those termed as the right-bearers? And second, are there different categories of peoples? Therefrom follows the discussion3 of whether all rights associated with peoples are enjoyable by all entities which can be categorized as peoples. As will be seen, the diverging purposes and aims of the concerned rights as well as interests of those claiming to constitute a people make a conclusive definition difficult to achieve. 2.1

Why the Need for a Definition?

From a common linguistic understanding the term ‘peoples’ is used in a variety of different circumstances. Its use to describe a collective entity can largely be divided into three diverse categories, i.e. ethnic, territorial and political. The ethnic approach underscores the ties of a community and can be found in a number of reference dictionaries. For example, the Funk & Wagnalls ­Standard Dictionary of the English Language lists under the entry ‘people’: The term people is used ethnologically to mean folk having the same linguistic and cultural origins, the same customs, traditions, and beliefs, and usually the same geographic distribution: as distinguished from political affiliations or physical origins.4

3 See, e.g., J. Crawford, ‘Some Conclusions’, in The Rights of Peoples, J. Crawford ed., 1988 ­(reprinted 2001), p. 166. 4 Funk & Wagnalls Standard Dictionary of the English Language, vol. 2, 1974, p. 935.

Defining Peoples

21

The Merriam-Webster Dictionary defines a people as: a body of persons that are united by a common culture, tradition, or sense of kinship, that typically have common language, institutions, and beliefs, and that often constitute a politically organized group.5 The territorial approach is primarily determined by additional geographical considerations and therefore less inclusive than the ethnological understanding of the term.6 And finally, peoples may be understood in a political sense, referring to the entirety of persons forming a state, often from which the source of power originates.7 In addition, the use of the term and its diverse meanings are complicated by historical developments and concurrent linguistic reflections thereof. That is, the understanding of ‘a people’ varies across continents and languages.8 Thus, and as will be explored infra, it is essential in which capacity and to what purpose the term ‘people’ has been used. For the purposes of international law, a categorization of definitions and the application in each case to the actual prevailing conditions is not as simple. Difficulties for the interpretation of legal documents stem particularly from the combinational usage of peoples as a generic term (with varying meanings and alterations over time) and as a legal term.9 This specific problem can ­especially be found in early instruments, beginning with the Covenant of the League of Nations which referred to ‘peoples’ in its preamble (‘by the maintenance of justice and a scrupulous respect for all treaty obligations in the dealings of organised peoples with one another’) and Article 22, the basis for its

5 ‘people, noun’, Merriam Webster Dictionary Online, April 2016, available at http://www .­merriam-webster.com/dictionary/people (last visited 19 April 2016). 6 B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, pp. 24–25. 7 ‘people, n.’, Oxford English Dictionary Online, April 2016, available at http://www.oed.com/ view/Entry/140404?rskey=1XGrj7&result=1#eid (last visited 16 April 2016). 8 B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, pp. 24ff. 9 Similar also Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009 icj 213, pp. 240–241, paras. 57–59 (Judgment, 13 July).

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mandate system.10 The Covenant did not further define what precisely made out Article 22’s phrasing ‘peoples not yet able to stand by themselves under 10

Covenant of the League of Nations, 28 April 1919: ‘Art. 22 To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognized subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League. There are territories, such as South-West Africa and certain of the South Pacific ­Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population. In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge. The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. A permanent Commission shall be constituted to receive and examine the ­annual reports of the Mandatories and to advise the Council on all matters relating to the ­observance of the mandates.’ [emphasis added].

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the strenuous conditions of the modern world’, but used a territorial element11 for the application of the mandate system as it concentrated on colonies and territories formerly controlled by the Ottoman Empire and Germany.12 These were divided into three categories based on a number of treaties and negotiations concluded prior to the Paris Peace Conference: first, territories formerly controlled by the Ottoman Empire (Palestine, Syria, Mesopotamia); second, former German territories in West and Central Africa (Ruanda-Urundi, Tanganyika, Kamerun, and Togoland); and third, certain other German possessions (Nauru, German Samoa, German New Guinea, South Pacific Mandate and South-West Africa).13 But are these the same category of peoples which are mentioned in the Charter of the United Nations, or even more importantly, in the 1966 International Human Rights Covenants? As a preliminary assessment, it shall be pointed out that in both instances it has been claimed that the use of the term peoples entails an ethnic (and not merely a territorial) component.14 Unlike the League of Nations, the Charter of the United Nations contains, albeit weak, provisions recognizing certain rights of peoples. For example, ­Article 1(2) states as one of the purposes of the United Nations: 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.15 To add to the confusion, however, the Charter of the United Nations also makes reference to peoples in its Preamble, which starts with ‘We the peoples of the United Nations determined…’. This has been said to refer to the populations

11

12

13 14 15

B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, p. 93. British Foreign Office Publication, presented to Parliament by command of His Majesty, June 1919, ‘Commentary on the League of Nations Covenant’, American Journal of International Law, vol. 15, no. 3, 1920, p. 417. On the decision of the Council of the League of Nations see W. Schücking/H. Wehberg, Die Satzung des Völkerbundes, 1924, pp. 680ff., in particular pp. 701ff. R. Wolfrum, ‘Preamble’, in The Charter of the United Nations: A Commentary, B. Simma/ D.-E. Khan/G. Nolte/A. Paulus eds., 2012, p. 103. Art. 1(2), Charter of the United Nations, 24 October 1945, 1 unts 26; cf. Art. 55; R. Wolfrum, ‘Purposes and Principles’, in The Charter of the United Nations: A Commentary, B. Simma/D.-E. Khan/G. Nolte/A. Paulus eds., 2012, pp. 107ff.

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of the member states, as a political fiction, in contrast to the use of the term peoples in further parts of the Charter.16 The International Covenant on Civil and Political Rights (iccpr) and ­International Covenant on Economic, Social and Cultural Rights (icescr) recognize in their common Article 1 that 1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be ­deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-­ determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.17 Though the two human rights covenants primarily contain individual rights, the right to self-determination constitutes a collective/group right of ­peoples.18 This, however, without further clarifying its scope of application. What these instruments, both the un Charter as well as the human rights covenants, have in common is their lack of a clear definition of the category of peoples. At the same time, there is an explicit recognition of the right to self-determination of all peoples in the human rights covenants. As legal ­systems per definitionem require the identification of legal subjects, the question of who makes up the rights-entitled subjects is therefore crucial in understanding the functioning of the right to self-determination. For this purpose, it proves helpful to first briefly highlight the historical development of the use of the term peoples in international theory to be able to assess at a later stage the intention of the parties when including explicit references. 16 17

18

R. Wolfrum, ‘Preamble’, in The Charter of the United Nations: A Commentary, B. Simma/ D.-E. Khan/G. Nolte/A. Paulus eds., 2012, p. 103. Art. 1, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3. Human Rights Committee, General Comment 12: Article 1 (Right to Self-Determination) The Right to Self-Determination of Peoples, 13 March 1994, un Doc. HRI/GEN/1/Rev.1.

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25

Peoples as Civitas

Providing the basis for the revolutionary movements of the 18th century, Hugo Grotius conceptualized the legitimation of the sovereign power as the ­reflection of the free will of the civitas, the full and complete association for a political life.19 This meant a humanly created order which goes beyond the ­individual being. Diverging ethnic compositions or historical backgrounds had no direct influence on the constitution of the source of power for the formation of the state; instead the overarching values of liberty and equality ­presented the backbone of the developments during the French and American revolutions.20 The power originated from the peoples, i.e. the people who inhabited the territory.21 19

H. Grotius, The Rights of War and Peace – Volume ii (1625), R. Tuck ed. (edition by J. ­Barbeyrac), 2005, Chapter ix, iii.1. 20 See, e.g., Declaration of the Rights of Man and of the Citizen, 26 August 1789: The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being, the following rights of man and of the citizen: 1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good. 2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression. 3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation. 4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law. 21 B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, pp. 42–45.

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Peoples as National, Ethnic-Cultural Entities

A counter-current formed at the end of the 19th century. In connection with the growing concept of nationalism, the abstract understanding of state was re-visited by materializing the previous artificial body in shape of a society drawing from objective common features. Historical, linguistic, religious, cultural and territorial ties enabled identity-shaping by members of a distinct community and provided the starting point for a reformation of the political order of states throughout Europe.22 The two concepts reveal a tension which is valid until today: As civitas, the inhabitants of a territory had the choice of selecting their governing body within the prevailing world order; as national, ethnic-cultural entities, they claimed independence and a redrawing of the world order. In other words, this constitutes the core issue of whether or not the principle of self-determination must be exercised solely within the existing world order or whether new entities might be created. 2.4

Peoples as Evolving Subjects of the Principle of Self-Determination?

The claims of national, ethnic-cultural groups to independence found ­support at first primarily on a political level.23 Inspired by the success of singular claims, the general principle of self-determination of peoples was pronounced. The phrase in the following became more popular and finally universally ­accepted, however it remained unclear what version of peoples had been intended to be the subjects of this right. While the content of the principle of self-determination will be dealt with in more detail in Chapter 3, discussions surrounding the topic of who were the addressees of the principle followed the two abovementioned categories, i.e. peoples as civitas and peoples as national, ethnic-cultural entities. They can roughly be distinguished into three diverse theories. First, similar to the concept of civitas, Karl Marx noted in the context of self-determination that for a state to be true it relied on democracy of the ­community.24 Thus, peoples included all inhabitants of a territory. 22 23 24

D. Thürer, ‘Das Selbstbestimmungsrecht der Völker – Ein Überblick’, Archiv des Völkerrechts, vol. 22, 1984, p. 116. See below, Chapter 3, Section 3.1. K. Marx, Critique of Hegel’s ‘Philosophy of Right’ – Edited with an Introduction and Notes by Joseph O’Malley, 1982 (reprinted), p. 31:

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An obverse theory followed the concept of national, ethnic-cultural entities, envisioning states according to homogenous linguistic, cultural, ethnical and geographic borders.25 This was expressed with a special emphasis on the re-ordering process in Europe; however, any further relevance, especially with regard to colonial groups, was viewed more restrictively.26 And finally, the third theory concerned with which subjects were to fall within the term peoples with regard to self-determination can directly be traced to the roots of the United Nations, which, as elaborated above, listed ‘equal rights and self-determination of peoples’ as one of its purposes and principles in Article 1 of the Charter. Some argued that the original intention of the phrase could be identified as aiming at the restoration of the sovereignty of nations and the guidance of future peaceful cooperation with one another.27 For example, the French delegation stated that the use of the term peoples was to be limited to situations in which it was used synonymous for ‘nations’,28 the primary focus being on territorial corrections within war-shaken Europe. In contrast, a memorandum issued by the secretariat of the San Francisco



25

26 27

28

In democracy the constitution, the law, the state, so far as it is political constitution, is itself only a self-determination of the people, and a determinate content of the people. Furthermore it is evident that all forms of the state have democracy for their truth, and for that reason are false to the extent that they are not democracy. D. Archibugi, ‘A Critical Analysis of the Self-Determination of Peoples. A Cosmopolitan Perspective’, Constellations – An International Journal of Critical and Democratic Theory, vol. 10, no. 4, 2003, p. 489; R. Emerson, ‘Self-Determination’, American Journal of International Law, vol. 65, no. 3, 1971, p. 463; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, pp. 39–40, paras. 271–272, un Doc. E/CN.4/Sub.2/404/Rev.1. R.A. Falk, Human Rights Horizons – The Pursuit of Justice in a Globalizing World, 2000, pp. 104–105. R. Emerson, ‘Self-Determination’, American Journal of International Law, vol. 65, no. 3, 1971, p. 463; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, pp. 37, 44; B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, p. 100; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 38, para. 263, un Doc. E/CN.4/Sub.2/404/Rev.1. B.R. Elsner, Die Bedeutung des Volkes im Völkerrecht – Unter besonderer Berücksichtigung der historischen Entwicklung und der Praxis des Selbstbestimmungsrechts der Völker, 2000, p. 98.

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conference at the request of the Co-ordination Committee distinguishes between the three terms states, nations and peoples: The word ‘state’ is used throughout the Technical Committee texts as in the Dumbarton Oaks Proposals to indicate a definite political entity. The word ‘state’ occurs in all paragraphs dealing with the functions of the Organization, in both security and nonsecurity fields. The word ‘state’ is also used when a distinction is being made between a member and non-member, viz., ‘Any state, whether a member of the Organization or not […]’ It is believed that this usage is entirely proper, even though certain members of the Organization are technically not yet states. There appears to be no other word which could be used for this purpose. The word ‘nation’ is used only seven times in the Technical Committee texts, for the most part in a broad and non-political sense, viz., ‘friendly relations among nations’. In this non-political usage, ‘nation’ would seem preferable to ‘state’ since the word ‘nation’ is broad and general enough to include colonies, mandates, protectorates, and quasi-states as well as states. It also has a poetical flavour that is lacking in the word ‘state’. […] No difficulty appears to arise from the use of the word ‘peoples’ which is included in the Technical Committee texts whenever the idea of ‘all mankind’ or ‘all human beings’ is to be emphasized. The word ‘peoples’ thus occurs only in the Preamble, in Article 1, paragraph 2, and in the old Article 58, outlining the purposes of the Economic and Social Council. In both Articles 2 and 58, the word ‘peoples’ is used in connexion with the phrase ‘self-determination of peoples’. This phrase is in such common usage that no other word seems appropriate. The question was raised in the Co-ordination Committee as to whether the juxtaposition of ‘friendly relations among nations’ and ‘selfdetermination of peoples’ is proper. There appears to be no difficulty in this juxtaposition since ‘nations’ is used in the sense of all political entities, states and non-states, whereas ‘peoples’ refers to groups of human beings who may, or may not, comprise states or nations.29 Even though the memorandum explicitly distinguishes between the two terms ‘nations’ and ‘peoples’ and thus does not directly coincide with the French 29

Documents of the United Nations Conference on International Organization, CO/156 (vol. xviii, pp. 657–658), reprinted in: Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 38, para. 262, un Doc. E/CN.4/Sub.2/404/Rev.1.

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opinion, its reference to the common usage of the phrase ‘self-determination of peoples’ reveals the initial tendency to understand peoples in the context of the re-ordering process mentioned above. This focus soon shifted as the addressees of the principle of selfdetermination became peoples under colonial domination.30 It was the recognition of the need to eliminate inequality, discrimination, colonialism and racism which led to a widened understanding of the term peoples, confirmed by the application of the right to self-determination in the struggle of dependent peoples for freedom.31 While the addressees partly possessed common trademarks, an additional distinguishing element developed in their ‘collective desire to live together’ and ‘determine their own future’.32 But in other circumstances, their only collective common feature was that they were under colonial rule, and otherwise were multi-ethnic.33 Thus, various further claims by entities to be entitled to the benefits associated with peoples were made in the following years. Particularly exemplary of this are the traveaux préparatoire to the iccpr which proceed from the broad assumption that [t]he word ‘peoples’ was understood to mean peoples in all countries and territories, whether independent, trust or non-self-governing. Suggestions were made to the effect that ‘peoples’ should apply to ‘large ­compact national groups’, to ‘ethnic, religious or linguistic minorities’, to ‘racial units inhabiting well-defined territories’, etc. It was thought, however, that the term ‘peoples’ should be understood in its most general sense and that no definition was necessary.34 30

31

32 33 34

D. Archibugi, ‘A Critical Analysis of the Self-Determination of Peoples. A Cosmopolitan Perspective’, Constellations – An International Journal of Critical and Democratic Theory, vol. 10, no. 4, 2003, p. 490; M.R. Islam, ‘History of the North–South Divide in International Law: Colonial Discourses, Sovereignty, and Self-Determination’, in International Environmental Law and the Global South, S. Alam/S. Atapattu/C.G. Gonzalez/J. Razzaque eds., 2015, pp. 29–30. unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, pp. 16–17; R.C. Winter, Blueprints for Independence – The New States and Their Constituting Instruments, 1961, p. 1. D. Turp, ‘Quebec’s Democratic Right to Self-Determination: A Critical and Legal Reflection’, in Tangled Web: Legal Aspects of Deconfederation, S.H. Hartt et al. eds., 1992, p. 110. M. Moore, ‘Introduction: The Self-Determination Principle and the Ethics of Secession’, in National Self-Determination and Secession, M. Moore ed., 1998, p. 3. United Nations General Assembly, Draft International Covenants on Human Rights, 1 July 1955, un Doc. A/2929, at p. 42.

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The use of such a – deliberately – undefined generic term points not only to the strongly differentiated understanding of societies but also to the universal conception of the right to self-determination. In evidence of this trend, Richard Falk distinguishes the peoples claiming the right to self-determination into four categories whereby the decolonization movement constitutes first-order self-determination (obviously he ­proceeds from post-un self-determination). Second, similar to peoples under colonial domination, distinct groups within a state, however already equipped with internal boundaries, striving for independence. This so-called secondorder self-determination refers to ‘“states” or “republics” belonging to a federal system’,35 such as was the case during the dissolution of former Yugoslavia or the secession of the republic governments from the Soviet Union.36 One degree smaller, as third-order self-determination, regional subunits which distinguish themselves from the majority have likewise expressed the claim that they constitute peoples in the sense of self-determination as well. As examples for this category he lists Chechnya and Kosovo.37 The new understanding of peoples – entities reduced to portions of the state – has been generally recognized by the international community today.38 And finally, indigenous peoples have emerged as a new category of entities which demand recognition as peoples (fourth-order self-determination).39 Particularly this final category – though not always recognizing as amounting 35 36 37 38

39

R.A. Falk, Human Rights Horizons – The Pursuit of Justice in a Globalizing World, 2000, p. 100. Ibid. Ibid., at pp. 100–101. See, for example, the opinion expressed by the Supreme Court of Canada in the 1998 Quebec Succession case: [I]t is clear that a ‘people’ may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is ­generally used in documents that simultaneously contain references to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative that the reference to ‘people’ does not necessarily mean the entirety of a state’s population. To restrict the definition of the term to the population of existing states would render the granting of a right to self-­determination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose. Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, p. 583, para. 124. R.A. Falk, Human Rights Horizons – The Pursuit of Justice in a Globalizing World, 2000, p. 100.

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to settled international law – is reflective of the more recent developments in the field of indigenous rights (see infra). 2.5

Qualifying as Subjects of Peoples’ Rights

The various groupings which have been brought into play constituting a p ­ eople partly show common features with regard to their historical, ethnical, cultural or linguistic background, partly are merely assembled as heterogeneous ­entities within previous politically drawn boundaries. What is common to all remains a broad and vague category consisting of objective elements: peoples are perceived as a community with a distinct character and clear ­identity, whether due to their historical ties or to their de facto proximity. As established above, further characteristics for the purpose of identifying peoples in a modern context, i.e. most often in the context of self-­determination, among other groups within a state can be found on a subjective level. For one, their self-identification as a people, and for another, they frequently possess the common objective of national liberation and independence.40 Identification of a susceptible group therefore receives more weight than reaching an exhaustive definition. The broad concept of peoples is supplemented by additional elements, most commonly the requirement of possessing a close link to a territory, which is of relevance to their culture, means of subsistence or spiritual identity, even if in the past they have been expelled from it.41 40

41

J.K. Das, Human Rights and Indigenous Peoples, 2001, p. 28; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 40, para. 272, un Doc. E/CN.4/Sub.2/404/Rev.1; R. Muharremi, Treuhandverwaltung zwischen Friedenswahrung, Souveränität und Selbstbestimmungsrecht – Eine völkerrechtliche Analyse der Verwaltungsmission der Vereinten Nationen im Kosovo, 2005, p. 117. unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in The Rights of Peoples, J. Crawford ed., 1988 (reprinted 2001), p. 5; G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 170; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 41, para. 279, un Doc. E/CN.4/Sub.2/404/Rev.1.

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Thus, while a certain unity in appearance is required, this does not draw from an exhaustive list of elements. Instead, attempts of a conclusive definition have remained descriptive and all-inclusive, resulting in flexibility, albeit also subject to legal insecurity. One example can be found in the study of the concept of the rights of peoples by the United Nations Education Scientific and Cultural Organization (unesco): 1. a group of individual human beings who enjoy some or all of the following common features: (a) a common historical tradition; (b) racial or ethnic identity; (c) cultural homogeneity; (d) linguistic unity; (e) religious or ideological affinity; (f) territorial connection; (g) common economic life; 2. the group must be of a certain number which need not be large (e.g. the people of micro States) but which must be more than a mere association of individuals within a State; 3. the group as a whole must have the will to be identified as a people or the consciousness of being a people – allowing that groups or some members of such grows, though sharing the foregoing characteristics, may not have that will or consciousness; and possibly; 4. the group must have institutions or other means of expressing its common characteristics and will for identity.42 Based on the above, it can be concluded that the term peoples covers a wide spectrum of entities. The precise composition, as will be shown at a later stage, is often fact-dependent and the consequence of historical and geo-political realities. While it is difficult to finitely reach a conclusion on what exactly makes out a people at this stage, in recent years particularly one institution, i.e. the African Commission on Human and Peoples’ Rights (AfCHRP), has in a number of occasions assessed the term peoples in the African context, shedding some light on the matter. 2.5.1 Defining Peoples as Subjects of the African Charter’s Collective Rights The African Charter on Human and Peoples’ Rights, unlike the European Convention on Human Rights or the American Convention on Human Rights, contains both individual and collective rights. Adopted in 1981,43 thus after its regional counterparts in Europe and the Americas, the African Charter includes all three generations of human rights (civil and political, economic, 42 43

unesco Study, Annex, Paris 1990 (February 22), p. 7, para. 22, unesco Doc. SHS-89/ CONF.602/7 [also called Kirby description]. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217.

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social and cultural, and collective rights), notably with the same enforcement mechanism for all three categories.44 The equal footing of individual and collective rights was also deemed reflective of the ‘uniqueness of the African situation’.45 Six rights of the African Charter are explicitly termed collective rights (with other rights, such as the right to a cultural life having individual as well as collective dimensions46): Article 19 (right to equality), Article 20 (right to existence and right to self-determination), Article 21 (right to free disposition of natural resources), Article 22 (right to development), Article 23 (right to peace and security), and Article 24 (right to a satisfactory environment). Moreover, already the preamble of the African Charter affirms that the ‘reality and respect of peoples’ rights should necessarily guarantee human rights’.47 In light of the African Commission’s increasing case-law on collective rights – owed to peoples – it is therefore of particular relevance how the term, left undefined in the African Charter, has been interpreted in this context. Thus, going back to Katangese Peoples’ Congress v. Zaire, the Commission has recognized peoples as distinct entities with distinct rights.48 In this instance, a request by the leader of the Katangese Peoples’ Congress, Gerard Moke, had been made to ‘recognise the Katangese Peoples’ Congress as a liberation movement’,49 44

45

46

47 48

49

J.A. Hofbauer, ‘The African Commission and African Court on Human and Peoples’ Rights and Social Rights’, in Social Rights in the Case Law of Regional Human Rights Monitoring Institutions – The European Court of Human Rights, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights, C. Binder/J.A. Hofbauer/F. Piovesan/A.-Z. Steiner/E. Steiner eds., 2016, p. 419. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001, para. 68. Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010, para. 241. Preambular para. 5, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217. J.A. Hofbauer, ‘Collective (Economic and Social) Rights of Vulnerable Groups – Peoples/ Indigenous Peoples’, in Social Rights in the Case Law of Regional Human Rights Monitoring Institutions – The European Court of Human Rights, the Inter-American Court of ­Human Rights and the African Commission on Human and Peoples’ Rights, C. Binder/J.A. Hofbauer/F. Piovesan/A.-Z. Steiner/E. Steiner eds., 2016, p. 481. Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92, Recommendations of October, 1995, para. 1.

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pointing to the distinct colonial treatment Katanga had received during colonial times.50 The African Commission responded that [a]ll peoples have a right to self-determination. There may however be controversy as to the definition of peoples and the content of the right. The issue in the case is not self-determination for all Zaireoise as a people but specifically for the Katangese. Whether the Katangese consist of one or more ethnic groups is, for this purpose immaterial and no evidence has been adduced to that effect.51 Hence, while the distinctness of Katanga was relevant, this did not mean ethnically distinct. This was also pointed out by the African Commission in Kevin Mgwanga Gunme v. Cameroon, where a complaint was brought on behalf of the people of Southern Cameroon against the Republic of Cameroon, alleging that at the time of Cameroon’s independence Southern Cameroon had been forcefully annexed and that they therefore had never been able to exercise their right to self-determination. The African Commission pointed out that the term peoples had deliberately been left undefined by the drafters of the Charter, and that there was no definition under international law which went beyond recognizing certain objective features attributable to a collective of individuals.52 Regarding these objective features, it referenced inter alia the abovementioned study by unesco on the concept of the rights of peoples, and tied the notion of peoples to collective rights. Particularly, it found that ‘[c]ollective rights enumerated under Articles 19 to 24 of the Charter can be exercised by a people, bound together by their historical, traditional, racial, ethnic, cultural, linguistic, religious, ideological, geographical, economic identities and affinities, or other bonds’.53 In response to Cameroon’s submission that a people must manifest ethnoanthropological attributes, the African Commission stated that ‘[s]uch attributes are necessary only when determining indigenology of a “people” […], but 50

51 52 53

M.O. Mhango, ‘Recognizing a Right to Autonomy for Ethnic Groups Under the African Charter on Human and Peoples’ Rights: Katangese Peoples Congress v Zaire’, Human Rights Brief 14, no. 2, 2007, p. 12. Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92, Recommendations of October, 1995, para. 3. Kevin Mgwanga Gunme v. Cameroon, African Commission on Human and Peoples’ Rights, Communication No. 266/03, Recommendations of 27 May 2009, para. 169. Ibid., at para. 171.

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cannot be used as the only determinant factor to accord or deny the enjoyment or protection of peoples’ rights’.54 It also concluded that the people of Southern Cameroon could legitimately claim to be a ‘people’ as they had ‘numerous characteristics and affinities, which include a common history, linguistic tradition, territorial connection and political outlook. More importantly they identify themselves as a people with a separate and distinct identity. Identity is an innate characteristic within a people. It is up to other external people to recognise such existence, but not to deny it’.55 The African Commission also came to a similar conclusion in Sudan Human Rights Organisation & Centre of Housing Evictions and Human Rights (cohre) v. Sudan.56 The complaint originated in the context of the Sudanese civil war, and particularly concerned allegations regarding the right to development (­Article 22 African Charter). Issued during the same session as Kevin Mgwanga Gunme v. Cameroon, the African Commission firstly pointed to the importance of the question of peoples’ rights in the context of Africa’s diversity.57 In its non-exhaustive mentioning of characteristics, interestingly, it lists slightly different examples than above, namely: ‘language, religion, culture, the territory they occupy in a state, common history, ethno-anthropological ­factors, to mention but a few’.58 Moreover, in states ‘with mixed racial composition, race becomes a determinant of groups of ‘peoples’, just as ethnic identity can also be a factor. […] It is unfortunate that Africa tends to deny the existence of the concept of a ‘people’ because of its tragic history of racial and ethnic bigotry by the dominant racial groups during the colonial and apartheid rule’.59 In this vein, the African Commission concluded that the people of Darfur ­constituted a people as described under Article 19 of the African Charter and that their right to development under Article 22 had been violated by Sudan. While the African Commission has therefore found a number of different characteristics that point to the distinctness of a group, it has also pointed out that distinct ethno-anthropological attributes would only be essential in identifying an indigenous people. As also stated in its recent decision in Front for 54 55 56

57 58 59

Ibid., at para. 178. Ibid., at para. 179. Sudan Human Rights Organisation & Centre of Housing Evictions and Human Rights (cohre) v. Sudan, African Commission on Human and Peoples’ Rights, Communication No. 279/03-296/05, Recommendations of 27 May 2009. Ibid., at para. 220. Ibid. Ibid., at paras. 220–221.

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the Liberation of the State of Cabinda v. Republic of Angola,60 the classification as an indigenous people results inter alia in being able to sustain a claim ‘for special protection of a distinctive overriding communal right to property under the Charter’.61 But at the same time, the African Commission has also affirmed that the term ‘peoples’ as used in the African Charter encompasses indigenous peoples (as explained in the following in itself without any universal or unambiguous definition).62 2.5.2 Indigenous Peoples as Peoples In the classic international legal order centered around states as the primary subjects of rights and obligations, indigenous peoples for a long time were perceived as mere objects of international law. Consequently, the international community decided on their fate, without consulting or enabling the participation of indigenous peoples. Perceived as vulnerable groups, indigenous peoples were presented with a situation which often failed to respond to their special needs and circumstances. However, through active engagement and a process of self-organization of affected entities, the international legal system has become more inclusive and numerous conventions and instruments have been drafted which incorporate new approaches and methods of integration.63 This section primarily focuses on the position of indigenous peoples as emerging subjects of international law, the clarification of the term indigenous peoples and accordingly their regulation as contained in international instruments. Moreover, special emphasis will be put on their claim to constitute peoples. Only in later Chapters will focus be laid on their claims as right-bearers to the rights granted to peoples within the traditional sense. 2.5.2.1

The Role of Indigenous Peoples in International Law – Historical Development Modern international law developed against the background of Europeanoriented political and social organization, based upon territorial entities with

60

61 62

63

Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 ­November 2013. Ibid., at para. 106. Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010, paras. 127, 151. L. Swepston, ‘Indigenous Peoples in International Law and Organizations’, in International Law and Indigenous Peoples, J. Castellino/N. Walsh eds., 2005, p. 53.

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a hierarchical and centralized authority.64 Though initially scholars at the time of European expansion recognized local inhabitants as possessing original rights and dominion over their lands, indigenous peoples were not deemed fit to administer a lawful state.65 Instead, up until the early twentieth century, states pursued the paternalistic philosophy of ‘helping them in their development’ by attempting to ‘civilize’ these groups.66 Especially following the 1815 Vienna Congress, international relations became more rule-based and at the same time exclusive. The threshold of ‘civilization’ was introduced to determine who may enter full treaty-relations.67 Other agreements were rejected as being part of international law, as evidenced to the point in Island of Palmas: As regards contracts between a State or a Company such as the Dutch East India Company and native princes or chiefs of peoples not recognized as members of the community of nations, they are not, in the international law sense, treaties or conventions capable of creating rights and obligations such as may, in international law, arise out of treaties.68 64

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66 67 68

See Chapter 4, Section 4.1; J. Castellino, International Law and Self-Determination, 2000, p. 75; F.X. Perrez, Cooperative Sovereignty – From Independence to Interdependence in the Structure of International Environmental Law, 2000, pp. 18–19; H. Hannum, ‘Special Features: Papers from the American Indian Law Review’s 25th Anniversary Symposium – Sovereignty and its Relevance to Native Americans in the Twenty-First Century’, American Indian Law Review, vol. 23, 1998, p. 487. S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 18, referring to F. de Vitoria’s statement in De Indis et de ivre belli relectiones (Introduction by E. Nys, translated by J.P. Bate), 1964 (reprint), p. 161: [They] are unfit to found or administer a lawful State up to the standard required by human and civil claims. Accordingly they have no proper laws or magistrate, and are not even capable of controlling their family affairs; they are without any literature or arts, not only the liberal arts, but the mechanical arts also; they have no careful agriculture and no artisans; and they lack many other conveniences, yea necessaries, of human life. It might, therefore, be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country, providing them with prefects and governors for their own towns, and might even give them new lords, so long as this was clearly for their benefit. Ibid., at p. 34; P.G. McHugh, Aboriginal Societies and the Common Law – A History of Sovereignty, Status and Self-Determination, 2004, pp. 290f. P.G. McHugh, Aboriginal Societies and the Common Law – A History of Sovereignty, Status and Self-Determination, 2004, pp. 292f. Island of Palmas (United States of America v. Netherlands), 2 riaa 829, p. 858 (Award, 4 April 1928).

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In relation to such ‘uncivilized’ nations, states perceived themselves as ‘guardians’, and administrative regimes which aimed at restructuring the social and cultural patterns of indigenous peoples were erected in, e.g., Canada, Brazil, the United States of America, and the colonial territories of Great Britain, providing for the management of their affairs, education and housing.69 As objects of limited international concern, indigenous peoples received little acknowledgment and their societies were often torn apart in an assimilation process. It was not until human rights moved into the center of attention in the postWorld-War-ii era that the scope of subjects of international law expanded to also include, e.g., international organizations, transnational corporations and individuals. The original individual/state dichotomy loosened up, enabling room for claims of entities which originally were not recognized.70 Consequently, during the process of decolonization new entities, irrespective of their pre-colonial composition, were created. Until the 1970s, though, indigenous peoples were almost blatantly disregarded and shut out from this process.71 Particularly evident of the international community’s attitude towards ­indigenous societies was the International Labour Organisation’s first attempt to address the particular concerns of indigenous peoples in 1957. International Labour Organisation (ilo) Convention No. 107,72 still drafted according to an integrationist philosophy, contains weak protection clauses and perceives indigenous peoples as temporary societies which eventually will become

69

70 71 72

S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, pp. 34–36; see also the international effort concerning Africa from the 1885 Conference of Berlin: Art. 6, General Act of the Berlin Conference on West Africa, 16 February 1885: All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization. Available at http://africanhistory.about.com/od/eracolonialism/l/bl-BerlinAct1885.htm (last visited 19 April 2016). M.N. Shaw, International Law, 6th ed., 2008, p. 45. S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 53. ilo Convention (No. 107) concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, 26 June 1957, 328 unts 247.

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absorbed in the modern world.73 As the Preamble to ilo Convention No. 107 puts it: there exist in various independent countries indigenous and other tribal and semi-tribal populations which are not yet integrated into the national community and whose social, economic or cultural situation hinders them from benefiting fully from the rights and advantages enjoyed by other elements of the population.74 Yet, even at this stage, the Convention recognized indigenous land rights, in particular regarding ownership, their use of indigenous customary laws and their right to compensation for land taken.75 The attitude towards indigenous peoples did not change until the 1970s, when they began to assert their claims more visibly, prompting a response by international organizations. Realizing the particular historical circumstances of such societies, several studies were commissioned. Human rights principles served as bases for claims brought before international human rights bodies, enhancing the international reception and scholarly writing on the subject.76 73

74

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N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 315; International Labour Organisation, Indigenous and Tribal Peoples: Convention No. 107, available at http://www.ilo.org/indigenous/Conventions/no107/lang--en/index.htm (last visited 19 April 2016). ilo Convention (No. 107) concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, 26 June 1957, 328 unts 247 [emphasis added]; for a similar tenor see also Art. 3, ilo Convention No. 107: Article 3 1. So long as the social, economic and cultural conditions of the populations concerned prevent them from enjoying the benefits of the general laws of the country to which they belong, special measures shall be adopted for the protection of the institutions, persons, property and labour of these populations. 2. Care shall be taken to ensure that such special measures of protection (a) are not used as a means of creating or prolonging a state of segregation; and (b) will be continued only so long as there is need for special protection and only to the extent that such protection is necessary. 3. Enjoyment of the general rights of citizenship, without discrimination, shall not be prejudiced in any way by such special measures of protection. Arts. 7, 11ff., International Labour Organisation, Indigenous and Tribal Peoples: Convention No. 107, available at http://www.ilo.org/indigenous/Conventions/no107/lang--en/index .htm (last visited 19 April 2016). S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 57.

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In addition, in 1982 the United Nations Working Group on Indigenous Peoples (wgip) was established, functioning as a continuous motor in the development of both substantive and procedural advances of indigenous peoples. In particular, the Working Group opened its deliberations to the participation of indigenous peoples,77 a first step in the later drafting process of the United Nations Declaration on the Rights of Indigenous Peoples. Eventually, in 1989, ilo Convention No. 107 was partly revised by ilo Convention No. 169, inter alia with the intent of ‘removing the assimilationist orientation of the earlier standards’.78 Incorporating within its provisions several participatory rights as well as self-control of indigenous peoples, the Convention marked a turning point in the reception of indigenous peoples in international law.79 However, one of the Convention’s main controversies has been its use of the term peoples throughout the document, sparking the fear of many states that this implied an association with the principle of selfdetermination80 – though no reference thereto is made. Quite to the opposite, Article 1(3) of the Convention explicitly holds: ‘The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law’.81 The Convention therefore presently only has 22 ratifications.82 Parallel to these specific instruments dealing with indigenous peoples, ­several general human rights bodies, whether universal or regional, have in their studies, views and judgments also affirmed the application of all human rights principles equally to indigenous peoples, taking into consideration their particular conditions.83 They have also considerably contributed to the 77

P.G. McHugh, Aboriginal Societies and the Common Law – A History of Sovereignty, Status and Self-Determination, 2004, p. 300. 78 Preamble, ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. 79 S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 59. 80 See, e.g., A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 112. 81 Art. 1(3), ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383 [emphasis in original]. 82 Parties to ilo Convention No. 169: Argentina, Bolivia, Brazil, Chile, Central African Republic, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, Bolivarian Republic of Venezuela (status as of 19 April 2016). It shall also be noted that though ilo Convention No. 107 is no longer open for ratification, it still remains in force for 17 states: Angola, Bangladesh, Belgium, Cuba, Dominican Republic, Egypt, El Salvador, Ghana, GuineaBissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Syrian Arab Republic, Tunisia (status as of 19 April 2016). 83 Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5; Committee on the Elimination of Racial

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understanding that indigenous peoples in fact could be considered as peoples in the sense of common Article 1 iccpr and icescr.84 In 2007, the United Nations Declaration on the Rights of Indigenous Peoples (undrip) was adopted after two and a half decades of deliberations.85 Although non-binding, the undrip is perceived as ‘the most universal, comprehensive and fundamental instrument’86 with regard to indigenous peoples, and exerts influence in its function of specifying and explaining the scope of human rights in the context of the cultural, historic, social and economic circumstances of indigenous peoples.87 Most significant in comparison to ilo Convention No. 169, undrip recognizes that indigenous peoples ‘have the right to self-determination’. It also emphasizes their culture and identity, their special needs in the context of ­Discrimination, General Recommendation No. 23, Rights of Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex v, p. 122; Human Rights Council, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including the Right to Development’, Report of the Special Rapporteur, S.J. Anaya, on the situation of human rights and fundamental freedoms of indigenous people, 11 August 2008, paras. 20–30, un Doc. A/HRC/9/9. 84 In particular the Human Rights Committee became very proactive and bolder throughout the 1990s, see for some examples: Human Rights Committee, ‘Canada – Concluding Observations and Comments’, 7 April 1999, un Doc. CCPR/C/79/Add.105, at paras. 7, 8; Human Rights Committee, ‘Concluding Observations on Norway’, 1 November 1999, un Doc. CCPR/C/79/Add.112, at paras. 10, 17; Human Rights Committee, ‘Concluding Observations on Australia’, 25 April 2000, un Doc. CCPR/C/69/L/AUS, at para. 10. 85 Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous ­Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49, adopted with a vote of 143 in favor, 11 abstentions and 4 against (Australia, Canada, New Zealand, United States); C.J. Fromherz, ‘Indigenous Peoples’ Courts: Egalitarian ­Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples’, University of Pennsylvania Law Review, vol. 156, 2008, p. 1342. 86 Permanent Forum on Indigenous Issues, Draft General Comment No. 1 (Article 42 of the Declaration on the Rights of Indigenous Peoples), 5 May 2009, para. 6, un Doc. E/C.19/2009/CRP.12. 87 M. Davis, ‘To Bind or Not to Bind: The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’, Australian International Law Journal, vol. 19, 2012; Indigenous Bar Association, Understanding and Implementing the un Declaration on the Rights of Indigenous Peoples: An Introductory Handbook, 2011; Permanent Forum on Indigenous Issues, Draft General Comment No. 1 (Article 42 of the Declaration on the Rights of Indigenous Peoples), 5 May 2009, para. 8, un Doc. E/C.19/2009/CRP.12; Human Rights Council, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including the Right to Development’, Report of the Special Rapporteur, S.J. Anaya, on the situation of human rights and fundamental freedoms of indigenous people, 11 August 2008, para. 40, un Doc. A/HRC/9/9.

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fulfillment of human rights, and their right to pursue their own economic, social and cultural development.88 The broad conceptualization of self-determination89 in the document and the broadly phrased rights concerning land and resources prevented Australia, Canada, New Zealand and the United States from initially voting in favor of the Declaration, four states which are especially concerned with the topic of indigenous peoples.90 However, convinced by the common perception of the world community that the Declaration – which was drafted with the participation of the right-holders91 – constitutes a fundamental step in creating a universal framework of minimum standards concerning the rights of indigenous peoples, the four states which had voted against the Declaration, as well as Samoa and Colombia, which previously had abstained from voting, have endorsed the document since then.92 88 89 90

91 92

Art. 43, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. But see Chapter 4, Section 4.3.4. General Assembly adopts Declaration on Rights of Indigenous Peoples, 13 September 2007, un Doc. GA/10612; Editorial, ‘United States Votes Against Adoption of un Declaration on Indigenous Peoples’, American Journal of International Law, vol. 101, no. 4, 2007, p. 884; C.J. Fromherz, ‘Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, SelfDetermination, and the United Nations Declaration on the Rights of Indigenous Peoples’, University of Pennsylvania Law Review, vol. 156, 2008, p. 1346; Aside from the four states which voted against the Declaration, 11 states abstained from voting (Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine) and 34 were absent from voting. R. Kuppe, ‘Indigene Völker und Selbstbestimmungsrecht’, in Das Selbstbestimmungsrecht der Völker – eine Problemschau, G.H. Gornig/H.-D. Horn/D. Murswiek eds., 2013, p. 134. Statement on the United Nations Declaration on the Rights of Indigenous Peoples by Australia’s Minister for Families, Housing, Community Services and Indigenous Affairs, 3 April 2009, available at http://www.un.org/esa/socdev/unpfii/documents/Australia_official_statement_endorsement_UNDRIP.pdf (last visited 19 April 2016); Statement on Adoption of Declaration at un Permanent Forum on Indigenous Issues by New Zealand’s Minister of Maori Affairs, 20 April 2010, available at http://www.parliament.nz/en-nz/ pb/debates/debates/49HansD_20100420_00000071/ministerial-statements-%E2%80% 94-un-declaration-on-the-rights-of (last visited 19 April 2016); Canada’s Statement of Support on the United Nations Declaration on the Rights of Indigenous Peoples, 12 November 2010, available at http://www.aadnc-aandc.gc.ca/eng/1309374239861/1309374546142 (last visited 19 April 2016); Statement by unhcr spokesperson A. Mahecic, ‘Colombia’s support for un Declaration on Indigenous Peoples welcomed’, 24 April 2009, available at http://www.unhcr.org/49f1bc356.html (last visited 19 April 2016); Editor, ‘Samoa’s un move congratulated’, 23 October 2009, available at http://www.pina.com.fj/?p=pacnews& m=read&o=15137087824ae12b8fcd76f0847590 (last visited 19 April 2016); ‘Announcement

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The particular link of indigenous peoples with their land is recognized in several provisions. The Declaration’s Article 10 states that indigenous peoples shall not be forcibly removed from their land, except in circumstances where they have consented prior, freely and informed to such measures, have been compensated fairly and, if possible, have been granted the option to return, whereas Article 16(2) of ilo Convention No. 169 had not formulated the prohibition of relocation as strictly.93 Moreover, the right of indigenous peoples to their land, territories and resources is laid out explicitly in Article 26 of the Declaration, and in instances in which the state wishes to engage in any activity which might affect such, consent must be obtained.94 In comparison, ilo Convention No. 169 recognizes the ownership and possession of indigenous peoples with regard to their lands, however, their rights in relation to natural resources remain merely of a participatory nature.95 Furthermore, concerning activities connected to resources located on the lands, Article 15(2) of the ilo Convention No. 169 merely prescribes that states shall consult the indigenous people ‘with a view to ascertaining whether and to what degree their interests would be prejudiced’.96 Although undrip is non-binding as such, states are encouraged to take ‘­appropriate measures, including legislative measures’,97 thus introducing ­institutional or legal reforms where required, and enabling the full realization

93

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95

96 97

of u.s. Support for the United Nations Declaration on the Rights of Indigenous Peoples’, 16 December 2010, available at http://www.state.gov/documents/organization/153223.pdf (last visited 19 April 2016). Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles ­contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, pp. 16–17, 19, un Doc. E/C.19/2009/CRP.7. Arts. 26, 32, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, p. 24, un Doc. E/C.19/2009/CRP.7. Art. 15(2), ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. Art. 38, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49.

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of rights and benefits where this is not yet the case.98 As a response, Bolivia, for example, has implemented the Declaration fully into national legislation and has subsequently been engaged in operationalizing the rights affirmed, and granting autonomy and self-government to its indigenous peoples.99 Moreover, a number of states have been advised by former Special Rapporteur S. James Anaya to bring their legislative framework into accordance with ­u ndrip standards.100 Hence, while indigenous peoples for a long time suffered from neglect by international law as their original sovereignty was consumed by imperialisticallyinfluenced concepts of statehood and civilization, the past half century has shifted focus on their status and fate within the international community. Early instruments still perceived the state as the guardian of indigenous societies, and their status as distinct from the rest of the population as temporary. Through the consistently increasing relevance of human rights and the incorporation of the human rights debate in an growing number of fields at the international level, indigenous peoples managed to organize themselves internationally. Through advocacy, growing awareness and continuous efforts, the concerns of indigenous peoples and the debate as to their status became an ­exemplary field to witness significant substantive and procedural rights emerging and becoming recognized. Though many of these rights are traced back to the origins of their relationship with the ‘Western’ world, the concepts and categories used to accommodate the demands of indigenous peoples are very much influenced by developments occurring in different settings over the past decades and centuries. Thus, as addressed in further Chapters of this book, issues of terminology continue to cause substantial debates on the e­ xtent and scope of rights granted to indigenous peoples. 98

Human Rights Council, ‘Promotion and Protection of all Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including the Right to Development’, Report of the Special Rapporteur, S.J. Anaya, on the situation of human rights and fundamental freedoms of indigenous people, 11 August 2008, para. 46, un Doc. A/HRC/9/9; Further guidance on how implementation with regard to the concerned policies shall take shape can be found in Permanent Forum on Indigenous Issues, Recommendations Database, available at http://esa.un.org/dspdEsa/unpfiidata/UNPFII_Recommendations_Database_list.asp (last visited 19 April 2016). 99 The Republic of Bolivia, National Law No. 3760 as amended by National Law No. 3897 (Rights of Native Peoples), 26 June 2008, Gaceta Oficial from 11 July 2008. 100 See in more detail Asia Pacific Forum/Office of the United Nations High Commissioner for Human Rights, The United Nations Declaration on the Rights of Indigenous Peoples: A Manual for National Human Rights Institutions, August 2013, HR/PUB/13/2, p. 38.

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2.5.2.2 Making out Indigenous Peoples – Attempts of a Definition Rather than directly turning to an analysis of the legal status of indigenous peoples under international law, first complications arise from identifying a common understanding of the meaning of ‘indigenous peoples’. A precise definition has been hard to agree upon by the international community due to the circumstance that, on the one hand, flexibility with regard to the understanding of the term as well as to the right of each indigenous people to ­define itself is desired, and on the other hand, a capturing of the diversity within one d­ efinition always carries with it the danger of limitation and exclusion of p ­ ossible other subjects that might be considered to fall within the legal category.101 Thus, during the drafting process of undrip, indigenous peoples opted to not include a definition, but instead stressed the need for retaining the power to define themselves.102 This is line with the argument that ‘the existence of communities is a fact; it is not a question of law’.103

101 Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘­Standard-setting Activities: Evolution of Standards Concerning the Rights of Indigenous Peoples’, Working Paper on the concept of ‘indigenous people’ by Chairperson-Rapporteur Erica-Irene A. Daes, 10 June 1996, paras. 68, 71, un Doc. E/CN.4/Sub.2/AC.4/1996/2; The World Bank Operational Manual, Operational Policy 4.10 on Indigenous Peoples, July 2005 (revised April 2013), para. 3, available at https://policies.worldbank.org/sites/ppf3/ PPFDocuments/090224b0822f89d5.pdf (last visited 19 April 2016): 3. I dentification. Because of the varied and changing contexts in which Indigenous ­Peoples live and because there is no universally accepted definition of ‘Indigenous Peoples’, this policy does not define the term. Indigenous Peoples may be referred to in different countries by such terms as ‘indigenous ethnic minorities’, ‘aboriginals’, ‘hill tribes’, ‘minority nationalities’, ‘scheduled tribes’, or ‘tribal groups’. 102 International Law Association, The Hague Conference (2010) Rights of Indigenous ­Peoples, pp. 6f. This was also reflected in Art. 33, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49, which states that: 1. Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live. 2. Indigenous peoples have the right to determine the structures and to select the membership of their institutions in accordance with their own procedures. 103 The Greco-Bulgarian ‘Communities’, 1930 pcij 4, p. 22 (ser. B) No. 17 (Advisory Opinion, 31 July).

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The importance of self-identification has also been recognized by judicial bodies, which have repeatedly confirmed that the identification of the community constitutes part of the autonomy indigenous peoples enjoy.104 Despite the foregoing, several common characteristics have been identified to understand who qualifies as an indigenous people and which differentiate this distinct, vulnerable, social and cultural group from the society which now ­prevails in the territory.105 For example, the Commission on Human Rights identified four – non-exhaustive – elements which have found consensus among international organizations and legal experts. Firstly, the indigenous people has occupied and used a specific territory prior to others. Secondly, their self-identification as being distinct. Thirdly, the will to preserve such distinctiveness especially with regard to one’s culture, including language, social organization, religion, spiritual values, and methods of production, laws and institutions. And finally, they have been subject to dispossession, marginalization or discrimination, causing injustices lasting until today.106 A further element which has been considered indicative is the collective attachment of indigenous peoples to their ancestral territories, including the

104 Case of the Xákmok Kásek Indigenous Community v. Paraguay (Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 24 August 2010), para. 37; Case of the Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Inter-Am. Ct.H.R. (Judgment, 28 November 2007), para. 164. 105 M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 3. 106 Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Standard-setting Activities: Evolution of Standards Concerning the Rights of Indigenous Peoples’, Working Paper on the concept of ‘indigenous people’ by ChairpersonRapporteur Erica-Irene A. Daes, 10 June 1996, para. 69, un Doc. E/CN.4/Sub.2/ AC.4/1996/2; M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and SelfDetermination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, pp. 3–4; Preambular paras. 2, 6, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; J.M. Cobo, ‘Study of the Problem of Discrimination Against Indigenous Populations – Volume 5: Conclusions, Proposals and Recommendations’, p. 379, un Doc. E/CN.4/Sub.2/1986/7/Add.4 (March 1987); The World Bank Operational Manual, Operational Policy 4.10 on Indigenous Peoples, July 2005 (revised April 2013), para. 4(a-d), available at https://policies.worldbank.org/sites/ppf3/PPFDocuments/090224b0822f89d5.pdf (last visited 19 April 2016); Statement by A. Malhotra, Representative of India, in General Assembly adopts Declaration on Rights of Indigenous Peoples, 13 September 2007, un Doc. GA/10612.

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natural resources located therein, which influence their history, identity and culture, as well as their traditional economic activities.107 ilo Convention No. 169 includes a definition of indigenous peoples in ­Article 1, though for the purpose of the application of the Convention only: 1. (a) Tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; (b) Peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. 2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.108 The Convention therefore also opts to list a number of criteria to describe the indigenous peoples it aims to protect. Thus, a number of objective (in particular priority and distinctiveness) as well as subjective (self-identification) ­elements can be identified which have been deemed decisive in determining which groups fall within the wide term of indigenous peoples.109 107 M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 3; The World  Bank Operational Manual, Operational Policy 4.10 on Indigenous Peoples, July 2005 (revised April 2013), para. 4(b), available at https://policies.worldbank.org/ sites/ppf3/PPFDocuments/090224b0822f89d5.pdf (last visited 19 April 2016); Preambular  para. 7, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 108 ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. 109 G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’, in Minorities, Peoples and Self-Determination – ­Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 169; M. Kleist, ‘The Status of the Greenlandic Inuit – Are the Greenlandic Inuit a People, and Indigenous

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These criteria can also be traced back to one of the most cited working d­ efinitions110 of the term ‘indigenous’, as drafted by former Special Rapporteur José Martínez Cobo of the Sub-Commission on Prevention of Discrimination and Protection of Minorities already early on: 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 on 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 system. This historical continuity may consist of the continuation, for an extended period reaching into the present of one or more of the following factors: (a) Occupation of ancestral lands, or at least of part of them; (b) Common ancestry with the original occupants of these lands; (c) Culture in general, or in specific manifestations (such as religion, living under a tribal system, membership of an indigenous community, dress, means of livelihood, lifestyle, etc.); (d) Language (whether used as the only language, as mother-tongue, as the habitual means of communication at home or in the family, or as the main, preferred, habitual, general or normal language); (e) Residence on certain parts of the country, or in certain regions of the world; (f) Other relevant factors. On an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group

People, a Minority or a Nation? A Practical, Philosophical and Conceptual Investigation’, in The Right to National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, pp. 98–101. 110 Department of Economic and Social Affairs, ‘The Concept of Indigenous Peoples – ­Background Paper Prepared by the Secretariat of the Permanent Forum on Indigenous Issues’, 19–21 January 2004, un Doc. PFII/2004/WS.1/3.

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consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group).111 Though this constitutes an inclusive, wide description of elements commonly associated with indigenous peoples, it does not address their position as subjects within the international legal system. Thus, next, the role indigenous peoples have within the international legal framework will be assessed, with a special focus on their position within the human rights network. 2.5.2.3 Categorizations The development of human rights can be traced to the protection of human individuals from interference by the absolute state. Human dignity stands core to the international legal framework which evolved after the drafting of the Charter of the United Nations, strongly influenced by Western liberal tradition.112 For a long time, states feared that recognizing collective rights could institutionalize differences among parts of the population and constitute a destabilizing factor. These concerns especially rooted in the failure of the minority treaty system established after World War i to ease the tensions between nations.113 As the law on indigenous peoples to a large extent developed after the drafting of the most widely ratified international human rights instruments, these instruments do not contain any specific safeguards regarding indigenous peoples and, most importantly, do not recognize the concept of collective rights114 apart from in the context of self-determination.115 This lack of recognition 111 J.M. Cobo, ‘Study of the Problem of Discrimination Against Indigenous Populations – ­Volume 5: Conclusions, Proposals and Recommendations’, p. 29, paras. 379–381, un Doc. E/CN.4/Sub.2/1986/7/Add.4 (March 1987) [emphasis added]. 112 T. van Boven, ‘Categories of Rights’, in International Human Rights Law, D. Moeckli/S. Shah/S. Sivakumaran eds., 2010, p. 176; Art. 1, unga Res. 217 (iii), International Bill of Human Rights, A. Universal Declaration of Human Rights, 3 un gaor, p. 71, 10 December 1948, un Doc. A/810. 113 W.K. Barth, On Cultural Rights: The Equality of Nations and the Minority Legal Tradition, 2008, pp. 53–54; A. Buchanan, ‘The Role of Collective Rights in the Theory of Indigenous Peoples’ Rights’, Transnational Law and Contemporary Problems, vol. 3, 1993, p. 91; R. ­Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, 1997, pp. 11–12. 114 On the African Charter on Human and Peoples’ Rights (containing also collective rights) see above Section 2.5.1. 115 A. Buchanan, ‘The Role of Collective Rights in the Theory of Indigenous Peoples’ Rights’, Transnational Law and Contemporary Problems, vol. 3, 1993, p. 91.

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of the particularities of indigenous peoples results in the fact that the scope of protection afforded within the human rights regime will often depend on their classification within known legal categories, i.e. whether they will be categorized as a minority or a people, or whether they will be perceived as a sui generis entity. This categorization partly goes back to the types of protection afforded in the iccpr, where Article 1 guarantees all peoples the right to self-­determination whereas Article 27 protects the rights of persons belonging to ethnic, religious or linguistic minorities.116 The relevance becomes more ­apparent in light of the fact that the drafting process of the iccpr reveals that peoples protected under Article 1 shall be distinguished from minorities ­protected under Article 27, a distinction not easily made.117 A classification as a people or a minority can therefore not be made without keeping the significance of the afforded rights in mind. At the same time, this ‘either-or’ classification has received some alleviation, mainly due to an increased institutionalization process. Several further instruments and institutions, in particular the treaty body of the American Convention on Human Rights, have now recognized extensive rights of indigenous peoples, regardless of their classification as minorities or peoples.118 Yet, to clarify whether or not indigenous peoples can indeed claim the rights that peoples enjoy, a closer analysis of their position in terms of the iccpr shall be conducted. The Human Rights Committee has both granted indigenous peoples protection under Article 27 iccpr119 and held that some of them constitute peoples 116 Arts. 1, 27, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171. 117 M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary, 2nd ed., 2005, p. 20: A. Xanthaki, Indigenous Rights and United Nations Standards – Self-Determination, Culture and Land, 2007, p. 133. 118 See, for example, the cases discussed in Chapter 6, Section 6.6. 119 The Human Rights Committee has addressed the rights of indigenous peoples under Art. 27 iccpr in numerous individual complaints, in particular regarding their right to culture as ‘culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law’. Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5, para. 7. Some of the best known views by the Human Rights Committee concerning indigenous peoples are: Sandra Lovelace v. Canada, Human Rights Committee, Communication No. 24/1977, 68 ilr 17, un Doc. CCPR/C/13/D/24/1977 (Views of 30 July 1981); Ivan Kitok v. Sweden, Human Rights Committee, Communication No. 197/1985, 96 ilr 637, un Doc. CCPR/C/33/D/197/1985 (Views of 10 August 1988); Chief Bernard Ominayak and the

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in the sense of Article 1 iccpr.120 Thus, this implies that indigenous peoples do not necessarily constitute a specific category of their own, but depending on the factual circumstances, can either constitute a people or a minority group, as also confirmed by a number of authors.121 Reaching a decision on the matter whether a specific indigenous people qualifies as a minority or a people can be challenging, since neither denomination for itself is without complications.122 While the term ‘peoples’ has been discussed above, a definition of the term minority is similarly difficult to define as the category of indigenous peoples, as also in this regard the diverse range of situations and groups necessitates a broad and flexible understanding.123 Minority protection originates from an early method used in European states to protect (originally especially) religious, racial, linguistic and national minorities. Over centuries, such provisions were included in particular in peace agreements, but most often lacked institutional enforcement and

120

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122

123

L­ ubicon Lake Band v. Canada, Human Rights Committee, Communication No. 167/1984, 96 ilr 667, un Doc. CCPR/C/38/D/167/1984 (Views of 14 February 1984); Apirana Mahuika et al. v. New Zealand, Human Rights Committee, Communication No. 547/1993, un Doc. CCPR/C/70/D/547/1993 (Views of 11 November 2000); Ilmari Länsman et al. v. Finland, Human Rights Committee, Communication No. 511/1992, un Doc. CCPR/C/52/D/511/1992 (Views of 26 October 1994); Jouni E. Länsman et al. v. Finland, Human Rights Committee, Communication No. 671/1995, 115 ilr 300, un Doc. CCPR/C/58/D/671/1995 (Views of 30 October 1996). With regard to Article 1 iccpr, the Human Rights Committee has made frequent reference to self-determination and indigenous peoples in its concluding observations, see, most notably, Human Rights Committee, ‘Canada – Concluding Observations and Comments’, 7 April 1999, un Doc. CCPR/C/79/Add.105, para. 8; See also Human Rights Committee, ‘Concluding Observations on Norway’, 1 November 1999, un Doc. CCPR/C/79/ Add.112, para. 17; Human Rights Committee, ‘New Zealand – Concluding Observations and Comments’, 3 October 1995, un Doc. A/50/40, paras. 166–191; Human Rights Committee, ‘Australia – Concluding Observations and Comments’, 24 July 2000, un Doc. A/55/40, paras. 498–528; Human Rights Committee, ‘Mexico – Concluding Observations and Comments’, 27 July 1999, un Doc. CCPR/C/79/Add.109, para. 19; Human Rights Committee, ‘Colombia – Concluding Observations and Comments’, 25 September 1992, un Doc. A/47/40, para. 391. M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and Self-­Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 6; M. Fitzmaurice, ‘The Sámi People: Current Issues Facing an Indigenous People in the Nordic Region’, The Finnish Yearbook of International Law, vol. viii, 1997, p. 237. P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, pp. 105– 107; I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in The Rights of Peoples, J. Crawford ed., 1988 (reprinted 2001), p. 5. P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 105.

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monitoring. After the end of World War ii, human rights norms took the place of specific clauses, in particular with the conclusion of the two 1966 Human Rights Covenants.124 However, despite the inclusion of minority protection in the human rights instruments, a clear definition of the term minority remains lacking. The following objective and subjective elements have been suggested to determine what constitutes a minority: distinctive characteristics, numerical inferiority, a non-dominant position, the consciousness of ethnic, religious or linguistic characteristics and the common will to preserve those.125 In ­addition, it is also often added that minorities possess the citizenship of the state where they are in this non-dominant position.126 An ethnic minority can constitute itself as a group with an independent culture and history, as well as national and racial origins different from the majority.127 Article 27 iccpr entitles those groups which are qualified as minorities ‘to enjoy their own culture, to profess and practise their own religion, or to use their own language’.128 In light of the fact that the Human Rights Committee has held that the Optional Protocol only provides a recourse procedure for individuals and not peoples in their collective sense and that therefore ­individual complaints under Article 1 iccpr are not possible,129 members of indigenous peoples seeking protection have relied on Article 27 iccpr in numerous instances,130 especially claiming their right to enjoy their own culture. It has been understood to include a distinct way of life associated with the use 124 P.G. McHugh, Aboriginal Societies and the Common Law – A History of Sovereignty, Status and Self-Determination, 2004, pp. 296f. 125 Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities by Special Rapporteur F. Capotorti, para. 568, 1979, un Doc. E/CN.4/Sub.2/384/Rev.1; M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary, 2nd ed., 2005, p. 643; H. Hannum, ‘The Rights of Persons Belonging to Minorities’, in Human Rights: Concept and ­Standards, J. Symonides ed., 2000, p. 287. 126 Sub-Commission on Prevention of Discrimination and Protection of Minorities, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities by Special Rapporteur F. Capotorti, para. 568, 1979, un Doc. E/CN.4/Sub.2/384/Rev.1. 127 M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary, 2nd ed., 2005, p. 649. 128 Art. 27, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171. 129 See, e.g., Ivan Kitok v. Sweden, Human Rights Committee, Communication No. 197/1985, 96 ilr 637, para. 6.3, un Doc. CCPR/C/33/D/197/1985 (Views of 10 August 1988). 130 Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5, para. 3.2; Sandra Lovelace v. Canada, Human Rights Committee, Communication No. 24/1977, 68 ilr 17, para. 15, un Doc. CCPR/ C/13/D/24/1977 (Views of 30 July 1981); Ivan Kitok v. Sweden, Human Rights Committee,

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of land resources which are essential for the religion and spirituality of indigenous peoples.131 However, in particular with regard to ownership and control over their ­natural resources and land, indigenous peoples have sought protection via their right to self-determination. Their strive to be considered to fall within the category ‘peoples’ carries a moral argument with it as well. In simple terms peoples are perceived as a community with a distinct ­character and clear identity.132 Above all, a close link to territory is of relevance, even if they have been expelled from it in the past.133 Based on their existence in a state prior to the group located there presently, indigenous peoples in their claims emphasize their status as the original inhabitants of the land and thus put forth the argument that their interests are considered to take precedence before the interests of the majority, justifying a larger role of participation in the management of land and natural resources.134 This entails a more significant power and rights transfer from the state to the community and has therefore been met with resistance. Nevertheless, in the past this has led to their at

131

132 133

134

Communication No. 197/1985, 96 ilr 637, para. 6.3, un Doc. CCPR/C/33/D/197/1985 (Views of 10 August 1988). Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5, para. 7; Chief Bernard Ominayak and the ­Lubicon Lake Band v. Canada, Human Rights Committee, Communication No. 167/1984, 96 ilr 667, para. 32.2, un Doc. CCPR/C/38/D/167/1984 (Views of 14 February 1984); A ­ pirana Mahuika et al. v. New Zealand, Human Rights Committee, Communication No. 547/1993, un Doc. CCPR/C/70/D/547/1993, paras. 9.8–9.9 (Views of 11 November 2000); Awas Tingni (Merits) (The Mayagna (Sumo) Indigenous Community of Awas Tingni v. ­Nicaragua), 2001 Inter-Am.Ct.H.R. (Judgment, 31 August), p. 75, para. 149; Maya Indigenous Communities of Toledo District v. Belize, Inter-American Commission on Human Rights, Case 12.053, Report No. 40/04, 135 ilr 1, p. 64, para. 155 (12 October 2004). See above in this Chapter, Section 2.4. unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in The Rights of Peoples, J. Crawford ed., 1988 (reprinted 2001), p. 5; G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 170; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 41, para. 279, un Doc. E/CN.4/Sub.2/404/Rev.1. S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, pp. 97, 100; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 25.

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least part inclusion in the scope of the term peoples as envisioned in Article 1 of the iccpr.135 While the main distinguishing element between the two categories of ­protection can be found in the fact that minorities are numerically inferior, this distinction will often depend on which territory is taken for reference. For example, in his ccpr Commentary, Manfred Nowak points out that while the ‘Russians represented a majority in the former ussr as a whole, […] in the ­various Union Republics they were often only a dwindling minority’.136 Thus, it can be argued that where certain forms of autonomy already are existent, a geographically separated137 indigenous group could in any case constitute a sufficiently large number to qualify as a people in the conventional sense. Hence, indigenous peoples – depending on the circumstances of the case – can constitute peoples. Yet, as pointed out above, institutional enforcement difficulties with regard to peoples’ rights often results in indigenous peoples nevertheless resorting to their minority protection rights ensured under Article 27 iccpr. The – albeit not entirely satisfactory – conclusion that the categorization of indigenous peoples within the iccpr is thus dependent on the availability and type of the enforcement mechanism is also similar to an assertion made by the late Ian Brownlie, who already in 1988 stated: It is my opinion that the heterogeneous terminology which has been used over the years – the references to ‘nationalities’, ‘peoples’, ‘minorities’, and ‘indigenous populations’ – involves essentially the same idea. […] Once a member of a people or community is expressing political claims in public discourse in Geneva, New York, Ottowa, or Canberra, and using the available stock of concepts so to do, it seems to me that the type of political consciousness involved is broadly the same.138

135 M. Scheinin, ‘Indigenous Peoples’ Rights under the International Covenant on Civil and Political Rights’, in International Law and Indigenous Peoples, J. Castellino/N. Walsh eds., 2005, pp. 11–13. 136 M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary, 2nd ed., 2005, p. 20. 137 See also Chapter 3, Section 3.3.2. 138 I. Brownlie, ‘The Rights of Peoples in Modern International Law’, in The Rights of Peoples, J. Crawford ed., 1988 (reprinted 2001), pp. 5–6; cf. G. Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, Cornell International Law Journal, vol. 35, 2002, pp. 308–309.

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2.5.2.4 Final Remarks – Indigenous Peoples as Peoples Worldwide, there are more than 370 million indigenous persons in approximately 90 states. They constitute as many as 5.000 diverse indigenous peoples, varying in culture, customs and practices and size.139 A significant amount of the world’s non-exploited natural resources is located within their territories, increasing their vulnerability with regard to domestic and foreign actors.140 Over the past decades, sparked by civil society organizations, the rights of indigenous peoples as collective subjects of international law141 have increasingly been recognized especially within the fields of international environmental law and human rights law, leading to greater awareness concerning their situation at large. Debates on self-determination as well as the special relationship of indigenous peoples with their lands and natural resources have moreover led to their claim to constitute peoples (with an ‘s’).142 This development must be viewed in light of a number of particular ­elements: First, their experienced historical injustices, in a quasi-colonial context. Hence, the remedial aspect of self-determination is central to their claim of being recognized as more than minorities.143 Second, their strive to regain and protect their indigenous identity. This is not only a counter-current to early assimilationist attempts, but is directed towards their preservation

139 Department of Economic and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues, State of the World’s Indigenous Peoples, 2009, available at http://www.un.org/esa/socdev/unpfii/documents/SOWIP/en/ SOWIP_web.pdf (last visited 19 April 2016), pp. 1, 84. 140 J. James-Eluyode, ‘The Notion of Collective Human Rights and Corporate Social Responsibility – Issues and Trends in International Law’, International Company and Commercial Law Review, vol. 24, no. 6, 2013, p. 213. 141 See also Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), para. 231. 142 This relates to the so-called ‘battle of the “S”’, mentioned inter alia in R. Morgan, Transforming Law and Institution: Indigenous Peoples, The United Nations and Human Rights, 2011, pp. 125ff., referring to the reluctance by states to recognize indigenous peoples as peoples. Instead, some states use the terms ‘people’ (without ‘S’), communities or populations, which do not carry any implications as to the enjoyment of collective rights in international law. See also, e.g., Arts. 29, 30 of the Convention on the Rights of the Child, 20 November 1989, 1577 unts 3, referring to ‘groups or persons of indigenous origin’. Also see G. Alfredsson, ‘The Right of Self-Determination and Indigenous Peoples’, in Modern Law and Self-Determination, C. Tomuschat ed., 1993, pp. 45–46. 143 A. Xanthaki, Indigenous Rights and United Nations Standards – Self-Determination, Culture and Land, 2007, p. 132; similarly S.J. Anaya, Indigenous Peoples in International Law, 1996, pp. 83ff.

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as a consequence of their vulnerable position towards state and economic ­policies.144 And third, the recognition of their collectiveness as essential for achieving an anti-colonial realization of their distinct role in the past and future. In recognition of these aspects, the former Chairperson of the Working Group on Indigenous Peoples, Erica-Irene Daes, stated in her explanatory note on the un Draft Declaration: Indigenous peoples are unquestionably ‘peoples’ in every social, cultural, and ethnological meaning of this term. They have their own long histories as distinct societies and nations; and a unique economic, religious, and spiritual relationship with the territories in which they have so long lived. It is neither logical nor scientific to treat them as their neighbours, who obviously have different languages, histories and cultures and who have often been their oppressors. The un should not pretend, for the sake of convenient legal fiction, that these differences do not exist.145 Distinctiveness, collectiveness and historical injustice are therefore the three pillars underlying indigenous claims to constitute peoples. And though this claim has not gone unchallenged, there is considerable, especially institutionalized, support to at minimum accept the use of the ‘s’. However, this does not necessarily imply that indigenous peoples enjoy self-determination in its traditional understanding.146

144 In a similar vein see, e.g., P. Keal, European Conquest and the Rights of Indigenous Peoples – The Moral Backwardness of International Society, 2003, p. 126. 145 Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fourth-Fifth Session, ‘Discrimination Against Indigenous Peoples, Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples by Erica-Irene A. Daes, Chairperson of the Working Group on Indigenous Peoples’, 19 July 1993, un Doc. E/CN.4/Sub.2/1993/26/Add.1, paras. 7–8; see also Preamble of the United Nations Declaration on the Rights of Indigenous Peoples: ‘Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such[.]’ Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 146 See in particular Chapter 3, Sections 3.3 and 3.4, but the issue will also be taken up at other parts throughout the study.

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Peoples as Distinct from Other Categories

Although reaching a final definition of the term peoples would be helpful in guiding the understanding of entities which are entitled to enter the circle of governance, the following stops one step short of this. In reaching a theoretical underpinning for the analysis of who are sovereign rights holders and ­addressees of the right to self-determination, it is instead concluded that it ­suffices to agree with the philosopher John Rawls, when he emphasizes in his construction of a ‘realistic utopia’ that peoples constitute a different set of ­subjects than ‘political states as traditionally conceived’.147 Thus, peoples may be differentiated in negative terms by d­ istinguishing them from other collective groups, in particular from states, nations and minorities. While each of these terms in itself is difficult to define in final terms, in this study they will be used in the following manner: (1) ‘States’ will refer to ‘definite political entities’,148 constituting full subjects of international law in the traditional sense. This, however, shall not prejudice the discussion on what the determining criteria of statehood are. (2) ‘Nations’ is used in a non-legal sense, as the rights addressed in the course of this study in general are ascribed to either states, peoples (or to a ­certain degree even individuals).149 147 J. Rawls, The Law of Peoples – With ‘The Idea of Public Reason Revisited’, 1999, p. 25; cf. J. Crawford, ‘The Rights of Peoples – “Peoples” or “Governments”?’, in International Law as an Open System – Selected Essays, J. Crawford ed., 2004, p. 160. 148 Documents of the United Nations Conference on International Organization, CO/156 (vol. xviii, pp. 657–658), reprinted in: Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 38, para. 262, un Doc. E/CN.4/Sub.2/404/Rev.1. 149 Scholars have attempted differentiating peoples from nations by tying the latter term to a common ethnicity among a political community, while using the former term to describe a political community which is tied to a certain place, region, locality etc. (compare O. Dahbour, Self-Determination Without Nationalism – A Theory of Postnational Sovereignty, 2013, p. 39) The proposed (admittedly wide) definition of peoples, however, includes common ethnic criteria as well. Thus, for the purpose of this study, nations will not be used in a legal sense but rather, similar to the memorandum referred to above (Chapter 2, note 29), in an apolitical descriptive sense. Reference is also made to the emphasis of the term on a certain ‘imaginary’ element, as B. Anderson (Imagined Communities: Reflection on the Origin and Spread of Nationalism, 1983, p. 15) explains, as nations first and foremost perceive themselves as a ‘collective agency of some kind’.

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(3) The term ‘minorities’ refers to religious, racial, linguistic and national minorities, protected by specific domestic instruments and/or human rights instruments. In general, it is understood, that minorities do not constitute peoples due to their numerical inferiority. Where this concerns indigenous peoples, however, this is not categorically applied, but at minimum is subjected to a case-by-case analysis. In conclusion, therefore, peoples are entities, with clear and common identities. As a collective entity, they generally express a certain (political) claim which is expected to be met by legal categories. 2.7

The Rights Applicable to Peoples

Following from the above, the choice of which body shall constitute itself as a people in the sense of constituting a subject to the rights and provisions concerned therefore must be made on a case-by-case basis, within the context of the situation and the instrument. Consequently, even if a right pertains to all peoples it might be that not all peoples necessarily enjoy that right to the same extent. Throughout this study, it shall therefore inter alia be analyzed to what extent the rights associated with peoples apply to those entities claiming to constitute a people and if in fact delimiting criteria which qualify certain ­people as right-bearers to certain rights can be discerned. In The Law of Peoples, John Rawls lists eight points which serve as his ­conceptual basis for the rights of peoples: 1. 2. 3. 4. 5. 6. 7. 8.

Peoples are free and independent, and their freedom and independence are to be respected by other peoples. Peoples are to observe treaties and undertakings. Peoples are equal and are parties to the agreements that bind them. Peoples are to observe a duty of non-intervention. Peoples have the right of self-defense but no right to instigate war for reasons other than self-defense. Peoples are to honor human rights. Peoples are to observe certain specified restrictions in the conduct of war. Peoples have a duty to assist other peoples living under unfavorable conditions that prevent their having a just or decent political and social regime.150

150 J. Rawls, The Law of Peoples – With ‘The Idea of Public Reason Revisited’, 1999, p. 37.

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In sum, this reflects Rawls’ conceptualization of peoples as ‘corporate bodies organized by their governments’.151 Thus, as contained in his ideal theory, his concepts, against which the law of nations shall be judged, are directed at peoples in an understanding of them perceived as the association of political life. Many of these philosophical underpinnings also find reflection in the traditional principles of international relations. They do not, however, necessarily constitute rights of peoples as analyzed in this study. Instead, focus will be laid on international legal instruments and principles which directly entitle peoples to a legal right. On the international level, the claims of peoples have been extensive. In addition to abovementioned treaties, i.e. the Charter of the United Nations, the iccpr and icescr or the African Charter on Human and Peoples’ Rights, a number of other instruments have made reference to peoples as well.152 Partly contained in the notion of third generation human rights, peoples’ rights ­refer to a category of collective rights, encompassing inter alia the right to self-­determination, the right to development, and the right to free disposition of natural resources.153 Since the 1970s, primarily efforts by the ‘South’ have aimed at ensuring certain collective solidarity rights towards the ‘North’. The 1976 Universal Declaration of the Rights of Peoples, drafted by scholars, scientists, members of liberation movements as well as political parties, identified the viable rights of peoples in the categories of right to existence, right to territory, right to self-identification, self-determination, economic rights, inter alia permanent sovereignty over natural resources, culture and environment, and common resources.154 Though non-binding and not concluded by governments, the contained rights as well as the right to development have

151 J. Rawls, ‘The Law of Peoples’, Critical Inquiry, vol. 20, no. 1, 1993, p. 43. 152 See, e.g., The Final Act of the Conference on Security and Cooperation in Europe (Helsinki Declaration), 1 August 1975, 14 ilm 1292 [(a) Declaration on Principles Guiding Relations between Participating States: viii. Equal rights and self-determination of peoples]; Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in Armed Conflicts (First Additional Protocol), 8 June 1977, 1125 unts 609 [Art. 1 General principles and scope of application]. 153 M. Nowak, Introduction to the International Human Rights Regime, 2003, pp. 24–25; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 21. 154 Universal Declaration of the Rights of Peoples, 4 July 1976 (Algiers Declaration), reprinted in F. Rigaux, ‘The Algiers Declaration of the Rights of Peoples’, in un Law/Fundamental Rights: Two Topics in International Law, A. Cassese ed., 1979, p. 219.

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been affirmed in further documents and studies.155 As is assessed throughout this study, these categories are not exclusive but instead mutually reinforce one another. 2.8 Outlook The primary objective of this study is to analyze the varying degrees of sovereign independence associated with peoples, and in particular indigenous peoples. This will be divided into three main categories. Each section will also delineate whether the entitlements apply to all peoples, to peoples in the ­traditional understanding (excluding indigenous peoples), or only to indigenous peoples (as an indigenous lex specialis). First, the full independence of peoples. This is understood as finding recognition of peoples as sovereign entities, not necessarily but primarily, in form of the traditional understanding of state. For this purpose, the traditional ­elements of statehood will be analyzed, followed by an assessment when peoples can qualify as such subjects. Special emphasis will therefore be laid on the discussion when their external right to self-determination may be exercised. Second, the de facto independence of peoples. The focus in this category lies in determining whether (primarily institutionalized forms of) internal self-­determination extends to a de facto independence in all aspects. Autonomous arrangements and self-governing experiences of peoples and indigenous

155 Art. ii, Convention on the Prevention and Punishment of the Crime of Genocide, 9 ­December 1948, 78 unts 277 (national group in an understanding of peoples possessing the right to self-determination: D. Lisson, ‘Defining “National Group” in the Genocide Convention: A Case Study of Timor-Leste’, Stanford Law Review, vol. 60, 2008, p. 1473); Art. 1(1), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(1), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 unts 151; Art. 24, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217; Universal Declaration of the Rights of Peoples, Unrepresented Nations and Peoples Organization, 17 February 2001, Tallinn, available at http://www.unpo.org/article/105 (last visited 19 April 2016); unga Res. 41/128, Declaration on the Right to Development, 4 ­December 1986, 41 un gaor, Supp. No. 53, p. 186, un Doc. A/41/53; R. Rich, ‘The Right to Development: A Right of Peoples’, in The Rights of Peoples, J. Crawford ed., 1988 (reprinted 2001), pp. 50–53.

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peoples will be scrutinized, evaluating the extent of sovereign independence granted. Third, the spatial independence of peoples. This category covers the claims of peoples/indigenous peoples to sovereign independence in certain sectors. The two primary entitlements analyzed are, firstly, the principle of permanent sovereignty over natural resources (psnr) and, secondly, the right to free, prior and informed consent (fpic). Both are linked to the principle of self-­determination and constitute specifications and procedural safeguards, respectively. As the most prominent right associated with peoples, i.e. their right to selfdetermination, lies at the core of all three categories, a preliminary overview over the principle of self-determination will be provided.

chapter 3

The Right to Self-Determination Is self-determination, then, a goal, an aspiration, an objective? Or is it a principle, a right? And if the latter, is it only a moral and political right, or is it also a legal right? If so, is it enforceable? Should it be enforceable? Or is it none of these, or all of these at the same time, and more? rodolfo stavenhagen1

∵ The right to self-determination is a collective right which is applicable to peoples, whether or not they are constituted as independent states.2 As was discussed at great length in Chapter 2, peoples in general are understood as distinct entities with a clear identity and which are linked to a specific territory. However, as was also shown, historically the term peoples has changed in meaning and scope. In order to determine the status quo subjects of the right to self-determination, the following assesses whether this altered understanding finds reflection in the evolution of the principle of self-determination as well. For this purpose, this Chapter shall provide an overview of the historical development as well as the diverse dimensions associated with the principle of self-determination, and takes a special interest in determining the extent of the core of the principle in its conventional understanding.

1 R. Stavenhagen, ‘Self-Determination: Right or Demon?’, in Self-Determination: International Perspectives, D. Clark/R. Williamson eds., 1996, p. 2. 2 Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 37, para. 260, p. 39, para. 268, un Doc. E/CN.4/Sub.2/404/Rev.1.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_004

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Early Historical Development of the Principle of Self-Determination

Self-determination originated in the ideal that the people of a territory were to be heard and their consent obtained before their status was altered. Thus, in essence, a right to freedom, which can be traced far back in history. An early example stipulating the rights of men to be freely governed can be found in the 1776 American Declaration of Independence.3 Sovereignty of the state was seen to rest with the people, to which the governments remained responsible.4 In addition, those governments which derived their legitimacy from the people became a ‘separate and equal’ entity in the community of states.5 Thus, this reflects both an internal (responsibility of the governing source towards its peoples) as well as external (versus the community of states) aspect of self-determination.6 Lenin theorized self-determination as an instrument for the immediate liberation of oppressed people, and a reconceptualization of internal as well as international structures.7 Cassese identifies three elements of the principle in Lenin’s theories: firstly, ethnic or national groups were entitled to decide their fate freely; secondly, the principle was conceptualized to function in 3 The Unanimous Declaration of the Thirteen United States of America, 4 July 1776: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. [emphasis added] We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. [emphasis added] 4 T.S. Woolsey, ‘Self-Determination’, American Journal of International Law, vol. 13, no. 2, 1919, pp. 302–304. 5 T.M. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, vol. 86, no. 1, 1992, p. 46. 6 J. Castellino, International Law and Self-Determination, 2000, p. 11. 7 See B. Meissner/T. Veiter, Das Selbstbestimmungsrecht nach sowjetischer und westlicher Lehre, 1967.

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the aftermath of conflicts as a tool of territorial allocation; and thirdly, self-­ determination was a direct instrument to free all colonial countries.8 Formulated openly in response to World War i, Wilson enunciated the principle of self-determination as a right of peoples to self-government, i.e. the internal freedom of choice of government through the instrument of democracy, as a tool for the restructuring of territorial boundaries within Europe, as a method of amelioration of tensions between national groups and as a solution for the settlement of colonial claims.9 He therefore based himself on roots already existent in the American Declaration of Independence, especially propagating the internal aspects of self-determination.10 Where Lenin, however, saw self-determination as a legitimating principle to radically effect the redistribution of power and/or granting of independence (both to nations oppressed by central governments as well as peoples under colonial rule), Wilson ‘made the right to self-determination contingent on Western interests’.11 Thus, in practice, political interests with an understanding of the principle of self-determination which diverged at the core resulted in a lack of normative consensus. Instead, the first instances of application of the principle in the ‘modern’ understanding primarily followed the geo-political interests of the victorious states in the aftermath of the war.12 3.2

Normative Confirmation of the Principle of Self-Determination

Though the Aaland Islands case is often cited as confirmation of a right to remedial secession,13 the Aaland Commission of Jurists14 also held that: Although the principle of self-determination of peoples plays an important part in modern political thought, especially since the Great War, it must be pointed out that there is no mention of it in the Covenant of the League of Nations. The recognition of this principle in a certain number 8 9

10 11 12 13 14

A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 16. H. Hannum, ‘Rethinking Self-Determination’, Virginia Journal of International Law, vol. 34, no. 1, 1993, pp. 3–4; M.P. Scharf, ‘Earned Sovereignty: Judicial Underpinnings’, Denver Journal of International Law, vol. 31, 2003, p. 378. J. Castellino, International Law and Self-Determination, 2000, p. 13; A. Cassese, Self-­ Determination of Peoples – A Legal Appraisal, 1995, p. 19. A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 21. H. Hannum, Autonomy, Sovereignty, and Self-Determination – The Accommodation of Conflicting Rights, 1990 (rev. ed.), p. 28. See also infra, Chapter 4, Section 4.3.2. Consisting of Ferdinand Larnaude, Max Huber and A. Struycken.

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of international treaties cannot be considered as sufficient to put it upon the same footing as a positive rule of the Law of Nations.15 Despite the Commission therefore rejecting the fact that customary rules had emerged at that point in time, it did also further discuss the relationship between self-determination and minority rights, perceiving the latter as a fallback solution.16 While the report at minimum strengthened the political importance of self-determination as a policy instrument, it still did not fail to recognize practical limitations for it to become fully effective: The fact must, however, not be lost sight of that the principle that nations must have the right of self-determination is not the only one to be taken into account. Even though it be regarded as the most important of the principles governing the formation of States, geographical, economic and other similar considerations may put obstacles in the way of its complete recognition. Under such circumstances, a solution in the nature of a compromise, based on an extensive grant of liberty to minorities, may appear necessary according to international legal conception and may even be dictated by the interests of peace.17 It was not until the un Charter included the principle of self-determination as one of its objectives underlying friendly relations and cooperation among states that first indications of it having become a binding principle of i­nternational 15

16

17

Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (October 1920), League of Nations Official Journal Special Supplement No. 3; confirmed by the Report presented to the Council of the League of Nations by the Commission of Rapporteurs, ln Council Doc. B7/21/68/106 (16 April 1921), p. 27: ‘This principle [self-determination] is not, properly speaking a rule of international law and the League of Nations has not entered it in its Covenant’. Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (October 1920), League of Nations Official Journal Special Supplement No. 3: The protection of minorities is already provided for, to a very varying extent, in a fairly large number of constitutions. This principle appears to be one of the essential characteristics of liberty at the present time. Under certain circumstances, however, it has been thought necessary to go further, and to guarantee, by international treaties, some particular situation to certain racial or religious minorities. Thus, in some recent treaties a special legal régime, under the control and guarantee of the League of Nations, has been established for certain sections of the population of a State. Ibid.

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law could be found.18 However, the recognition of ‘the principle of equal rights and self-determination of peoples’ is ‘only’ contained in Article 1(2) rather than in the list of normative principles listed in Article 2 of the un Charter. Hence, it therefore was formulated in a more aspirational than binding sense.19 Despite its vague beginnings, it has since been incorporated in numerous international instruments, recognized as a human right, and been invoked throughout the decolonization process.20 Moreover, the International Court of Justice has confirmed its existence as a customary international law norm in several of its decisions.21 But as James Crawford determined quite fittingly, while the principle of self-determination can be perceived as lex lata, i.e. law which is established, at the same time, however, it also qualifies as lex obscura, i.e. law which is undefined and unclear as to its contents.22 Thus, although the vague content and phrasing as was used in the un Charter has received some 18

19 20

21

22

Arts. 1(2), 55, Charter of the United Nations, 24 October 1945, 1 unts 26; Sub-­Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-­ Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 117, para. 680, un Doc. E/ CN.4/Sub.2/404/Rev.1; H. Hannum, ‘Rethinking Self-Determination’, Virginia Journal of International Law, vol. 34, no. 1, 1993, p. 11. T. Rensmann, ‘Reform’, in The Charter of the United Nations: A Commentary, B. Simma/ D.-E. Khan/G. Nolte/A. Paulus eds., 2012, p. 42. Art. 1(1), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(1), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; The Final Act of the Conference on Security and Cooperation in Europe (Helsinki Declaration), 1 August 1975, 14 ilm 1292; Charter of Paris for a New Europe, 21 November 1990, 30 ilm 193; Art. 20, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217; Vienna Declaration and Programme of Action, adopted at World Conference on Human Rights, 25 June 1993, un Doc. A/CONF.157/23; Conference on Yugoslavia, Opinion No. 2 of the Badinter Commission, 11 January 1992, 92 ilr 167. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 31, para. 52 (Advisory Opinion, 21 June); Western Sahara, 1975 icj 12, pp. 31–33, paras. 54–59 (Advisory Opinion, 16 October); Case Concerning the Frontier Dispute (Burkina Faso v. Mali), 1986 icj 554, pp. 566–567, para. 25 (Judgment, 22 December); Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 102, para. 29 (Judgment, 30 June); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136, pp. 182– 183, para. 118, p. 199, paras. 156f. (Advisory Opinion, 9 July) (recognizing the application of self-determination outside the context of decolonization). J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 10.

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concretizations and has now been accepted as a legally binding norm of international law, its precise content to a large degree remains unsettled. In spite of a certain degree of normative uncertainty, the principle of selfdetermination has even advanced to an elite circle of norms considered as peremptory, underpinning the international legal order as well as contributing to its development,23 and possessing erga omnes character as to its obligations.24 Both legal categories are not undisputed on their own but have received considerable support. Firstly, with regard to the peremptory status of self-determination, the International Law Commission has listed the principle among few other fundamental norms considered as ius cogens at several occasions.25 The consequence thereof is that it is binding upon all entities and constitutes ‘a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character’.26 23

24 25

26

T. Burri, ‘The Right to Self-Determination’, in Völkerrecht als Fortschritt und Chance – International Law as Progress and Prospect (Grundidee Gerechtigkeit), D. Thürer ed., 2009, pp. 472–475. Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 102, para. 29 (Judgment, 30 June). International Law Commission, ‘Conclusions of the work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, Yearbook of the International Law Commission, un Doc. A/61/10 (2006), para. 33; International Law Commission, ‘Report of the Commission to the General Assembly – Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’, Yearbook of the International Law Commission, vol. ii, Part 2, un Doc. A/56/10 (2001), commentary to Article 40, para. 5, commentary to Article 26, para. 5; see also the Dissenting Opinion in Case concerning Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections), 1996 icj 595, p. 736, para. 68 (Dissenting Opinion by ad hoc Judge Kreca, 11 July): In a series of international instruments starting with the United Nations Charter and continuing via the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960), and the Covenants on Human Rights (1966), to the Declaration on Principles of International Law concerning Friendly Relations and ­Co-­operation among States in Accordance with the Charter of the United Nations (1974), the equal rights and self-determination of peoples has been of essential universal value of the democratic ordre public embodied in the United Nations Charter, and raised to a positive norm of general international law with the character of jus cogens. Art. 53, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331; also see Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination: Implementation of United Nations Resolutions’, Study by Special Rapporteur, H. Gros-Espiell, 1980, para. 70, un Doc. E/CN.4/Sub.2/405/Rev.1.

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Secondly, self-determination has been held to be an erga omnes norm, i.e. an obligation that is owed ‘toward the international community as a whole’.27 Regarding norms of such nature, ‘all States can be held to have a legal interest in their protection’.28 As is already emphasized in the human rights covenants and the Friendly Relations Declaration, all states therefore also have an obligation to promote the realization of the right to self-determination.29 Thus, it is clear that self-determination constitutes not merely a principle, but a right on its own, universally recognized and accepted, and incorporated into a number of instruments. At the same time, its contents and subjects remain disputed. 3.3

Defining the Core of Self-Determination

3.3.1 Preliminary Assessment of the Contents of Self-Determination The standard definition of the right to self-determination is inter alia found in common Article 1 of the 1966 Human Rights Covenants: ‘All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’.30 27

28 29

30

Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 102, para. 29 (Judgment, 30 June); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136, pp. 171–172, para. 88, p. 199, para. 156 (Advisory Opinion, 9 July). Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v. Spain), 1970 icj 3, p. 32, para. 33 (Judgment, 5 February). Art. 1(3), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(3), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; unga Res. 2625 (xxv), Declaration on Principles of ­International Law concerning Friendly Relations and Co-operation among States in ­accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; M. Saul, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’, ­Human Rights Law Review, vol. 11, no. 4, 2011, p. 632. Art. 1(1), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(1), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; see also: unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028.

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In essence, the principle concerns the right to be independent, even if deemed inadequately prepared31 concerning political, economic or social fundaments,32 as well as the gradual inclusion of human rights. This also includes developments for the protection of cultural and social distinctiveness, equality, and autonomy within the state.33 The notion of self-determination therefore contains several diverse aspects. It entails that peoples should freely determine their political status, freely exploit their economic resources as well as decide upon their social and cultural development, without external interference.34 Four elements of the principle can therefore be identified – political, economic, social and cultural self-determination. All four aspects are essential in achieving independence and create as well as presuppose spheres of autonomy. Thus, the following sections will provide an overview of the four categories, focusing on the conceptual development of self-determination from a political instrument to an ongoing, participatory right, containing integrated aspects of governance, existence and cultural identity. Over the course of this study, particular emphasis will be laid on political and economic self-determination, however, while keeping in mind that social and cultural self-determination are equally essential in achieving true independence of a people. 3.3.2 The Political Dimensions – External and Internal Self-Determination The recognition of political self-determination arguably constitutes the core of the principle of self-determination. As was shown above, the historical ­development was strongly influenced by political motives. Similarly, how one describes the political elements of self-determination largely depends on how one assesses who is entitled to self-determination. Often in an attempt to ­create 31 32

33

34

unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 107ff.; unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684. R. Falk, ‘Self-Determination Under International Law: The Coherence of Doctrine Versus the Incoherence of Experience’, in The Self-Determination of Peoples – Community, Nation, and State in an Interdependent World, W. Danspeckgruber ed., 2002, pp. 46–47. A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, pp. 17–18; Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 43, para. 288(k), un Doc. E/CN.4/Sub.2/404/Rev.1.

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a compromising solution to states’ reluctance in recognizing the growing circle of addressees of the principle, the most commonly employed differentiation in literature as well as state practice is related to the dimensions of the right, i.e. its external and internal dimensions.35 While the former refers to the right of peoples to choose their own international status, the latter is often understood as comprising the right to selfgovernment, i.e. autonomy within a state.36 As will be seen, in particular with regard to external self-determination, states have been cautious in admitting the existence of such right outside the traditional conception, i.e. peoples under colonial domination. Nevertheless, in light of the changing interface of the world community, claims for self-determination have become more frequent in the post-Cold War era, responding to the realization that often conflicts and violence root in the ‘frustration of distinctive communities when they are denied the legitimate expression of their communal identities and aspirations.’37 Both external and internal self-determination pose a variety of problems, especially concerning their application with regard to subjects and situations. They are dealt with in turn. External self-determination, i.e. the choice of international status, is exercised by the ‘freely expressed will of peoples’.38 In general, it relates to the external aspects of state sovereignty and international relations, and in particular entails that a specific entity can choose how they wish to be regarded in the international community.39 The Friendly Relations Declaration clarifies that this includes opting between independence, free association with another state, integration, or the choice of any other political status as freely accepted by the 35

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J. Summers, ‘The Internal and External Aspects of Self-Determination Reconsidered’, in Statehood and Self-Determination – Reconciling Tradition and Modernity in International Law, D. French ed., 2013, pp. 229–231; J. Summers, Peoples and International Law: Second Revised Edition, 2014, p. 60 (with further references); K. Knop, Diversity and Self-­ Determination in International Law, 2002, p. 18. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 43, para. 288(b), un Doc. E/CN.4/Sub.2/404/Rev.1. H. Brunhart, ‘Statement at the 47th Session of the United Nations General Assembly’, 23 September 1992, p. 62, un Doc. A/47/PV.9. Western Sahara, 1975 icj 12, p. 33, para. 59 (Advisory Opinion, 16 October) [emphasis added]. J. Summers, ‘The Internal and External Aspects of Self-Determination Reconsidered’, in Statehood and Self-Determination – Reconciling Tradition and Modernity in International Law, D. French ed., 2013, p. 238.

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people.40 Especially where this entails the secession of (indigenous) peoples, a more detailed analysis will be conducted in Chapter 4, Section 4.3. Before analyzing the traditional understanding of external self-determination, however, a short reference shall be made to other forms of self-determination which some scholars have argued as possible. For example, Martin Scheinin mentions ‘the right to represent internationally an indigenous people in relevant international negotiations or conferences’.41 Hence, representation and participation in international affairs through, e.g., membership in international organizations constitutes a subcategory of self-determination.42 Though it is debated whether this really constitutes a form of external self-determination or rather an expression of internal self-determination, terming this a ‘right’ oversteps the soft law character of the few regional institutions realizing this in practice (e.g. Arctic Council).43 In its original sense, though, shortly after the founding of the United Nations, the principle of self-determination became a central topic especially among socialist countries and those developing states which already had obtained independence.44 Initially primarily applicable with regard to non-­self-governing territories, two General Assembly resolutions in 1960 contributed to this 40

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Principle 5, unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028. M. Scheinin, ‘What are Indigenous Peoples?’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 8, referring to Section  6 of the Saami Parliament Act of Finland (laki saamelaiskäräjistä, Act No. 974/1995), 17 July 1995: Section 6 – Sámi representation In matters pertaining to its tasks, the Sámi Parliament shall represent the Sámi in national and international connections. See also Art. 36, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49: 1. Indigenous Peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders. 2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and sure the implementation of this right. Cf. N. Loukacheva, ‘“Arctic Indigenous Peoples” Internationalism: In Search of a Legal Justification’, Polar Record, vol. 45, issue 1, 2009, pp. 52–53. A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 71.

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­picture. General Assembly Resolution 1514 (xv) defines as subjects of the right to self-determination ‘Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence’,45 whereas General Assembly Resolution 1541 (xv) contains more detailed principles on how external self-determination can be exercised.46 At that point, the common perception was that the application of external self-determination was only of relevance in two situations. Firstly, it applied to peoples who occupied a geographical area, and who, in absence of foreign domination, would have constituted themselves as an independent state, especially colonial territories. Secondly, it applied to peoples who had already formed an independent state, but whose independence was being threatened by new forms of occupation.47 This encompassed alien subjugation, domination and exploitation, referring primarily to those situations where the people of a territory are dominated by recourse to force by a foreign power.48 However, at the same time it is understood that colonial and alien domination referred to ‘any kind of domination whatever form it may take, which the people concerned regarded as such’.49 In any event, in the decolonization context, it was understood that the right 45 46

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unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684. unga Res. 1541 (xv), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter, 15 December 1960, 15 un gaor, Supp. No. 16, p. 29, un Doc. A/4684. unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; unga Res. 1541 (xv), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter, 15 December 1960, 15 un gaor, Supp. No. 16, p. 29, un Doc. A/4684; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 31, para. 32 (Advisory Opinion, 21 June); Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 40, para. 273, p. 43, para. 288(d), un Doc. E/CN.4/Sub.2/404/Rev.1; A. Cassese, SelfDetermination of Peoples – A Legal Appraisal, 1995, pp. 71, 90. unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 99. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination: Implementation of United Nations Resolutions’, Study by Special Rapporteur, H. Gros-Espiell, 1980, para. 44, un Doc. E/CN.4/Sub.2/405/Rev.1.

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to self-determination applied to a people as a whole. Thus, in light of the principle of uti possidetis, if a colonial territory was made up of several ethnic and national groups, these were regarded as a whole and could not individually choose their external fate.50 This understanding based itself inter alia on the criteria laid out in abovementioned General Assembly Resolution 1541 (xv) with regard to the determination of non-self-governing territories. It saw those territories which were ‘geographically separate and […] ethnically and/or culturally different from the country that administers it’,51 in addition to ‘administrative, political, juridical, economical and historical’52 elements, as entitled to the right to external self-determination. Requiring ‘geographical separateness’ was commonly understood to apply to territories which were separated by open water from the colonial power, also known as the salt water criterion, thus in an attempt to circumvent the difficulties of the application of the external right to self-determination in connection with the principle of non-violation of territorial integrity of a state.53 Territories which were acquired via overland acquisitions were therefore excluded from the principle’s application.54 Even today, this forms the strongest argument against expanding the scope of self-determination to peoples outside the colonial context. Scholars have even gone so far as to state that in a post-colonial world ‘the right to self-determination is rarely recognized until it is won through a bloody conflict’.55 This view, however, is not unchallenged. On an argumentative level, the limitation to colonial entities was met early on with opposition. The Belgian Thesis56 stated with regard to the application of Article 73 un Charter: 50 A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, pp. 72–73. 51 Principle iv, unga Res. 1541 (xv), Principles which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter, 15 December 1960, 15 un gaor, Supp. No. 16, p. 29, un Doc. A/4684. 52 Principle v, ibid. 53 Ö. Österud, ‘The Narrow Gate: Entry to the Club of Sovereign States’, Review of International Studies, vol. 23, no. 2, 1997, p. 178; K. Knop, Diversity and Self-Determination in International Law, 2002, pp. 75–76. 54 M.P. Scharf, ‘Earned Sovereignty: Judicial Underpinnings’, Denver Journal of International Law, vol. 31, 2003, p. 381. 55 G.J. Simpson, ‘The Diffusion of Sovereignty: Self-Determination in the Postcolonial Age’, Stanford Journal of International Law, vol. 32, 1996, p. 263. 56 Advanced by Belgium in the course of the debate in the General Assembly concerning which factors should be taken into account in deciding whether a territory is or is not territory whose people have not yet attained a full measure of self-government, see also for

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… a number of States were administering within their own frontiers territories which were not governed by the ordinary law; territories with welldefined limits, inhabited by homogeneous peoples differing from the rest of the population in race, language and culture. These populations were disenfranchised; they took no part in national life; they did not enjoy selfgovernment in any sense of the word.57 The position reflected that for constituting a colonized people which is entitled to self-determination it would be irrelevant whether the colonial power governed from overseas or via territorial attachment.58 The relevant aspects of this scenario would therefore relate to the colonial situation of experiencing domination by newly arrived settlers which were in the minority within the well-defined demarcated areas inhabited by the subjugated majority.59 Thus, in application of this thesis it could be argued that ‘geographically separate’ may also be interpreted to encompass not only geographically distinct regions, but also to include demarcated lands within state borders, as for example the North West Territory of Canada or Lapland.60 However, this concept was formulated as a cynical defense by Belgium in response to criticisms of the traditional western colonial powers and was thus rather strongly rejected by the Group of 77.61 Especially the regulation of indigenous peoples was therefore left within the set of laws concerning minorities and did not rise to the status of ‘non-self-governing territories’ as referenced in ga Resolution 1514 (vi).62

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more information S. De Jaegere, ‘The “Belgian Thesis” Revisited: United Nations Member States’ Obligation to Develop Autonomy for Indigenous Peoples’, Finnish Yearbook of International Law, vol. 14, 2003, pp. 159ff. Reprinted in: P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, International and Comparative Law Quarterly, vol. 38, no. 4, 1989, p. 873. J.L. Kunz, ‘Chapter xi of the United Nations Charter in Action’, American Journal of International Law, vol. 48, no. 1, 1954, p. 109. C. Simmler, Das uti possidetis-Prinzip – Zur Grenzziehung zwischen neu entstandenen Staaten, 1999, p. 217. C.J. Iorns, ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, Case Western Reserve Journal of International Law, vol. 24, issue 2, 1992, at fns 264–265, 471. This term refers to the collective body of developing states. First used in 1964, a permanent institutional structure has developed, now including over 130 developing states. It is currently the largest Intergovernmental Organization of developing states representing their collective economic interests at the United Nations. B. Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy’, American Journal of International Law, vol. 92, no. 3, 1998, p. 434;

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The debate continues until today;63 but maintaining that self-determination only applies within a colonial context overlooks the extension of the right to peoples outside the traditional colonial context. The gradual development and expansion of the principle, as recognized in literature,64 judicial decisions,65 Ö. Österud, ‘The Narrow Gate: Entry to the Club of Sovereign States’, Review of International Studies, vol. 23, no. 2, 1997, p. 178; P. Thornberry, ‘Self-Determination, Minorities, Human Rights: A Review of International Instruments’, International and Comparative Law Quarterly, vol. 38, no. 4, 1989, pp. 873–874; C.J. Iorns, ‘Indigenous Peoples and SelfDetermination: Challenging State Sovereignty’, Case Western Reserve Journal of International Law, vol. 24, issue 2, 1992, at fns 253–254. 63 See, e.g., some of the critical statements made in the context of the Kosovo Advisory Opinion, Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Statement by the Russian Federation (Request for an Advisory Opinion, 16 April 2009), para. 81: It is widely accepted that a population of a trust or mandated territory, of a non-selfgoverning territory, or of an existing State, taken as a whole, undisputedly qualifies as a people entitled to self-determination. Whether, and under which conditions, an ethnic or other group within an existing State may qualify as a peoples, is subject to extensive debates. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Statement by Argentina (Request for an Advisory Opinion, 17 April 2009), paras. 89–93: A basic premise for the application of the principle of self-determination is the qualification of the holder of that right as a ‘people’. This is a legal qualification in the context of international law and not a mere sociological or ethnic qualification. […] In all the cases in which the relevant organs have recognized the existence of a ‘people’ in the legal sense and consequently their right to self-determination, they have expressly indicated so. […] Even in the case of decolonisation […] self-determination has not been applied in all circumstances. […] A distinction between peoples entitled to self-determination and minorities or indigenous populations is of particular importance. The Inter-American Commission on Human Rights in the Miskitos Case, while acknowledging the principle of self-determination of peoples, nevertheless states that ‘[t]his does not mean, however, that it recognizes the right to self-determination of any ethnic group as such’. To hold otherwise would lead to a complete blur between the distinction clearly made in international law between peoples and minorities. 64 D. Raič, Statehood and the Law of Self-Determination, 2002, pp. 289–290; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 27. 65 The Quebec Secession Case by the Supreme Court of Canada makes reference to three diverse situations in which external self-determination might come into question: In summary, the international law rights to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable

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state practice66 as well as its inclusion in a number of human rights instruments, which apply to non-state subjects,67 evidence that the scope of the principle, also in its external dimension, has arguably surpassed its originally limited circle of subjects. The most well-known example of the application of external self-determination to geographically non-separated entities can be found with regard to the dissolution of Yugoslavia and the disintegration of the Soviet Union witnessing self-determination with regard to federal units.68 Their claim to have a right to secession can be traced to the original emphasis on national, ethnic collectives when assessing the subjects of self-­ determination. While the question whether or not international law contains a right to secede will be analyzed in more detail in Chapter 4, Section 4.3, at this stage it is sufficient to conclude that it can be argued that the external dimension of self-determination can be applicable outside the colonial context, though certain thresholds might condition its exercise.

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group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, p. 588, para. 138; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136, p. 214, paras. 29–30 (Advisory Opinion, Separate Opinion of Higgins, 9 July); Case of Loizidou v. Turkey (Merits), European Court of Human Rights, Application No. 15318/89, 18 December 1996 (Judgment, Concurring opinion of Judge Wildhaber, joined by Judge Ryssdal). For example, in 1974, the u.s. Representative made a statement in support of a proposal for the appointment of a special rapporteur to undertake a study on the principle of selfdetermination. The un summary thereof states: [T]he United Nations resolutions directed against colonialism and alien domination were not intended to apply only to overseas colonies and Southern Africa. Indeed, alien domination was no more acceptable, no more commensurate with the principle of self-determination and no less a violation of the United Nations Charter when it was not based on difference in the color of the dominator and the dominated. un Doc. E/CN.4/SR.1264, reprinted in A. Rovine/E.C. McDowell/J.A. Boyd/M.L. Nash eds., Digest of United States Practice in International Law, 1974, p. 53. Art. 1(1)(2), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(1)(2), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 27. Another example which might be mentioned is the secession of Bangladesh. However, in that case, it has been argued that East Pakistan was in a ‘quasi-colonial’ position towards West Pakistan, see also in more detail Chapter 4, Section 4.3.2.

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The rights associated with the internal dimension of self-determination69 can address the political as well the economic, social and cultural aspects of the norm. In the context of political self-determination, internal self-­ determination can again be divided into two broad categories. Firstly, it contains the right of peoples to enjoy the freedom of authentic self-government.70 This entails that peoples should have the full control over their governing bodies and enjoy autonomy versus other entities in the state.71 In certain circumstances this can even extend so far that the concerned people are granted a special constitutional status.72 Secondly, as an ongoing right of peoples, it enables them to freely choose their political and economic regimes and leaders and enjoy the rights necessarily linked therewith, such as the right to vote, right of peaceful assembly, freedom of association and freedom of expression.73 In this context, the Friendly Relations Declaration as well as the 1993 Vienna Declaration both refer to a ‘government representing the whole people’.74 Thus, internal selfdetermination is also a participatory right. 69

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A number of questions arise regarding the precise application and consequences of exercising internal self-determination which will, however, especially be assessed in Chapter 5 regarding the right and content of autonomy and in Chapter 6 regarding the question of sovereign control over natural resources. M. Pomerance, Self-Determination in Law and Practice – The New Doctrine in the United Nations, 1982, p. 37; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 101. M. Seymour, ‘Internal Self-Determination and Secession’, in The Ashgate Research Companion to Secession, A. Pavkovic/P. Radan eds., 2011, p. 386. Ibid. Arts. 19, 21–22, 25, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 25. unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; Vienna Declaration and Programme of Action, adopted at World Conference on Human Rights, 25 June 1993, un Doc. A/CONF.157/23; Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, pp. 586–587, para. 136: The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a ‘sovereign and independent state conducting itself in compliance with the principle of equal rights and

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Various possible subjects of the right can be identified: the whole people of a state, racial and ethnically distinct groups and religious or linguistic groups. Thus, not only are singular groups and their right to autonomy and self-­government encompassed, but also the collective right of a population to a representative and democratic government.75 In general, this claim as well as the claim of religious or linguistic groups within a state to self-­determination has often not received much support at the international level, as, on the one hand, states often maintain their position with regard to non-interference within domestic matters and, on the other hand, the abovementioned groups most often fall within the regulation concerning minorities.76 Finally, especially those states which take the position that the concept of self-determination is to be understood as a bundle of rights which are applicable to all subjects, and under the assumption that the rights extend as far as permitting secession, opt for a restrictive understanding of groups which qualify as peoples and thus are entitled to the internal aspects of the principle.77 This is also evident in the discussion surrounding whether indigenous peoples are entitled to self-­determination, which will be discussed in more detail in Chapter 4, Section 4.3.4, and Chapter 5, Section 5.2.3. 3.3.3 Economic, Social and Cultural Self-Determination As corollaries of the political right to self-determination – whether internal or external – peoples enjoy the other aspects of the right to self-determination to a varying degree. While the political aspect serves as the basis to the claim, economic, social and cultural self-determination function as consolidating factors of the distinct identity of the respective peoples.78 First and foremost, for an effective exercise of self-determination the capability of the right-holder to control and exploit its own natural resources is necessarily entailed.79 That is, in order to enjoy self-determination, a people

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self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction’. A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, pp. 102–103; T.M. Franck, ‘The Emerging Right to Democratic Governance’, American Journal of International Law, vol. 86, no. 1, 1992, p. 52. A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 108. A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 22. J. Summers, Peoples and International Law: Second Revised Edition, 2014, p. 326. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 43, para. 288(g), un

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must also be able to use their natural resources and thereby achieve economic independence. Conceptually, economic self-determination was seen as a corollary to the independence achieved by former colonies. It re-emphasized that the natural resources located in newly independent states in fact were theirs and thus aimed at strengthening their independence by providing a mechanism to revisit possibly unjust colonial arrangements.80 Hence, the right to economic self-determination also includes the right to regulate fair and just economic trade relations and the common goal of economic prosperity and growth in the international agenda.81 In fulfillment of the aspect of economic self-­ determination, a number of rights have been proclaimed which are associated with its core, in particular permanent sovereignty over natural resources (psnr) as well as free, prior and informed consent (fpic).82 Despite their close link to the realization of self-determination, though, these rights have gained

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Doc. E/CN.4/Sub.2/404/Rev.1; S.K. Chatterjee, ‘The Charter of Economic Rights and Duties of States – An Evaluation after 15 Years’, International and Comparative Law Quarterly, vol. 40, no. 3, 1991, p. 671. A. Farmer, ‘Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in Resource-Rich Countries’, International Law and Politics, vol. 39, 2006, p. 423. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 13, paras. 75–76, un Doc. E/CN.4/Sub.2/404/Rev.1. unga Res. 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974, S-6 un gaor, Supp. No. 1, p. 3, un Doc. A/9559; S.K. Chatterjee, ‘The Charter of Economic Rights and Duties of States – An Evaluation after 15 Years’, International and Comparative Law Quarterly, vol. 40, no. 3, 1991, p. 670; The Charter of Economic Rights and Duties of States stipulates that economic relations shall be governed not only by the principle of equal rights and self-determination but also by: sovereignty, territorial integrity and political independence of States; sovereign equality of all States; non-­aggression; non-intervention; mutual and equitable benefit; peaceful co-existence; peaceful settlement of disputes; remedying of injustices which have been brought about by force and which deprive a nation of the natural means necessary for its normal development; fulfillment in good faith of international obligations; respect for human rights and fundamental freedoms; no attempt to seek hegemony and spheres of influence; promotion of international social justice; international cooperation for development; free access to and from the sea by landlocked countries (see Chapter 1, unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631). F. MacKay, ‘Indigenous Peoples and International Financial Institutions’, in International Financial Institutions and International Law, D.D. Bradlow/ D.B. Hunter eds., 2010, p. 303.

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an independent footing in international law. They also stand symbolic for the claimed shift of emphasis of economic self-determination to now also functioning within a state, i.e. it plays a role in the determination of authority over resources in the relationship of the state and its peoples.83 Second, the right to self-determination includes the right to social development. International peace and security as well as a fair and equitable advancement of the world community are based on a just social order which enables all human beings to live in dignity and freedom.84 Everyone shall therefore be able to participate in all levels of society, i.e. labor, ownership and property, family, education, housing.85 The fulfillment of these rights originates in economic development and at the same time reasons the need for such.86 Finally, due to the fact that the encouragement and dissemination of culture and education is essential for the attainment of human dignity as well as a reflection of the principle of equality, cultural development constitutes an element of the right to self-determination as well.87 Cultural life can be understood as the totality of practices and attitudes which have an effect on man’s capability of expressing himself, defining his position within the world community, forming his environment, communicating with others and in their totality form part of the common heritage of mankind.88 This also includes 83

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See A. Farmer, ‘Towards a Meaningful Rebirth of Economic Self-Determination: Human Rights Realization in Resource-Rich Countries’, International Law and Politics, vol. 39, 2006, p. 423, see also Chapter 6. Preamble, Art. 1, unga Res. 2542 (xxiv), Declaration on Social Progress and Development, 11 December 1969, 24 un gaor, Supp. No. 30, p. 49, un Doc. A/7630; Sub-­ Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-­Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 15, para. 82, un Doc. E/ CN.4/Sub.2/404/Rev.1. Art. 55(a)(b), Charter of the United Nations, 24 October 1945, 1 unts 26; Arts. 6, 10, unga Res. 2542 (xxiv), Declaration on Social Progress and Development, 11 December 1969, 24 un gaor, Supp. No. 30, p. 49, un Doc. A/7630. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 93, para. 551, un Doc. E/CN.4/Sub.2/404/Rev.1. Ibid., at p. 15, paras. 83–84; Preamble, Declaration of the Principles of International Cultural Co-operation, proclaimed by the 14th Session of the General Conference of the United Nations Educational, Scientific and Cultural Organization, 4 November 1966, available at http://portal.unesco.org/en/ev.php-URL_ID=13147&URL_DO=DO_ TOPIC&URL_SECTION=201.html (last visited 19 April 2016). Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United

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specific, historically originated, ways of living which are often shared with other members of a community, such as a ‘particular way of life associated with the use of land resources’.89 Thus, peace and international cooperation must be based on respect for the way of life and customs of peoples.90 Every people therefore shall enjoy the right and duty to develop its own culture and at the same time co-operate with one another to spread and share its knowledge, skills and talents to enrich cultures.91 The three aspects – economic, social and cultural – are interlinked on several levels and their realization is essential in achieving true self-determination. Especially the economic aspect of self-determination has received wide recognition by judicial bodies and scholars. Its role in granting or reinforcing sovereign authority will therefore receive special attention in Chapter 6. 3.4

Self-Determination – A Right of All Peoples?

The right to self-determination of peoples is recognized as a universal norm, applying to all peoples, and its fulfillment lies in the interest of the international community as a whole.92 Yet, despite its recognized normative existence,

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Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 102, para. 587, un Doc. E/CN.4/Sub.2/404/Rev.1. Human Rights Committee, General Comment 23: The Rights of Minorities (Art. 27), 8 April 1994, un Doc. CCPR/C/21/Rev.1/Add.5, para. 7; Awas Tingni (Merits) (The Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua), 2001 Inter-Am.Ct.H.R. (Judgment, 31 August), p. 75, para. 149. Art. 1(3), Declaration of the Principles of International Cultural Co-operation, proclaimed by the 14th Session of the General Conference of the United Nations Educational, Scientific and Cultural Organization, 4 November 1966, available at http://portal.unesco.org/ en/ev.php-URL_ID=13147&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited 19 April 2016). Arts. 1(2), 4–5, ibid.; Arts. 55–56, Charter of the United Nations, 24 October 1945, 1 unts 26; Preamble, unga Res. 3148 (xxviii), Preservation and further development of cultural values, 14 December 1973, 28 un gaor, Supp. No. 30, p. 87, un Doc. A/9030; SubCommission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 15, para. 86, un Doc. E/ CN.4/Sub.2/404/Rev.1. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 39, para. 268, un Doc. E/CN.4/Sub.2/404/Rev.1.

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self-determination also still retains certain inherent characteristics of a principle – loose and ambiguous as to extent and meaning. Self-determination in this vein constitutes an ‘umbrella right’,93 thus susceptible to a variety of different aspects and rights. To quote Gudmundur Alfredsson: [S]elf-determination has not been and should not be a stagnant phenomenon. Further evolution is likely and it must be admitted that, not surprisingly, the outcome is uncertain. States as the supreme law-makers will continue to preserve their interest in ongoing and forthcoming legislative debates but that is not necessarily a straitjacket.94 This juxtaposition of certainty as to value and uncertainty as to content constitutes an ideal setting for evolution,95 but also may evoke the fears and concerns of states when it comes to the application of the principle in a judicial setting. Hence, contrary to its popularity, there remains a certain discrepancy between the accepted normative standard and its judicial reflection. There have only been few judicial proceedings which have applied the right to self-determination, also due to a number of institutional gaps, the most prominent being that the Optional Protocol to the iccpr only provides recourse for individuals and not peoples in their collective sense, thus excluding the possibility to hear complaints under Article 1 iccpr. 93

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A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 28, referring to the list of forms and expressions of the right to selfdetermination which Gudmundur Alfredsson compiled and discussed in G. Alfredsson, ‘Different Forms of and Claims to the Right of Self-Determination’, in Self-Determination: International Perspectives, D. Clark/R. Williamson eds., 1996, p. 58. G. Alfredsson, ‘Different Forms of and Claims to the Right of Self-Determination’, in SelfDetermination: International Perspectives, D. Clark/R. Williamson eds., 1996, p. 79; see also DeGeorge’s description of self-determination as a myth: Sometimes the right of self-determination is used with respect to and forms part of consent theories. Sometimes it is used with and forms revolutionary theories. And at still other times it is used with and forms part of democratic theories. Each of these variants is part of the myth, and all together form the myth-system of which it belongs. R.T. DeGeorge, ‘The Myth of the Right of Collective Self-Determination’, in Issues of SelfDetermination, W. Twining ed., 1991, p. 2. For example, Ulrich Scheuner terms self-determination to be a ‘principle legitimizing change’ [‘Prinzip der Legitimierung von Veränderungen’], see U. Scheuner, ‘Diskussionsbeitrag zu Doehring’, in Staatsgründungen und Nationalitätsprinzip, T. Schieder/ P. Alter eds., 1974, p. 57; Others perceive it as ‘dynamic’ as, e.g., K. Knop, Diversity and Self-­ Determination in International Law, 2002, p. 99.

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Despite these difficulties – uncertainty as to subjects and extent as well as its institutional enforcement –, self-determination as a concept should not be divided into separate categories. The formulations used in the two International Human Rights Covenants, the 1975 Helsinki Declaration and in numerous General Assembly Resolutions understand the right to self-determination to belong to ‘all peoples’. While this does not mean that all peoples necessarily enjoy all aspects of self-determination in all instances, in general, there is no threshold contained within the right that certain peoples may only enjoy certain aspects of the right. Put differently, whether or not a people may exercise a certain aspect of the right to self-determination rather is dependent on thresholds linked with that particular element of the right and not on its subject’s designation as a colonial entity, non-self-governing territory, or under alien subjugation, domination and exploitation. This, however, only applies de minimis. That is, an exception to this proposition may only be made to the benefit of concerned groups, meaning that there is no objection to granting them a stronger entitlement to a particular aspect of the right (as might be the case, e.g., with regard to indigenous peoples and resource rights). Hence, the claim to the right to self-determination is dependent on whether a certain group constitutes a people in the sense the right. As illustrated above, the initial endeavor of the international community was to reserve selfdetermination to a limited, recognized group of overseas territories, which were considered colonial possessions. Other claims of groups which had attained the status of peoples were intended to be settled within existing boundaries, in respect of the territorial integrity of the state. However, the scope of the right shifted, from the utilization for the purposes of gaining independence, to a norm for the protection of human rights. This enables ‘more nuanced interpretations and applications’96 of self-determination. Furthermore, the expansion of the scope of the norm to new addressees and their struggle for control over their destiny seems reasonable in light of the practice in relation to the norm in the past 15 years. Thus, as this study in this regard prefers an inclusive approach with regard to who may qualify as a people, focus will be laid on whether this finds reflections in the respective categories analyzed.

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S.J. Anaya, ‘The Capacity of International Law to Advance Ethnic or Nationality Rights Claims’, Iowa Law Review, vol. 75, 1990, p. 842.

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The Full Independence of Peoples Any people anywhere, being inclined and having the power, have the right to rise up, and shake off the existing government, and form a new one that suits them better. This is a most valuable – a most sacred right – a right, which we hope and believe, is to liberate the world. abraham lincoln1

∵ International law constitutes law which is created by and for states. Though the field of subjects of international law is expanding and now includes also certain non-state actors, e.g., international organizations, multinational ­corporations, individuals and indigenous peoples, the origin of international relations rests with states. In this system, the role of peoples as beneficiaries of the essential right to self-determination is primarily within the established order of states. However, as will be discussed below, self-determination can include the claim to independence and thus ultimately to the acquisition of statehood. Consequently, though an intricate and often idiosyncratic consequence of a number of political factors, the issue of secession should not be left out from this analysis. The regulation of the granting, the creation as well as of the existence of statehood is a topic of great relevance for such entities. At the same time, there is a certain tendency in international law to still agree with Lassa ­Oppenheim when he stated that ‘the formation of a new State is […] a matter of fact, and not of law’.2 Thus, while the past century has significantly changed the interface of the international community, the number of states has quadrupled and the rules on statehood have found new addressees, the precise conditions ­concerning the emergence of new states remain unclear. This will be addressed in more depth in Section 4.3 on secession. But at first an outline of the international order in which the entities conduct their relations is given. 1 President Abraham Lincoln, Address before the United States House of Representative on the War with Mexico, 12 January 1848, in The Collected Works of Abraham Lincoln, vol. 1, R.P. Basler ed., 1953, p. 438. 2 L. Oppenheim, International Law – A Treatise, Volume i: Peace, 8th ed. by H. Lauterpacht, 1955, p. 544. © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_005

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The following sections will therefore focus on the underlying theoretical concepts with regard to the international community. Moreover, the theory and law of states and their mirrored principles as the rules of the game will be discussed. In this context, the outer limits of the principle of self-determination will be scrutinized. Furthermore, statehood and its determining criteria will be dealt with. What might seem as an historical analysis shall provide insight into policy considerations regarding the acceptance of new members to the international community. And finally, the issue of secession will be addressed. 4.1 The Sovereign Territorial State – A Final Concept Governing International Law? The traditional concept of an antihegemonial system of sovereign (nation-) states, which consist of defined territorial units, goes back to the foundations of the classic international legal order (Peace of Westphalia, 1648).3 Described as a system consequent to a ‘historical contingency’,4 it rests in a construct based on sovereign and equal entities (states) as the sole subjects of the international order. What we know as ‘state’ today, inter alia, roots in the ‘success’ of its five largest powers, France, Portugal, Spain, England and the Netherlands, in rapidly expanding overseas and displacing indigenous forms of rule.5 Earlier constructs of power in Europe such as, e.g., feudal states relied on contractual obligations from the king downwards, who often received his governing authority from God.6 Two significant historical developments altered the international relations in that time. Firstly, the fundamental principle cuius regio, euis religio [‘whose realm, his religion’] as incorporated into the 1555 Peace of Augsburg affirmed the equality between Catholic and Protestant 3 A. James, Sovereign Statehood – The Basis of International Society, 1986, p. 13; J. Castellino, International Law and Self-Determination, 2000, p. 75; F.X. Perrez, Cooperative Sovereignty – From Independence to Interdependence in the Structure of International Environmental Law, 2000, pp. 18–19; H. Hannum, ‘Special Features: Papers from the American Indian Law ­Review’s 25th Anniversary Symposium: Sovereignty and its Relevance to Native Americans in the Twenty-First Century’, American Indian Law Review, vol. 23, 1998, p. 487. 4 L. Whitt, Science, Colonialism, and Indigenous Peoples – The Cultural Politics of Law and Knowledge, 2009, p. 183. 5 C. Focarelli, International Law as Social Construct: The Struggle for Global Justice, 2012, p. 155; A. Watson, ‘European International Society and its Expansion’, in The Expansion of International Society, H. Bull/A. Watson eds., 1984, p. 16; C.L. McNeely, Constructing the Nation-State: International Organization and Prescriptive Action, 1995, p. 3. 6 A. Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, 2007, p. 78; F.Y. Chiang, ‘State, ­Sovereignty, and Taiwan’, Fordham International Law Journal, vol. 23, 2000, pp. 961–963.

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states and contained the corollary obligation of non-interference in the affairs of another state.7 Secondly, the teachings of philosophers and legal scholars of the 16th and 17th century, in particular Hugo Grotius, Thomas Hobbes and John Locke, contributed to the changed understanding of who was entitled to represent the constituted people. They especially focused on the theoretical reasoning regarding the source of authority, or, in other words, who is the bearer of sovereignty. This term was first famously coined by Jean Bodin who in his Six Books of the Commonwealth from 1576 defines sovereignty as: La souveraineté est la puissance absolue et perpétuelle d’une République [‘sovereignty is the absolute and perpetual power of a Republic’]’.8 However, the absoluteness is still perceived as limited, namely where Bodin continues to proceed from the assumption that the ruler was still always ‘subject to the laws of God and nature’ […elle n’a autre condition que la loy de Dieu et de la nature commande].9 Almost a quarter of a century prior to the end of the Thirty Years’ War and the Peace of Westphalia, Hugo Grotius first departed from the notion of the divine rights of a monarch, instead conceptualizing the people as a whole as the ultimate source of sovereignty.10 Thomas Hobbes and John Locke both took up the conceptual idea that sovereignty rested with the people in their social contract theories, the former proceeding from the assumption that human nature in its natural state is brutish, thus entrusting an entity with sovereignty for the protection by means of complete delegation.11 Locke, on the other hand, comes to the conclusion that every individual is equipped with certain non-derogable rights and 7

8 9 10

11

K. Schiemann, ‘Europe and the Loss of Sovereignty’, International and Comparative Law Quarterly, vol. 56, issue 3, 2007, p. 477; A. Watson, ‘European International Society and its Expansion’, in The Expansion of International Society, H. Bull/A. Watson eds., 1984, p. 15. J. Bodin, Les six livres de la république, 1576, reprinted in 1986, p. 179. Ibid., at p. 190. H. Grotius, On the Law of War and Peace – Chapter 3: Distinction Between Public and Private War; Explanation of Sovereignty (summi imperii). Section 8: Whether Sovereignty Always Resides in the People, edited and annotated by S.C. Neff, 2012, pp. 51f. T. Hobbes, Leviathan – The Matter, Form and Power of a Commonwealth Ecclesiastical and Civil, 1651 (web edition published by University of Adelaide): Chapter 18, Of the Rights of Sovereigns by Institution A Commonwealth is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men.

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therefore they shall only delegate their sovereignty in exchange for g­ uarantees ­concerning their individual liberties, further ensured by its (i.e. sovereignty) attachment to distinct powers, limiting each other.12 Both theories illustrate that the path for the acceptance of the sovereign nation-state, departing from the notion of a singular power figure and instead ­constituted by its people (also understood as the internal aspect of sovereignty), was laid throughout the 16th and 17th century. Additionally, the external components of sovereignty defined the relations of states to each other, in particular in light of the enforcement of the abovementioned obligation of non-interference. A classic example for this can be seen in Judge Huber’s Award in the 1928 Island of Palmas case: Sovereignty in the relations between States signifies independence, independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State.13 Thus, at its core, external sovereignty is the claim to possess full authority over a territory, paired with its recognition by other actors. However, while the characteristic of particular, defined entities as empowered to determine the rules guiding international relations remains prevalent until today, the composition of the rule-laying society has consistently changed throughout the centuries.14 This is not only evidenced by the increasing numbers of recognized states but also originates in the ­changing nature of international law, whether reasoned by post-colonial theory or ­theories on 12

13 14

J. Locke, Second Treatise of Government, 1690, edited, with an Introduction by C.B. ­ cPherson, 1980, Chapter viii, Of the Beginning of Political Societies, Section 95: M Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest. Island of Palmas (United States of America v. Netherlands), 2 riaa 829, p. 838 (Award, 4 April 1928). C. Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law’, European Journal of International Law, vol. 4, 1993, pp. 447–448; R. Müllerson, Ordering Anarchy – International Law in International Society, 2000, pp. 90–100.

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liberal international sovereignty, both strongly influenced by the development of human rights.15 Therefore, despite the undisputedly long-lasting predominance of states in international law, a final legal definition of the concept of ‘sovereign state’ remains lacking.16 In this context, it has also become fashionable to speak of the demise of sovereignty. Scholars discuss the content and meaning of sovereignty as evolving from a malfunctioning safeguard of ‘egoistic interests’17 of the state to a remainder of negative freedom, i.e. the freedom of action left to the state’s discretion and not covered by its entering into international obligations.18 Others reconceptualize sovereignty as entailing obligations of responsibility to a state’s own citizens.19 But in truth, sovereignty can be best described as an aporetic20 category. It describes the functional power of the governing entity, without further stipulating who may indeed exercise this power. It refers to different organs, on the international level as well as within a defined circle of subjects.21 And it is thus not limited to the state or its governing organs but may also refer to a number of other organized entities and their governing organs. Martti Koskenniemmi uses ‘reduction to purpose’ (in the context of sovereignty purpose referring to the welfare of the people) to describe the assessment of the entitlement to sovereignty, revealing the otherwise prevalent ideological blur in the distinction between sovereignty and other forms of power.22 As he later adds, the source of power may not be looked at in cold isolation though; a certain ‘collective 15

D. Held, ‘The Changing Structure of International Law: Sovereignty Transformed?’, in The Global Transformations Reader, D. Held ed., 2003, pp. 164ff. 16 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 37. 17 M. Koskenniemi, ‘What Use for Sovereignty Today’, Asian Journal of International Law, vol. 1, no. 1, 2011, p. 61. 18 Ibid., at pp. 61–62. 19 See, inter alia, F.M. Deng, ‘From “Sovereignty as Responsibility” to the “Responsibility to Protect”’, Global Responsibility to Protect, vol. 2, 2010, p. 353. 20 Compare, e.g., P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 17, on discussing the theory on sovereignty: ‘It is doubtful whether any single word has caused so much intellectual confusion and international lawlessness’. See also L. Oppenheim, International Law – A Treatise, Volume i: Peace, 3rd ed. by R.F. ­Roxburgh, 2005, p. 129, §66: ‘[T]here exists perhaps no conception, the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon’. 21 G. Jellinek, Allgemeine Staatslehre, 1960, p. 458. 22 M. Koskenniemi, ‘What Use for Sovereignty Today’, Asian Journal of International Law, vol. 1, no. 1, 2011, p. 66.

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self-hood’ therefore constitutes a necessary additional element in the discussion of sovereignty.23 A number of actors can therefore – and do – claim that they possess sovereignty. Thus, that the current shape of the territorial-based system can – and in light of historical precedents will – alter in the years to come is indisputable. For example, it has been suggested that one possibility might be that the ­current structural entities will undergo a further fragmentation and regionalization, leading to the creation of more, smaller states or state-like entities. It is also an option that a borderless world under the pressure of economic globalization or ecological concerns will form, based on supranational organizations regulating the interdependent concerns of entities.24 Of course, a number of claims to sovereignty reflect the desire of a certain entity to change the status quo and emphasize alternative structures of governance. With the diminishment of power of the sovereign state new actors can appear at the international level, able of ascertaining own claims to become players in a multi-layered international society. In such circumstances, a clash of sovereign ‘categories’ will likely occur and it becomes necessary to therefore identify the authoritative entity able to make sovereign (understood in a sense of possessing the final decision-making power) decisions. But, from a current point of view, and while other subjects have come into being also enjoying limited rights and obligations in international law, they must abide by the rules which ultimately have been created by states.25 Thus, first, the analysis will focus on international law, its actors and their rights as they stand. Among these actors, the sovereign territorial state currently is represented most clearly at the international level. Second, the core normative pillars of the international order are put into context of the evolvement of the international community. Additionally, their relationship – inevitably resulting in normative conflict – is analyzed, highlighting the role extralegal factors play for considerations of the international community in such instances. 4.1.1 Setting Out the Rules Rooted in the basic assumptions of the Westphalian system, a decentralized structure consisting of sovereign and equal entities, the present situation equips the sovereign state with three fundamentals: (a) possessing full legal 23 24

25

Ibid., at p. 69. A. Van Staden/H. Vollaard, ‘The Erosion of State Sovereignty: Towards a Post-Territorial World’, in State, Sovereignty, and International Governance, G. Kreijen et al. eds., 2004, p. 165. I. Brownlie, Principles of Public International Law, 7th ed., 2008, pp. 57–58.

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c­ apacity and international personality; (b) bearing all rights and duties; and (c) being capable of maintaining their rights by bringing international claims.26 However, this structure is undergoing alterations in light of present evolvements such as the emergence of supranational actors and interests which limit the sovereignty and independence of the state or the creation of sub-national units.27 This is reflected in a recognized authority of international organizations and understanding human rights as not merely internal spheres.28 Moreover, the prevailing belief throughout the past two centuries that the size of territory was of an indispensable value for the economic prosperity of a state has been witnessing numerous counter-experiences of comparatively small states making profits on the international market despite their lack of natural resources.29 The most important rules setting out the limits within which all these actors must confine themselves constitute the fundamental principles governing international relations. Due to the lack of a centralized law-making authority in international law, such principles mirror their determining force, i.e. the present concept of state.30 Thus, the principles of sovereignty and equality form the constitutional background of the modern international legal order against which the current system has developed. By the same token, the principles of non-interference in internal affairs, prohibition of the threat or use of force and peaceful settlement of disputes have developed, aimed at ensuring the territorial integrity and sanctity of governing authority of the state.31 In the past decades this trend of negative injunctions has been complemented by opposite efforts of barrier-removals which have contributed to the 26

Reparations for Injuries suffered in the Service of the United Nations, 1949 icj 174, p. 179 (Advisory Opinion, 11 April); H.J. Uibopuu, ‘Gedanken zu einem völkerrechtlichen Staatsbegriff’, in Autorität und internationale Ordnung – Aufsätze zum Völkerrecht, C. Schreuer ed., 1979, p. 96; J.G. Ruggie, Constructing the World Polity, 1998, p. 47. 27 R. Müllerson, Ordering Anarchy – International Law in International Society, 2000, pp. 100–101; J.G. Ruggie, Constructing the World Polity, 1998, p. 48; A. Emmerich-Fritsche, Vom Völkerrecht zum Weltrecht, 2007, p. 79. 28 C. Harding/C.L. Lim, ‘The Significance of Westphalia – An Archaeology of the International Legal Order’, in Renegotiating Westphalia – Essays and Commentary on the E­ uropean Conceptual Foundations of Modern International Law, C. Harding/C.L. Lim eds., 1999, pp. 7–8; R. Müllerson, Ordering Anarchy – International Law in International Society, 2000, pp. 115, 161–164. 29 J. Herbst, ‘Global Change and the Future of Existing Nation-States’, in The Self-­ Determination of Peoples – Community, Nation, and State in an Interdependent World, W. Danspeckgruber ed., 2002, pp. 19–20. 30 R. Müllerson, Ordering Anarchy – International Law in International Society, 2000, p. 155. 31 Ibid., at p. 165.

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susceptibility of the international community to accept new players, especially the principles of respect for human rights and self-determination of peoples. In sum, as laid out in Article 2 of the United Nations Charter and in other universal documents such as United Nations General Assembly Resolution 2625 (xxv), eight principles can be identified which are interrelated: sovereign equality of states (including the territorial integrity of states); non-interference in internal affairs; prohibition of the threat or use of force (including the inviolability of frontiers); peaceful settlement of disputes; good faith; respect for human rights; international cooperation; and self-determination of peoples.32 4.1.2 Interplay between the Principles As a whole, these principles can be viewed as the basic guidelines within which the international community shall confine their actions. Arguably, their core even possesses the value of peremptory norms, i.e. norms which cannot be derogated from.33 Thus, in their application, and to guarantee that each principle has its effect, the set of rules must be seen as one complementary system. The decision which principle shall enjoy precedence must be made in light of the determining reasons and notions underlying each of them. In this context, especially the interplay (and partial conflict) between the sovereign equality of states and the principle of self-determination of peoples, which has significantly contributed to the re-shaping of the world during the past century, is of relevance. The Principles of Sovereign Equality of States, Self-Determination and Statehood The principle of sovereign equality of states constitutes the underlying score of the international legal order.34 Formally, it creates the basis for a horizontal system of states, regardless of their size or economic power with regard to their capacities as a state. Hence, based on this principle, a state can exercise on

4.1.3

32

Art. 2, Charter of the United Nations, 24 October 1945, 1 unts 26; unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; The Final Act of the Conference on Security and Cooperation in Europe (Helsinki Declaration), 1 August 1975, 14 ilm 1292; A. Cassese, International Law, 2nd ed., 2005, p. 47; P.-H. Houben, ‘Principles of International Law Concerning Friendly Relations and Co-Operation Among States’, American Journal of International Law¸ vol. 61, no. 3, 1967, pp. 705–727. 33 A. Cassese, International Law, 2nd ed., 2005, p. 65. 34 See, e.g., Art. 2(1), Charter of the United Nations, 24 October 1945, 1 unts 26.

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its territory ‘to the exclusion of any other state, the functions of a state’.35 In a more concretized expression of this elementary principle, five general characteristics of the legal concept can be identified.36 Firstly, states have full legal capacity at the international level. Secondly, concerning internal affairs, in principle states have full competence as well. This entails that the state may exercise jurisdiction over all individuals and activities within its territory.37 Thirdly, states may only be adjudicated in instances in which they have consented. Fourthly, formally all states are equal. This entails that they in principle (i.e. when in a similar political of factual setting) have the same rights and duties.38 And finally, fifthly, these liberties will be presumed in instances of doubt.39 However, as in their application the set of fundamental principles shall be viewed in relation to each other,40 the listed characteristics must be under­stood in the context of, inter alia, the principle of self-­determination of ­peoples.41 In certain instances, therefore, the situation might occur where, on the one hand, the principle of sovereignty (and its entailed right to ­territorial integrity) will be relied upon, and on the other hand, the right to self-­determination of peoples will be claimed. While not solving the conflict, factors – such as geographical separateness or international recognition – can provide indications in the balancing process of these fundamental elements.42 In addition, the tension between these two principles is increased by their inherently close relation to political affairs. In the balancing process, the ­international community therefore plays a stronger role than perhaps ­foreseen 35

Island of Palmas (United States of America v. Netherlands), 2 riaa 829, p. 839 (Award, 4 April 1928). 36 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 40–42. 37 I. Detter, The International Legal Order, 1994, p. 16. 38 H. Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International ­Organization’, The Yale Law Journal, vol. 53, no. 2, 1944, p. 209. With regard to ‘unequal’ examples, see inter alia the voting system in the World Bank or International Monetary Fund, where votes are allocated according to financial contributions. 39 A. Cassese, International Law, 2nd ed., 2005, pp. 48–53. 40 See: ‘In their interpretation and application the above principles are interrelated and each principle should be construed in the context of the other principles’. unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028. 41 R. Müllerson, Ordering Anarchy – International Law in International Society, The Hague 2000, p. 161; A. Cassese, International Law, 2nd ed., 2005, p. 59. 42 J.C. Duursma, Fragmentation and the International Relations of Micro-States: Self-­ Determination and Statehood, 1996, p. 80; see also in more detail below in this Chapter, Section 4.3.

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by law, driven by uncertainties as to the precise relationship between the principles but even in light of each principle’s precise content. The difficulties arising in practice were inter alia addressed by Judge Petrèn’s in his Separate Opinion to the Western Sahara Advisory Opinion: [A] veritable law of decolonization is in the course of taking shape. It derives essentially from the principle of self-determination of peoples proclaimed in the Charter of the United Nations and confirmed by a large number of resolutions of the General Assembly. But, in certain specific cases, one must equally take into account the principle of the national unity and integrity of States, a principle which has also been the subject of resolutions of the General Assembly. It is thus by a combination of different elements of international law evolving under the inspiration of the United Nations that the process of decolonization is being pursued. The decolonization of a territory may raise the question of the balance which has to be struck between the right of its population to self-determination and the territorial integrity of one or even of several States. The question may be raised, for example, whether the fact that the territory belonged, at the time of its colonization, to a State which still exists today justifies that State in claiming it on the basis of its territorial integrity. That argument has been put forward, and has been contested. The question of its validity in general and the question of its applicability to Western Sahara are undeniably of a legal character. It seems however that questions of this kind are not yet considered ripe for submission to the Court. The reason is doubtless the fact that the wide variety of geographical and other data which must be taken into account in questions of decolonization have not yet allowed of the establishment of a sufficiently developed body of rules and practice to cover all the situations which may give rise to problems. In other words, although its guiding principles have emerged, the law of decolonization does not yet constitute a complete body of doctrine and practice. It is thus natural that political forces should be constantly at work rendering more precise and complete the content of that law in specific cases like that of Western Sahara.43 As he points out, it is thus inevitable for courts to take the factual specifics and political circumstances of each case into consideration when applying a body of law still resting on incomplete doctrine and practice. Moreover, while normative conflicts pose greater problems for legal theory than normative 43

Western Sahara, 1975 icj 12, p. 110 (Advisory Opinion, Separate Opinion of Judge Petrèn, 16 October) [emphasis added].

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­ ncertainty as to content and scope of a norm,44 the combination of both repu resents an even greater challenge to a normative system when tasked with the challenge to identify instruments for resolving a conflict. Thus, where state sovereignty (and territorial integrity) and self-­ determination simultaneously aspire separate, non-compatible outcomes, other factors become pertinent in the balancing process. For this purpose, and in light of the general setting of this study, statehood will be determined more closely, allowing first for a discussion of state criteria as the underlying conditions enabling a claim to statehood. This will be assessed in light of the right to secession, i.e. the right to self-determination in its widest sense. Thereby it is hoped to contribute to the debate surrounding the normative conflict between two paramount principles of international law. 4.2

Defining Statehood

As witnessed since the second half of the 20th century, the formation of new states has consistently been a matter of debate. In such instances, new entities appear claiming to possess statehood and to fulfill the criteria and attributes of states. Historically originating in the circumstance that only as states would they become fullly accepted players in the international community, the claim to constitute ‘states’ and not some other form of governing force is a natural reaction (though one might argue that this might soon become antiquated and superfluous due to the extension of members associated with the global or international community). Nevertheless, as the current system of international law and relations functions to a large extent around the state at its core, the lack of a clear legal understanding of statehood is surprising.45 4.2.1 Doctrine Numerous attempts to define statehood have been made by scholars, in particular legal scholars, built around criteria considered essential. As Sabino Cassese highlights when quoting Ernst Forsthoff: ‘The modern territorial state is a product of jurists; it was created by jurists in the sixteenth century; it has been later developed by jurists’.46 44 45 46

J. Kammerhofer, Uncertainty in International Law – A Kelsenian Perspective, 2011, p. 139. T.D. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, Columbia Journal of Transnational Law, vol. 37, no. 2, 1999, pp. 407–408, 413. S. Cassese, ‘The Rise and Decline of the Notion of State’, International Political Science Review/Revue international de science politique, vol. 7, no. 2, 1986, p. 121, quoting (in ­translation) E. Forsthoff, Rechtsstaat im Wandel, 1964, p. 77.

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The concept of state has evolved over the past centuries though, and it is therefore hardly surprising that the proposed definitions reflect this change as well. Early scholars have defined state and statehood from a ­socio-philosophical perspective. Hugo Grotius understood the state as: ‘a complete association of free men, joined together for the enjoyment of rights and for their common interest’.47 Emer de Vattel begins his Law of Nations by stating that: Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights. […] The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to this rights.48 Later scholars shifted the focus to the abstract legal entity, consisting of objective elements. For example, constitutional scholar Georg Jellinek coined the state with the term Drei-Elementen-Lehre. This referred to territory, population and a public power.49 Hans Kelsen considered the state to be a ‘specific union of individuals’, as well as an embodiment of the coercive legal order as ‘what is usually called the legal order of the state, or the legal order set up by the state, is the state itself’.50 A different approach was taken by Thomas Baty who found that a state was defined by ‘the existence among the people, or the bulk of the people, of a certain mutual reliance, not participated in by the outside world’.51

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49 50 51

H. Grotius, [De Jure Belli ac Pacis Libris Tres, 1646] On the Law of War and Peace – Book i, edited and with an introduction by J.B. Scott (translated by F.W. Kelsey et al.), 1925, ­Chapter i, xiv (p. 44). E. de Vattel, [Droit de gens, 1758] The law of nations, or, Principles of the law of nature, applied to the conduct of affairs or nations and sovereigns, with three early essays on the origin and nature of natural law and on luxury, edited and with an introduction by B. Kapossy and R. Whatmore (translated by T. Nugent), 2008, p. 67. G. Jellinek, Allgemeine Staatslehre, 1914, pp. 144ff. H. Kelsen, ‘The Pure Theory of Law and Analytical Jurisprudence’, Harvard Law Review, vol. 55, 1941–1942, pp. 64–65. T. Baty, The Canons of International Law, 1930, p. 13.

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While the criterion of independence is emphasized, as well as the requirement of a certain organization among each other, Pasquale Fiore elaborates in more detail in his definition that: The State is an association of a considerable number of men living within a definite territory, constituted in fact as a political society and subject to the supreme authority of a sovereign, who has the power, ability and means to maintain the political organization of the association, with the assistance of the law, and to regulate and protect the rights of the members, to conduct relations with other states and to assume responsibility for its acts.52 The definition shows a resemblance to the later formulation contained in the 1933 Montevideo Convention on the Rights and Duties of States, which has become the most commonly referred to definition of statehood.53 Article 1 of the Convention states: The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.54 The Convention therefore lists four basic criteria of statehood. Nevertheless, a legal definition remains lacking. Attempts by the International Law Commission to define statehood within the wider issue of recognition of states and governments ultimately ended in the realization that [t]he question of recognition of States and governments should be set aside for the time being, for although it had legal consequences, it raised 52 53

54

P. Fiore, International Law Codified and Its Legal Sanction or the Legal Organization of the Society of States, 5th ed., 1918, p. 106. For example, J. Castellino, International Law and Self-Determination, 2000, p. 77; R. Higgins, Problems and Process – International Law and How We Use It, 1994, p. 39; A. James, Sovereign Statehood – The Basis of International Society, 1986, p. 13; J.D. Harris, Cases and Materials on International Law, 5th ed., 1998, p. 102; P. Epstein, ‘Behind Closed Doors: “Autonomous Colonization” in Post United Nations Era – The Case For Western Sahara’, Annual Survey of International and Comparative Law, vol. 15, 2009, p. 119. Art. 1, Convention on the Rights and Duties of States, Montevideo, 26 December 1933, 165 lnts 19.

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many political problems which did not lend themselves to regulations by law.55 Hence, while the criteria contained in the Montevideo Convention can serve as a starting point in defining statehood, they merely constitute an extract of conditions that have been suggested by scholars. In determining which entities constitute states, two main factors must be taken into consideration. Firstly, perceiving the concept of statehood as ­evolutionary is consistent with the fundamental principles guiding the international order. In a system based on the sovereign equality of its members, ultimately state practice in its perception of newly created entities provides for a determining factor of statehood.56 And secondly, closely connected therewith, the principle of effectiveness – ex factis ius oritur57 –, and its role in guiding the creation of states must be ­taken note of. Applying this principle in full force would result in understanding the existence or formation of a state as a purely extralegal event, ­determined by history, politics, geography, etc.58 However, as international law attaches consequences – i.e. rights and obligations – to these facts, it is necessary to d­ etermine which criteria have been employed in determining when a state exists in international law.59 As the focus of this study is to concentrate on when peoples are entitled to statehood, not all issues relating to the criteria of statehood will be dealt with in depth, especially where they do not pose questions in that regard. To begin, at first the four listed criteria of the Montevideo Convention will briefly be dealt with. In a second step, further criteria as proposed by scholars to have 55 56 57

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International Law Commission, 1236th meeting, Yearbook of the International Law Commission 1973, Vol. i, un Doc. A/CN.4/SER.A/1973 (1973), p. 175, para. 39. A.E. Eckert, ‘Constructing States: The Role of the International Community in the Creation of New States’, Journal of Public and International Affairs, vol. 13, 2002, pp. 30–31. G. Kreijen, State Failure, Sovereignty and Effectiveness: Legal Lessons From the Decolonization of Sub-Saharan Africa, 2004, p. 26; M. Heiberg, Subduing Sovereignty – Sovereignty and the Right to Intervene, 1994, p. 22. See A. Peters, ‘Statehood After 1989: “Effectivités” Between Legality and Virtuality’, in Select Proceedings of the European Society of International Law – vol. 3 (2010), J. Crawford/ S. Nouwen eds., 2012, pp. 171–172, referring to Conference on Yugoslavia, Opinion No. 1 of the Badinter Commission, 29 November 1991, 92 ilr 162, stating that ‘the existence or disappearance of the state is a question of fact’. H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, American Journal of International Law, vol. 35, no. 4, 1941, p. 606.

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evolved will be analyzed with special regard to their reception in jurisprudence and state practice. 4.2.2 Traditional Criteria of Statehood as Reflected in Practice 4.2.2.1 Permanent Population and Defined Territory as Factual Minimums An aggregate of individuals who organize themselves as a community form the basic organizational backbone of a state. Consequently, the first criterion listed in the Montevideo Convention is that a state shall possess a permanent population. This may constitute itself through a heterogeneous population, composed of various ethnic groups,60 and must not even possess a minimum number, i.e. the size of such has little relevance, as can also be seen in the existence of several microstates, such as Liechtenstein, Nauru and Monaco, each consisting of merely a few thousand inhabitants.61 Thus, the key focus lays in a communal identification of a certain composition of individuals, whether consisting of an amalgamated nation or a multi-national society.62 As the granting of nationality constitutes a matter of domestic law, the population may consist of both nationals and non-nationals from the perspective of international law, as long as they can be considered to be located in a territory permanently.63 The affected population must fulfill two criteria: first, at least a minimal amount of the population must have the intent to have a certain habitual residence in and relationship to the concerned territory;64 second, the territory must be susceptible to such claims.65 Thus, in logical consequence, 60

R. Jennings/A. Watts eds., Oppenheim’s International Law – Volume 1 Peace, 9th ed., 1992, p. 121; T.M. Franck, ‘Clan and Superclan: Loyalty, Identity and Community in Law and Practice’, American Journal of International Law, vol. 90, no. 3, 1996, p. 360. 61 J.C. Duursma, Fragmentation and the International Relations of Micro-States: Self-­ Determination and Statehood, 1996, p. 117; J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 52; J.D. Harris, Cases and Materials on International Law, 5th ed., 1998, p. 103; P. Epstein, ‘Behind Closed Doors: “Autonomous Colonization” in Post United Nations Era – The Case For Western Sahara’, Annual Survey of International and Comparative Law, vol. 15, 2009, pp. 119–120. 62 B. Vukas, ‘States, Peoples and Minorities’, Recueil des cours, vol. 231, no. vi (1991), 1991, p. 286. 63 P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, pp. 76–77; B. Vukas, ‘States, Peoples and Minorities’, Recueil des cours, vol. 231, no. vi (1991), 1991, p. 284. 64 Western Sahara, 1975 icj 12, p. 64, paras. 151–152 (Advisory Opinion, 16 October); M.N. Shaw, ‘The Western Sahara Case’, The British Yearbook of International Law, vol. 49, 1978, pp. 137–139. 65 D. Raič, Statehood and the Law of Self-Determination, 2002, pp. 58–59.

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in instances in which claims to statehood are made for inhabitable territories, such as Antarctica, which only possesses a transient population which faces the impossibility of establishing a permanent political-economic relationship with the land, these will hardly be sustainable.66 As regards the second criterion of the Montevideo Convention, it relates back to territorially defined spaces in which a state may exert its sovereignty, i.e. its capability to exercise full governmental powers.67 Encompassed thereby is the land permanently above the low-water baseline, the territorial subsoil, the airspace above, internal waters and the territorial sea.68 For a state to exercise territorial sovereignty it is necessary that it demonstrates effective use of it, i.e. a certain level of control via permanent settlement and administration.69 Thus, state functions shall continuously be displayed by the governing authority, requiring ‘the intention and will to as act as sovereign, and some actual exercise or display of such authority’.70 Furthermore, the requirement of possessing a defined territory, as was also stated by Philip C. Jessup, is similarly to the first criterion of possessing a permanent population based on reason, since it is hardly imaginable to perceive a state as a purely spiritual entity.71 However, as is also evidenced in several cases, neither must the territory have a certain size, nor be contiguous.72 Moreover, 66 67 68 69 70

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C.C. Joyner, Antarctica and the Law of the Sea, 1992, pp. 49, 54; F.B. Arenas, ‘Cyberspace Jurisdiction and the Implications of Sealand’, Iowa Law Review, vol. 88, 2003, p. 1170. Island of Palmas (United States of America v. Netherlands), 2 riaa 829, p. 839 (Award, 4 April 1928). I. Brownlie, Principles of Public International Law, 7th ed., 2008, pp. 115–116. C.C. Joyner, Antarctica and the Law of the Sea, 1992, pp. 52–53; S.P. Sharma, Territorial ­Acquisition, Disputes and International Law, 1997, pp. 100–104. Legal Status of Eastern Greenland (Denmark v. Norway), 1933 pcij 22, pp. 45–46 (ser. A/B) No. 53 (Judgment, 5 April); cf. Island of Palmas (United States of America v. Netherlands), 2 riaa 829, pp. 838–839 (Award, 4 April 1928). United Nations Security Council Official Records, No. 128, ‘Israel’s application for admission to membership in the United Nations’, 383rd meeting, 2 December 1948, pp. 9–12; L. Henkin et al., International Law – Cases and Materials, 3rd ed., 1993, pp. 246–247. T.M. Franck/P. Hoffman, ‘The Right to Self-Determination in Very Small Places’, New York University Journal of International Law and Politics, vol. 8, 1975, pp. 383–384; J. C ­ rawford, The Creation of States in International Law, 2nd ed., 2006, pp. 46–47; Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), 1959 icj 209, pp. 212–213 (Judgment, 20 June); See also unga Res. 2709 (xxv), Question of American Samoa, ­Antigua, Bahamas, Bermuda, British Virgin Islands, Brunei, Cayman Islands, Cocos ­(Keeling) Islands, Dominica, Gilbert and Ellis Islands, Grenada, Guam, Montserrat, New Hebrides, Nine, Pitcairn, St. Helena, St. Kitts-Nevis-Angulla, St. Lucia, St. Vincent, Seychelles, Solomon Islands, Tokelan Islands, Turks and Caicos Islands and the United States

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the delimitation of territory must not be determined precisely.73 New states can come into being, even with their claims to territory being under dispute. Thus, the only prerequisite is a minimum amount of coherent territory which is effectively governed.74 The essential question therefore centers around defining territorial ownership, i.e. to which lands states or state candidates may assert ownership. Under traditional international law, the mode of acquisition and the critical date of occurrence must be analyzed for the determination of ‘defined territory’.75 In the case that a dispute concerning a section of territory arises, the legal titles gained through acquisition must be weighed up against each other and determined which enjoys superiority.76

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Virgin Islands, 14 December 1970, 25 un gaor, Supp. No. 28, p. 99, un Doc. A/8028, which explicitly emphasizes – despite the special circumstances of their geographical location and economic conditions – that: the questions of territorial size, geographical isolation and limited resources should in no way delay the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples with respect to these Territories. North Sea Continental Shelf (Merits) (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969 icj 4, p. 32, para. 46 (Judgment, 20 February); J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 48–49; Deutsche Continental Gas-Gesellschaft v. Polish State, Germano-Polish Mixed Arbitral Tribunal, Award, 11 August 1929, 5 Annual Digest and Reports of Public International Law Cases 11, pp. 14–15 (1929). Deutsche Continental Gas-Gesellschaft v. Polish State, Germano-Polish Mixed Arbitral Tribunal, Award, 11 August 1929, 5 Annual Digest and Reports of Public International Law Cases 11, p. 15 (1929); P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 76. J. Castellino, ‘Territorial Integrity and the “Right” to Self-Determination: An Examination of the Conceptual Tools’, Brooklyn Journal of International Law, vol. 33, 2008, p. 530. Within international law, there exist five methods of territorial acquisition. Firstly, in the case of occupation, a state effectively (peaceful, actual and continuous) occupies a territory which is considered terra nullius. Secondly, accretion, in which territory is gained by natural – e.g., emerging islands – or artificial – e.g., construction of dykes – circumstances. Thirdly, territory may be ceded under consent from one state to another. Fourthly, in instances in which war is deemed not as an illegal act, territory may be conquered and annexed, i.e. subjugation. Finally, the peaceful, public, continuous and undisturbed display of governing sovereignty leads to the transfer of territory from one entity to another, i.e. prescription (see inter alia S.P. Sharma, Territorial Acquisition, Disputes and International Law, 1997, pp. 97ff.); Island of Palmas (United States of America v. Netherlands), 2 riaa 829, pp. 838–839 (Award, 4 April 1928); K. Häusler/J.A. Hofbauer, ‘Palmas Island Arbitration’, in Max Planck Encyclopedia of Public International Law, R. Wolfrum ed., 2012, vol. viii, pp. 34f.

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In conclusion, as long as a coherent social and political organization among the core of the population exists, a territorial foundation can be claimed and an association with the state can be evidenced, the factual criteria of permanent population and defined territory can be assumed to be met.77 4.2.2.2 Government as Organizational Exercise of Sovereignty The central element in the definition of statehood is the requirement of government. That is, the other criteria of statehood are generally determined by the extent to which the government – the state organs – exercises its power over territory and population (unlike relying on private law analogies to ­property and ownership law).78 A specific form of government is generally not required, as was also stated by the International Court of Justice in its Advisory Opinion on Western Sahara: No rule of international law […] requires the structure of a State to follow any particular pattern, as is evident from the diversity of the forms of State found in the world today.79 While the form of government is thus not regulated, it shall nevertheless meet certain minimum standards. Firstly, the government shall be constituted in accordance with the principle of self-determination.80 Secondly, it is necessary, at least in theory, that the government exerts a certain degree of effectiveness and thus is able to carry out its duties in its own capacity.81 This includes maintaining law and order within the territory, establishing basic institutions, entering into relations with other entities and exercising control sufficiently to protect 77

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Western Sahara, 1975 icj 12, p. 39, para. 81 (Advisory Opinion, 16 October); B.A. Boczek, International Law: A Dictionary, Metuchen 2005, p. 120; P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 76; see also J.C. Duursma, ‘Micro-States: The Principality of Liechtenstein’, in Small States in International Relations, C. Ingebritsen ed., 2006, p. 124; C. Warbrick, ‘States and Recognition in International Law’, in International Law, M.D. Evans ed., 2nd ed., 2006, p. 232. R. Geiß, ‘Failed States’ – Die normative Erfassung gescheiterter Staaten, 2005, p. 47; S. Magiera, ‘Government’, in Encyclopedia of Public International Law, R. Bernhardt ed., 1997, vol. ii, p. 604. Western Sahara, 1975 icj 12, p. 43, para. 94 (Advisory Opinion, 16 October); R. Geiß, ‘Failed States’ – Die normative Erfassung gescheiterter Staaten, 2005, p. 47; P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 79. D. Raič, Statehood and the Law of Self-Determination, 2002, p. 62. L. Henkin et al., International Law – Cases and Materials, 3rd ed., 1993, p. 248; B. Vukas, ‘States, Peoples and Minorities’, Recueil des cours, vol. 231, no. vi (1991), 1991, p. 289.

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their rights under international law (e.g. protection of aliens and property).82 Therefore, it can be seen that a certain institutionalized organizational power within the territory is necessary, the form of which is however beyond international discretion. Moreover, it also entails that the governing entity receives recognition and habitual obedience by the majority of population.83 Practice on the other hand shows that in some instances, e.g., if the claim to statehood is not being opposed by another entity, or if the entity possesses the exclusive title to territory, the required standard of effective government is applied in a less stringent manner.84 It has been argued that this also applies in cases in which a right to external self-determination exists.85 One example can be seen in the case of the Congo and the granting of independence from Belgium in 1960, regardless of the near-anarchic circumstances prevailing at that time. Here Crawford distinguishes between the actual exercise of authority and the right to exercise authority. At the time, Belgium had withdrawn its administration and granted independence to the local population and therefore there was no entity against which recognition would be unlawful. Thus, the international right to govern the affected territory could not be contended by Belgium or any other entity.86 This also applies in situations in which the government has lost power, whether due to occupation or even annexation. ­Instead, at least initially, the continuance of the former entity is presumed until proven otherwise. This serves two purposes: stability; and it grants the possibility of gaining back effectiveness within a reasonable period of time.87 82

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86 87

J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 59; S. Magiera, ‘Government’, in Encyclopedia of Public International Law, R. Bernhardt ed., 1997, vol. ii, p. 605; C. Warbrick, ‘States and Recognition in International Law’, in International Law, M.D. Evans ed., 2nd ed., 2006, p. 233. Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of giving an Advisory Opinion upon the Legal Aspects of the ­Aaland Islands Question (October 1920), League of Nations Official Journal Special Supplement No. 3, pp. 8–9. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 56–57; D. Raič, Statehood and the Law of Self-Determination, 2002, p. 66. D. Raič, Statehood and the Law of Self-Determination, 2002, p. 67; Statement by Minister of Foreign Affairs of Sweden on Recognition of States, 11 February 1992, reprinted in State Practice Regarding State Succession and Issues of Recognition – Pratique des états concernant la succession d’états et les questions de reconnaissance, J. Klabbers/M. Koskenniemi/ O. Ribbelink/A. Zimmermann eds., 1999, pp. 308–309. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 56–58. C. Warbrick, ‘States and Recognition in International Law’, in International Law, M.D. ­Evans ed., 2nd ed., 2006, p. 239; P. Malanczuk, Akehurst’s Modern Introduction to International Law, 7th ed., 1997, p. 78.

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Overall, the criterion of government therefore entails a certain exercise of authority over population and territory. Form and extent are dependent on factual circumstances and are open to a wide range of different systems. Whether government initially must be effective or maintain this effectiveness in the event of conflict depends on if there is opposition to the claim to statehood and what is favored in the sense of stability. Here, the right to exercise authority can function as a remedying substitute for the lack of effectiveness. Thus, in addition to the factual criteria of permanent population and territory, the requirement of government adds a legal entitlement to the basic criteria of statehood. 4.2.2.3

Capacity to Enter into Relations with Other States – Expectations by Third States The fourth criterion included in the Montevideo Convention, i.e. the capacity to enter into relations with other states, does not possess the same clarity as the first three enumerated criteria. It is often stated that it in fact refers to the legal authority to conduct such relations and therefore is rather a consequence of international personality, as international organizations also possess this characteristic, than an element of statehood.88 The understanding sometimes is also perceived as requiring an internationally functional independence, ­leading into the discussion surrounding recognition, and being of concern in situations in which nearly all or the whole state community as such refuse their recognition towards the newly created entity, and consequently also decline to enter into relations with the entity concerned.89 Thus, here the reciprocal element of relations is emphasized, however not resulting in an additional criterion for statehood. A further possibility of interpreting the fourth criterion is related to institutionalized requirements. Hence, not only is a system based on a legal order expected, but also that the entity possesses political, technical and financial capabilities for the exercise of international relations.90 The actual exercise of 88

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D. Raič, Statehood and the Law of Self-Determination, 2002, pp. 73–74; J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 61; T.H. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, Columbia Journal of Transnational Law, vol. 37, no. 2, 1999, pp. 434–435. This has for instance been argued in the case concerning the Turkish Republic of ­Northern Cyprus, see C. Warbrick, ‘Unrecognized States and Liability for Income Tax’, International and Comparative Law Quarterly, vol. 45, no. 4, 1996, p. 958; see also C. Warbrick, ‘States and Recognition in International Law’, in International Law, M.D. Evans ed., 2nd ed., 2006, p. 239. The American Law Institute, Restatement of the Law (Third) – The Foreign Relations Law of the United States, 1987, § 201, p. 73.

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international relations is however not required as this is an issue of domestic policy.91 Finally, one might understand the capacity to enter into international relations as a visible reflection of the fulfillment of the imperative of effective government, i.e. state organs which are mandated to perform such tasks.92 Therefore, in sum, although the fourth element included in the Montevideo Convention in general does not possess the weight of an independent criterion for the determination of statehood, its sums up fractions of other elements – effective government, recognition, independence – and reflects the expectations of the world community that their partners shall be equipped with a minimal functional capability to act at the international level. Further Criteria as Reflected in Practice – Effectiveness versus Legality The traditional criteria of statehood are largely based on the principle of effectiveness. With regard to the criterion of permanent population, attention is drawn to its presence within the territory. The territory concerned must be susceptible for effective use by the claiming entity. The government, in general, must be effective in its conduct and only in situations of momentary ineffectiveness is a certain period granted in order to gain back control. If perceived as an independent fourth criterion, the capacity to enter into relations can either be understood as the requirement of possessing functional independence or having the institutional means for effective conduct with regard to international relations. Thus, in all these instances, emphasis is laid on the de facto situation. While the four criteria as contained in the Montevideo Convention are the most commonly referred to, scholars have proposed numerous further criteria for the identification and definition of statehood. As elaborated above, Hans Kelsen perceives the state as a legal order, and others have frequently listed independence, sovereignty and an organized structure as indicative to ­statehood. Moreover, the criterion of recognition has been subject to multiple elaborate studies, as well as have the factors of legality, permanence, civilization, willingness and ability to observe international law been considered in this context. In their categorization, in certain instances the principle of effectiveness stands against the sometimes rivaling principle of legality. While therefore ­effectiveness still is an expected standard for recognized existence at the international level, in certain situations a state will continue to exist, respectively come into being, despite its lack of effectiveness. In other situations, 4.2.3

91 92

See L. Henkin et al., International Law – Cases and Materials, 3rd ed., 1993, p. 249. R. Geiß, ‘Failed States’ – Die normative Erfassung gescheiterter Staaten, 2005, p. 52.

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the ­acceptance of an entity as a state, despite displaying effectiveness in its conduct, will be denied due to illegal circumstances leading up to its creation. This section will deal with the additional criteria mentioned and determine which have found acceptance by the international community with regard to the concept of statehood. 4.2.3.1 Recognition The most prominent additional criterion discussed concerns the issue of recognition of states. The act of recognition is the manner by which a state confirms a situation or consequence, which may or may not have been ­disputed.93 Attempts of the International Law Commission to codify the matter with regard to newly created entities claiming to be states ended due to its often political implications.94 The question whether recognition constitutes in fact a condition of statehood is equally discussed, and James Crawford has stated ‘an entity is not a State because it is recognized; it is recognized because it is a State’.95 Similarly, Article 3 of the Montevideo Convention states: The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and ­prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.96 On the other hand, even if one does not accord the act of recognition any additional value except for, e.g., admittance to the international arena, an existence outside of international fora is hardly the intention of most participants. The debate surrounding recognition divides itself into whether an entity fulfilling the criteria for statehood directly qualifies as a state, also declaratory approach, or whether a new sovereign state comes into being only after the 93 94

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J.A. Frowein, ‘Recognition’, in Encyclopedia of Public International Law, R. Bernhardt ed., 2000, vol. iv, p. 34. See as an example the comments surrounding the debate in the International Law ­Commission: International Law Commission, 11th meeting, 27 April 1949, Yearbook of the International Law Commission 1949, pp. 83–89. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 93. Art. 3, Convention on the Rights and Duties of States, Montevideo, 26 December 1933, 165 lnts 19.

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other members of the international community have recognized it as such, the constitutive theory. In addition, the discussion is intensified by theories of international relations running parallel to normative confirmations of the validity of status quo situations. Brad Roth points out the ‘international legal order’s repudiation of “might makes right”’,97 pointing to the – at minimum indirect – legal relevance of recognition. Hence, a number of more recent studies and authors consider a third theory of recognition, consisting of a combination of both other theories. Exemplary of this approach are d’Aspremont’s elaborations in front of the International Law Association: [R]ecognition is said to be neither declaratory nor constitutive. It simply is a political act which has significant legal effects in the international and domestic legal orders. This approach is premised on the idea that the dichotomy between declaratory and constitutive is insufficient to ­explain the complexity of the impact of recognition on the function of legal ­orders. Yet, such approach is not exclusive of the idea that recognition occasionally has some declaratory and constitutive effect (the latter being generally reserved to effects of recognition under domestic laws).98 The act of recognition, express or implied, is viewed as a political act by the declaratory theory. When an entity appears as a state in fact, fulfilling the c­ riteria of statehood, its international personality is created by that in itself.99 In such instances, the act of recognition entails for an existing state its verification of the international legal capacity of the newly created state, and leads in general to the establishment of international relations.100 Recognition is in the majority perceived as evidence as well as a consolidating factor with regard to uncertain situations and can lead to the general acceptance as a state, but 97

B. Roth, ‘Secessions, Coups and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’, Melbourne Journal of International Law, vol. 11, 2010, pp. 394ff. 98 International Law Association, 75th Conference of the ila, Sofia, Bulgaria, 26–30 August 2012, First Report, Recognition/Non-Recognition in Contemporary International Law, pp. 3–4. 99 Deutsche Continental Gas-Gesellschaft v. Polish State, Germano-Polish Mixed Arbitral ­Tribunal, Award, 11 August 1929, 5 Annual Digest and Reports of Public International Law Cases 11, p. 13 (1929); Conference on Yugoslavia, Opinion No. 1 of the Badinter ­Commission, 29 November 1991, 92 ilr 162; Conference on Yugoslavia, Opinion No. 8 of the Badinter Commission, 4 July 1992, 92 ilr 199; Conference on Yugoslavia, Opinion No. 10 of the Badinter Commission, 4 July 1992, 92 ilr 206, pp. 206–208. 100 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 23.

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non-recognition of an entity as a state does not exempt the newly created state from the system of international rights and duties.101 Consequently, a state therefore, even before receiving recognition, enjoys the right to defend its integrity and independence, to provide for its preservation and prosperity, and […] to organize itself as it sees fit, to legislate concerning its interest, to administer its services, and to determine the jurisdiction and competence of its courts.102 To a large degree, the mentioned rights fall under a defending and protective category of the claiming entities’ acquired position. The entity is expected to act in conformity with international obligations which protect established rights of states as well as fundamental human rights of individuals and groups.103 In those situations in which it is argued that an entity has not gained the status of a state, it is thus not the abstention of recognition which deters from international legal personality, but the initial non-fulfillment of the criteria of statehood.104 On the other hand, the constitutive theory, rooting in a positivist legal ­background, is based on the assumption that every system should be able to determine its members.105 Thus, due to international law’s decentralized ­system, the role falls to states to ascertain whether the entity in question ­possesses the qualifications of a state. Only by establishing this fact through the legal act of recognition, the community comes into existence as a state, a subject of the rights and obligations under international law.106 Therefore

101 R. Rich, ‘Symposium: Recent Developments in the Practice of State Recognition – ­Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, European Journal of International Law, vol. 4, 1993, p. 36. 102 Art. 13, Charter of the Organization of American States, 30 April 1948, 119 unts 3 (as amended by the 1993 ‘Protocol of Managua’). 103 T.D. Grant, The Recognition of States: Law and Practice in Debate and Evolution, 1999, p. 24. 104 S. Talmon, Kollektive Nichtanerkennung illegaler Staaten – Grundlagen und Rechtsfolgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern, 2006, p. 220. 105 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 20. 106 C. Hillgruber, ‘The Admission of New States to the International Community’, European Journal of International Law, vol. 9, 1998, p. 492; H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, American Journal of International Law, vol. 35, no. 4, 1941, pp. 607–608.

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it has a constitutive effect, as the state only exists in its relations to others.107 It is at the discretion of the recognizing state if it exercises its empowerment or not,108 a point of criticism,109 and at conflict with the sovereign equality of states. Moreover, where such entities are not recognized, they are not considered subjects of international law, and hence, would not be subject to international obligations.110 A different approach, and perhaps an attempt to minimize the political implications of the act, can be traced to Sir Lauterpacht who noted that while the act of recognition functions in an administrative, constitutive form, existing states are required to grant recognition in those cases where the claiming entity fulfills the conditions of statehood.111 Moreover, in furtherance of this, the process of recognition shall occur at a collectivized level.112 Due to the lack of a centralized administrative authority at the international level, the United Nations and its near universal membership has been suggested to function as a forum for such purposes.113 United Nations Membership While some have even argued membership to the United Nations as a further separate criterion of statehood,114 it might rather be perceived as a possible consequential element of statehood and its positivist requirement of recognition. Thus not a criterion for the creation of a state, the admission to the United Nations is in fact only open to: ‘all […] peace-loving states which accept the obligations contained […] and […] able and willing to carry out these obligations’.115 However, despite the United Nations being only open to states, and therefore admission signaling a general acceptance of the entity being accepted 107 H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, American Journal of International Law, vol. 35, no. 4, 1941, p. 609. 108 Ibid., at pp. 610, 613. 109 S. Talmon, Kollektive Nichtanerkennung illegaler Staaten – Grundlagen und Rechtsfolgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern, 2006, pp. 215–218. 110 H.W. Briggs, ‘Recognition of States: Some Reflections on Doctrine and Practice’, American Journal of International Law, vol. 43, 1949, p. 117. 111 H. Lauterpacht, Recognition in International Law, 1947, p. 6. 112 Ibid., at p. 78. 113 J. Dugard, Recognition and the United Nations, 1987, pp. 41–45. 114 M.N. Shaw, International Law, 5th ed., 2003, p. 180; M. Dixon, Textbook on International Law, 5th ed., Oxford 2005, p. 105. 115 Art. 4(1), Charter of the United Nations, 24 October 1945, 1 unts 26.

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as constituting a state, membership is not a pre-requisite for the existence of a state.116 Regardless of the aim of the Organization to include ‘some day all nations’,117 guided under the principle of universality,118 situations in which states have either not been admitted119 or have not opted to apply for membership120 have not had an effect on their statehood. Similar to Sir Lauterpacht’s approach, once the formal criteria of statehood are seen to be fulfilled by the international community, represented in the ­decision-making process of the United Nations General Assembly, the decision to admit a new member in its effects can therefore be seen as a universal, collectivized version of recognition, providing for confirmation in substance.121 And vice versa, in instances in which the entity at debate was not found to fulfill the formal requirements, admission was not granted.122 In debates on the determination of whether an applicant was eligible for admission the question of statehood has featured central. Reference has been made inter alia to whether the applicant possessed settled frontiers, the mode of the establishment of the state, and especially to whether or not the criterion of possessing an independent government was fulfilled.123 This was doubted, e.g., concerning the Republic of Korea’s application, still under foreign occupation,124 or Austria’s application, due to ‘disabilities resulting from the Second World

116 T.D. Grant, Admission to the United Nations – Charter Article 4 and the Rise of Universal Organization, 2009, p. 252. 117 Broadcast address by W. Churchill, 21 March 1943, reprinted in British Information ­Services, British Speeches of the Day, vol. i, 1943, p. 1. 118 T.D. Grant, Admission to the United Nations – Charter Article 4 and the Rise of Universal O ­ rganization, 2009, pp. 70–71; K. Ginther, ‘Article 4’, in The Charter of the United Nations – A Commentary, B. Simma et al. eds., 1995, p. 159. 119 Reference here is made inter alia to the ‘logjam’ during the 1940s and 1950s where hardly any new states were admitted due to objections by either the United States of America or the Soviet Union. From 1950–1955 no new admissions to the United Nations occurred at all. 120 For example, Switzerland had not applied for membership until 2002. 121 See also H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, A ­ merican Journal of International Law, vol. 35, no. 4, 1941, p. 614. 122 K. Ginther, ‘Article 4’, in The Charter of the United Nations – A Commentary, B. Simma et al. eds., 1995, p. 162. 123 See for an overview Repertoire of the Practice of the Security Council, Practices Relative to Recommendations to the General Assembly Regarding the Admission of New ­Members, 1946–1951, pp. 272–273. 124 Ibid., p. 272, referring to the Application of the Republic of Korea, 409th meeting, 15 February 1949.

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War’.125 Moreover, the United Nations has repeatedly served as a forum for the coordination of non-recognition. In situations in which the world community has found that the entity in question either lacked independence with regard to their conduct with other states or showed serious legal defects in its creation – ­especially a disregard of any act of self-determination by the peoples concerned – the United Nations Security Council as well as General Assembly have called upon all states to refrain from recognition.126 The most recent example for this took place with regard to the events following the referendum held in the Autonomous Republic of Crimea which was not authorized by the Ukraine.127 From a constitutive viewpoint, this appears non-problematic. However, followers of the declaratory theory encounter difficulties in those situations in which an entity fulfills the criteria of statehood, but has been created contrary to norms of international law. In these instances, collective non-recognition is an instrument to avoid the consolidation of the unlawful circumstances.128 As will be discussed infra, where peremptory norms are concerned, states are even obliged to not recognize the unlawful situation.129 Yet, non-recognition does not absolve the entity of international obligations and does not prevent the entity from acquiring statehood where the classic three criteria (population, territory, government) are fulfilled. The theory understanding collective non-recognition as a sanction130 tentatively upholds the fiction of the status previous to the occurrence of the illegal act, preserving the rights and privileges for the former right-bearers. The illegal entity, to not harm the rights of the basic population, may enter into agreements and conduct acts which do

125 Ibid., p. 273, referring to the Application of Austria, 154th meeting; concerning the requirement of independence when granting independence outside the United Nations context see also statements by Swiss Minister of Foreign Affairs, 28 August 1991, reprinted in State Practice Regarding State Succession and Issues of Recognition – Pratique des états concernant la succession d’états et les questions de reconnaissance, J. Klabbers/M. Koskenniemi/ O. Ribbelink/A. Zimmermann eds., 1999, pp. 345–348. 126 S. Talmon, Kollektive Nichtanerkennung illegaler Staaten – Grundlagen und Rechtsfolgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern, 2006, pp. 172–173, 232; see also in this Chapter, Section 4.2.3.2. 127 unga Res. 68/262, Territorial integrity of Ukraine, 1 April 2014, un Doc. A/RES/68/262. 128 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 159. 129 Referring to the Stimson Doctrine, D. Raič, Statehood and the Law of Self-Determination, 2002, pp. 116–117. 130 S. Talmon, Kollektive Nichtanerkennung illegaler Staaten – Grundlagen und Rechtsfolgen einer international koordinierten Sanktion, dargestellt am Beispiel der Türkischen Republik Nord-Zypern, 2006, pp. 258–260.

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not contain any implications for statehood though, and may be viewed as a regional de facto government.131 Conclusions from the Element of Recognition The traditional criteria of statehood are vague and undetermined enough for multiple entities in theory being capable of claiming that they have become full subjects of international law. However, international law is a system created by states for states. Thus, the fundamental principles of this system, inter alia the principles of territorial integrity and sanctity of governing authority of the state, have prompted the existing states to limit the creation of new states. Although requiring recognition from the former-existing subjects for the creation of new, equal subjects contravenes the fundaments underlying ­aforementioned system, and developments have shown that the act is perceived as a political discretionary choice of states, state practice surrounding recognition nevertheless has been conclusive in evidencing new criteria which are required for statehood. Firstly, it may be argued that the attainment of statehood may not have contradicted fundamental norms of international law. Secondly, in addition to the traditional criteria of statehood, independence of the newly existing entity is a pre-requisite for its acceptance to the international community. Both of these criteria are dealt with in turn. 4.2.3.2 Legality The condition of legality with regard to the achievement of statehood focuses on the process leading up to the declaration of independence.132 Whereas the traditional criteria reflect the factual situation, the requirement of legality can be said to serve as a control-mechanism for existing states. Moreover, it has been argued that the condition of legality aims at guaranteeing minimal requirements of justice, i.e. respect for human rights, within the state and in the state’s interaction with others, as well as the fulfillment of the non-usurpation condition.133 Thus, the tool of recognition and, respectively, non-recognition 131 United Nations Security Council, Report of the Secretary-General on his Mission of Good Offices in Cyprus, 28 May 2004, p. 22, para. 93, un Doc. S/2004/437; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 56, para. 125 (Advisory Opinion, 21 June). 132 M. Dixon, Textbook on International Law, 5th ed., 2005, p. 109; N.L. Wallace-Bruce, ‘Africa and International Law – The Emergence to Statehood’, The Journal of Modern African Studies, vol. 23, no. 4, 1985, p. 589. 133 A. Buchanan, Justice, Legitimacy, and Self-Determination – Moral Foundations for International Law, 2004, pp. 261–262, 266.

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is utilized to infuse moral implications into the international order by the creation of an additional justice-based criterion.134 Consequently, the legal principle ex iniuria ius non oritur – i.e. no benefit can be received from an illegal act135 – prevents entities created by illegal means from achieving international personality. In this obverse, but supplemental, side to Lauterpacht’s theory on the obligation of recognizing an entity as a state when the criteria for statehood are fulfilled, states are taken up on the public order concept and cede their freedom of exercising their right to recognition for the obligation to abide by sanctions prescribed by the international legal order in general, often stipulated by the United Nations system in specific.136 The obligation of collective non-recognition by the international community has been included into the International Law Commission’s Articles on State Responsibility, and is foreseen as a response to ‘a serious breach […] of an obligation arising under a peremptory norm of general international law’.137 Situations which would otherwise call for recognition but are created by such a breach shall not be recognized as lawful.138 In practice, situations which have evoked the sanction of collective non-recognition concerned situations associated with violations of the norms of respect for the right to self-determination and of the prohibition of the use of force during the process of attaining the claimed statehood.139 These, among others, have been found to constitute ius cogens norms, overriding principles of international law, directed at the ‘international community as a whole’.140 134 Terming it recognitional legitimacy, ibid., at p. 264. 135 I. Brownlie, Principles of Public International Law, 7th ed., 2008, p. 509. 136 E. Lauterpacht, International Law: Being the Collected Papers of Hersch Lauterpacht, 1970, pp. 340–341; A. Orakelashvili, Peremptory Norms in International Law, 2006, pp. 374–375; V. Gowlland-Debbas, ‘Implementing Sanctions Resolutions in Domestic Law’, in National Implementation of United Nations Sanctions – A Comparative Study, V. Gowlland-Debbas ed., 2004, p. 47. 137 Art. 40(1), unga Res. 56/83, Annex, Responsibility of States for Internationally Wrongful Acts (State Responsibility), 12 December 2001, 56 un gaor, Supp. No. 10, p. 43, un Doc. A/56/10. 138 Art. 41(2), ibid.; International Law Commission, ‘Report of the Commission to the General Assembly – Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries’, Yearbook of the International Law Commission, vol. ii, Part 2, 2001, p. 115, paras. 5–6. 139 See also in more detail in this Chapter, Section 4.3.2; Conference on Yugoslavia, Opinion No. 10 of the Badinter Commission, 4 July 1992, 92 ilr 206, p. 208, para. 4; A. Orakhelashvili, Peremptory Norms in International Law, 2006, p. 373. 140 Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v. Spain), 1970 icj 3, p. 32, paras. 33–34 (Judgment, 5 February); for self-determination: Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 102, para. 29 (Judgment, 30 June);

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Concerning self-determination, especially the case of Southern Rhodesia serves as an example. While the rights of the colonial territory and its people to self-determination and independence were not disputed, the illegal racist minority regime, constituted contrary to the wishes and majority of the people, thus violating their right to self-determination, prevented recognition.141 ­Further evidence in this regard can be drawn from the recognitional acts concerning newly independent states during the 1990s in Europe. Listed alongside the requirements of respecting international norms and human rights, the inclusion of peoples in the decision-process as well as in the determination of their political status appears as a conditioning element for existing states in their acts of recognition.142 Another example is the case of the Turkish Republic of Northern Cyprus, found to be established in violation of the prohibition of the use of force against Cyprus and therefore violating its territorial integrity, which to date is only recognized by Turkey.143 In these examples, the traditional criteria for statehood could be found to be fulfilled, but the response of the international community was nevertheless a collective non-recognition which can be traced back to legal defaults in the creation of the entities concerned.

for the prohibition of the use of force: Principle 1, Annex, unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25  un gaor, Supp. No. 28, p. 123, un Doc. A/8028. 141 unsc Res. 216 (1965), Question concerning the situation in Southern Rhodesia, 12 ­November 1965, 20 un scor, p. 8, un Doc. S/RES/216; unsc Res. 402 (1976), Complaint by Lesotho against South Africa, 22 December 1976, 31 un scor, p. 13, un Doc. S/RES/402; unga Res. 2379 (xxiii), Question of Southern Rhodesia, 25 October 1968, 23 un gaor, Supp. No. 18, p. 57, un Doc. A/7218; unga Res. 33/38 A, Question of Southern Rhodesia, 13 December 1978, 33 un gaor, Supp. No. 45, p. 178, un Doc. 33/45; A. Orakhelashvili, Peremptory Norms in International Law, 2006, pp. 376–377. 142 See, e.g., European Community, ‘Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”’, 16 December 1991, 31 ilm 1486; Austrian Acts of Recognition with regard to Estonia, Latvia, Lithuania, 28 August 1991, with regard to the Russian Federation, 15 January 1992, Moldavia, Azerbaijan, Kazakhstan, Kyrgyzstan, Tadzhikistan, Turkmenistan, Uzbekistan, 15 January 1992; Statement by Minister of Foreign Affairs of Sweden on Recognition of States, 11 February 1992, all reprinted in State Practice Regarding State Succession and Issues of Recognition – Pratique des états concernant la succession d’états et les questions de reconnaissance, J. Klabbers/ M. Koskenniemi/O. Ribbelink/A. Zimmermann eds., 1999, pp. 162–169, 308–309. 143 unga Res. 3212 (xxix), Question of Cyprus, 1 November 1974, 29 un gaor, Supp. No. 31, p. 3, un Doc. A/9631; unsc Res. 541 (1983), Cyprus, 18 November 1983, 38 un scor, p. 15, un Doc. S/RES/541.

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4.2.3.3 Independence and Sovereignty In a classic understanding, the correlation between statehood and independence refers to the condition of a state exercising ‘in regard to a portion of the globe […], to the exclusion of any other State, the functions of a State’,144 often also termed sovereignty.145 The claim of entities capable of constituting a state to be sovereign or independent distinguishes them from other bodies having similar attributes.146 As Michael Scharf puts it sharply: ‘Thus, an entity was either sovereign or it was not’.147 But as was discussed in more detail above,148 the category sovereignty has transgressed from being solely associated with statehood. Other entities therefore can and do claim that they possess sovereignty. Thus, when referring to a necessary criterion in the delineation of which entity possesses statehood and which not, preference should be given to the category of independence which more readily serves as a legally based term. The independence of a state finds its reflection in seven main elements, each valuable in describing the position of the state in international law: the principle of sovereign equality; the principle of non-intervention; the principle of exclusiveness; the presumption of a state’s competence; no binding international adjudication without the consent of the state concerned; the principle of ius ad bellum; and the fact that international law is made up by states.149 From this follows that the governance of a state’s territory, population, internal and international relations must occur in its own right, only accepting restrictions voluntarily, by law or custom, equal to other states.150 144 Island of Palmas (United States of America v. Netherlands), 2 riaa 829, p. 838 (Award, 4 April 1928); see also T.H. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, Columbia Journal of Transnational Law, vol. 37, no. 2, 1999, p. 437. 145 J. Castellino, International Law and Self-Determination, 2000, p. 94; A. James, Sovereign Statehood – The Basis of International Society, 1986, p. 22; D. Raič, Statehood and the Law of Self-Determination, 2002, p. 74; Customs Regime between Germany and Austria (Protocol of March 19th, 1931), 1931 pcij 37, p. 57 (ser. A/B) No. 41 (Advisory Opinion, Individual Opinion of Judge M. Anzilotti, 5 September). 146 A. James, Sovereign Statehood – The Basis of International Society, 1986, p. 14. 147 M.P. Scharf, ‘Earned Sovereignty: Judicial Underpinnings’, Denver Journal of International Law, vol. 31, 2003, p. 378. 148 See above in this Chapter, Section 4.1, where the conclusion is reached that ­sovereignty in fact is an aporetic category. 149 R. Lapidoth, ‘Sovereignty in Transition’, Journal of International Affairs, vol. 45, 1992, pp. 329–331; see also J. Castellino, International Law and Self-Determination, 2000, p. 97. 150 Customs Regime between Germany and Austria (Protocol of March 19th, 1931), 1931 pcij 37, pp. 57–58 (ser. A/B) No. 41 (Advisory Opinion, Individual Opinion of Judge M. Anzilotti, 5 September).

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In how far independence has relevance for the determination of the status of an entity is closely related to the principle of effectiveness. Hence, as emphasized above,151 it must be distinguished whether a claim of a new state to have established itself is concerned, or whether the existence of an already established state despite momentarily ineffectiveness is in question. Concerning the former, it will be necessary for the new state to clearly distinguish itself from the preceding state, whereas in the case of the latter, for a certain period of time the lack of independence will not lead to the dissolution and cessation of existence of the state.152 In closer examination, when claimed that an entity enjoys independence, ­actual and formal independence must therefore be distinguished. Actual independence – similar to the requirement of effective government – relates to the real political power an authority may have in taking decisions, i.e. the right to exercise authority. While the economic situation, location, or political relations with other states in themselves do not affect the standing of states, regardless of their size, the permanent involuntary foreign domination and influence, in particular in internal matters, deprives an entity of its actual independence.153 In comparison, formal independence can be traced to legal instruments – a written constitution, treaties – and their provisions providing for independent authorities, free from outside influence and obligations which they have not consented to. Even in situations in which generous concessions are made to other states, for example with regard to form of government, territorial use or agency arrangements concerning foreign affairs or military defense, the independence of the state will be not threatened as long as a certain discretionary power concerning alterations or cancellations of such contracts is retained as well as the privileges passed on are exercised in the interest of the granting state.154 With regard to statehood, one may presume an entity to have independence as long as the requirements of being formally independent are fulfilled and the creation shows no serious legal defaults. While this must be matched against the presumption of continued statehood of existing states,155 in instances which are found to have achieved acceptance by the international ­community, 151 152 153 154

See in this Chapter, Section 4.2. J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 63. Ibid., at pp. 73–76. Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. ­United States of America), 1986 icj 14, p. 131, para. 259 (Judgment, 27 June); J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 67–70. 155 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 89.

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the elements of independence are granted to the entity concerned, even if partly lacking effectiveness. Thus, instead of threatening statehood, entities with political and economic weaknesses are found to require assistance in their attainment of full actual independence and for the protection of their standing within the international community.156 4.2.4 ‘Ad hoc’ Criteria Deduced from the Nature of International Law There are a number of other criteria which have been suggested by scholars to determine statehood, ranging from the requirement of an organic bond within the community claiming statehood,157 or the willingness and ability to observe international law,158 to other aspects which can ultimately be deduced from the structures of the international legal system. However, in general they are 156 R.H. Jackson, Quasi-States: Sovereignty, International Relations, and the Third World, 1990, pp. 23–24. 157 Historical ties as well as a mythological, linguistic, ethnic and religious affinity form the internal matter of a state, and find their representation on the international level via the concept of state. However, adding this as an element of statehood causes difficulties in several matters. First, states in fact are to a large extent made up out of various ethnic groupings and have often merely been grouped together by historical circumstances detached from their spheres of influence. Secondly, the criteria which distinguish this form of organic ties from other entities such as peoples or minorities and their common links are unclear. Thus, this element has not found a wider support in legal studies. See on this further, e.g., L. Henkin, International Law: Politics and Values, 1995, p. 7; T.H. Grant, ‘Defining Statehood: The Montevideo Convention and its Discontents’, Columbia Journal of Transnational Law, vol. 37, no. 2, 1999, pp. 445, 450. 158 The willingness and ability to observe international law has also been included in lists of the criteria of statehood. The problems in its application are numerous. For one, d­ etermining when an entity exerts willingness is a matter of interpretation. In most circumstances, what may be deduced, T.-C. Chen criticizes, is hardly more than a promise. For another, for the community as well as individual states to consider whether or not an entity possesses the ability to fulfill its international obligations influences their conduct in their relations towards the entity concerned, but not its existence; Thus, an exclusionary element merely in situations of anarchy and total lack of state authority, the criterion therefore can said to constitute an aspect of the requirement of possessing a government. See, inter alia, T.-C. Chen, The International Law of Recognition – With Special Reference to Practice in Great Britain and the United States, 1951, pp. 61–62; J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 91–92. There are, however, some examples where states have explicitly relied on this criterion, See the statement of the Japanese Prime Minister in 2006 who explained that North Korea was not recognized by Japan as a state as ‘Japan also takes into account whether the entity has the will and the capacity to observe international law’. Statement by Junichiro Koizumi, Primer Minister, Written Answer No. 322, House of Representatives, 164th Session, 16 June 2006, reprinted in ­International

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overly broad and complex in assessment. Single instances where they have been suggested can be discerned, but overall they remain mere isolated ‘ad hoc’ criteria suggested by scholars or states which relate to certain aspects of the international legal order. 4.2.4.1 Permanence There have been efforts to put statehood into a context of permanence.159 Not only does this explicitly exist within the scope of other accepted criteria such as in the requirement of consisting of a permanent population, but the concept underlies most others. For example, the presumption of continuance in instances in which the government has lost momentary control over its territory, or the condition of possessing a defined territory which in general will have found its marks on maps in some way, even if perhaps not as state borders, all draw from the idea of permanence. Moreover, in most instances, recognition will only occur in those cases in which the recognizing entities perceive the newly created state as something permanent, otherwise risking at least political conflicts to arise concerning the violation of the territorial sovereignty of the preceding state authority. It should not be overlooked that states may exist only for a very short period if they choose so.160 However, requiring permanence to become a member of the international community roots at the core of the very understanding of international law as a separate legal system. Both the state in itself, as the representation of a certain community, as well as the international legal order, based on a community of nations, strive for permanence to ensure the legitimacy of their governing rules.161 Thus, while permanence is not a prerequisite

Law Association, 75th Conference of the ila, Sofia, Bulgaria, 26–30 August 2012, First ­Report, Recognition/Non-Recognition in Contemporary International Law, fn 99. 159 The American Law Institute, Restatement of the Law (Third) – The Foreign Relations Law of the United States, 1987, § 202, pp. 77ff. 160 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 90, listing ­Zanzibar (member to the United Nations from December 1963–April 1964) and the Mali Federation (existing from 20 June–20 August 1960) as examples. 161 H. Kelsen, ‘Recognition in International Law: Theoretical Observations’, American Journal of International Law, vol. 35, no. 4, 1941, p. 608; A.L. Goodhart, ‘The Nature of International Law’, Transactions of the Grotius Society, vol. 22, 1936, p. 40: By a society or a community we mean that men are in a certain relationship to each other because through that relationship they hope to achieve certain ends. That relationship, if it is to have any stability or permanence, must be expressed in rules of conduct, and these rules of conduct we call law.

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for obtaining statehood, it nevertheless underlies the intention of those acquiring as well as those evaluating the status. 4.2.4.2 Legal Order The existence of an, at minimum basic, legal order within an entity claiming to be a state has been perceived as a further criterion. Similar to his definition of the state,162 Hans Kelsen determines the common grounds of a community to be its inter-individual relations which are determined by the law, i.e. legal relations.163 The Grundnorm functions as a presupposition for the validity of this legal order, simultaneously constituting a distinguishing element from other states.164 Nevertheless, not every legal order amounts to a state.165 Moreover, even if it is highly probable that a normative ordering of a territorial community will occur, it is lastly a political power – a government – which exercises control over the territory.166 Thus, while a legal order is indicative of a governing authority and communal element within a specified territory, a certain order detached from judicial elements might be sufficient. 4.2.4.3 Certain Degree of Civilization The requirement to possess a certain degree of civilization has been listed in singular instances. C.C. Hyde suggests that United States practice at the beginning of the 20th century indicates that a society should have such a degree of civilization for it to be able to observe the principles of international relations.167 The views on what is understood by this criterion are scarce and 162 See above note 50. 163 H. Kelsen, ‘Law, State and Justice in the Pure Theory of Law’, The Yale Law Journal, vol. 57, no. 3, 1948, pp. 379–381. 164 K. Marek, Identity and Continuity of States in Public International Law, 1954, p. 168. 165 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 93. 166 N. MacCormick, ‘Beyond the Sovereign State’, The Modern Law Review, vol. 56, no. 1, 1993, pp. 13–14. 167 C.C. Hyde, International Law – Chiefly as Interpreted and Applied by the United States, vol. i., 1922, p. 17, referring later (p. 49) to the fact that [w]hat is known as the States of international law, notwithstanding the sharp ­differences between some of them, resemble each other in the possession of what is described as European civilization. […] The situation is otherwise with respect to countries not possessed of and, therefore, unfamiliar with European civilization. This is true whether they are essentially uncivilized, or enjoy a civilization which, however tested, fails habitually to enable the possessors to meet the standards accepted by the States constituting the international society. Such failure commonly manifests itself in the inability to accord the requisite protection of foreign life and property, and in abuses of what are known as rights of jurisdiction.

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variable. While James Crawford chooses to prefer it as a further aspect of government, expecting from it a minimum of order and stability,168 Jorri Duursma connects it with a requirement of abidance of states by human rights, noting however, that in the case of failure of observance in general the consequence is to condemn the action and not the non-existence of the respective state.169 In addition, the criterion has been deemed to be discriminatory as well as ­antiquated170 and the means of acceptance of new entities to the international legal order have been termed a legal mechanism under the standard of civilization, originating in European ideologies.171 Thus, as in regard to the general trend of recognizing international law’s requirement of civilization172 as antiquated,173 classifying possible states as civilized or uncivilized has not received further acceptance to constitute one of the state criteria. 4.2.4.4 Economic Viability The lack of economic viability has quite often been argued when denying an entity the right to become a state. Also termed as a ‘negative precondition to statehood’,174 an example can be seen in the case of East Timor, where Indonesia and its allies at the United Nations argued that one reason for East Timor’s 168 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 92; see also G. Schwarzenberger, ‘The Standard of Civilisation in International Law’, in Current Legal Problems, G.W. Keeton/G. Schwarzenberger eds., 1955, p. 220. 169 J.C. Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood, 1996, p. 120. 170 Mabo and Others v. State of Queensland (No. 2), High Court of Australia, 112 ilr 457, p. 491 (Judgment, 3 June 1992); I. Brownlie, Principles of Public International Law, 7th ed., 2008, p. 75; B. Bowden, ‘The Colonial Origins of International Law: European Expansion and the Classical Standard of Civilization’, Journal of the History of International/Revue d´histoire du droit international, vol. 7, no. 1, 2005, p. 22; T.-C. Chen, The International Law of ­Recognition – With Special Reference to Practice in Great Britain and the United States, 1951, p. 60. 171 B. Bowden, ‘The Colonial Origins of International Law: European Expansion and the Classical Standard of Civilization’, Journal of the History of International/Revue d´histoire du droit international, vol. 7, no. 1, 2005, pp. 1, 14–15. 172 Such as, for example, in Art. 38(1)(c) icj Statute: ‘the general principles of law recognized by civilized nations’. 173 F.O. Raímondo, General Principles of Law in the Decisions of International Criminal Courts and Tribunals, 2008, p. 51. 174 Suggested by D.W. Bowett, ‘Self-Determination and Political Rights in the Developing Countries’, American Society of International Law Proceedings, vol. 60, 1966, p. 131; see also L.C. Buchheit, Secession – The Legitimacy of Self-Determination, 1978, p. 228, arguing it as an inescapable condition for a ‘legitimate’ claim to secession.

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integration with Indonesia was the economic viability of the territory.175 ­Similar arguments have been made regarding Palestine176 or Somaliland.177 Yet, international law prescribes the opposite. United Nations General Assembly Resolution 1514 explicitly states: ‘Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence’.178 Nevertheless, proponents of this theory have argued that – as a non-binding declaration – this must be revisited in light of economic challenges in today’s globalized world and the fact that the stability and security of a state is dependent on certain economic self-sustainability.179 While their suggestions how to measure the economic viability of the state – amount of natural resources, population demographics, size – have been proven wrong in numerous cases, as can particularly be seen in the case of microstates,180 there are also illustrative cases which support the requirement of economic viability, in particular in planned instances of independence. Hence, as will be discussed in more detail in Chapter 5, ensuring rights over economic (natural) resources was core to Greenland’s future path towards independence. 4.2.5 Conclusions on the Criteria of Statehood In the midst of a seemingly stable world order, centered around states, normative uncertainty181 with regard to the admittance of new subjects reveals that

175 P.D. Elliott, ‘The East Timor Dispute’, International and Comparative Law Quarterly, vol. 27, no. 1, 1978, p. 241; S. Philpott, ‘East Timor’s Double Life: Smells Like Westphalian Spirit’, Third World Quarterly, vol. 27, no. 1, 2006, p. 135. 176 See S. Solomon, ‘The Quest for Self-Determination: Defining International Law’s Inherent Interstate Limits’, Santa Clara Journal of International Law, vol. 11, 2013, p. 410, emphasizing the international community’s efforts to foster Palestine’s economic growth. 177 Solon Solomon points out that the argument runs opposite in the case of Somaliland, as it could deprive Somalia of the possibility of stabilization and economic viability, see ibid., p. 408. 178 Art. 3, unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684. 179 R. Trisotto, ‘Seceding in the Twenty-First Century: A Paradigm for the Ages’, Brooklyn Journal of International Law, vol. 35, no. 2, 2010, p. 439. 180 See in this Chapter, Section 4.2.2.1. 181 Similarly J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 23; see also Chapter i.

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the current composition of the international community is rooted in more than law. Effectiveness, stability, and a certain degree of ‘historical r­ andomness’ (i.e. non-legal factors), are dominating factors which seemingly exert more influence on the actual formation of new states than claims made by peoples which arguably fulfill any of abovementioned criteria. The evolving doctrine on recognition as an additional criteria of statehood is particulary evident thereof, i.e. the act of recognition serves as an instrument of international politics in addition to its legitimizing function. Moreover, attempts of scholars and practice to identify constitutive criteria of statehood to a large degree occur post factum. This pattern continues in the context of the recognition of statehood arising from the exercise of the right to secession, as will be discussed in the following sections. 4.3

Achieving Full Independence – The Right to Secession

In light of the above, claims by peoples to be entitled to secede have been met with considerable resistance, especially throughout the last century,182 resistance being based on such fundamental principles as territorial integrity and state sovereignty. Scholars and courts have bent backwards in discussing the topic of secession and emotions among concerned peoples, states and other participants fly high, resulting in numerous international and internal conflicts. Above all, a certain reluctance of deciding organs to get involved and consequently become a target of their founding organs can be identified since early on. For example, during the Nigerian civil war (and Biafra’s attempt to secede), the un Secretary General U. Thant stated: As far as the question of secession of a particular section of a State is concerned, the United Nations attitude is unequivocal. As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its Member States.183 182 Until the 1920s, secession was one of the more popular means of creating new states. James Crawford lists as some examples the American War of Independence, the revolution of the former Spanish colonies in Central and South America, Greece’s secession from the Ottoman Empire, and Belgium’s secession from the Netherlands, see J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 375. 183 Secretary General’s Press Conferences, 7 un Monthly Chronicle p. 36 (February 1970).

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The General Assembly, the Security Council and the International Court of Justice have since then repeatedly evidenced the reluctance (or inability) of the United Nations to appear pro-secessionist.184 Nevertheless, practice has shown that in certain circumstances a people has managed to secede, and this has been accepted by the international community. Moreover, in such cases it has been confirmed also from a legal perspective that the entity was entitled to external self-determination. In these circumstances, the seceding part may either want to join another state in one or another way or become independent.185 In any event, the composition of the existing global community is thereby changed, either by the introduction of a new full subject to the international community, or by a redrawing of boundaries. The term ‘secession’ has largely been used in a domestic sense, i.e. referring to the separation of territory from its domestic territory. Thus, the traditional application of external self-determination in the course of de-colonization generally was not discussed as an example of secession.186 Outside the colonial setting, there are primarily two scenarios which may occur, though their distinction is largely of a practical nature.187 A people may wish to separate with the consent of the state that it formerly constituted part 184 For example, see unga Res. 56/106, Assistance for Humanitarian Relief and the Economic and Social Rehabilitation of Somalia, 14 December 2001, 56 un gaor, un Doc. A/RES/106 [‘[…] bearing in mind the respect for the sovereignty, territorial integrity and unity of Somalia’]; unsc Res. 1345 (2001), Letter dated 4 March 2001 from the Permanent Representative of the Former Yugoslav Republic of Macedonia to the United Nations addressed to the President of the Security Council (S/2001/191), 21 March 2001, un Doc. S/RES/1345 [‘Reaffirms its commitment to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the former Yugoslav Republic of Macedonia and the other States of the region, as set out in the Helsinki Final Act’]; for further references see G. Nolte, ‘Secession and External Intervention’, in Secession – International Law Perspectives, M.G. Kohen ed., 2006, pp. 68–69; As regards the icj, see Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403 (Advisory Opinion, 22 July) [discussed in more detail below in this Chapter, Section 4.3.3]. 185 See on a general level Chapter 3, Section 3.2, basing itself particularly on unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028. 186 M.P. Scharf, ‘Earned Sovereignty: Judicial Underpinnings’, Denver Journal of International Law, vol. 31, 2003, p. 381. 187 T.D. Grant, ‘Secession and State Succession’, in The Ashgate Research Companion to Secession, A. Pavkovic/P. Radan eds., 2011, p. 366.

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of. In such instances, the international community has generally not raised any objections and it can be said to root in the political will of a territorially concentrated people. Throughout the past decades, there have been a number of examples, the most prominent being the separation of the former Soviet republics from the Soviet Union (whose legal personality is continued by the Russian Federation),188 the Scotland referenda in 2014,189 and the near future promises similar steps to be taken taken in Greenland,190 or perhaps Catalonia.191 Or a people may unilaterally want to secede from a state, without the latter’s consent. And though the term ‘secession’ can also cover the wide spectrum ranging from the dismemberment to the dissolution or separation of states,192 quite often, legal scholarship only subsumes the aforementioned scenario under the term ‘secession’. In this vein, James Crawford defines secession as: ‘[…] the creation of a State by the use or threat of force, without the consent of the former sovereign’.193 Thus, the core question centers on the issue whether or not international law permits or prohibits secession (in particular in absence of consent). While there are some which argue that secession is not governed by international

188 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 395. 189 The Scottish referendum on independence took place on 18 September 2014, voting ‘No’ on independence. Both uk and Scottish Governments had promised to respect the outcome of the referendum, see The Scottish Government, ‘Scotland’s Referendum’, available at http://www.scotreferendum.com/ (last visited 19 April 2016). 190 See also Chapter 5, Section 5.3. 191 After a Catalonian referendum on independence in 2014, which resulted in 80% of the voters opting in favour of pursuing independence, Catalonian parliamentary elections took place in 2015. Pro-independence parties received the majority and issued a ‘Declaration of the Initiation of the Process of Independence of Catalonia’ in November 2015. While the Spanish government still resists Catalonia’s road towards independence, the region’s president declared in March 2016 that Catalonia could go ahead without Madrid’s consent, T. Buck, ‘Catalonia can secede without Madrid’s backing, says new leader’, Financial Times, 17 March 2016, available at https://next.ft.com/content/f37ef1a4-ec4b-11e5bb79-2303682345c8 (last visited 19 April 2016). 192 J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 24. 193 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 375; cf. M.G. Kohen, ‘Introduction’, in Secession – International Law Perspectives, M.G. Kohen ed., 2006, p. 3; J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 73.

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law but by international politics only,194 right-based approaches will be given a closer look. Two basic approaches may be distinguished: ‘primary right’ theories and ‘remedial right only’ theories. 4.3.1 Secession as a Primary Right To perceive secession as a primary right of a people is to grant a people the right to secede even without such prior injustice that would entitle them to remedial secession. Allen Buchanan distinguishes this category into two further sub-categories, which he terms associative (or plebiscitary) and ascriptive.195 The former category refers to the fact that a vote by the majority of population to secede would be sufficient to justify their departure from the state, regardless of any other conditions such as the requirement of shared characteristics. Some supporters however add that this exercise of self-determination may not interfere with the rights of other groups to exercise self-determination.196 The latter focuses on further common elements among the people wishing to secede which would legitimate their claim, e.g., for reasons of protection. Units which are considered to fulfill this requirement predominantly are ‘nations’ (though Buchanan adds that this term in itself is non-defined).197 As Buchanan himself admits, however, this finds little support in contemporary theory,198 let alone legal practice.199 Instead, even those who argue 194 J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 26, referring inter alia to the Republic of Kosovo’s arguments during the icj advisory opinion proceedings (para. 8.17). 195 A. Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’, in States, Nations, and Borders – The Ethics of Making Boundaries, A. Buchanan/M. Moore eds., 2003, p. 248. 196 Anonymous Note, ‘The Logic of Secession’, The Yale Law Journal, vol. 89, no. 4, 1980, p. 803. 197 A. Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’, in States, Nations, and Borders – The Ethics of Making Boundaries, A. Buchanan/M. Moore eds., 2003, p. 248, inter alia referring to D. Miller, On Nationality, 1995, pp. 81ff., who couches this in ‘national self-determination’. 198 See, however, R. Janik, ‘The Responsibility to Protect as an Impetus for Secessionist ­Movements – On the Necessity to Re-Think Territorial Integrity’, in Grenzen im Völkerrecht, M.C. Kettemann ed., 2013, p. 65, who argues that: democracy understood as a system of self-rule based on the free will of individuals, does not render secessionist claims invalid but, on the contrary, provides a decisive argument in favour of a broad – primary – right to secession. 199 A. Buchanan, ‘The Making and Unmaking of Boundaries: What Liberalism Has to Say’, in States, Nations, and Borders – The Ethics of Making Boundaries, A. Buchanan/M. Moore eds., 2003, p. 249.

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most progressively in favor of a right to secession maintain that while certain entities (such as peoples) have the right to self-determination, they can only ­exercise their right to (remedial) secession in limited circumstances. 4.3.2 Secession as a Remedial Right Remedial secession covers those situations where a people experiences such injustices which entitles it to the right to secede as a remedification. Its origins can be traced to the Aaland Islands case, where the second Commission of Rapporteurs issued the Advisory Opinion stating that [t]he separation of a minority from a State of which it forms part and its incorporation into another State may only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guarantees.200 This has formed the basis for the statement that in those territories ‘that are so badly misgoverned that they are in effect alienated from the metropolitan State’201 secession may be legitimate. A similar safeguard clause was included in the Friendly Relations Declaration: Nothing in the foregoing paragraphs shall 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 conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.202 200 Report presented to the Council of the League of Nations by the Commission of Rapporteurs, ln Council Doc. B7/21/68/106 (16 April 1921), at p. 28. 201 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 111; cf. F.L. Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’, American Journal of International Law, vol. 88, no. 2, 1994, p. 306; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, p. 112. 202 unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028 [emphasis added]. An almost identical formulation is contained in the 1993 Vienna Declaration, with the sole difference being the use of the wider phrase of ‘without distinction of any kind’, see Art. 2(3), Vienna Declaration and Programme of Action, adopted at World Conference on Human Rights, 25 June 1993, un Doc. A/CONF.157/23.

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Therefore, in limited circumstances, such as the persistent refusal of participation rights, gross and systematic violation of fundamental rights of racial groups and denial of the possibility of a peaceful resolution of the situation, these injustices serve as a legitimizing basis for the exercise of secession.203 This has found considerable support in international literature204 and at least some in jurisprudence.205 The most well-known statement in this regard can be found in the 1998 Quebec case: 203 Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 26, para. 173, un Doc. E/CN.4/Sub.2/404/Rev.1; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, pp. 118–120; F.L. Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’, American Journal of International Law, vol. 88, no. 2, 1994, p. 306; M. Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’, International and Comparative Law Quarterly, vol. 43, no. 2, 1994, p. 248. 204 To name just a few, A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law, 2004, p. 335; D. Murswiek, ‘The Issue of a Right to Secession – Reconsidered’, in Modern Law and Self-Determination, C. Tomuschat ed., 1993, p. 21; A. Cassese, International Law, 2nd ed., 2005, p. 68; Y. Dinstein, ‘Collective Human Rights of Peoples and Minorities’, International Comparative Law Quarterly, vol. 25, 1976, p. 108; C. Tomuschat, ‘Self-Determination in a Post-Colonial World’, in Modern Law and SelfDetermination, C. Tomuschat ed., 1993, p. 8; for more references also see A. Tancredi, ‘A ­Normative “Due Process” in the Creation of States Through Secession’, in Secession – ­International Law Perspectives, M.G. Kohen ed., 2006, p. 176. 205 Case of Loizidou v. Turkey (Merits), European Court of Human Rights, Application No. 15318/89, 18 December 1996 (Judgment, Concurring opinion of Judge Wildhaber, joined by Judge Ryssdal): Until recently in international practice the right to self-determination was in practical terms identical to, and indeed restricted to, a right to decolonisation. In recent years a consensus has seemed to emerge that peoples may also exercise a right to self-­determination if their human rights are consistently and flagrantly violated or if they are without representation at all or are massively under-represented in an undemocratic and discriminatory way. If this description is correct, then the right to selfdetermination is a tool which may be used to re-establish international standards of human rights and democracy. Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92, Recommendations of October, 1995, para. 6: In the absence of concrete evidence of violations of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in Government as guaranteed by Article 13(1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.

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The recognized sources of international law establish that the right to  self-­determination of a people is normally fulfilled through internal self-determination – a people’s pursuit of its political, economic, social and cultural development within a framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.206 This view is not unchallenged, however. Arguments range from the fact that ‘remedial secession’ simply is not foreseen as a remedy in international law,207 to the lack of clear and convincing opinio iuris,208 to the ‘structural’209 argument of territorial integrity.210 Regarding the latter, though, even the International Court of Justice has drawn attention to the fact that the principle of territorial integrity ‘is confined to the sphere of relations between States’.211

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Kevin Mgwanga Gunme v. Cameroon, African Commission on Human and Peoples’ Rights, Communication No. 266/03, Recommendations of 27 May 2009, para. 194, reiterating the Commission’s findings in Katangese Peoples’ Congress v. Zaire. Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, pp. 583–584, para. 126. See especially K. del Mar, ‘The Myth of Remedial Secession’, in Statehood and Self-­ Determination – Reconciling Tradition and Modernity in International Law, D. French ed., 2013, p. 79. S.F. van den Driest, Remedial Secession – A Right to External Self-Determination as a Remedy to Serious Injustices?, 2013, p. 295. In this context, I use structural to refer to the fact that such objections are taken from the international legal order itself. Its legal basis cannot only be found in Art. 2(4), Charter of the United Nations, 24 October 1945, 1 unts 26 but in numerous other documents and declarations as well. To list just a few examples: The Final Act of the Conference on Security and Cooperation in Europe (Helsinki Declaration), 1 August 1975, 14 ilm 1292; unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), 1986 icj 14, p. 111, para. 213, p. 128, para. 251 (Judgment, 27 June); Corfu Channel (Merits) (United Kingdom v. Albania), 1949 icj 4, p. 35 (Judgment, 9 April). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, p. 437, para. 80 (Advisory Opinion, 22 July).

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Hence, its applicability in relations to a people stemming from within a state’s territory is unclear. In an attempt to overcome these conceptual issues, the Netherlands therefore argued in its written comments during the proceedings on the Kosovo Advisory Opinion that: [a] serious breach of a peremptory norm of general international law has particular consequences (Article 41 of the Articles on Responsibility of States for Internationally Wrongful Acts). These Articles, at least Part Three of the Implementation of the International Responsibility of a State, address interstate relations and not, as such, relations between States and other subjects of international law, such as peoples. The violation of an obligation incumbent on a State towards other subjects of international law is also governed by secondary norms of international law that, in our opinion, are not dissimilar to the Articles on Responsibility of States for Internationally Wrongful Acts. Such a violation must have legal consequences and particular consequences in the case of a serious breach of a peremptory norm under international law. The particular consequences listed in the Articles on Responsibility of States for Internationally Wrongful Acts are not exhaustive as evidenced by the ­savings clause. This savings clause provides that the listing of particular consequences in the Articles on Responsibility of States for Internationally Wrongful Acts is without prejudice to any further consequences that a serious breach of a peremptory norm may entail under international law (Art. 41.3). It is submitted that the right to external self-determination is such a particular consequence which is, furthermore, rooted in an established practice in relation to non-self-governing territories and peoples under foreign occupation.212 Not only does the statement refer to an alternative system of state responsibility between states and other subjects of international law, but it considers secession as a possible sanction to a violation of a peremptory norm. 212 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Comments of the Kingdom of the Netherlands, para. 3.10 (Request for an Advisory Opinion, 17 July 2009) [emphasis added]. While this comment was made in response to Serbia’s statement that remedial secession would be ‘tantamount to imposing a type of sanction that is wholly outside the field of State responsibility of wrongful acts’, the Netherlands had in their first written submission already implicitly referred to external self-determination as a sanction when they considered it in the context of Article 40 of the ilc Articles on State Responsibility, see H.P. Aust, ‘The Kosovo Opinion and Issues of International Responsibility’, in Kosovo and International Law: The icj Advisory Opinion of 22 July 2010, P. Hilpold ed., 2012, p. 186.

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Despite this progressive line of argumentation, the basic critique that it might be too far-fetched to deduce support for a remedial right to secession from the inverted reading of a subordinate clause (in the Friendly Relations Declaration) remains.213 Furthermore, practice reveals that most often not only territorial integrity is argued214 but other reasons are given in order to achieve a collective condemnation of situations which are perceived as in violation of fundamental norms of international law, in particular the prohibition of the denial of the right to self-determination,215 racial discrimination216 and use of

213 M.N. Shaw, ‘Peoples, Territorialism and Boundaries’, European Journal of International Law, vol. 8, no. 3, 1997, p. 483. 214 unsc Res. S/5002 (1961), 24 November 1961, un Doc. S/5002, ‘to maintain the territorial integrity and political independence of the Republic of Congo’, regarding Katanga’s secession (Katanga, however, was also described as a ‘puppet state’ created by Belgium, possessing the majority of natural resources of the region, see D.N. Gibbs, The Political Economy of Third World Intervention – Mines, Money and u.s. Policy in the Congo Crisis, 1991, p. 87); See also the recent analysis of Brad Roth, noting ‘a (relatively) inflexible standard of territorial inviolability’ in the context of the Ukraine crises of 2014/2015, B. Roth, ‘The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention’, German Law Journal, vol. 16, no. 3, 2015, pp. 387ff. 215 As was the case, e.g., with regard to Rhodesia, see also J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 388. 216 Regarding Southern Rhodesia’s secession see unsc Res. 216 (1965), Question concerning the situation in Southern Rhodesia, 12 November 1965, 20 un scor, p. 8, un Doc. S/RES/216: 1. Decides to condemn the unilateral declaration of independence made by a racist minority in Southern Rhodesia; 2. Decides to call upon all States not to recognize this illegal racist minority regime in Southern Rhodesia […]. unga Res. 34/93G, Bantustans, 12 December 1979, 34 un gaor, Supp. No. 46, p. 29, un Doc. A/34/46: Condemning the racist regime of South Africa for continuing its policy of ‘bantustanization’ and for proclaiming the so-called ‘independence’ of Venda […]. Similar resolutions were also issued with regard to the other ‘Bantustans’, see inter alia unga Res. 32/105N, Bantustans, 14 December 1977, 32 un gaor, Supp. No. 45, p. 30, un Doc. 32/45: Denounces the declaration of the so-called ‘independence’ of the Transkei and that of Bophuthatswana and any other bantustans which may be created by the racist régime of South Africa in the pursuit of its banustan policy. unga Res. 37/69A, Situation in South Africa, 9 December 1982, 37 un gaor, Supp. No. 51, p. 28, un Doc. A/37/51 (regarding Ciskei): Again calls upon all States and organizations to refrain from any recognition of or cooperation with the so-called ‘independent’ bantustans.

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force.217 In such situations, the conflicting norms serve as an easily justifiable decision to reject the attempts of secession by the international community. In other situations, however, secession has been accepted by the international community. In particular the case of Bangladesh (formerly East ­Pakistan) is often given as an example.218 Divided not only geographically, but also culturally, linguistically and economically from Pakistan’s central government, Islamabad, Bangladesh’s demands for provincial autonomy following an election in 1970 led to martial rule, repression and armed conflict.219 ­Sentiments of the people of Eastern Pakistan that they were being treated as a colony of Pakistan eventually resulted in its leaders proclaiming independence in 1971 (with support by India).220 Recognition by the international community, however, did not follow until Pakistan’s armed forces surrendered in December 1971, and was quite often a consequence of intense lobbying by India.221 Bangladesh was accepted to the United Nations in 1974, shortly after it received official recognition by Pakistan.222 The assessment of the secession of Bangladesh from Pakistan is not unequivocal. James Crawford is cautious to state whether or not this constituted a result of an exercise of self-determination and remedial secession or a fait accompli due to Pakistan’s withdrawal of troops.223 Joshua Castellino in his analysis points out the quasi-colonial situation and special circumstances of the case – though also admitting that similar separatist struggles continue to exist in numerous other states – which according to many authors even amounted to genocide. He therefore legitimizes the exercise of secession by means of self-defense, a general principle of law existing in every legal system.224 John Dugard determines the situation to constitute a case of remedial secession as a

217 unsc Res. 787 (1992), Bosnia and Herzegovina, 16 November 1992, un Doc. S/RES/787, regarding Republica Srpska; See also generally T. Christakis, ‘Self-Determination, Territorial Integrity and Fait Accompli in the Case of Crimea’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 75, 2015, pp. 75–100. 218 C. Tomuschat, ‘Secession and Self-Determination’, in Secession – International Law Perspectives, M.G. Kohen ed., 2006, p. 42; J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, pp. 74, 146. 219 J. Castellino, International Law and Self-Determination, 2000, p. 152; J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 141. 220 J. Castellino, International Law and Self-Determination, 2000, pp. 148, 152. 221 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 393; A. Pavković/ P. Radan, Creating New States – Theory and Practice of Secession, 2007, p. 108. 222 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 393. 223 Ibid. 224 J. Castellino, International Law and Self-Determination, 2000, pp. 170ff.

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consequence to the denial of internal self-determination to a people.225 These diverse assessments of one exemplary situation reflect the difficulties in reaching an agreement whether or not secession is permitted under international law. On a normative basis, the diverging opinions rest inter alia in the lack of a clear relationship between two conflicting norms underlying the international legal order: the principle of territorial integrity, closely associated with the principles of sovereignty, non-intervention and the prohibition of the use of force, and the principle of self-determination.226 As both norms are of similar value, it has been suggested to place qualifications on the absoluteness of each to resolve the conflict.227 Hence, in order to reconcile the conflict, neither norm shall be applied in a manner which results in the non-effectiveness of the other.228 Where states fail to abide by their essential commitments under international law, inter alia respecting a people’s right to self-determination, their legitimacy in invoking the sanctity of territorial integrity is called into question.229 In addition, greater weight might be given to the reactions of the international community.230 If one assumes, for example, that secession is neither permitted nor prohibited, its legal status is neutral.231 In such situations, any legal assessment will be influenced by political consideration232 and acts of recognition or acceptance into international institutions will constitute important indications as to the success of the secession.233 This was also argued by the Canadian Supreme Court: 225 J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 148. 226 Ibid., at p. 75; J. Castellino, International Law and Self-Determination, 2000, pp. 163ff. 227 J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 76. 228 D. Murswiek, ‘The Issue of a Right to Secession – Reconsidered’, in Modern Law and SelfDetermination, C. Tomuschat ed., 1993, p. 38; R. Trisotto, ‘Seceding in the Twenty-First Century: A Paradigm for the Ages’, Brooklyn Journal of International Law, vol. 35, no. 2, 2010, p. 430. 229 Extending this so far to even call the very existence of a state into question, C. Tomuschat, ‘Self-Determination in a Post-Colonial World’, in Modern Law and Self-­Determination, C. Tomuschat ed., 1993, p. 9. 230 S.F. van den Driest, Remedial Secession – A Right to External Self-Determination as a ­Remedy to Serious Injustices?, 2013, pp. 313–314. 231 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, p. 390. 232 Cf. B. Roth, ‘The Virtues of Bright Lines: Self-Determination, Secession, and External Intervention’, German Law Journal, vol. 16, no. 3, 2015, p. 393. 233 See on recognition also above in this Chapter, Section  4.2.3.1. On the importance of ­recognition in situations of secessions and coups, see B. Roth, ‘Secessions, Coups and

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The ultimate success of […] a unilateral secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition.234 Of course, this approach further confirms that international law has so far not provided a final answer to whether or not secession is permitted by ­international law. In light of this, Hersch Lauterpacht’s statement from 1947, ‘[i]nternational law does not condemn rebellion or secession aiming at acquisition of statehood’,235 still seems to stand, with scholars asserting that ‘the attainment of sovereignty by a territory is merely a question of fact in the eyes of international law’.236 However, even though the International Court of Justice in the Kosovo advisory proceedings cautiously avoided touching upon those issues which would carry the strongest political implications (i.e. whether Kosovo achieved statehood237 and whether a right to remedial secession existed under international law), a (limited) role for legal elements in determining an act of secession can be made out. 4.3.3 The International Court of Justice and Its Silence In 2010, the International Court of Justice handed down its Advisory Opinion Accordance with International Law of the Unilateral Declaration of ­Independence in Respect of Kosovo238 (Kosovo Advisory Opinion). It was tasked with ­rendering an Advisory Opinion after Kosovo, which had been an autonomous province (but not republic) in the Socialist Federal Republic of Yugoslavia, attempted

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the International Rule of Law: Assessing the Decline of the Effective Control Doctrine’, Melbourne Journal of International Law, vol. 11, 2010, p. 393. Re Reference by the Governor in Council Concerning Certain Questions Relating to the ­Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, p. 595, para. 155. H. Lauterpacht, Recognition in International Law, 2013 (republished 1947 edition), p. 8. T.M. Franck/R. Higgins/A. Pellet/M.N. Shaw/C. Tomuschat, Territorial Integrity of Quebec in the Event of the Attainment of Sovereignty – Report prepared for Québec’s Ministère des relations internationales, 1992, para. 4.01. On this see also J. Crawford, ‘Kosovo and the Criteria for Statehood in International Law’, in The Law and Politics of the Kosovo Advisory Opinion, M. Milanovic/M. Wood eds., 2015, p. 280. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403 (Advisory Opinion, 22 July).

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independence from the Republic of Serbia, resulting in an armed conflict and nato intervention in 1999. The intervention ended with Serbia’s surrender and the issuance of sc Resolution 1244 (1999).239 This resolution established unmik, the United Nations’ interim administration in Kosovo, which was responsible for ‘promoting the establishment, pending a final settlement, of substantial autonomy and self-government of Kosovo’ and for overseeing the final transfer of authority from the provisional governing form to the ‘institutions established under a political settlement’.240 After negotiations on the future status of Kosovo were not successful, however, on 17 February 2008, Kosovo eventually issued a declaration of independence.241 The international community responded with mixed emotions to this ­declaration. Driven by the fear that recognizing Kosovo would lead to an undesired precedent for other secessionist movements, by 8 October 2008, the day the request for the Advisory Opinion was adopted, only 48 states had ­recognized Kosovo.242 In light of the ‘varied reactions’243 of the international community, the General Assembly therefore requested the International Court of Justice to render an advisory opinion on the following question: Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?244 In discussing the question, the icj was keen to initially emphasize that it understood the question asked to be ‘narrow and specific’,245 meaning that it was solely tasked with answering whether or not the declaration of independence was in accordance with international law, and not what the legal c­ onsequences 239 J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 176. 240 unsc Res. 1244 (1999), Kosovo, 10 June 1999, un Doc. S/RES/1244. 241 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, pp. 426ff., paras. 57ff. (Advisory Opinion, 22 July). 242 unga, ‘Backing Request by Serbia, General Assembly Decides to Seek International Court of Justice Ruling on Legality of Kosovo’s Independence’, 8 October 2008, un Doc. GA/10764 (as of April 2016, Kosovo is recognized by 111 states). 243 Preamble, unga Res. 63/3, Request for an Advisory Opinion of the International Court of Justice on Whether the Unilateral Declaration of Independence of Kosovo is in Accordance With International Law, 8 October 2008, 63 un gaor, Supp. 49, p. 12, un Doc. A/RES/63/49. 244 Ibid. [adopted by a vote of 77 in favor, 6 against, and 74 abstentions]. 245 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, pp. 423–424, para. 51 (Advisory Opinion, 22 July).

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of the declaration were. Moreover, the icj explicitly excluded the question of whether Kosovo achieved statehood or what the legal effects of the recognition of Kosovo by other states were for the issue at hand.246 In determining whether or not the declaration of independence was ­permitted under international law, the icj touched upon historical practice, noting that there have been numerous instances of declarations of independence since the 18th century, sometimes successful, sometimes not. However, no rule could be identified prohibiting the making of such a declaration.247 Where the Security Council had condemned particular declarations, this had been due to illegalities, such as ‘the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character’.248 The icj then again stressed that, though it had heard sharply divided arguments on whether or not international law provided for remedial secession, it was not necessary to address those issues.249 Consequently, the icj concluded that under general international law it was not prohibited to issue a ­declaration of independence. Finally, the icj also held that the declaration of independence did not violate Security Council Resolution 1244 (1999) or the Constitutional Framework.250 The Advisory Opinion has been heavily criticized for its failure to address – or its ability to circumvent251 – the underlying issues, in particular the ­relationship of secession and self-determination.252 Not only have members of the icj asserted that the Court chose to understand the question posed in a 246 247 248 249 250

Ibid. Ibid., at p. 436, para. 79. Ibid., at p. 437, para. 81; see also the discussion above note 213ff. Ibid., at p. 438, para. 83. As these issues were specific to the case, they will not be extensively dealt with in this study. See in more detail, inter alia, J. Dugard, ‘The Secession of States and Their Recognition in the Wake of Kosovo’, Recueil des cours, vol. 357, 2011, p. 176; P. Hilpold ed., Das Kosovo-Rechtsgutachten des igh vom 22. Juli 2010, 2012. 251 T. Koivurova, ‘Can Saami Transnational Indigenous Peoples Exercise Their Self-­ Determination in a World of Sovereign States?’, in The Proposed Nordic Saami ­Convention – National and International Diminesions of Indigenous Property Rights, N. Bankes/ T. ­Koivurova eds., 2013, p. 113. 252 T. Burri, ‘The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links’, German Law Journal, vol. 11, no. 8, 2010, p. 881; R. Muharremi, ‘A Note on the icj Advisory Opinion on Kosovo’, German Law Journal, vol. 11, no. 8, 2010, p. 867; M. Bothe, ‘Kosovo – So What? The Holding of the International Court of Justice is not the Last Word on Kosovo’s Independence’, German Law Journal, vol. 11, no. 8, 2010, p. 837.

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particularly narrow way,253 the Court’s approach has also shown, what Bruno Simma called, ‘an old, tired view of international law’254 when f­ollowing the Lotus principle in that ‘restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order’.255 Reverting to this, Judge Simma continued, also prevented the Court from exploring whether or not international law can deliberately remain neutral or silent on an issue, or perhaps not even formed an answer to it yet.256 While Judge Simma chose to not address the issues of remedial secession and self-determination in the scope of his Declaration, Judge Yusuf acknowledged the existence of a right to remedial secession: Under such exceptional circumstances, the right of peoples to self-­ determination may support a claim to separate statehood provided it meets the conditions prescribed by international law, in a specific ­situation, taking into account the historical context.257 In elaboration when such exceptional circumstances exist, he listed certain criteria, including discrimination against a people, persecution due to racial or ethnic characteristics, the denial of autonomous political structures and ­access to government. Moreover, a Security Council Resolution permitting intervention could constitute an additional legitimizing factor.258 Hence, particularly the icj’s approach in keeping with the narrow formulation of the question before it has been criticized.259 This also departs from 253 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, pp. 479–480 (Advisory Opinion, Declaration of Judge Simma, 22 July); Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, p. 619 (Advisory Opinion, Separate Opinion of Judge Yusuf, 22 July); on the scholarly opinion on this see also below note 259. 254 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, p. 478 (Advisory Opinion, Declaration of Judge Simma, 22 July). 255 Ibid., paraphrasing the Lotus judgment, Case of the S.S. Lotus (France v. Turkey) (Merits), 1927 pcij 5, p. 18 (ser. A.) No. 10 (Judgment, 7 September); in agreement T. Burri, ‘The Kosovo Opinion and Secession: The Sounds of Silence and Missing Links’, German Law Journal, vol. 11, no. 8, 2010, p. 884. 256 Ibid., at p. 481. 257 Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, 2010 icj 403, p. 622 (Advisory Opinion, Separate Opinion of Judge Yusuf, 22 July). 258 Ibid., at p. 624. 259 For example, it has been pointed out that the formulation chosen by Serbia in drafting the request for the Advisory Opinion was deliberately narrow to ‘avoid a diplomatic affront

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earlier advisory proceedings where the questions put before the Court were rephrased or reinterpreted, e.g., in the Nuclear Weapons Advisory Opinion, in order to come to an answer.260 Also the political implications of a question have not posed a barrier for the icj to exercise its advisory function.261 Nevertheless, despite the Court’s reluctance to provide guidance on some of these highly contested issues, there are some conclusions which may be drawn from the Advisory Opinion. First, the creation of states is not just factual, but entails some legal elements as well. This can especially be deduced from situations where instances of secession have been condemned by the international community.262 Second, the international community remains divided on whether remedial secession is permitted in international law. As can be evidenced by the pleadings in front of the Court, in particular those states especially affected by the possible exercise of such a right within their own boundaries reject any admission of a right to secession.263 Thus, from a

to states that had already recognized Kosovo’ (B. Roth, ‘The Virtues of Bright Lines: SelfDetermination, Secession, and External Intervention’, German Law Journal, vol. 16, no. 3, 2015, p. 405) or even ‘silly’ (A. Pellet., ‘Kosovo – The Questions Not Asked. Self-Determination, Secession, and Recognition’, in The Law and Politics of the Kosovo Advisory Opinion, M. Milanovic/M. Wood eds., 2015, p. 268). 260 See particularly Kammerhofer’s discussion and listing of examples in J. Kammerhofer, ‘Begging the Question? The Kosovo Opinion and the Reformulation of Advisory Requests’, Netherlands International Law Review, vol. 58, issue 3, 2011, pp. 409ff. 261 See, e.g., Interpretation of the Agreement of 25 March 1951 between the who and Egypt, 1980 icj 73, p. 87, para. 33 (Advisory Opinion, 20 December): Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate. Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 234, para. 13 (Advisory Opinion, 8 July): The Court moreover considers that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion. 262 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403, p. 437, para. 81 (Advisory Opinion, 22 July); cf. T. Christakis, ‘The icj Advisory Opinion on Kosovo: Has International Law Something to Say About Secession?’, Leiden Journal of International Law, vol. 24, no. 1, 2011, p. 82. 263 See also above Chapter 3, note 63 on the statements made by Argentina and Russia in the course of the written proceedings during the Kosovo Advisory Opinion.

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positivist standpoint, there exists neither a treaty rule allowing secession nor a clear customary rule. This conclusion, as Anne Peters rightly points out,264 is however not entirely unproblematic as the rules setting out the fundamental principles governing the international legal order are state-made. That is, the state practice and opinio iuris of precisely those actors whose existence would be threatened by the acceptance of secession as a norm would be required. In such circumstances, the strict attachment to the primary sources of international law therefore is not sufficient. Whereas Peters suggests that the ‘teachings of the most highly qualified publicists’ which widely accept the validity of remedial secession could be an answer to this dilemma,265 elements of justice and legality – as explored above – can serve as additional legitimizing factors. Overall, the Kosovo Advisory Opinion has not provided a clear precedent on whether or not remedial secession is permitted under international law. It has, however, brought renewed focus on this still undetermined question and thereby implicitly led to the further development of international law. Indigenous Peoples as Addressees of the Right to Self-Determination – Can Indigenous Peoples Enjoy the Right to Secede? Though early in time indigenous peoples were recognized as sovereign governing entities, possessing state-like identities,266 treaties with their ­ representatives gave way to acquisition, cession and conquest by imperial states.267 Thus, historically, indigenous peoples were not within the realm of the ­application of the principle of self-determination, also due to the fact that international law was overall deficient in recognizing them as possible rightbearers.268 This approach has severely changed over the last decades through an increased recognition of ‘indigenous internationalism’.269 Most indicative 4.3.4

264 A. Peters, ‘Does Kosovo lie in the Lotus-Land of Freedom?’, Leiden Journal of International Law, vol. 24, no. 1, 2011, p. 104. 265 Ibid., at p. 105. 266 See above Chapter 2, Section 2.5.2.1. 267 J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 263–264. 268 Permanent Forum on Indigenous Issues, ‘A Draft Guide on the Relevant Principles ­Contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour O ­ rganisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, p. 13, un Doc. E/C.19/2009/CRP.7. 269 Described inter alia by N. Loukacheva, ‘“Arctic Indigenous Peoples” Internationalism: In Search of a Legal Justification’, Polar Record, vol. 45, issue 1, 2009, p. 51.

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of this – though certainly not its origin – is the explicit recognition of the right of indigenous peoples to self-determination in Article 3 undrip: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.270 As mentioned, though, the Human Rights Committee has already previously recognized that indigenous peoples qualify as peoples in the sense of common Article 1 iccpr and icescr.271 And similar to what was stated above, while it can be said with a reasonable degree of certainty that indigenous peoples enjoy self-determination, its extent seems difficult to determine.272 The variety of historical experiences, cultural demands and societal compositions of indigenous peoples has resulted in a multitude of diverse claims under the concept of self-determination. They have not only brought forth claims to exercise self-determination in order to practice their traditional way of life, to have the right to achieve sustainable development via indigenous practices, to participate in the benefits derived by the utilization of resources located on their lands, and most importantly to be subjects of the principle of psnr as well as fpic.273 Additionally, indigenous peoples have also maintained that they enjoy the right to have representative political institutions; to have sufficient access to their lands, territories and natural resources in order to preserve and develop cultural practices and traditions; to be free of adverse discrimination; to receive fair and equitable compensation and reparation for violations of their interests and property occurring without their free, prior and informed consent; to have access to the necessary means to ensure their

270 Art. 3, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 271 See above Chapter 2, Section  2.5.2.3; see also Human Rights Council, ‘Promotion and ­Protection of all Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including the Right to Development’, Report of the Special Rapporteur, S.J. Anaya, on the situation of human rights and fundamental freedoms of indigenous people, 11 August 2008, para. 37, un Doc. A/HRC/9/9. 272 H. Quane, ‘The un Declaration on the Rights of Indigenous Peoples: New Directions for Self-Determination and Participatory Rights?’, in Reflections on the un Declaration on the Rights of Indigenous Peoples, S. Allen/A. Xanthaki eds., 2011, p. 260. 273 A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 30.

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equitable ­economic, social and cultural development; and to freely choose their own policies for their development.274 While states and international institutions often acknowledge that indigenous peoples have achieved the status of beneficiaries of self-determination,275 especially their right to constitute full subjects – i.e. to all aspects of the right, including to external self-determination – has been long-disputed. Thus, even where indigenous groups possess a distinct identity, with historically social, cultural and political diverse elements of society, and form the majority of the population of a defined territory, only internal self-determination has been recognized.276 In this context, S. James Anaya identifies five major sets of rights in relation to self-determination which have been accepted as applying to indigenous peoples: freedom from discrimination, respect for cultural integrity, lands and natural resources, social welfare and development, and self-­ government and autonomy concerning internal affairs.277 In light of the fact that states remain keen to preserve their territorial integrity it is thus not surprising that there are attempts to argue that self-­ determination with regard to indigenous peoples is ‘different’, and that the 274 Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, International ­Labour Organisation Convention No. 169 and International Labour ­Organisation ­Convention No. 107 that relate to Indigenous land tenure and management ­arrangements’, 8th Session, 18–29 May 2009, p. 14, un Doc. E/C.19/2009/CRP.7; Committee on the ­Elimination of Racial Discrimination, General Recommendation No. 23, Rights of Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex v, p. 122. 275 J. Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, pp. 67–68; Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, p. 36, un Doc. E/C.19/2009/CRP.7; Human Rights Committee, ‘Canada – Concluding Observations and Comments’, 7 April 1999, un Doc. CCPR/C/79/Add.105, at para. 7. 276 S.J. Anaya lists as examples of indigenous peoples which enjoy the right of internal ­self-determination the Navajo, Miskito and Maori, see S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 100. 277 Ibid., at p. 129; Art. 4, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; L.M. Graham, ‘Self-Determination for Indigenous Peoples After Kosovo: Translating Self-Determination “Into Practice” and “Into Peace”’, ilsa Journal of International & Comparative Law, vol. 6, 2000, p. 463.

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forms of self-determination granted to indigenous peoples are therefore ‘something other than the sovereignty of existing states or the decolonisation of overseas territories’.278 This to a large extent mirrors what has been stated above and reflects the point of view of those states which argue that outside of the colonial context external self-determination in the form of secession is not an option. In order to support this interpretation, states refer to selected formulations of the underlying documents and the drafting history of undrip. Thus, where the Friendly Relations Declaration contains a safeguard clause granting the right to secession in cases of gross injustices, undrip fails to include such. Instead, Article 46 undrip states: Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in any activity or to perform any act contrary to the Charter of the United Nations or 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.279 And even despite the lack of a similar ‘escape option’, statements made in the context of the drafting history of the Declaration never failed to stress that states understood the right to self-determination in relation with indigenous peoples as purely internally.280 278 J.-A. Pemberton, Sovereignty – Interpretations, 2009, p. 125 (though later arguing that indigenous peoples indeed show parallels to decolonized peoples). 279 Art. 46(1), Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 280 See, e.g., Canadian Statement to the United Nations Commission on Human Rights Working Group on the Draft Declaration on the Rights of Indigenous Peoples, 31 October 1996, which ‘accepts a right of self-determination for indigenous peoples which respects the political, constitutional and territorial integrity of democratic states’. Reprinted in: S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 111. Japanese Statement on the Adoption of the un Declaration of the Rights of Peoples: The revised version of article 46 correctly clarified that the right of self-determination did not give indigenous peoples the right to be separate and independent from their countries of residence, and that that right should not be invoked for the purpose of impairing the sovereignty of a State, its national and political unity, or territorial integrity. Mexican Statement on the Adoption of the un Declaration of the Rights of Peoples:

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The differentiation between indigenous peoples and peoples in regard to whether or not they may be entitled to exercise external self-determination is not entirely convincing. Dietrich Murswiek rightly states that ‘[w]ithout a right to secession in the case of unreasonable discrimination, which cannot be evaded by other means, the right of self-determination would be a hollow shell’.281 Self-determination guarantees the right of a people to exist. It protects it from extermination, both its physical existence and its right to maintain specific characteristics.282 Where these specific characteristics, in particular their identity and culture,283 are under threat, the remedial aspect of self-­determination should be available to all those who are entitled to self-determination. This must also apply with regard to indigenous peoples, if only for the repeated emphasis courts have laid on the particular level of protection which is afforded to indigenous peoples in order to ensure their survival.284 Though recognized as an exceptional circumstance, so far not reflected in state practice, a remedial right of secession must therefore in theory also be granted to indigenous peoples, especially where they occupy a geographically distinct territory.285 In particular, a number of parallels to colonial peoples serve as argumentative support and the importance of historical facts and suffered injustices becomes especially evident in case of confirming a remedial right to secession. […] that the rights of indigenous people to self-determination, autonomy and selfgovernment shared be exercised in accordance with Mexico’s Constitution, so as to guarantee its national unity and territorial integrity. Both reprinted in: General Assembly adopts Declaration on Rights of Indigenous Peoples, 13 September 2007, un Doc. GA/10612. 281 D. Murswiek, ‘The Issue of a Right to Secession – Reconsidered’, in Modern Law and S­ elf-Determination, C. Tomuschat ed., 1993, p. 26. 282 Ibid., at pp. 26–27. 283 J. Ramos-Horta, ‘Self-Determination: The Case of East Timor’, in The Question of Self-­ Determination – The Cases of East Timor, Tibet and Western Sahara, Conference Report of the Unrepresented Nations and Peoples Organizations, 25–26 March 1996, p. 40; C.J. Iorns, ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, Western Reserve Journal of International Law, vol. 24, issue 2, 1992, at fns 129–130. 284 Case of the Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), Inter-Am.Ct.H.R. (Judgment, 17 June 2005), paras. 63, 166; Aerial Herbicide Spraying ­(Ecuador v. Colombia), 2009 icj, pp. 327ff. (Memorial of Ecuador, Volume i, 28 April); see in particular also Chapter 6, Section 6.5. 285 See, e.g., T.M. Franck, ‘Postmodern Tribalism and the Right to Secession’, in Peoples and Minorities in International Law, C. Brölmann/R. Lefeber/M. Zieck eds., 1993, pp. 13–14; cf. A. Xanthaki, Indigenous Rights and United Nations Standards – Self-Determination, C ­ ulture and Land, 2007, pp. 141–142.

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Extending self-determination to indigenous peoples therefore has two main argumentative bases: Firstly, their historical similarities to other subjects of the right to self-determination justifies a ‘partial decolonisation of a people’ having equally experienced a continued suppression of sovereignty and having been dispossessed of their lands.286 While as a result of the ‘doctrine of discovery’287 their situation was often long-constitutionalized and claimed to constitute a domestic matter,288 such prior occupational experiences are a main driving factor in understanding why indigenous peoples invoke for themselves the right to self-determination and not minority rights.289 In South America, the offspring of the colonizing powers underwent a decolonization process during the 19th century. In the 20th century, throughout the remaining decolonization process, sovereignty was transferred often via political means rather than according to de facto geographic realities. However, in both re-ordering processes the situation of indigenous peoples was largely overlooked.290 Instead, sovereignty was transferred in disregard to historical and ethnic composition. At that point, the traditionally accepted salt water criterion291 excluded indigenous peoples from being considered as colonized territories despite their 286 J. Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 68; S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 110; Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, pp. 9–10, paras. 21–23, un Doc. E/CN.4/Sub.2/2001/21; J.-A. ­Pemberton, Sovereignty – Interpretations, 2009, p. 125; cf. M. Moore, ‘An Historical Argument for Indigenous Self-Determination’, in Secession and Self-Determination, S. Macedo/A. Buchanan eds., 2003, p. 91. 287 Note, however, that discovery alone did not give title to the land, but created priority ­towards other European states, see J. Crawford, The Creation of States in International Law, 2nd ed., 2006, pp. 271ff. 288 R.J. Miller, ‘The International Law of Colonialism: A Comparative Analysis’, Lewis & Clark Law Review, vol. 15, no. 4, 2011, pp. 851–853; Johnson v. M’Intosh, 21 u.s. 543, 28 February 1823, p. 574: ‘their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it’. 289 See also above Chapter 2, Section 2.5.2.3. 290 J. Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 69; P. Keal, ‘Indigenous Self-Determination and the ­Legitimacy of Sovereign States’, International Politics, vol. 44, 2007, p. 293. 291 See above Chapter 3, Section 3.3.2.

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analogous position owed to historical circumstances. As mentioned, instead the intention prevailed that they should be afforded protection under the system regulating minorities. Nevertheless, the acceptance of a distinct system applying to indigenous peoples compared to minorities, paired with the widespread view ascertaining indigenous peoples as having experienced the same effects as peoples under colonialism,292 has shifted opinion on this matter. As argued above, geographically separate may in such instances be understood as encompassing not only geographically distinct regions, but also incorporating demarcated lands within state borders.293 Secondly, founded in liberal value theory, non-dominant groups within a state are recognized to be entitled to protective guarantees, which on an institutional level might be realized through self-government.294 This in itself still parallels the treatment of minorities in the interwar period. Hence, the remedial aspect of allowing indigenous peoples to enjoy self-determination to the fullest extent constitutes another legitimating reason. Thus, it can be argued that the vulnerable present-day situation indigenous peoples are confronted with, as a consequence of the manner in which the territorial incorporation into a state occurred, might constitute a continuing effect of past injustices.295 In extreme cases, secession can constitute an acceptable method of restructuring these harmful relationships. Additionally, even though above has pointed out that remedial secession is not foreseen as a remedy in international law,296 in such circumstances it might be argued that this comes close to restitution

292 Preambular para. 6, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; C.J. Iorns, ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, Western Reserve Journal of International Law, vol. 24, issue 2, 1992, at fns 478–480; J. Castellino, ‘The “Right” to Land, International Law & Indigenous Peoples’, in International Law and Indigenous Peoples, J. Castellino/N. Walsh eds., 2005, pp. 108–109; M. Kleist, ‘The Status of the Greenlandic Inuit – Are the Greenlandic Inuit a People, and Indigenous People, a Minority or a Nation? A Practical, Philosophical and Conceptual Investigation’, in The Right to National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 104. 293 See above Chapter 3, Section 3.3.2. 294 M. Moore, ‘An Historical Argument for Indigenous Self-Determination’, in Secession and Self-Determination, S. Macedo/A. Buchanan eds., 2003, p. 91 295 See more generally also D. Shelton, ‘Reparations for Indigenous Peoples: The Present ­Value of Past Wrongs’, in Reparations for Indigenous Peoples – International & Comparative Perspectives, F. Lenzerini ed., 2008, p. 63. 296 See above in this Chapter, Section 4.3.2.

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and therefore lends itself more easily to the traditional rules of state responsibility.297 While settlers had justified the dispossession of indigenous peoples by methods of law,298 the requisitions of the land under the title of conquest and acquisition often occurred without just compensation and at will of the conquerors. Additionally, the conclusion of many of the land-ceding treaties occurred under conditions of fraud, misapprehensions or duress, from a current perspective calling for renunciations as void and restitution.299 Finally, even if one dismisses these argumentative grounds of considering self-determination an ‘either-or’ right, and maintains that this would constitute an attempt to ‘[push] the bounds of analogy too far’,300 at minimum in those situations where indigenous peoples have certain characteristics which are common to those of peoples in general, the right to secession must be available to those indigenous peoples.301 As indigenous representatives argued throughout the drafting process of undrip: 297 Art. 31, unga Res. 56/83, Annex, Responsibility of States for Internationally Wrongful Acts (State Responsibility), 12 December 2001, 56 un gaor, Supp. No. 10, p. 43, un Doc. A/56/10. 298 W. Bradford, ‘“With a Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice’, American Indian Law Review, vol. 27, no. 1, 2002/2003, pp. 26–28. 299 J. Castellino, ‘Conceptual Difficulties and the Right to Indigenous Self-Determination’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, pp. 71–72; J. Castellino, ‘The “Right” to Land, International Law & Indigenous Peoples’, in International Law and Indigenous Peoples, J. Castellino/N. Walsh eds., 2005, pp. 111–112; W. Bradford, ‘“With a Very Great Blame on Our Hearts”: Reparations, Reconciliation, and an American Indian Plea for Peace with Justice’, ­American Indian Law Review, vol. 27, no. 1, 2002/2003, p. 29; Commission on Human Rights, ­‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, pp. 11–12, paras. 30–32, un Doc. E/CN.4/Sub.2/2001/21; Mabo and Others v. State of Queensland (No. 2), High Court of Australia, 112 ilr 457, p. 504, para. 42 (Judgment, 3 June 1992). 300 See K. del Mar, ‘The Myth of Remedial Secession’, in Statehood and Self-Determination – Reconciling Tradition and Modernity in International Law, D. French ed., 2013, p. 90, who argues that: [a]nalogy is a form of reasoning that is just as much about recognizing similarities as it is about take care also recognize differences. […] An argument based on analogy of human rights violations suffered by minorities, with the right to ‘external’ selfdetermination of a ‘people’, focuses too intently on apparent similarities and fails to see important differences. 301 C.J. Iorns, ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, Western Reserve Journal of International Law, vol. 24, issue 2, 1992, at fns 54–55, 123, 467;

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It would be discriminatory to proclaim self-determination as a right of all peoples, and at the same time to limits application with respect to indigenous peoples. Self-determination and non-discrimination are ­ peremptory norms of international law from which no derogation is permitted.302 Here, it has been suggested that certain factual realities – distinct community, systematic exploitation or discrimination, territorial contiguity/compactness – should be supplemented by further criteria such as whether secession would present a realistic prospect of conflict resolution and peace.303 Thus, particularly elements such as size, location or level of organization could be used as threshold criteria for the determination whether an indigenous people may invoke remedial secession – necessarily therefore an ad hoc decision on the validity of such claim. In this context, it must however be pointed out that installing such additional criteria to those criteria of statehood accepted in practice304 amounts to little more than concerns of practical feasibility and does not deny indigenous peoples an equal legal entitlement to the right to remedial secession. 4.4

Conclusions – Reflective Requirement of Peoples within the Criteria of Statehood

In conclusion to the above-elaborated criteria of statehood, a number of points can be made on the (sovereign) right of peoples to full independence. The true identity and makeup of the sovereign state, the dominant category creating, applying and shaping international law, remains elusive. Even more uncertainty relates to the creation of statehood. The traditional criteria which make out a state’s appearance and legitimize its existence are largely factual S. Errico, ‘The Draft un Declaration on the Rights of Indigenous Peoples: An Overview’, Human Rights Law Review, vol. 7, no. 4, p. 748. 302 Commission on Human Rights, ‘Indigenous Issues – Report of the Working Group ­Established in Accordance with Commission on Human Rights Resolution 1995/32’, 6 February 2001, un Doc. E/CN.4/2001/85, para. 71. 303 A. Xanthaki, Indigenous Rights and United Nations Standards – Self-Determination, Culture and Land, 2007, p. 142, drawing, inter alia, from A. Heraclides, ‘Secession, Self-­ Determination and Nonintervention: In Quest of a Normative Symbiosis’, Journal of I­ nternational Affairs, vol. 45, no. 2, 1992, pp. 400–411. 304 See above Sections 4.2.2 and 4.2.3.

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and based on the criteria of effectiveness. Yet, despite the seeming prevalence of extralegal elements, the conclusion that the creation of states is purely dependent on historical, political or geographical circumstances is not satisfying. As international law attaches consequences – i.e. rights and obligations – to these facts, it is suggested to look further to identify which additional criteria have been employed in determining when a state exists in international law. In this vein, the tendency to propose further criteria in determining the legitimacy of statehood points to the need to combine the described factual criteria with two types of assessments, i.e. legal elements or elements which can be deduced from the understanding of international law as reflective of certain core values. In an attempt to combine these two assessments into one, the most significant addition to the traditional criteria has been the gradual infiltration of an element of justice and morality, i.e. the requirement of legality. Often expressed by the instruments of recognition or non-recognition, peremptory norms which are directed at the international community as a whole, thus at the emerging claiming entities as well, override the traditional emphasis which was put on effectiveness and instead exemplify the values of the international community. Only in such situations where there are obvious defaults in the fulfillment of the traditional criteria, such as lacking effective authority in the territory concerned, do independence and the therewith connected characteristics remain a decisive element in this process. However, other criteria which have been suggested by scholars have not found general acceptance in international law. They are partly incorporated within other broader elements – i.e. permanence within the notion of the traditional criteria; the willingness and ability to observe international law as contained within the requirement of possessing a governing authority – and partly they merely remain indications of statehood, though not essential for its constitution and existence. On the basis of the foregoing conclusions, the role of peoples verges between extralegal and legal criteria. On the one hand, peoples – in brief defined as a community with a distinct character and clear identity, whether due to their historical ties or to their de facto proximity – will generally not have many troubles fulfilling factual conditions of statehood. If one would assume they would be independently assessed, both the requirement of possessing a permanent population and a defined territory usually would not pose an issue, assuming they are somewhat ‘compactly’ located. If already equipped with certain self-governing autonomous arrangements (often a predecessor to full independence), also the requirement of a minimal governing power could not be denied.

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Yet, claims of peoples to external self-determination are met with considerable resistance. Hence, statehood is more than fulfilling factual preconditions, but also presupposes the adherence to structures and principles of the international community, inter alia the principle of territorial integrity of states. Thus, whether or not a people may exercise external self-determination must be assessed in light of the conflicting norms self-determination and territorial integrity. As both principles are of fundamental importance, it is necessary to achieve a balanced outcome where neither norm shall be applied in a manner which would result in the non-effectiveness of the other. Departing therefore from the assumption that the right to secession (as an exercise of external self-determination) is neither permitted nor prohibited under international law, further factors must be assessed in order to resolve the legal muteness. As stressed above, reactions by the international community remain decisive in order to determine which principle shall enjoy preference. However, despite its role in the process of consolidation of events, the difficulties in relying on values of the international community become particulary evident in the case of indigenous peoples as subjects of the right to self-determination. Hence, while international law has developed so far to grant them the right to self-determination, it is unclear as to content and scope. Thus, whether by analogous application of the aforementioned to the specific context of indi­ genous peoples, or by case-by-case assessment of whether a particular indigenous people constitutes a people in the traditional sense, the analysis shows that the current state of the law in this regard remains unclear and that general conclusions on the issue are not possible. Difficulties arise in particular through the use of legal and political concepts which were developed within a state-centred system. As will be seen, the approximation of indigenous peoples to the category of peoples shows the greatest potential in realizing their strive towards sovereignty. What role the political demand of ‘justice’, i.e. the remedification of historical injustices, can play in this context is highly debatable though. While granting inhabitants access to justice at the international level is one consequence of independence,305 at present remedial secession at most is accepted as an exceptional measure for contemporary grave injustices. Moreover, despite their similarities to colonial and non-self-governing territories, the regime that governs indigenous peoples is not institutionalized to the same degree, fraught with operational difficulties and matched by normative uncertainties. 305 Cf. Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, 2010 icj 403, p. 558 (Advisory Opinion, Separate Opinion of Judge ­Cançado Trindade, 22 July).

chapter 5

The De Facto Independence of Peoples As majestic bells of bolts struck shadows in the sounds. Seeming to be the chimes of freedom flashing. bob dylan1

∵ Though the exercise of self-determination can ultimately result in the creation of a new state, this occurs only in most limited circumstances. Suffice it to ­mention the inverted formulation contained in the Friendly Relations ­Declaration or the findings of the Canadian Supreme Court in the Quebec case, the right to self-determination is normally fulfilled through internal self-­ determination, i.e. within the structures of a recognized state.2 In the context of assessing elements of sovereignty, especially the political dimension of internal self-determination is therefore pertinent. The two categories contained within the political dimension – freedom of ­authentic self-government and participatory rights – are of particular relevance. Where such freedoms of peoples are institutionalized or constitutionally recognized this often takes the form of autonomy. While it is not ­submitted that only institutionalized recognition of internal self-­determination suffices to guarantee its exercise, an analysis of such models helps identifying benchmark criteria of the extent of independence required to speak of elements of sovereignty. 1 Bob Dylan, ‘Chimes of Freedom’, Columbia Studios, 1964. 2 unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536, pp. 584–587, paras. 126–136; P.  Thornberry, ‘The Democratic or Internal Aspect of Self-Determination With Some Remarks on Federalism’, in Modern Law of Self-Determination, C. Tomuschat ed., 1993, p. 134.

© koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_006

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Autonomy models have become increasingly popular as a response to ethnic conflicts, as an attempt to mitigate secessionist attempts or sometimes even as an instrument to gradually lead a certain territory into independence. At the same time, precisely these motives have sometimes caused autonomy to lead to the opposite effect and have fuelled tensions or increased secessionist movements. This has also partly resulted in analyses focusing on the singularity of studied examples and emphasizing historical and factual circumstances of the region instead of general studies on the extent of autonomy. On the basis of above-elaborated normative difficulties in reconciling the right to (external) self-determination with the territorial integrity and stability of statehood, autonomy as an institutionalized recognition of a power-­sharing compromise is best achieved in those states with functioning institutions, ­governed by the rule of law and expected to respect such agreements, without resorting to violence and discrimination.3 Where this cannot be ensured, discussions will inevitably return to the right of remedial secession. Hence, particularly the aspect of determining the extent of the freedom of authentic self-government deserves further attention in this section. Primary focus will be laid on the theoretical framework of autonomy models associated with peoples, and constituting a result of their right to self-determination. Though self-determination and autonomy relate on many levels, it is argued that the latter primarily relates to an institutionalized instrument (partly) in fulfillment of the former. Furthermore, the right of indigenous peoples to autonomy will be highlighted. Even though the general approach under international law is reluctant to recognize a right to autonomy, with regard to indigenous peoples special regard of their right to self-determination with consideration of their special historical context is taken. Only short reference will be made to the autonomy enjoyed by minorities, mainly as an illustrative example of the conflicting ­application of terms (self-determination, minorities, peoples,…). Finally, Greenland as a transcending category – its autonomy as an exercise of self-determination, as a road to independence, as autonomy of a people, and as additionally rooted in its indigenous population – will be analyzed. The primary objectives thereby are to highlight certain features of an autonomy arrangement which can serve as an example in an attempt of specifying the extent of de facto independence as well as to analyze the relationship between

3 Also compare the comments gathered by Marc Finaud at an international research seminar conducted by the Geneva Centre for Security Policy, compiled in M. Finaud, ‘Can Autonomy Fulfil the Right to Self-Determination?’, Geneva Papers No. 12, 6 October 2009.

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indigenous rights and safeguards and a public government composed of ­indigenous representatives. 5.1

Autonomy and Self-Government – Identifying Benchmark Criteria

Autonomy, stemming from the Greek term autonomía (self-ruling), and selfgovernment are often treated as synonyms. Though in certain ­circumstances autonomy can have a wider or narrower meaning,4 with regard to self-­ determination this term will be used in reference to the enjoyment of a degree of self-government.5 It shall therefore address those situations where a certain area is located within the territorial jurisdiction of a state but with regard to its own affairs possesses the freedom to regulate and govern these ­independently.6 The degree of autonomy granted can vary significantly, but certain core minimums can be made out: Autonomy and self-government are determined primarily by the degree of actual as well as formal independence enjoyed by the autonomous ­entity in its political decision-making process. Generally, autonomy is understood to refer to independence of action on the internal or domestic level. As foreign affairs and defence normally are in the hands of the central or national government, but occasionally power to conclude international agreements concerning cultural or economic matters also may reside with the autonomous entity.7 Hence, independence of action – scope and limitations most often further ­determined by a constitutive instrument – is central to the analysis of autonomous arrangements. In the assessment of autonomy, one can broadly distinguish between full autonomy, thus covering self-government, legislative powers, and most 4 See, e.g., the brief overview given in Y. Dinstein, ‘Autonomy’, in Models of Autonomy, Y. ­Dinstein ed., 1981, p. 291, referring to autonomy inter alia in the context of constituent entities, certain bodies equipped with autonomous powers, or also a woman’s right to abortion as autonomy over her body. 5 L. Hannikainen, ‘Self-Determination and Autonomy in International Law’, in Autonomy: ­Applications and Implications, M. Suksi ed., 1998, p. 79. 6 L.B. Sohn, ‘Models of Autonomy Within the United Nations Framework’, in Models of A ­ utonomy, Y. Dinstein ed., 1981, p. 5. 7 H. Hannum/R.B. Lillich, ‘The Concept of Autonomy in International Law’, in Models of A ­ utonomy, Y. Dinstein ed., 1981, p. 218.

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often understood in territorial terms,8 and a more limited extent of autonomy, merely focusing on autonomy within a particular set of rights, with further distinctions among the various types, thus ranging from personal, to cultural or administrative autonomy.9 The latter generally is non-territorial and relates to a particular demographic group. In comparison, the former addresses the entire population living in a certain territory, and though everyone within the distinct region – regardless of their demographic affiliation – will be encompassed, the system of self-administration must be owed to a certain demographic distinctiveness. In the following, this Chapter will especially scrutinize full autonomy.10 5.1.1 Core Elements As far as a description of full autonomy or self-government is sought, there have been numerous studies and papers concerned with the identification of benchmark criteria.11 For example, in relation to the assessment whether or not a territory still constituted a territory whose people had not yet attained a full measure of self-government, a study by the Special Committee on Information transmitted under Article 73e of the un Charter12 compiled certain factors which were indicative inter alia of the attainment of internal self-government: 8

The most prominent examples would be the Faroe Islands, Greenland, Catalonia, and the Basque Country. 9 H. Hannum/R.B. Lillich, ‘The Concept of Autonomy in International Law’, in Models of Autonomy, Y. Dinstein ed., 1981, p. 218; M. Tkacik, ‘Characteristics of Forms of Autonomy’, International Journal on Minority and Group Rights, vol. 15, 2008, pp. 370ff.; Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, ‘Towards A General Comment on Self-Determination and Autonomy’, Working paper by Marc Weller, 25 May 2005, un Doc. E/CN.4/Sub.2/AC.5/2005/WP.5, pp. 4–5. 10 Where the latter addresses specific economic interests, e.g., in relation to natural resources, which in itself enable a certain independence, this will be more closely analyzed in Chapter 6, as a type of spatial independence. 11 See, inter alia, R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, 1997; M. Weller/S. Wolff eds., Autonomy, Self-Governance and Conflict Resolution – Innovative Approaches to Institutional Design in Divided Societies, 2005; M. Suksi, Sub-State Governance Through Territorial Autonomy – A Comparative Study in Constitutional Law of ­Powers, Procedures and Institutions, 2011; Y. Dinstein ed., Models of Autonomy, 1981; H. ­Hannum, Autonomy, Sovereignty, and Self-Determination – The Accommodation of Conflicting Rights, 1990 (rev. ed.). 12 The Special Committee was created and installed by unga Res. 146 (ii), Creation of a Special Committee on Information Transmitted Under Article 73 e of the Charter, 3 ­November 1947, 2 un gaor, p. 57, un Doc. A/519. It was composed of ‘Members of the United Nations transmitting information and an equal number of Members elected by

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1. Territorial government: Freedom from control or interference by the government of another State in respect of the internal government (­legislature, executive, judiciary) and administration of the territory. 2. Participation of the population: Effective participation of the population in the government of the territory by means of an adequate ­electoral and representative system. 3. Economic and social jurisdiction: Complete autonomy in respect of ­economic and social affairs.13 These three elements find themselves in other studies as well and were subsequently specified.14 As one of many examples, according to the thorough analysis conducted by Hurst Hannum and Richard Lillich, the degree of autonomy can be determined based on the division of authority within the general governmental structure and on the specific issues and powers transferred. Aspects looked into address inter alia whether, how and with which powers the executive authority is made up and its relationship and power towards the central authority, the powers of the local legislative authority, and the existence of a free and independent (though not necessarily entirely ­separate) judicial authority.15 Furthermore, the position that an autonomous entity holds in relation to other entities (aside from its state) is also essential in determining the degree of autonomy enjoyed. In this regard, particularly the issues of defense, foreign relations and the capacity to enter into international agreements are comparatively assessed by the authors of the study. Also other powers are analyzed, in particular the extent and regulations of issues of land ownership, natural resources, social and financial services.16 These aspects led to the listing of five concluding principles which are found to be applicable to an area enjoying full autonomy. In the determination the Fourth Committee on behalf of the General Assembly on as wide a geographical basis as possible’. 13 Annex, unga Res. 567 (vi), Future Procedure for the Continuation of the Study of Factors Which Should be Taken Into Account in Deciding Whether a Territory is or is not a Territory Whose People Have not yet Attained a Full Measure of Self-Government, 18 January 1952, 6 un gaor, Supp. No. 20, p. 61, un Doc. A/2119. 14 On the development within the United Nations, see also the overview provided in L.B. Sohn, ‘The Concept of Autonomy in International Law and the Practice of the United Nations’, Israel Law Review, vol. 15, no. 2, 1980, pp. 180ff. 15 H. Hannum/R.B. Lillich, ‘The Concept of Autonomy in International Law’, in Models of Autonomy, Y. Dinstein ed., 1981, pp. 219–232. 16 Ibid., at pp. 232–248.

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of whether or not an entity is fully autonomous and self-governing, they constitute minimum thresholds. In summary, they are: 1.

2. 3. 4.

5.

Some sort of locally-elected body with independent legislative powers should exist (whose decisions are not subject to veto by the central government). Matters falling within their legislative powers – though not understood as an absolute listing – generally concern local governance issues such as environmental protection, education, or social services. The concerned territory should have a locally chosen executive authority which is responsible for the administration and execution of matters ­falling within local decision-making (laws and decrees). An independent local judicial authority shall be installed, which has ­jurisdiction over local matters. Limitations of autonomy in certain areas of special concern to the state do not constitute impediments to the status of full autonomy. Such areas can inter alia encompass matters of foreign affairs, customs, immigration, certain inner-state energy resources etc. Full autonomy may also consist of certain power-sharing arrangements between the autonomous territory and the central government in sensitive areas, in particular related to police powers and the exploitation of natural resources.17

The assignment of certain powers from the central government to the autonomous regions is therefore core in assessing the extent of full autonomy. The ­extent of powers transferred – both in quantitative and qualitative terms – ­varies significantly from case to case.18 In total, however, in order to speak of a fully autonomous region, the transferred powers should provide the concerned region with enough freedom to independently regulate their ‘internal’ affairs.19 17 18

19

Ibid., at pp. 250–251. See also the distinction Michael Tkacik makes in regard to four tiers of issues which make out the depth of legislative autonomy. He in particular argues that where essential elements of tier one issues (which cover issues such as the local legislature, executive powers, and judiciary, participation in local affairs, language issues as well as local consultation on local participation in the central legislation, entrenchment and dispute settlement) are not present in the specific model, this would prevent this model of autonomy from being considered full autonomy. See M. Tkacik, ‘Characteristics of Forms of Autonomy’, International Journal on Minority and Group Rights, vol. 15, 2008, pp. 383ff. S. Wolff/M. Weller, ‘Self-Determination and Autonomy – A Conceptual Introduction’, in Autonomy, Self-Governance and Conflict Resolution – Innovative Approaches to Institutional Design in Divided Societies, M. Weller/S. Wolff eds., 2005, p. 11.

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‘Residual competences’, which are not listed as transferred, generally remain competences of the central government.20 Furthermore, the transfer of powers needs to be established in the domestic legal system. It is debated whether or not this must involve certain constitutional recognition, however generally submitted that it must be recognized in such a manner that the status can only be changed with the consent of the affected region.21 At the same time, autonomy is less than full sovereignty. Due to the encroaching nature of autonomous rights on the sovereignty of a state, international adjudication has interpreted such transfers of powers strictly. Exemplary for this is the early – but still largely valid22 – judgment by the Permanent Court of International Justice in Interpretation of the Statute of the Memel Territory.23 The Court emphasized in the context of its analysis of transferred powers from the Four Powers to Lithuania that: [w]hilst Lithuania was to enjoy full sovereignty over the ceded territory, subject to the limitations imposed on its exercise, the autonomy of Memel was only to operate within the limits so fixed and expressly specified. It follows that the sovereign powers of the one and the autonomous powers of the other are of quite a different order in that the exercise of the latter powers necessitates the existence of a legal rule which cannot be inferred from the silence of the instrument from which the autonomy is derived, or from an interpretation designed to extend the autonomy by encroaching upon the operation of the sovereign power.24 Finally, the categories of autonomy and federalism – while both constituting forms of sub-state governance related to a certain territory –, broadly speaking, differ by specificity. Hence, in comparison to federal states where authority is delegated from the central government equally to provinces, these powers are delegated to the autonomous region on an exceptional (non-homogenous)

20

21 22 23 24

Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, ‘Towards A General Comment on Self-Determination and Autonomy’, Working paper by Marc Weller, 25 May 2005, un Doc. E/CN.4/Sub.2/AC.5/2005/WP.5, p. 6. Ibid., at p. 5; The study calls this ‘formal constitutional entrenchment’. M. Suksi, Sub-State Governance Through Territorial Autonomy – A Comparative Study in Constitutional Law of Powers, Procedures and Institutions, 2011, pp. 7, 78. Interpretation of the Statute of the Memel Territory (United Kingdom, France, Italy, Japan v. Lithuania), 1932 pcij 294 (ser. A/B) No. 49 (Judgment, 11 August). Ibid., at p. 313.

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basis, thus distinguishing the area from the rest of the state on the basis of its treatment.25 A Right to Autonomy? International and Domestic Perspectives and Claims To date, international law does not directly provide for a ‘right to autonomy’,26 neither on a customary law basis nor as a general principle of law.27 The ­shaping of autonomy is generally regulated at the national level, most often in constitutional instruments.28 Though there are some scholars that argue that a right to autonomy exists – especially in light of such constitutional practice –, the discrepancy and variations of existing autonomy models do not lend themselves to the establishment of ‘extensive and virtually uniform’ state ­practice, and 5.1.2

25

Y. Dinstein, ‘Autonomy Regimes and International Law’, Villanova Law Review, vol. 56, 2011, pp. 437–438; It is possible that a federal state has autonomous entities which remain ‘­outside’ of the normal federal system and enjoy special treatment as is the case, e.g., with Nunavut in Canada, or Puerto Rico in the United States of America. See generally on this M. Suksi, Sub-State Governance Through Territorial Autonomy – A Comparative Study in Constitutional Law of Powers, Procedures and Institutions, 2011; see also Benedikter’s analysis, where he calls for a clear distinction when he elaborates that: [r]egional autonomy is a specific territorial political organization having its own constituent features. It should not be confused with a subcategory of federalism. It is based on a specific formula of the political and legal relationship between a central state and a regional community within its traditional territory. Regional autonomy is a political and constitutional organization sui generis that deserves distinct attention and analysis in theory and practice. T. Benedikter, The World’s Working Regional Autonomies: An Introduction and Comparative Analysis, 2007, p. 2. 26 See, inter alia, C. Binder, ‘Autonomy as Means to Accommodate Cultural Diversity? The Case of Indigenous Peoples’, Vienna Journal on Constitutional Law, vol. 6, 2012, p. 250; Z.A. Skurbaty, ‘Introduction’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, p. xxxvii; H.-J. Heintze, ‘Territorial Autonomy and International Stability: Pros and Cons from the Viewpoint of International Law’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, p. 48; Y. Dinstein, ‘Autonomy Regimes and International Law’, Villanova Law Review, vol. 56, 2011, p. 438; P. Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’, in Modern Law of Self-Determination, C. Tomuschat ed., 1993, p. 134. 27 According to one study, since 1945 there have been some 70 different autonomy ­agreements, with no single model, M. Finaud, ‘Can Autonomy Fulfil the Right to SelfDetermination?’, Geneva Papers No. 12, 6 October 2009, p. 20. 28 Y. Dinstein, ‘Autonomy Regimes and International Law’, Villanova Law Review, vol. 56, 2011, p. 438.

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moreover, do not clearly evidence ‘recognition that a rule of law or legal obligation is involved’.29 As a consequence, if a constitutionally provided autonomy is not respected by the state, the affected group can only invoke national – and generally not international – remedies.30 The non-recognition of the right to autonomy as a necessary fulfillment of the right to (internal) self-determination is closely related to the viewpoint of (Western) states that where there exists a truly representative government, this alone suffices as a guarantee of self-determination.31 On the other hand, however, this overlooks that autonomy is intended to function within the framework of such representative governments. The European Court of Human Rights stated in this vein: It is of the essence of democracy to allow diverse political projects to be proposed and debated, even those that call into question the way a State is currently organized, provided that they do not harm democracy itself […].32 Yet, despite the silence of international law on the explicit right to autonomy, entitlements of groups (which are then implemented) often root in 29

30 31

32

North Sea Continental Shelf (Merits) (Federal Republic of Germany v. Denmark; ­Federal Republic of Germany v. Netherlands), 1969 icj 4, p. 43, para. 74 (Judgment, 20 ­February); See also the discussion in Commission on Human Rights, Sub-Commission on the ­Promotion and Protection of Human Rights, ‘Towards A General Comment on Self-­ Determination and Autonomy’, Working paper by Marc Weller, 25 May 2005, un Doc. E/CN.4/Sub.2/AC.5/2005/WP.5, p. 13; A. Légaré/M. Suksi, ‘Rethinking the Forms of Autonomy at the Dawn of the 21st Century’, International Journal on Minority and Group Rights, vol. 15, 2008, p. 149. Y. Dinstein, ‘Autonomy Regimes and International Law’, Villanova Law Review, vol. 56, 2011, pp. 438–439. M. Pomerance, Self-Determination in Law and Practice – The New Doctrine in the United Nations, The Hague et al. 1982, p. 38; see also the draft proposal by the United Kingdom to the Special Committee on Friendly Relations: States enjoying full sovereignty and independence, and possessed of a representative government, effectively functioning as such to all distinct peoples within their territory, shall be considered to be conducting themselves in conformity with this principle as regards those peoples. [regarding the issue of ‘equal rights and self-determination’ in the Friendly Relations Declaration] unga Official Records, Annexes iii Agenda Item 87, un Doc. A/6799 (1967), para. 176. Case of Freedom and Democracy Party (özdep) v. Turkey (Merits and Just Satisfaction), European Court of Human Rights, Application No. 23885/94, 8 December 1999 (Judgment), para. 41.

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­international rights and obligations, whether in human rights instruments,33 bilateral34 or multilateral treaties35 or decisions and recommendations of international organizations.36 This is especially of relevance if a state wishes to alter or restrict an autonomous arrangement. In comparison, where autonomy has been granted by a state solely on the basis of its domestic ‘good will’, constitutional law could serve as the basis for such legal alteration of the domestic status. However, unlike with regard to those autonomy models which were installed based on international treaty obligations, there is no international obligation prohibiting the change of status.37 This can result in certain difficulties, especially in two instances. Firstly, in those situations where autonomous entities were authorized to enter into international relations with others.38 While domestic provisions in this regard sometimes explicitly contain authorizations to conclude such agreements, 33

For example, while there is no international obligation of states to directly install autonomous regimes, it often functions as an effective tool for the protection of minority rights, as inter alia laid out in Art. 27, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171. However, as Christina Binder emphasizes, the individualistic wording of Art. 27 (‘persons belonging to such minorities’) prevents this provision from serving as the basis for a collective right to autonomy, see C. Binder, ‘Autonomy as Means to Accommodate Cultural Diversity? The Case of Indigenous Peoples’, Vienna Journal on Constitutional Law, vol. 6, 2012, p. 251. 34 See, inter alia, Resolution of the Council of the League of Nations approving an Agreement between Sweden and Finland, Preserving the Language, Culture and Local Swedish Traditions of the Population of the Aaland Islands, League of Nations Doc. cl 110 1927 i Annex, p. 16; Annex iv of the Treaty of Peace with Italy, Provisions agreed upon by the Austrian and Italian Governments (Gruber-de-Gasperi Agreement), 5 September 1946, 49 unts 184; Treaty of St. German with Czecho-Slovakia, 10 September 1919, 22 ukts 531. 35 Paris Convention Concerning the Territory of Memel, 8 May 1924, 29 lnts 85. 36 For example, the Security Council installed the un administration in Kosovo to promote autonomy in 1999, unsc Res. 1244 (1999), Kosovo, 10 June 1999, un Doc. S/RES/1244; it has also endorsed a number of autonomy agreements, e.g., unsc Res. 1371 (2001), The former Yugoslav Republic of Macedonia, 26 September 2001, un Doc. S/RES/1371; unsc Res. 1590 (2005), Sudan, 24 March 2005, un Doc. S/RES/1590; unsc Res. 1393 (2002), Georgia, 31 January 2002, un Doc. S/RES/1393; unsc Res. 1427 (2002), Georgia, 29 July 2002, un Doc. S/RES/1427; unsc Res 1524 (2004), Georgia, 30 January 2004, un Doc. S/RES/1524. 37 Y. Dinstein, ‘Autonomy Regimes and International Law’, Villanova Law Review, vol. 56, 2011, pp. 439–440. 38 For example, the autonomous territories Greenland, Faroe Islands, the Aaland Islands, Hong Kong, Scotland, or Catalonia. For a more detailed discussion see also M. Suksi, SubState Governance Through Territorial Autonomy – A Comparative Study in Constitutional Law of Powers, Procedures and Institutions, 2011, pp. 575ff.

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e.g., ‘on behalf of the Realm’,39 the state is ultimately responsible for these ­international obligations, even without prior authorization.40 Thus, even if ­autonomy is revoked, the international agreement will remain applicable, binding on the state and subject to the strict treaty termination rules of the Vienna ­Convention on the Law of Treaties. Secondly, difficulties may arise where the granting of autonomy – though not internationally obliged – constituted elements of the practical fulfillment of rights of minorities or peoples. Autonomy is often a direct result of the exercise of internal self-determination.41 Hence, a people which is entitled to the right of self-determination should have the full control over their governing bodies and enjoy autonomy versus other entities in the state.42 In practice, this is realized by the fact that arguments based on certain particularities (e.g. ­remote regions, historical specificities, or cultural distinctiveness) at one point led to the incorporation of an autonomous status guaranteeing diverse treatment and therefore a certain level of protection. 39 40 41

42

Chapter 4, Art. 12, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). M. Suksi, Sub-State Governance Through Territorial Autonomy – A Comparative Study in Constitutional Law of Powers, Procedures and Institutions, 2011, pp. 575–576, 618. H.-J. Heintze, ‘Territorial Autonomy and International Stability: Pros and Cons from the Viewpoint of International Law’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, pp. 47, 56; see also, e.g., Austria’s Foreign Minister’s statement on the right to self-determination for the population of South Tyrol: ‚Die innere Selbstbestimmung ist derzeit durch die dem Selbstbestimmungsprinzip verpflichtete Autonomie, für deren Festigung und Weiterentwicklung sich die Südtiroler Landesregierung einsetzt, verwirklicht. Die Schutzfunktion ergibt sich aus dem Pariser Vertrag und der völkerrechtlich relevanten späteren Vertragspraxis und bezieht sich daher im von dort ableitbaren Umfang auch auf die Autonome Region Trentino-Südtirol und die Provinz Trient‘. Parliamentary Materials, 9271/J (xxiv. gp), 9143/AB (xxiv. gp). M. Seymour, ‘Internal Self-Determination and Secession’, in The Ashgate Research Companion to Secession, A. Pavkovic/P. Radan eds., 2011, p. 386; Only few authorities perceive autonomy as not sufficient for the ordinary exercise of self-determination, often severely influenced by factual circumstances. In particular see the Separate Declaration by Judge Zafrulla Khan in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 59 (Advisory Opinion, Separate Opinion of Judge Zafrulla Khan, 21 June), at p. 63, where he rejected the argument by the South African delegation that self-­determination ‘may well find itself practically restricted to some kind of autonomy and local self-­ government within a larger arrangement of co-operation’. Instead, Judge Khan emphasized that ‘[t]his in effect means a denial of self-­ determination as envisaged in the Charter of the United Nations’.

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Additionally, as emphasized by the majority of scholars, even though the exercise of self-determination can be affected by a single structural change, internal self-determination is a continuous right.43 While the concerned group did not have the right to an autonomous status in the first place, the revocation of such status could cause their rights to be protected to a lesser extent and will often lead to a conflict-rich situation.44 5.2

Subjects Entitled to Autonomy

Despite autonomy being strongly influenced by national regulations, ad hoc scenarios as well as a mélange of political motivations, the intertwined ­relationship between internal self-determination and autonomy raises the question of entitled subjects as well as the minimum content of such autonomous arrangements. Autonomy as a Means to Protect the Rights of Minorities – Blurred Lines Especially after the end of World War i, minority protection was installed in a number of agreements, guaranteeing minorities autonomous spheres of governance. At that time, the distinction between minorities and peoples, in particular as addressees of self-determination, was particularly blurred.45 In accordance with President Wilson’s restructuring efforts after World War i,46 national and ethnic groups were at the core of international protection, their rights becoming institutionalized by the incorporation into international

5.2.1

43

44 45

46

D. Raič, Statehood and the Law of Self-Determination, 2002, p. 228; P. Hilpold, ‘The Right to Self-Determination: Approaching an Elusive Concept Through a Historic Iconography’, Austrian Review of International and European Law, vol. 11, 2006, p. 29; M. Saul, ‘The Normative Status of Self-Determination in International Law: A Formula for Uncertainty in the Scope and Content of the Right?’, Human Rights Law Review, vol. 11, no. 4, 2011, p. 629. There still, however, is some debate on whether the same may be stated with regard to external self-determination, see also M. Weller, Escaping the Self-Determination Trap, 2008, pp. 39ff. The situation of Kosovo can be listed as an example, where Serbia unilaterally withdrew its autonomy in 1989. H.-J. Heintze, ‘Territorial Autonomy and International Stability: Pros and Cons from the Viewpoint of International Law’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, p. 49. See also above Chapter 3, Section 3.1; A. Eide, ‘In Search of Constructive Alternatives to Secession’, in Modern Law and Self-Determination, C. Tomuschat ed., 1993, p. 150.

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t­ reaties or declarations made throughout the admission process to the League of Nations.47 Particularly evident is the attempt of providing an inclusive formulation for the term ‘community’ used in the Greco-Bulgarian Convention by the ­Permanent Court of International Justice. Accordingly, it stated in its Advisory Opinion that the ‘community’ is a group of persons living in a given country or locality, having a race, religion, language and traditions of their own and u ­ nited by this identity of race, religion, language and traditions in a sentiment of solidarity, with a view to preserving their traditions, maintaining their form of worship, ensuring the instruction and upbringing of their ­children in accordance with the spirit and traditions of their race and rendering mutual assistance to each other.48 The definition therefore stands witness to the ethno-nationalist emphasis of  the international community in post-World War i Europe. Following World War ii, the primary focus was shifted towards individual human rights ­protection, based on the equality of human beings, regardless of their ethnic affiliation.49 However, in realization that minorities within a state were in need for further protection, the rights of the members of minorities (not as collectives) were installed at the international level as well.50 The most relevant provision in this regard is Article 27 iccpr, which has been extensively relied upon to ensure the cultural (understood widely), religious and linguistic rights of minorities.51 Since then, the rights of minorities have also been particularly emphasized within the Organization for Security 47 48 49

50 51

K. Doehring, ‘Self-Determination’, in The Charter of the United Nations, A Commentary, B. Simma ed., 2002, p. 55. The Greco-Bulgarian ‘Communities’, 1930 pcij 4, p. 21 (ser. B) No. 17 (Advisory Opinion, 31 July). R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, 1997, pp. 11–12; A. Eide, ‘In Search of Constructive Alternatives to Secession’, in Modern Law and Self-Determination, C. Tomuschat ed., 1993, p. 152. R. Lapidoth, Autonomy: Flexible Solutions to Ethnic Conflicts, 1997, pp. 11–12. Art. 27, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

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and Cooperation in Europe (osce) framework [still the Conference on Security and Cooperation in Europe (csce) until 1995], especially following the end of the Cold War. Thus, in 1990, the csce adopted the (non-binding) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce,52 recognizing among a number of provisions on the protection of the rights of minorities that the establishment of ‘appropriate local or autonomous administrations’53 could contribute to the protection and promotion of these rights. Though this does not relate autonomy directly to self-government, Geoff ­Gilbert points to a recommendation by the Parliamentary Assembly of the Council of Europe which draws attention to the necessity to respect a ‘special status matching the specific historical and territorial situation’54 of the national minority. Thus, depending on the historical and territorial circumstances of the concerned group, self-government would be considered an a­ ppropriate expression of the group’s internal self-determination.55 The csce later also laid emphasis on the international dimension of the protection of minorities, stating that [i]ssues concerning national minorities, as well as compliance with i­nternational obligations and commitments concerning the rights of persons belong to them, are matters of legitimate international concern and consequently do not constitute exclusively an internal affair of the respective state.56 52

Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce, 29 ilm 1305 (1990). 53 Art. 35(2), ibid. 54 Parliamentary Assembly of the Council of Europe, Recommendation 1201 (1993) on an Additional Protocol on the Rights of Minorities to the European Convention on H ­ uman Rights, available at http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp? fileid=15235&lang=en (last visited 19 April 2016). 55 G. Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, Cornell ­International Law Journal, vol. 35, 2002, p. 321; also see the further developments within the United Nations, where in 1992 the General Assembly issued the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities, calling to attention the link between protection of existence and the right to ‘participate effectively in decisions on the national, and where appropriate, regional level concerning the minority to which they belong or the region in which they live, in a manner not incompatible with national legislation’. unga Res. 47/135, Declaration on the Rights of ­Persons belonging to National or Ethnic, Religious and Linguistic Minorities, 18 D ­ ecember 1992, 47 un gaor, Supp. No. 49, p. 210, un Doc. A/47/49 (Annex). 56 Section ii(3), 1991 Report of the csce Meeting of Experts on National Minorities, 30 ilm 1692 (1991).

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Hence, this directly counters the arguments of some stating that recognizing a right to autonomy – absent a freely entered into international agreement – would constitute an interference into the domestic affairs of a state in violation of Article 2(7) of the United Nations Charter. In addition, the Report of the csce Meeting pointed out autonomy as both a territorial and non-territorial model – with a focus on cultural affairs – where the territorial model is not possible.57 New momentum to the subject was especially also given by the dissolution of Yugoslavia. With the establishment of the Badinter Arbitration Commission, a legal organ was installed which inter alia addressed a number of significant legal questions related to the concepts of self-determination, peoples and minorities. In answering these questions, it has been accused58 of blurring these concepts, in particular by understanding self-determination as an ­instrument to safeguard human rights. By virtue of that right every individual may choose to belong to whatever ethnic, religious or language community he or she wishes.59 This becomes particularly clear when Opinion No. 2 of the Badinter Arbitration Commission inter alia makes the – either misconceived or audacious – statement that ‘the – now peremptory – norms of international law require states to ensure respect for the rights of minorities. This requirement applies to all the Republics vis-à-vis the minorities on their territory’.60 The choice of autonomy as an ideal means for the protection of minority rights is therefore rooted in a two-fold argument. Firstly, the above-described historical use of autonomy models following the first and second World War and, secondly, the blurred use of categories as regards minorities and p ­ eoples. Again,61 difficulties in drawing a distinguishing line between these concepts can also be traced to the reluctance of states to accept the use of the ­peoples 57 Section iv, ibid. 58 A. Pellet, ‘The Opinions of the Badinter Arbitration Committee – A Second Breath for the Self-Determination of Peoples’, European Journal of International Law, vol. 3, 1992, p. 179; J. Klabbers, ‘The Right to be Taken Seriously: Self-Determination in International Law’, Human Rights Quarterly, vol. 28, no. 1, 2006, p. 198. 59 Conference on Yugoslavia, Opinion No. 2 of the Badinter Commission, 11 January 1992, 92 ilr 167. 60 Ibid. 61 See also Chapter 4, Section 4.3.

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terminology within their territory, fearing to be faced with secessionist tendencies. As a tool to overcome ethnic conflicts, it can therefore be said that ‘[a]utonomy is one step below full self-determination but one step above minority rights’.62 Autonomy as a Means to Protect the Rights of Peoples in Their Exercise of Self-Determination – Necessary Content Above reveals that a certain autonomous arrangement ‘does not […] necessarily imply that distinct peoples exist within states’.63 Aside from deliberate choices of or pressure on the state to grant autonomy to a certain minority due to historical circumstances, a state resting in the authority granted to it by its people can choose to organize itself with autonomous arrangements.64 Within the United Nations, autonomy and self-government has especially been discussed from the perspective of non-self-governing territories. In this regard, Article 73(b) Charter of the United Nations states that the members of the United Nations are under an obligation ‘to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions […]’.65 Self-government in this context referred to autonomy, and not to statehood as a possible outcome of self-determination.66 However, as the scope of self-determination has since expanded beyond non-self-governing territories,67 especially since the abovementioned debate following the end of the Cold War, autonomy has been seen as a possible remedy to self-determination claims. Less intrusive to state sovereignty and territorial integrity, internal self-determination exercised in form of

5.2.2

62

63 64 65

66

67

Hurst Hannum’s speech at the Nordic Human Rights Symposium at the Åbo Akademi Institute for Human Rights, 19 October 1996, reprinted in L. Hannikainen, ‘Self-­ Determination and Autonomy in International Law’, in Autonomy: Application and Implications, M. Suksi ed., 1998, p. 86. J. Summers, Peoples and International Law: Second Revised Edition, 2014, p. 315. Ibid., listing Spain as an example for the latter. Art. 73, Charter of the United Nations, 24 October 1945, 1 unts 26; U. Fastenrath, ­‘Chapter xi Declaration Regarding Non-Self-Governing Territories’, in The Charter of the United ­Nations: A Commentary, B. Simma/D.-E. Khan/G. Nolte/A. Paulus eds., 2012, p. 1829. See only the phrasing used in Art. 76 of the Charter, referring to ‘self-government or independence’ in juxtaposition to each other. Cf. H.-J. Heintze, ‘Territorial Autonomy and International Stability: Pros and Cons from the Viewpoint of International Law’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, p. 47. See above Chapter 3, Section 3.3.2.

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a­ utonomy/self-administration has become the preferred model suggested by concerned states, hoping to thereby create an integrationist rather than separatist atmosphere.68 Article 2 of the 1995 Liechtenstein Draft Convention on Self-Determination through Self-Administration is instructive to this approach, stipulating that 1. All peoples have the right to self-determination. 2. Within the framework of that right, each State Party to the present ­Convention shall respect the aspiration of all communities within its territory to an appropriate degree of self-administration and shall secure that degree of self-administration to them.69 In this sense, autonomy is directed at ensuring that the rights of a particular people are protected in relation to other entities within and of the state. In particular, the exercise of self-determination through autonomy provides a legitimating factor towards the central government/state.70 Hurst Hannum points out the following categories which are ‘essential to the guarantee of […] survival’71 of an affected group: firstly, language, traced to the origins of self-determination at the beginning of the twentieth century, where linguistic (national) groups were at the core of the restructuring process. Secondly, education, as a tool to ensure the cultural survival of the concerned group. Thirdly, access to government civil service employment and social services, to ensure opportunities of participation. Fourthly, land, as – in short – it ‘is the literal and figurative foundation of the state and of every 68

69

70 71

Cf. W. Danspeckgruber, ‘Self-Governance Plus Regional Integration – A Possible Solution to Self-Determination Claims’, in Autonomy, Self-Governance and Conflict Resolution – ­Innovative Approaches to Institutional Design in Divided Societies, M. Weller/S. Wolff eds., 2005, p. 23. Liechtenstein Draft Convention on Self-Determination through Self-Administration, reprinted in: Appendix B, The Self-Determination of Peoples – Community, Nation, and State in an Interdependent World, W. Danspeckgruber ed., 2002, pp. 382–392 [‘community’ is understood to mean the members of a distinct group which inhabits a limited area within a state and possesses a sufficient degree of organization for the effective application of such self-administration as foreseen in the Draft Convention. It is wider and less precise than the categories of minorities, peoples and indigenous peoples, and according to the Commentary to the Draft Convention (drafted by Sir Arthur Watts) ‘should [create] a new perspective on what should be the proper sociopolitical unit to benefit from self-administration’.]. G. Gilbert, ‘Autonomy and Minority Groups: A Right in International Law?’, Cornell ­International Law Journal, vol. 35, 2002, pp. 337–339. H. Hannum, Autonomy, Sovereignty, and Self-Determination – The Accommodation of C ­ onflicting Rights, 1990 (rev. ed.), p. 458.

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community that aspires to political autonomy’.72 Fifthly, control over natural resources, where particularly often conflicts arise due to highly diverse property and ownership provisions of states, especially with regard to sub-soil resources. And finally, the creation of representative local government structures (as also already discussed above in more detail).73 Where only some of these issues are of concern to a particular group, singular ad hoc arrangements or provisions can provide an adequate remedy to these concerns. However, as Hurst Hannum further emphasizes, in order to ensure the protection of the plurality of categories, autonomy is the appropriate governance model to resort to.74 In essence, these points reflect the core of internal self-determination as recognized under customary international law. Thus, internal s­ elf-determination75 encompasses both political and economic, social and cultural categories. Authentic self-government stipulates that peoples should have the full control over their governing bodies and enjoy autonomy versus other entities in the state.76 Both independent spheres of governance and participatory rights are necessary fundaments in ensuring a people’s right to self-determination.77 Furthermore, economic self-determination necessarily requires that a people enjoys the freedom to utilize its natural resources freely.78 The category of cultural development includes education as well as language, both means to represent one’s identity towards the world community.79 Finally, participation in 72 73 74 75 76

77

78

79

Ibid., at p. 463. Ibid., at pp. 458–468. H. Hannum, Autonomy, Sovereignty, and Self-Determination – The Accommodation of Conflicting Rights, 1990 (rev. ed.), p. 469. See Chapter 3, Section 3.3. M. Seymour, ‘Internal Self-Determination and Secession’, in The Ashgate Research Companion to Secession, A. Pavkovic/P. Radan eds., 2011, p. 386; see also M. Tkacik, ‘Characteristics of Forms of Autonomy’, International Journal on Minority and Group Rights, vol. 15, 2008, pp. 383ff. M. Seymour, ‘Internal Self-Determination and Secession’, in The Ashgate Research Companion to Secession, A. Pavkovic/P. Radan eds., 2011, p. 386; J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and Future’, in Peoples’ Rights, P. Alston ed., 2001, p. 25. Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 43, para. 288(g), un Doc. E/CN.4/Sub.2/404/Rev.1; S.K. Chatterjee, ‘The Charter of Economic Rights and Duties of States – An Evaluation after 15 Years’, International and Comparative Law Quarterly, vol. 40, no. 3, 1991, p. 671. Preamble, Declaration of the Principles of International Cultural Co-operation, proclaimed by the 14th Session of the General Conference of the United Nations Educational, Scientific and Cultural Organization, 4 November 1966, available at http://portal.unesco.org/

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all levels of society is essential as an expression of the respect of the equality of human beings.80 Autonomy as a Means to Protect the Rights of Indigenous Peoples – A Right to Negotiate for Survival Autonomous arrangements of indigenous peoples, e.g., Nunavut in Canada, Greenland within the Danish Realm, or the Saami in Scandinavia, have been seen as among the most successful autonomy models. Where states often fear that autonomy of a certain region could lead to further secessionist tendencies, autonomy of indigenous peoples generally has been said to be a successful instrument to guarantee their survival.81 Moreover, unlike other versions, under current international law there is a tendency to find that autonomy constitutes a right with regard to indigenous peoples. Though this is not undisputed,82 since the adoption of undrip the right to autonomy is seen as an integral factor of the right of indigenous peoples to self-determination.83

5.2.3

en/ev.php-URL_ID=13147&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited 19 April 2016); Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 15, paras. 83–84, un Doc. E/CN.4/Sub.2/404/Rev.1. 80 Art. 55(a)(b), Charter of the United Nations, 24 October 1945, 1 unts 26; Arts. 6, 10, unga Res. 2542 (xxiv), Declaration on Social Progress and Development, 11 December 1969, 24 un gaor, Supp. No. 30, p. 49, un Doc. A/7630. 81 Human Rights Committee, ‘Concluding Observations on Norway’, 25 April 2006, un Doc. CCPR/C/NOR/CO/5, at para. 5; see already Human Rights Committee, ‘Concluding Observations on Norway’, 1 November 1999, un Doc. CCPR/C/79/Add.112, at para. 10; A. ­­Xanthaki, Indigenous Rights and United Nations Standards – Self-Determination, Culture and Land, 2007, p. 165; A.P. Kontos, ‘Aboriginal Self-Government in Canada: Reconciling Rights to Political Participation and Indigenous Cultural Integrity’, in International Law and Indigenous Peoples, J. Castellino/N. Walsh, 2005, p. 222. 82 See, inter alia, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, oas Doc. OEA/Ser.L/V/II.62, doc. 26 (1984) pp. 81–82: Although the current status of international law does not allow the view that the ethnic groups of the Atlantic zone of Nicaragua have a right to political autonomy and self-determination, special legal protection is recognized for the use of their language, the observance of their religion, and in general, all those aspects related to the preservation of their cultural identity. 83 F. Lenzerini, ‘Sovereignty Revisited: International Law and Parallel Sovereignty of ­Indigenous Peoples’, Texas International Law Journal, vol. 42, 2006, pp. 186–187; J. Gilbert, Indigenous Peoples’ Land Rights Under International Law, 2006, p. 231; C. Boronow, ‘Closing the Accountability Gap for Indian Tribes: Balancing the Right to Self-Determination with the Right to a Remedy’, Virginia Law Review, vol. 98, no. 6, 2012, pp. 1373–1374.

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The core provision in undrip with regard to the right to autonomy is ­Article 4: Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their ­internal and local affairs, as well as ways and means for financing their autonomous functions.84 Explicitly linked with their right to self-determination, autonomy and self-­ government – and not independence – are positioned as the preferable method of realization of self-determination.85 While throughout the drafting process 84

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Art. 4, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; the Draft American Declaration on the Rights of Indigenous Peoples [Record of the current status of the Draft American Declaration on the Rights of Indigenous Peoples (Outcomes of the fourteenth Meetings of Negotiations in the Quest for Points of Consensus), Art. xx, oas Doc. OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 7 (2 May 2012) (alterations in original)] states in similar terms: Article xx. Right to [autonomy] or [and] self-government 1. Indigenous peoples, [as one of the ways to exercise their] [in the exercise of] the right to self-determination [within the states], have the right to autonomy or [and] self-government with respect to, inter alia, culture, language, spirituality, education, [information, means of communication,] health, housing, employment, social wellbeing, maintenance [of community security], [of jurisdictional functions in matters of territory,] family relations, economic activities, administration of land and resources, environment and [entry of non-members]; [and to determine with states the ways and means of financing {the exercise of these rights} these autonomous functions]./ 2. Indigenous peoples have the right to maintain and develop their own decision-­ making institutions. They also have the right to participate fully and effectively without discrimination in decision-making at all levels in relation to matters that may ­[directly] affect their rights, [lives and destiny]. They may do so directly or through their representatives, and accordance with their own norms, procedures, and traditions. They also have the right [to equal opportunities] to access and to participate [fully and effectively as peoples] in all national institutions and fora, [including deliberative bodies.] T. Koivurova, ‘Sovereign States and Self-Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States’, International Community Law Review, vol. 12, 2010, p. 202; see also J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, Human Rights Committee, Communication No. 760/1997, Views of 6 September 2000, un Doc. CCPR/C/69/D/760/1997 (2000), Individual Opinion by Martin Scheinin (concurring): [T]here are situations where Article 25 calls for special arrangements for rights for participation to be enjoyed by members of minorities and, in particular, indigenous

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of undrip most states emphasized that in their opinion this would constitute the maximum extent of self-determination for indigenous peoples,86 other drafting participants argued that this was the minimum content.87 Hence, there was agreement from both sides that autonomy and self-government were essential and applicable for the fulfillment of self-determination with regard to indigenous peoples. In addition, also ilo Convention No. 169 implicitly recognizes a right to autonomy in its Articles 6 and 7.88 Though the term ‘autonomy’ is not m ­ entioned, peoples. When such a situation arises, it is not sufficient under Article 25 to afford individual members of such communities the individual right to vote in general elections. Some forms of local, regional or cultural autonomy may be called for […]. 86 See also the comments made by Finland, Commission on Human Rights, ‘Indigenous Issues – Report of the Working Group Established in Accordance with Commission on ­Human Rights Resolution 1995/32’, 6 February 2001, un Doc. E/CN.4/2001/85: 76. The representative of Finland said her delegation supported the use of the term ­‘indigenous peoples’ because it made the great number of collective rights in the declaration meaningful. Her delegation also supported adoption of the term ‘self-­ determination’ in the draft declaration, provided that the passage concerning self-­ government (art. 31) was formulated in the manner proposed, so that it applied to internal and local affairs. She said that the principle of self-determination had two dimensions: external and internal. Her delegation suggested that article 45 of the draft declaration be formulated in accordance with article 8 (4) of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992. 87 See, e.g., Commission on Human Rights, ‘Indigenous Issues – Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32’, 7 January 2004, un Doc. E/CN.4/2004/81, paras. 81, 83: 81. In that context, some indigenous representatives supported the current text, while other indigenous representatives, as well as some governmental delegations, suggested keeping closer to the original text by inserting the words ‘inter alia’ or the phrase ‘including but not limited to’ before the list of the areas relevant to the rights expressed in this article. 83. Many indigenous representatives expressed concern regarding this article being used to limit or qualify the right to self-determination in the declaration, specifically as expressed in article 3. Other indigenous delegations noted that this article described one specific form of exercising the right, among other forms. 88 ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. Article 6 1. In applying the provisions of this Convention, governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in

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the Convention’s provisions emphasize collective self-control and organizational rights (i.e. self-management89) as are common to autonomous regimes.90 Despite these affirmations of the right to autonomy, the extent thereof remains subject to heated debate. For example, Article 4 undrip was originally formulated more detailed, listing specific areas where indigenous peoples considered autonomy to be essential, namely ‘culture, religion, education, information, media, health, housing, employment, social welfare, economic activities,

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elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose. 2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. Article 7 1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual wellbeing and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. 2. The improvement of the conditions of life and work and levels of health and education of the peoples concerned, with their participation and co-operation, shall be a matter of priority in plans for the overall economic development of areas they inhabit. Special projects for development of the areas in question shall also be so designed as to promote such improvement. 3. Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. 4. Governments shall take measures, in co-operation with the peoples concerned, to protect and preserve the environment of the territories they inhabit. International Labour Organisation, ilo Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual, 2003, p. 10; see also J. Gilbert, Indigenous Peoples’ Land Rights Under International Law, 2006, p. 231, referring to the understanding of self-management in the sense of ilo Convention No. 169 as autonomy in the agreement signed between the Federal Government of Mexico and the ezln in Chiapas which states that it is appropriate to recognize, as one of the indigenous peoples’ basic demands, their right to autonomy […]. This recognition is based on Convention 169 of the ilo as ratified by the Federal Senate. G. Alfredsson, ‘Indigenous Peoples and Autonomy’, in Autonomy: Application and Implications, M. Suksi ed., 1998, p. 127.

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land and resources management, environment and entry by non-­members’.91 This, however, was dropped in light of some states maintaining that the content of autonomy was not a unilateral right but a right to a negotiated agreement, in accordance with domestic laws and the national ­constitution.92 That is, while indigenous peoples enjoy the right to internal self-determination, their political status shall be negotiated ‘within the framework of the existing nation-state’.93 Nevertheless, the exemplary listing shows that autonomy of indigenous peoples amounts to a claim for full autonomy, i.e. not only territorial control but also cultural and functional autonomy. Eric-Irene Daes describes this negotiation process as a kind of ‘belated state-building’, through which indigenous peoples are able to join with all the other peoples that make up the state on mutually agreed and just terms, after many years of isolation and exclusion.94 This comment emphasizes both the possibility for autonomy to function as a substitute for statehood (though with significantly less external powers) and the heterogenic make-up95 of states. 91

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Art. 31, United Nations Draft Declaration on the Rights of Indigenous Peoples (Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘Discrimination against Indigenous Peoples – Technical Review of the United Nations Draft Declaration on the Rights of Indigenous Peoples’, 20 April 1994, un Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994)). See for an overview of comments in this regard J. Summers, Peoples and International Law: Second Revised Edition, 2014, p. 271, at fn 406; see also J. Gilbert, Indigenous Peoples’ Land Rights Under International Law, 2006, pp. 247–249; D. Hawkins, ‘Indigenous Rights and the Promise of a Limited Autonomy Model’, in Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Z.A. Skurbaty ed., 2005, p. 344. Document distributed by the us delegation to the 2002 session of the wgdd. United States, ‘u.s. Intervention’, oas Doc. OEA/Ser.K/XVI GT/DADIN/doc. 66/02, 14 March 2002, pp. 3–4; Similar also Canada, ‘Comments by the delegation of Canada on articles vii through xviii and on the issue of self-determination in the Proposed American Declaration on the Rights of Indigenous Peoples’, ibid., at p. 9: ‘Therefore, the exercise of selfgovernment should be accomplished through negotiations between the appropriate level of government and indigenous communities’. Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Fourth-Fifth Session, ‘Discrimination Against Indigenous Peoples, Explanatory Note Concerning the Draft Declaration on the Rights of Indigenous Peoples by Erica-Irene A. Daes, Chairperson of the Working Group on Indigenous Peoples’, 19 July 1993, un Doc. E/CN.4/Sub.2/1993/26/Add.1, para. 26. Augusto Willemsen-Diaz has argued that ‘real autonomy should be based on a more pluralist State and a significant devolution of decision-making to indigenous peoples so

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In order for indigenous autonomy arrangements to effectively guarantee elements of sovereignty and thereby a sphere of de facto independence within a state, the following points have been considered as core minimum content: – Recognition of legal personality in order to be able to exercise rights and perform obligations as a group (indigenous collective entity); – the right to use their own traditional legal system (inter alia regarding land rights); – the right of the indigenous community to exercise control over local and internal affairs; – and the right of indigenous peoples to participate (collectively) in decisionmaking in matters which concern them.96 Most importantly, in order for such arrangements to be meaningful and properly ensure the right of indigenous peoples to preserve their identity, recognition of title to territory and provisions on their control over natural resources are essential.97 As a consequence to this, the International Law Association has

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that they could re-establish their own institutions’, see Commission on Human Rights, ‘Report of the Meeting of Experts to review the experience of countries in the operation of schemes of internal self-government for indigenous peoples’, Nuuk, Greenland, 24–28 September 1991, 25 November 1991, un Doc. E/CN.4/1992/42, para. 17. R. Roldán Ortiga, ‘Models for Recognizing Indigenous Land Rights in Latin America’, World Bank Development Department – Environment Department Papers No. 99, October 2004, p. 23; International Law Association, 75th Conference of the ila, Sofia, Bulgaria, 26–30 August 2012, Resolution No. 5/2012, Rights of Indigenous Peoples, para. 5. Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010, para. 157: [T]he alleged violations of the African Charter by the Respondent State are those that go to the heart of indigenous rights – the right to preserve one’s identity through identification with ancestral lands, cultural patterns, social institutions and religious systems. Similarly, see Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, Part i Policy Framework, available at https://www .aadnc-aandc.gc.ca/eng/1100100031843/1100100031844 (last visited 19 April 2016): Recognition of the inherent right is based on the view that the Aboriginal peoples of Canada have the right to govern themselves in relation to matters that are internal to their communities, integral to their unique cultures, identities, traditions, languages and institutions, and with respect to their special relationship to their land and their resources.

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also added therewith linked prerogatives to the core obligations of the state in regard to the right to autonomy, in particular: the right to be consulted with respect to any project that may affect them and the related right that projects significantly impacting their rights and ways of life are not carried out without their prior, free and informed consent.98 Other aspects which have been emphasized as necessary preconditions of ­indigenous autonomy relate, e.g., to its inherent character (as a pre-existing collective right which therefore cannot be extinguished),99 or the duty of states to continuously ‘promote and consolidate legal recognition and accommodation of indigenous institutions’.100 5.3

Transcending Categories: Greenland

In the following, the case of Greenland will be closely scrutinized as a prime example of the granting of autonomy to a recognized (indigenous) people. Achieving economic sovereignty has played a crucial role in their path towards independence. Links between the Greenlandic right to self-determination and autonomy will be especially highlighted, evidencing the close relationship and dependence of these two categories. Exercising Self-Determination in the Traditional Sense – O Independence, Where Art Thou? Greenland (Kalaallit Nunaat ‘Country of the Greenlanders’) became an integral part of the Danish Realm on 5 June 1953 through constitutional amendment 5.3.1

See also S. Wheatley, ‘Conceptualizing the Authority of the Sovereign State Over Indigenous Peoples’, Leiden Journal of International Law, vol. 27, 2014, p. 374, at fn 18; J. Gilbert, Indigenous Peoples’ Land Rights Under International Law, 2006, pp. 246–247. 98 International Law Association, 75th Conference of the ila, Sofia, Bulgaria, 26–30 August 2012, Resolution No. 5/2012, Rights of Indigenous Peoples, para. 5. 99 R. Kuptana, The Inherent Right to Self-Government: Its Nature and Source, 27 March 1992 (Presentation to the Canadian Bar Association Conference on Constitutional Entrenchment of Aboriginal Self-Government), referred to in N. Loukacheva, The Arctic Promise: Legal and Political Autonomy of Greenland and Nunavut, 2007, pp. 37–39. 100 Interim Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, 9 August 2010, un Doc. A/65/264, para. 81.

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of the Danish Constitutional Act.101 This ended its colonial status which it had been under since 1721 when the Danish-Norwegian priest Hans Egede ­colonialized the Greenlanders for missionary as well as trade purposes.102 In 1814, following the Revolutionary and Napoleonic Wars, Greenland was officially allotted to Denmark in the Treaty of Kiel.103 Denmark installed several settlements, factories and trading stations throughout Greenland during this time period, eventually fully exploring the island from North to South.104 Following the end of World War ii, the United Nations called upon European colonial powers to identify those territories under the member states’ administration which were not yet self-governing. Greenland, under Danish rule, was included as a non-self-governing territory.105 Despite its inclusion, a number of Danish officials propagated the opinion that Denmark felt a responsibility towards Greenlanders, which were perceived as ‘blameless noble savages’, needing protection from the dangers of civilization.106 In addition,

101 Constitutional Act of Denmark, 5 June 1953, translation available at http://www.stm .dk/_p_10992.html (last visited 19 April 2016); unga Res. 849 (ix), Cessation of the ­transmission of information under Article 73 e of the Charter in respect of Greenland, 22 November 1954, 9 un gaor, Supp. No. 21, p. 27, un Doc. A/2890. 102 E. Beukel, ‘Greenland and Denmark Before 1945’, in Phasing Out the Colonial Status of Greenland, 1945–1954: A Historical Study, E. Beukel/F.P. Jensen/J. Elo Rytter/N.E. Ake Aaen eds., 2010, p. 13. 103 Peace Treaty of Kiel, 14 January 1814, Martens’ Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, vol. 1, p. 678: Article iv: His Majesty the King of Denmark, for himself and his successors, renounces for ever and irrevocably all his rights and claims on the kingdom of Norway, together with possession of the Bishopricks and Dioceses of Christiansand, Bergenhuus, Aggerhuus, and Drontheim, besides Nordland and Finmark, as far as the frontiers of the Russian empire. These bishopricks, dioceses, and provinces, constituting the kingdom of Norway, with their inhabitants, towns and harbours, fortresses, villages, and islands, along the whole coast of that kingdom, together with their dependencies (Greenland, the Ferroe Isles, and Iceland, excepted); […] [emphasis added]. 104 Legal Status of Eastern Greenland (Denmark v. Norway), 1933 pcij 22, pp. 29–31 (ser. A/B) No. 53 (Judgment, 5 April). 105 See, inter alia, United Nations, Article 73 – Repertory of Practice of United Nations Organs (1945–1954), Volume 4, p. 12. 106 E. Beukel, ‘Greenland and Denmark Before 1945’, in Phasing Out the Colonial Status of Greenland, 1945–1954: A Historical Study, E. Beukel/F.P. Jensen/J. Elo Rytter/N.E. Ake Aaen eds., 2010, p. 14.

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they argued that Greenland was not a traditional colony as it had not been colonized for the purposes of economic exploitation.107 Though this did not prevent its listing as a non-self-governing territory, this paternalistic attitude made a mark on the process of Greenland’s decolonization. Being recognized as a non-self-governing territory meant that the Greenlanders had the choice to opt for independence, self-government, integration or any other status.108 By 1953, the United Nations had been informed that Greenland had become part of the Danish Realm, ‘with a constitutional state equal to that of other parts of Denmark’.109 As General Assembly Resolution 849 (ix) noted, in deciding on their constitutional status, ‘the people of Greenland [had] freely exercised their right to self-determination’.110 Subsequently, however, this determination as a ‘free exercise of self-determination’ has been strongly criticized, especially by Gudmundur Alfredsson, who inter alia argues that Greenland’s integration with Denmark was flawed and therefore the Greenlandic people never exercised their right to self-determination. In particular, he claims that the integration of Greenland into the Danish realm did not correspond to substantive and procedural pre-requisites of the roots of self-determination, namely the ‘free and genuine expression of the will of the people concerned’,111 demanding an informed choice concerning one’s status.112 Alfredsson even argues that although unga Resolution 849 (ix) ended 107 F.P. Jensen, ‘The Greenland Issue in the un, 1945–1950’, in Phasing Out the Colonial Status of Greenland, 1945–1954: A Historical Study, E. Beukel/F.P. Jensen/J. Elo Rytter/N.E. Ake Aaen eds., 2010, pp. 167–169, inter alia citing a paper by the Ministry of Foreign Affairs’ expert in international law, Dr. Georg Cohn, from 30 July 1946, who stated without further elaboration that ‘In my opinion, Greenland cannot be regarded as a colony in the terms of Chapter xi of the Charter […]’, at pp. 168–169. 108 G. Alfredsson, ‘Greenland under Chapter xi of the United Nations Charter – A Continuing International Law Dispute’, in The Right To National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 50; J.E. Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland Revisited’, Nordic Journal of International Law, vol. 77, no. 4, 2008, p. 367. 109 Preamble, unga Res. 849 (ix), Cessation of the transmission of information under Article 73 e of the Charter in respect of Greenland, 22 November 1954, 9 un gaor, Supp. No. 21, p. 27, un Doc. A/2890. 110 Art. 4, ibid. 111 Western Sahara, 1975 icj 12, pp. 31–32, para. 55 (Advisory Opinion, 16 October); see also Principle ix, unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; Principle 2, unga Res. 637 (vii), The right of peoples and nations to self-determination, 20 December 1952, 7 un gaor, Supp. No. 20, p. 26, un Doc. A/2361. 112 J.E. Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland Revisited’, Nordic Journal of International Law, vol. 77, no. 4, 2008, pp. 383, 390; G. Alfredsson, ‘The

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Denmark’s reporting obligation under Article 73(e) of the un Charter, the international status of Greenland remained unchanged, and thus the people of Greenland are still entitled to external self-determination.113 Historical facts speak in favor of this criticism. Before becoming an integral part of the Danish Realm, a Royal Commission on Greenland was formed to assess the situation, consisting of Danish as well as (two) Greenlandic representatives. The Commission eventually suggested integration as the choice of the Greenlandic peoples for their future status. The proposal was then submitted by the Danish government to the Provincial Council of Greenland. However, though the Council had been elected in the previous year, it was not representative of all people of Greenland as it was elected without participation of the people living in Northern and Eastern Greenland.114 After only two days of deliberations – certainly not sufficient time to consider the proposal – the Council consented to the integration proposal in 1953.115 There was also no referendum116 held in Greenland on the constitutional amendment determining their future status, ironically due to the fact they still constituted colonial peoples.117 Instead, the Danish Prime Minister stated: We Danes have reason to expect that the Greenlanders wish to form their future together with us under the Danish flag and we have a duty to ­exercise our influence so that the future can become as bright and happy as possible.118

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Rights of Indigenous Peoples with a Focus on the National Performance and Foreign ­Policies of the Nordic Countries’, Zeitschrift für ausländisches öffentliches Recht und V ­ ölkerrecht, vol. 59, 1999, p. 531. G. Alfredsson, ‘Greenland under Chapter xi of the United Nations Charter – A Continuing International Law Dispute’, in The Right To National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 91. J.E. Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland Revisited’, Nordic Journal of International Law, vol. 77, no. 4, 2008, p. 388. K. Göcke, ‘The 2008 Referendum on Greenland’s Autonomy and What it Means for ­Greenland’s Future’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 69, 2009, p. 105. Unlike in Greenland, a referendum on the constitutional amendment was held in ­Denmark on 28 May 1953, see also Folketinget, ‘Referenda’, 25 January 2012, available at http://www.thedanishparliament.dk/Publications/~/media/PDF/publikationer/Informa tionsark/Engelsk/Referenda.pdf.ashx (last visited 19 April 2016). G. Alfredsson, ‘Greenland under Chapter xi of the United Nations Charter – A Continuing International Law Dispute’, in The Right To National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 53. Statement made by Danish Prime Minister H. Hedtoft, 1948, reprinted in ibid., at p. 55.

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When asked why no referendum was held in Greenland in relation to their freedom of choice,119 a Danish delegate stated at the United Nations that they felt that Greenland ‘would feel offended if it was asked whether it really wished to be integrated in Denmark’.120 Although Alfredsson’s final conclusion that Greenland’s international status has remained unchanged might be hard to sustain,121 independence even 60 years later is still on the agenda of the Greenlandic people and might be closer than ever. The constitutional status of Greenland as an integral and equal part of the Danish Realm soon proved hard to maintain against the growing modernization and information process which took place throughout G ­ reenland in the 1960s and 1970s. Increased levels of education among the Greenlandic population resulted in more efforts towards political participation and the call for more autonomy.122 As a consequence, a joint Danish-Greenlandic Home Rule Commission was called into life in 1975. In 1978, the Greenland Home Rule Act123 was passed in the Danish Parliament, initiating a transfer process of power from the Danish government to a new governing entity in Greenland.124 It was subsequently approved by the Greenlandic people in a referendum on 17 January 1979 and became effective on 1 May 1979.125 The Home Rule Act resulted in the establishment of a Greenlandic Parliament and Government, equipped with legislative and executive powers in a number of areas,

119 Principle A(2), Annex, unga Res. 742 (viii), Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose people have not yet attained a full measure of self-government, 27 November 1953, 8 un gaor, Supp. No. 17, p. 21, un Doc. A/2630. 120 Reprinted in G. Alfredsson, ‘Greenland under Chapter xi of the United Nations Charter – A Continuing International Law Dispute’, in The Right To National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 84. 121 J.E. Rytter, ‘Self-Determination of Colonial Peoples – The Case of Greenland Revisited’, Nordic Journal of International Law, vol. 77, no. 4, 2008, pp. 396–400. 122 K. Göcke, ‘The 2008 Referendum on Greenland’s Autonomy and What it Means for Greenland’s Future’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 69, 2009, p. 105. 123 The Greenland Home Rule Act, Act No. 577, 29 November 1978, available at http://www .stm.dk/_p_12712.html (last visited 19 April 2016). 124 Human Rights Committee, loipr Procedure – list of issues prior to reporting: Submission by the Inuit Circumpolar Council, 5 August 2011, available at http://www2.ohchr.org/eng lish/bodies/hrc/docs/ngos/INUIT_Denmark103.pdf (last visited 19 April 2016), at para. 13. 125 Economic and Social Council, Implementation of the International Covenant on Economic, Social and Cultural Rights – Fourth Periodic Report submitted by Denmark, 28 April 2003, un Doc. E/C.12/4/Add.12, para. 11.

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which gradually increased.126 However, the Home Rule Act did not alter the constitutional status of Greenland, and it remained under the sovereignty of the central authorities of the Danish Realm, and had no say concerning external relations, defense and monetary policies.127 Powers of direction were also retained by Denmark with regard to the fulfillment of international treaties and obligations.128 According to the Act, Greenland became ‘a distinct community within the Kingdom of Denmark’, and within its sphere of powers, Greenlandic authorities (an assembly Landsting, and an administration headed by a Landsstyre (Executive)) were to conduct the Greenlandic affairs.129 The attached schedule to the Home Rule Act specified the policy areas where the ­Greenlandic ­authorities were to be competent to decide.130 Consequently, legislative and executive powers were transferred from the Danish Parliament to the Greenlandic Home Rule Parliament and Government in a number of fields.131 Still 126 M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. Loukacheva ed., 2010, pp. 173–174, listing education, the health system, social affairs, housing, infrastructure, the economy, taxation, fisheries, hunting and agriculture, the labour market, commerce and industry, the environment, the municipalities, culture, and the church as some of the examples. 127 Expert Seminar on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples, ‘The Greenland Home Rule Arrangement in Brief’, Background paper prepared by Ms. T.S. Pedersen, 15–17 December 2003, para. 1.13, un Doc. HR/ GENEVA/TSIP/SEM/2003/BP.5. 128 Committee on Economic, Social and Cultural Rights, ‘Reports submitted by States Parties in accordance with Articles 16 and 17 of the Covenant, 3rd periodic report of Denmark’, 17 May 1999, para. 7, un Doc. E/C.12/1999/SR.13. 129 Section  1, The Greenland Home Rule Act, Act No. 577, 29 November 1978, available at http://www.stm.dk/_p_12712.html (last visited 19 April 2016). 130 The schedule included the following areas: organization of home rule in Greenland; ­organization of local government; direct and indirect taxes; the Established Church and dissentient religious communities; fishing in the territory, hunting, agriculture and ­reindeer breeding; conservation; country planning; legislation governing trade and competition, including legislation on restaurant and hotel business, regulations governing alcoholic beverages, and regulations governing closing hours of shops; social welfare; labour market affairs; education and. cultural affairs, including vocational education; other matters relating to trade, including State-conducted fishing and production, support and development of economic activities; health services; rent legislation, rent support, and housing administration; supply of goods; internal transport of passengers and goods; protection of the environment. 131 Expert Seminar on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples, ‘The Greenland Home Rule Arrangement in Brief’, ­Background paper prepared by Ms. T.S. Pedersen, 15–17 December 2003, paras. 1.06–1.07, un Doc. HR/GENEVA/TSIP/SEM/2003/BP.5.

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largely dependent on subsidies by Denmark, however, in many fields in which such were needed, the Danish Parliament established the policy framework, only leaving the specifics to the Greenlandic Home Rule Authority.132 Though the transferred competences included certain resource practices133 (with regard to fishing, hunting and reindeer breeding), it was not until 1998 that Greenland received at least limited authority in respect of mineral resources through the Mineral Resources Act.134 This foresaw a joint decisionmaking power of national and Home Rule authorities, hence giving both parties a veto-right regarding the development and exploitation of mineral resources. At the same time, it also meant that the Greenlandic people were limited in their right to decide upon own policies without taking the interests of the whole Danish Realm into consideration.135 Despite these limitations, the passing of the Home Rule Act further contributed to the process of ‘Greenlandisation’, which meant strengthening the national identity as Greenlandic people, introducing an official flag and coat of arms, and the introduction of a number of initiatives for the preservation of the Greenlanders’ culture and heritage.136 Triggered by this process, in 2000, the Greenland Home Rule Government established a Commission on SelfGovernance, consisting of members of the political parties from Denmark and Greenland as well as independent experts.137 The Commission’s mandate, inter 132 M. Kleist, ‘The Status of the Greenlandic Inuit – Are the Greenlandic Inuit a People, and Indigenous People, a Minority or a Nation? A Practical, Philosophical and Conceptual Investigation’, in The Right to National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 110; Expert Seminar on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples, ‘The Greenland Home Rule Arrangement in Brief’, Background paper prepared by Ms. T.S. Pedersen, 15–17 December 2003, para. 1.11, un Doc. HR/GENEVA/TSIP/SEM/2003/BP.5. 133 See also Section 8 of the Greenland Home Rule Act: ‘The resident population of Greenland has fundamental rights in respect of Greenland’s natural resources’, available at http://www.stm.dk/_p_12712.html (last visited 19 April 2016). 134 M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. Loukacheva ed., 2010, p. 174. 135 Expert Seminar on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples, ‘The Greenland Home Rule Arrangement in Brief’, Background paper prepared by Ms. T.S. Pedersen, 15–17 December 2003, para. 1.15, un Doc. HR/ GENEVA/TSIP/SEM/2003/BP.5. 136 Committee on Economic, Social and Cultural Rights, ‘Reports submitted by States Parties in accordance with Articles 16 and 17 of the Covenant, 3rd periodic report of Denmark’, 17 May 1999, para. 7, un Doc. E/C.12/1999/SR.13. 137 Economic and Social Council, Implementation of the International Covenant on Economic, Social and Cultural Rights – Fourth Periodic Report submitted by Denmark, 28 April 2003, un Doc. E/C.12/4/Add.12, para. 30. There were eight members of parliament

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alia, was to study the possibility of expansion of autonomy, by enabling more self-governance and economic self-sufficiency.138 After three years of work, in 2003, the Commission issued its final report on how the Greenland authorities could assume further powers. Therein it analyzed six possibilities according to international law, all rooted in the right of peoples to self-determination: 139

– Independence – Union with another country – Free Association – Federation – Increased self-government for an indigenous peoples – Complete integration.139

The first three may be included under the heading ‘External Self-Governance’

from both Greenland and Denmark. These were supported by independent experts and scholars, see also the detailed description in M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. Loukacheva ed., 2010, p. 178. 138 The official translation of the mandate states: The Commission shall, on the basis of Greenland’s present constitutional position and in accordance with the right of self-determination of the people of Greenland under international law, deliberate and make proposals for how the Greenland authorities can assume further powers, where this is constitutionally possible. The Commission shall draw up proposals for a new arrangement which also takes into consideration the fields of responsibilities that have already been assumed by the Greenland authorities under the Greenland Home Rule Act. The Commission shall base its work on the principle that there must be accordance between rights and obligations. The Commission shall deliberate and make proposals for a new arrangement concerning the economic situation between Greenland and Denmark. The Danish Government and the Greenland Landsstyre [Greenland Government] are in agreement that it is for the people of Greenland to decide whether Greenland wishes independence, and that the new arrangement shall imply no change to that. Where relevant, independence will have to be implemented through the conclusion of an agreement to this effect under the rules laid down in Section 19 of the Danish Constitution. The Commission’s proposals for a new arrangement shall contain a provision on Greenland’s access to independence in accordance with this. Reprinted in M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. ­Loukacheva ed., 2010, p. 178. 139 Report from the Commission on Self-Governance, March 2003, available at http:// dk.vintage.nanoq.gl/Emner/Landsstyre/Selvstyre/Selvstyrekommissionen/Betaenkning _afgivet_af_Selvstyrekommissionen.aspx (last visited 19 April 2016), at p. 15.

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In their analysis, the Commission came to the conclusion, that the Greenlandic people fulfilled all the legal criteria which were required to be entitled to the right of full self-determination (see also below). These results were presented to the Danish Government, leading in the establishment of a Greenland-­ Danish Commission to further […] on the basis of Greenland’s present constitutional position and in accordance with the right of self-determination of the people of ­Greenland under international law, deliberate and make proposals for how the Greenland authorities can assume further powers, where this is constitutionally possible.140 The Commission set up working groups on the specific issues of mineral (subsoil) resources, economy and industrial development, as well as on the assessment of the relevant national and international law.141 On the basis of the Commission’s outcome document from April 2008, a (non-binding) referendum was held in Greenland on 25 November 2008 on the transfer of more competences to the Greenlandic government. As more than three quarters of the population voted in favor of self-government and taking further steps towards full independence142 a new era of Greenlandic self-government began. Amidst big celebrations, the Act on Greenland Self-Government entered into force on 21 June 2009. Passed by the Folketing (Danish Parliament), the Preamble of the Act explicitly recognizes the people of Greenland as a people pursuant to international law with the right to self-determination: Recognising that the people of Greenland is a people pursuant to international law with the right of self-determination, the Act is based on a wish to foster equality and mutual respect in the partnership between Denmark and Greenland. Accordingly, the Act is based on an agreement

140 The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, p. 4, available at http://www.arcticgovernance .org/the-greenland-danish-self-government-commissions-report-on-self-government -in-greeland.4633171-137746.html (last visited 19 April 2016). 141 Ibid., at pp. 3–4. 142 Of the votes cast (voters’ participation was at about 72%), 75.54 per cent were for and 23.57 per cent were against the introduction of self-government, available at http://www .stm.dk/_a_2957.html (last visited 19 April 2016).

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between Naalakkersuisut [Greenland Government] and the Danish Government as equal partners.143 The actual Act consists of nine Chapters and 29 Sections. According to ­Chapter 1, the Greenland Self-Government authorities: shall exercise legislative and executive power in the fields of responsibility taken over. Courts of law that are established by the Self-Government­ authorities shall exercise judicial power in Greenland in all fields of ­responsibility. […]144 Chapter 1 further stipulates that the legislative authority will rest with the Inatsisartut (Greenland parliament) and the executive power with the ­Naalakkersuisut (Greenland government). The fields of responsibility transferred to the Greenland Self-Government are listed in a schedule to the Act on Self-Government (‘positive list model’). These are additional to those fields of responsibility which had already been assumed under the Greenland Home Rule Act.145 New fields of responsibility, which exclusively concern Greenlandic affairs but are not referred to in the Schedule, can be assumed by the Greenland Self-Government authorities after an agreement is reached between the Naalakkersuisut and the central government (‘agreement model’).146 There are 33 fields listed in the Act. The schedule lists areas such as the police and prosecution service, the administration of justice, the law of property and obligations, aviation, ship registration and maritime matters, marine environment, and – most important – the 143 Preamble, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 144 Chapter 1, Art. 1, ibid. 145 Chapter 9, Art. 23, ibid.; for a list of assumed fields of responsibility see Annex i to the Act on Greenland Self-Government, Fields of Responsibility assumed by the Greenland Home Rule Government (i and ii) and Greenland Self-Government (iii) respectively, available at http://www.stm.dk/multimedia/GR_oversigt_sagsomr_270110_UK.pdf (last visited 19 April 2016), including inter alia the fields of tax and duties, education, trade legislation or environmental matters. 146 Chapter 2, Art. 4, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016); The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, pp. 5–7, available at http://www.arcticgovernance .org/the-greenland-danish-self-government-commissions-report-on-self-government-in -greeland.4633171-137746.html (last visited 19 April 2016).

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­ ineral resource area.147 Moreover, Greenlandic became the official language m of Greenland.148 Areas not listed, and thus reserved to the Danish Realm, concern inter alia foreign, defense, monetary and security policies, the constitution, nationality, and the Supreme Court.149 However, though ‘foreign and security matters are affairs of the Realm’,150 the Naalakkersuisut may on behalf of the Realm, negotiate and conclude agreements under international law with foreign states and international organisations, including administrative agreements which exclusively concern Greenland and entirely relate to fields of responsibility taken over.151 Hence, on this basis, Greenland can enter into agreements with other states and international organizations, e.g., concerning fisheries. Obviously, where 147 Schedule to the Act, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016): List i (according to Chapter 2, Section 3, para. 1, fields of responsibility that appear from List i of the Schedule shall be transferred to the Greenland Self-Government authorities at points of time fixed by the Self-Government authorities): Industrial injury compensation, the remaining areas under the health care area, the road traffic area, the law of property and obligations, the commercial diving area. List ii (according to Chapter 2, Section 3, para. 2, fields of responsibility that appear from List ii of the Schedule shall be transferred to the Greenland Self-Government authorities at points of time fixed by the Self-Government authorities after negotiation with the central authorities of the Realm): Prison and probation service, passports, police and prosecution service as well as related parts of the administration of criminal justice, administration of justice, including the establishment of courts of law, criminal law, the aliens area and border controls, law of capacity, family law, succession law, law practice, the weapons area, radio-based maritime emergency and security services, the radio communications area, the company, accounting and auditing area, the food and veterinary area, aviation, intellectual property, copyright, shipwreck, wreckage and degradation of depth, security at sea, ship registration and maritime matters, charting, the buoyage, lighthouse and pilotage area, marine environment, financial regulation and supervision, the mineral resource area, the working environment, meteorology. 148 Chapter 7, Art. 20, ibid. 149 The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, p. 5, available at http://www.arcticgovernance .org/the-greenland-danish-self-government-commissions-report-on-self-government -in-greeland.4633171-137746.html (last visited 19 April 2016). 150 Chapter 4, Art. 11, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 151 Chapter 4, Art. 12(1), ibid. [emphasis added].

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only states can become parties to an international organization, Greenland cannot become a member. Greenland’s engagement in international organizations focuses in particular on arctic relations.152 It is, inter alia, an associate member of the Nordic Council, and has concluded several fishing agreements with other autonomous regions (Faroe Islands), states (Norway, Russia, Iceland), and international organizations (eu).153,154 It already voted to leave the eu (then still the eec) in 1985. It has also begun opening representative offices abroad.155 Where Greenland takes on responsibility for these fields, it also assumes corresponding financial obligations.156 Hence, to eventually assume independence, Greenland needs to increase its revenue. One cornerstone in the negotiations on the autonomy arrangement therefore concerned the regulation of mineral resources (includes all inshore and offshore hydrocarbons as well as mineral resources). According to the Act on Self-Government, the exploration and exploitation of these resources are to be conducted under the control and regulation of Greenland, and accordingly, all revenues from licenses, taxation 152 See also B.O.G. Mortensen, ‘The Self-Government and Overall Framework Concerning Greenland’, in Responsibilities and Liabilities for Commerical Activity in the Arctic – The Example of Greenland, V. Ulfbeck/A. Møllmann/B.O.G. Mortensen eds., 2016, p. 25. 153 The most recent being Council Regulation (eu) No 927/2012 of 16 July 2012 establishing the deadline in the event of underutilisation of fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand, oj L 293, 23 October 2012. 154 Government of Greenland – International Relations, available at http://naalakkersuisut .gl/en/About-government-of-greenland (last visited 19 April 2016). 155 At the beginning of 2014, Greenland opened a representative office in Washington d.c., and is considering opening further offices in Reykjavik, Moscow and Beijing, R. Thorsen, ‘Nuuk has right to send envoy to Washington, Copenhagen says’, The Arctic Journal, 11 March 2014, available at http://arcticjournal.com/politics/nuuk-has-right-send-envoy -washington-copenhagen-says (last visited 19 April 2016). On 19 March 2015, a new ‘umbrella framework’ regarding eu-Greenland relations was signed in the form of a legally non-binding ‘Joint Declaration by the European Union, on the one hand, and the ­Government of Greenland and the Government of Denmark, on the other, on relations between the European Union and Greenland’. Greenland also has a representative office established in Brussels. See also for more information http://naalakkersuisut.gl/en/ Naalakkersuisut/Greenland-Representation-to-the-eu/European-Union-and-Green land/Partnership-Agreement (last visited 19 April 2016). 156 M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. Loukacheva ed., 2010, p. 184.

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of license holders and public authority stakes flow to the Greenlandic SelfGovernment authorities.157 Of revenues which exceed dkk 75 million, 50% will be used to be deducted from the received Danish subsidies (approx. 3,4 billion dkk in 2009) until that amount reaches zero, in which case negotiations on the further economic relationship between both sides will be initiated.158 On 1 January 2010, Greenland took over the field of mineral resources, which is governed by the Mineral Resources Act.159 According to the Act, mineral resources ‘mean hydrocarbons and minerals’.160 Section 2 of the Mineral Resources Act stipulates that: (1) The Greenland Self-Government has the right to control and use mineral resources in the subsoil in Greenland. (2) The following activities may be performed only under a licence granted by the Greenland Government under the rules of the Greenland Parliament Act; but see Sections 45–48 below: (i)  Prospecting, exploration and exploitation of mineral resources in Greenland and export of mineral resources from Greenland. (ii)  Use of the subsoil for storage or purposes relating to mineral resource activities. (iii)  Use of energy from water, wind or the subsoil for activities under the Greenland Parliament Act. (iv) Establishment and operation of pipelines for activities under the Greenland Parliament Act.161 It thus foresees a licensing system, which is reported annually by the Green­ landic Government to the Greenlandic Parliament and public.162 157 Chapter 3, Art. 7, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 158 Chapter 3, Art. 8, ibid.; The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, p. 9, available at http:// www.arcticgovernance.org/the-greenland-danish-self-government-commissions-report -on-self-government-in-greeland.4633171-137746.html (last visited 19 April 2016). 159 Greenland Parliament Act No. 7 of 7 December 2009, with amendments from Greenland Parliament Act No. 26 of 18 December 2012, translation available at https://govmin.gl/ images/stories/about_bmp/Unofficiel_translation_-_Mineral_Resources_Act_as_­am ended_by_act_no_6_of_june_8_2014_-_pdf.pdf (last visited 19 April 2016). 160 Section 5, ibid. 161 Section 2, ibid. 162 Section  4, ibid.; The Government publishes the licences twice a month, and provides information on type (e.g. prospecting, exploration, exploitation), Naalakkersuisut

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Finally, the Self-Government Act is understood to be a first step towards assuming sovereignty over the Greenland territory: 21. (1) Decision regarding Greenland’s independence shall be taken by the people of Greenland. (2) If decision is taken pursuant to Subsection (1), negotiations shall commence between the Government and Naalakkersuisut with a view to the introduction of independence for Greenland. (3) An agreement between Naalakkersuisut and the Government regarding the introduction of independence for Greenland shall be concluded with the consent of Inatsisartut and shall be endorsed by a referendum in Greenland. The agreement shall, furthermore, be concluded with the consent of the Folketing. (4) Independence for Greenland shall imply that Greenland assumes ­sovereignty over the Greenland territory.163 Independence is seen as the end of the process, and once Greenland becomes self-sufficient, a referendum on independence is planned. The most positive estimates have suggested that this might be in 2021, a symbolic year for Greenland as it marks the 300th year of Danish rule.164 5.3.2 Legal Entitlements In his speech on the day of inauguration of Greenland’s Self-Government, ­Premier Kuupik Kleist stated: ‘[N]ow we have been recognised as a people. Greenland has now positioned herself as a leading country and an example to indigenous peoples everywhere’.165

­(Government of Greenland), ‘Minerals and Petroleum Licence Map’, available at http:// licence-map.bmp.gl/ (last visited 19 April 2016). 163 Chapter 8, Art. 21, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016); The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, pp. 13–14, available at http://www.arcticgovernance .org/the-greenland-danish-self-government-commissions-report-on-self-government-in -greeland.4633171-137746.html (last visited 19 April 2016). 164 M. Nuttall, ‘Self-Rule in Greenland – Towards the World’s First Independent Inuit State?’, Indigenous Affairs, No. 3-4/2008, p. 65. 165 Celebration speech by Premier K. Kleist on inauguration of Greenland Self-­Government, 21 June 2009, p. 1, available at http://naalakkersuisut.gl/~/media/Nanoq/Files/Attached %20Files/Engelske-tekster/Celebration%20speech.pdf (last visited 19 April 2016).

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The Greenland-Danish Self-Government Commission as well as the Act on Greenland Self-Government explicitly arrived at the conclusion that the people of Greenland constitute a people within the meaning of international law.166 This, primarily, due to their colonial history as well as their geographical distinctness. Colonized during the 18th century, the Danish implemented their political social order, including their concepts of law, religion and property ownership, asserting sovereignty over the island.167 With regard to the make-up of Greenlandic people, authors have resorted to delimiting the concerned individuals by legal terms rather than by national, ethnic or cultural characteristics. Hence, according to Minninguaq Kleist, the Greenlandic people are composed of those who have the right to participate in elections, which in this case involves (in addition to Danish citizenship) a residence requirement of six months prior to the election.168 For practical purposes, this is certainly efficient, though it does raise the question of who the Greenlandic people are in terms of self-determination. The Arctic Inuit, among them the Greenlandic indigenous people, are undisputedly recognized as an indigenous people.169 In Greenland, the Inuit constitute about 88% of the total population.170 The relationship between the 166 The Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, p. 5, available at http://www.arcticgovernance .org/the-greenland-danish-self-government-commissions-report-on-self-government -in-greeland.4633171-137746.html (last visited 19 April 2016); Preamble, Schedule to the Act, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 167 N. Loukacheva, The Arctic Promise: Legal and Political Autonomy of Greenland and Nunavut, 2007, p. 21. 168 M. Kleist, ‘Greenland’s Self-Government’, in Polar Law Textbook, N. Loukacheva ed., 2010, p. 181 [there are certain exceptions to the residency requirement, e.g., for Greenlandic students studying in Denmark]; See also B.O.G. Mortensen, ‘The Self-Government and Overall Framework Concerning Greenland’, in Responsibilities and Liabilities for Commerical Activity in the Arctic – The Example of Greenland, V. Ulfbeck/A. Møllmann/B.O.G. Mortensen eds., 2016, p. 14. 169 Expert Seminar on Treaties, Agreements and other Constructive Arrangements between States and Indigenous Peoples, ‘The Greenland Home Rule Arrangement in Brief’, Background paper prepared by Ms. T.S. Pedersen, 15–17 December 2003, para. 1.05, un Doc. HR/ GENEVA/TSIP/SEM/2003/BP.5; M. Kleist, ‘The Status of the Greenlandic Inuit – Are the Greenlandic Inuit a People, and Indigenous People, a Minority or a Nation? A Practical, Philosophical and Conceptual Investigation’, in The Right to National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, p. 107. 170 Final Draft for the United Nations’ Universal Periodic Review, 11th Session 2011, Reporting on Greenland, available at http://naalakkersuisut.gl/~/media/Nanoq/Files/Attached%20 Files/Udenrigsdirektoratet/final%20draft%20for%20the%20UNs%20unervisal%20

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Greenlandic government and the Greenlandic indigenous people serves as a good example of the translucent categories and consequences: The fact that the Greenlandic people is a people under international law with the right to self-determination, but still part of the Danish Kingdom, does not exclude that the original population of Greenland still can be seen as an indigenous people in relation to international conventions and instruments or in another context. The right to self-determination is a recognition that the Greenlandic people, regardless of ethnic background, may decide if Greenland should become independent and thus have the right to decide over their own development. The Greenlandic people as a single entity, regardless of ethnicity, thus externally in regards to the world community and Denmark has achieved the status as a people, which other countries must respect.171 The Greenlandic people are therefore seen as a wider, non-ethnic category. In a classification scheme, their exercise of self-determination constitutes first-­ order self-determination (decolonization).172 Hence, the Act on Greenland Self-Government also does not make explicit reference to the rights of indigenous peoples, solely basing its legal basis on the Greenlanders’ status as a people in the colonial sense. However, in addition to this, the Greenlandic Inuit are an indigenous people. As the original inhabitants of Greenland, especially the rights contained in the United Nations Declaration on the Rights of Indigenous Peoples play an important role for the protection of their distinct culture, heritage and language.173 The Greenlandic Inuit have perceived the self-government ­arrangement as ­periodic%20review%2011th%20session%202011%20reporting%20on%20greenland.pdf (last visited 19 April 2016). 171 Inuit Circumpolar Council, ‘There are Still Indigenous Peoples in Greenland’, Elaboration Statement, 21 October 2013, available at http://inuit.org/news/news-archives/news -archive-2013/october-21-2013-there-are-still-indigenous-peoples-in-greenland/ (last visited 19 April 2016). 172 See above Richard Falk’s classification in Chapter 2, Section 2.4; this is also in line with Gudmundur Alfredsson’s assessment, see, inter alia, G. Alfredsson, ‘Greenland and the Law of Political Decolonisation’, German Yearbook of International Law, vol. 25, 1992, p. 290. 173 M. Kleist, ‘The Status of the Greenlandic Inuit – Are the Greenlandic Inuit a People, and Indigenous People, a Minority or a Nation? A Practical, Philosophical and Conceptual Investigation’, in The Right to National Self-Determination – The Faroe Islands and Greenland, S. Skaale ed., 2004, pp. 98–99, 107; Celebration speech by Premier K. Kleist on inauguration of Greenland Self-Government, 21 June 2009, p. 1, available at http://naalakkersuisut

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an illustration of Denmark’s de facto implementation of the undrip ­vis-à-vis Greenland, the Government strives to implement important provisions of the undrip in its day to day work, although the government is categorized as a public rather that an indigenous government.174 Consequently, the autonomy provisions and regulatory arrangements must be brought in line with applicable customary international law as regards indigenous peoples. The conflicting interests, e.g., whether to incorporate instruments such as free, prior and informed consent (fpic) into the regulatory framework concerning Greenland, have so far prevented progress in this regard, though. In particular, it has been argued that the incorporation of such indigenous standards might be ‘provocative’ to third states (or particularly foreign investors) as the Inuit are part of the government.175 Particularly exemplary in this context is also a decision by the Danish Supreme Court from 2003 which held that the Thule Tribe from Northwest Greenland was not an indigenous people on their own, but that its members were part of the Greenlandic people.176 The Supreme Court therefore denied them any independent protection under ilo Convention No. 169. While the .gl/~/media/Nanoq/Files/Attached%20Files/Engelske-tekster/Celebration%20speech .pdf (last visited 19 April 2016). 174 Human Rights Council, National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 – Denmark, Contribution by the Greenland Self-Government, 17 February 2011, un Doc. A/HRC/WG.6/11/DNK/1, para. 109. 175 See A.M. Hansen, ‘Community Impacts: Public Participation, Culture and Democracy – Background Paper for the Committee for Greenlandic Mineral Resources to the Benefit of Society’, December 2013, p. 17. 176 Hingitaq 53, Petersen and Others v. Office of the Prime Minister of Denmark (Thule Tribe Case), Denmark, Supreme Court, 28 November 2003, 143 ilr 277: (1) The assessment of whether or not the Thule Tribe was a distinct indigenous people in the sense of the ilo Convention should be based on current conditions. In Greenland, regional variations still existed in terms of language, business conditions and rules of law deriving in part from the country’s size, communications and transport structure, and natural local conditions. Based on an overall assessment of the available evidence, for all practical purposes the population of the Thule district shared the same conditions as the rest of the Greenland people and did not differ from it in any other relevant aspect. The information produced concerning the difference between the languages spoken in Qaanaaq and in West Greenland, and the Thule Tribe’s perception of itself as a distinct indigenous people, could not lead to any other conclusion. Accordingly, the Thule Tribe did not ‘retain some of or all their own social, economic, cultural and political institutions’ and consequently the Thule Tribe was not a distinct indigenous people within the meaning of Article 1(1)(b) of the ilo Convention.

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­judgment has been criticized by a number of scholars,177 the difficulties of achieving reconciliation between indigenous and state-based interests plays out in many fields and is evident of the practical hurdles faced by the Greenlandic Inuit in finding recognition as legal actors able to influence the decision-­ making processes. As one of the most complex examples, the relation of the Greenlandic authority to regulate natural resource extraction and the Greenlandic indigenous residents to claim traditional rights and practices is so far unresolved.178 In addition to the question how the role of indigenous peoples has internal effects on the composition and interpretation of the autonomous arrangement, it also remains open how the two-fold identity impacts foreign relations. As pointed out above,179 indigenous representation at the international level is not recognized to such an extent as to speak of a full-fledged right, also not under a right to autonomy as realized in Article 4 undrip.180 In comparison, while foreign and security matters remain with the Danish Realm also according to the SelfGovernment Act, there are certain exceptions.181 Hence, in the field of natural

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The case was brought before the European Court of Human Rights, alleging that the members of the tribe had been deprived on a continuous basis of their traditional homeland due to the establishment of a us military base in 1951 or 1953 on the basis of an agreement between Denmark and the United States. However, as this had occurred previous to the entry into force of the echr for Denmark, the ECtHR dismissed the case in this regard as inadmissible on jurisdictional grounds as it found that: deprivation of ownership or of another right in rem is in principle an instantaneous act and does not produce a continuing situation of ‘deprivation of a right’. Hingitaq 53 and Others v. Denmark (Admissibility), European Court of Human Rights, ­Application No. 18584/04, 12 January 2006 (Decision). A. Eide, ‘Rights of Indigenous Peoples – Achievements in International Law During the Last Quarter of a Century’, Netherlands Yearbook of International Law, vol. 37, 2006, p. 179; cf. T. Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’, in The Interpretation and Application of the European Convention of Human Rights – Legal and Practical Implications, M. Fitzmaurice/ P. Merkouris eds., 2013, pp. 243–244; B.O.G. Mortensen, ‘The Self-Government and Overall Framework Concerning Greenland’, in Responsibilities and Liabilities for Commerical Activity in the Arctic – The Example of Greenland, V. Ulfbeck/A. Møllmann/B.O.G. Mortensen eds., 2016, p. 15. See also the description of incidents found in J. Strandsbjerg, ‘Making Sense of Contemporary Greenland: Indigeneity, Resources and Sovereignty’, in Polar Geopolitics?: Knowledges, Resources and Legal Regimes, R.C. Powell/K. Dodds eds., 2014, p. 259. Chapter 3, Section 3.3.2. N. Loukacheva, ‘“Arctic Indigenous Peoples” Internationalism: In Search of a Legal Justification’, Polar Record, vol. 45, issue 1, 2009, p. 53. Chapter 4, Arts. 11, 12(1), Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016).

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resources, this has slowly led to an increased presence of the Greenlandic government at the international level. Nevertheless, the Greenland Commission on Self-Governance already noted during their working period that [t]he majority of Greenland’s population is part of the Arctic Inuit culture. This gives Greenland a special obligation and a special starting point for the global discussion on how to secure the original inhabitants’ human rights in relation to the national states in which they live.182 The dichotomy of operational methods is reflected in the path Greenland will choose for its future. On the one hand, parts of the indigenous Greenlanders strive for a post-Westphalian notion of sovereignty and participation in international-decision making. On the other hand, as a (non-ethnic) political entity, Greenland is headed towards independence, in a classic state-centred fashion. For this purpose, it is necessary to become economically self-sufficient and utilize its natural resources in an economically most profitable way.183 According to estimates by international experts, Greenland possesses oil, gas and natural gas liquids reserves amounting to approximately 31 billion barrels184 and a wealth of mineral resources deposits, containing large quantities of iron ore, copper, zinc, gold, gemstones, and rare earth elements.185 However, former Premier Kuupik Kleist, a strong indigenous advocate, has pointed out that in order to achieve economic profitibability through utilization and exploration thereof there is a prevailing structural necessity to adapt to conventional rules 182 The Commission on Self-Governance – A Presentation, available at http://naalakkersuisut .gl/~/media/Nanoq/Files/Attached%20Files/Naalakkersuisut/DK/Selvstyre/Betaenk ning/Resum%C3%A9%20af%20bet%C3%A6nkning%20ENG.pdf (last visited 19 April 2016), p. 9. 183 J. Strandsbjerg, ‘Making Sense of Contemporary Greenland: Indigeneity, Resources and Sovereignty’, in Polar Geopolitics?: Knowledges, Resources and Legal Regimes, R.C. Powell/ K. Dodds eds., 2014, pp. 267–268; see also the Greenland-Danish Self-Government Commission’s Report on Self-Government in Greenland, Executive Summary, April 2008, pp. 7–8, available at http://www.arcticgovernance.org/the-greenland-danish-self-govern ment-commissions-report-on-self-government-in-greeland.4633171-137746.html (last visited 19 April 2016). 184 J. Shadian, ‘Rethinking Westphalian Sovereignty: The Inuit Circumpolar Council and the Future of Arctic Governance’, Working Papers on Arctic Security No. 8, November 2013, p. 4. 185 Government of Greenland, Greenland’s Oil and Mineral Strategy 2014–2018, February 2014, p. 10, available at http://naalakkersuisut.gl/~/media/Nanoq/Files/Publications/ Raastof/ENG/Greenland%20oil%20and%20mineral%20strategy%202014-2018_ENG.pdf (last visited 19 April 2016).

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of international conduct.186 Striking in this regard is that, e.g., the Mineral Resources Act (Act No. 7 of 7 December 2009) does not contain any particular safeguards for indigenous peoples and their practices, but merely an obligation for project operators to conduct a social impact assessment which only implicitly includes the issue of preserving social-cultural values and traditions. Similar issues prevail in the hydrocarbon sector.187 The tension is also notable in the fact that while the Greenlandic Inuit have long practiced a particular system of collective ownership, termed inua, which inter alia describes a stewardship-like relationship to the land,188 the Government of Greenland is authorized to legislate and authorize exploitation of Greenland’s natural resources with hardly any consultation of the affected community.189 The problematic situation has been realized both in terms of a changing political landscape190 as well as in international monitoring bodies. Exemplary of the latter is the submission by the Greenland Self-Government during Denmark’s Universal Periodic Review regarding the Mineral Resources Act which, after concerns were voiced by civil society, was decided that it needed to be brought in line with the pertinent undrip provisions, especially concerning participatory rights.191 This is crucial in light of the absence of specific 186 As paraphrased in J. Strandsbjerg, ‘Making Sense of Contemporary Greenland: Indigeneity, Resources and Sovereignty’, in Polar Geopolitics?: Knowledges, Resources and Legal Regimes, R.C. Powell/K. Dodds eds., 2014, p. 271. 187 R. Hubbard, ‘Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development’, Michigan State International Law Review, vol. 22, no. 1, 2013, p. 113; Government of Greenland, Greenland’s Oil and Mineral Strategy 2014–2018, February 2014, available at http://naalakkersuisut .gl/~/media/Nanoq/Files/Publications/Raastof/ENG/Greenland%20oil%20and%20min eral%20strategy%202014-2018_ENG.pdf (last visited 19 April 2016). 188 J. Shadian, ‘Rethinking Westphalian Sovereignty: The Inuit Circumpolar Council and the Future of Arctic Governance’, Working Papers on Arctic Security No. 8, November 2013, pp. 12ff. 189 See, inter alia, Final Draft for the United Nations’ Universal Periodic Review, 11th Session 2011, Reporting on Greenland, available at http://naalakkersuisut.gl/~/media/ Nanoq/Files/Attached%20Files/Udenrigsdirektoratet/final%20draft%20for%20the%20 UNs%20unervisal%20periodic%20review%2011th%20session%202011%20reporting%20 on%20greenland.pdf (last visited 19 April 2016); A.M. Hansen, ‘Community Impacts: Public Participation, Culture and Democracy – Background Paper for the Committee for Greenlandic Mineral Resources to the Benefit of Society’, December 2013, p. 16. 190 R. Hubbard, ‘Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development’, Michigan State International Law Review, vol. 22, no. 1, 2013, p. 119. 191 Human Rights Council, National Report Submitted in Accordance with Paragraph 15(a) of the Annex to Human Rights Council Resolution 5/1 – Denmark, Contribution by the Greenland Self-Government, 17 February 2011, un Doc. A/HRC/WG.6/11/DNK/1, para. 111.

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safeguards for indigenous peoples in the self-government framework as their needs and interests can only be incorporated through participatory methods. However, even though the amendment process was intiated in expectation to increase the level of protection concerning indigenous peoples, the initial outcome was by far not be as progressive as one had hoped for.192 5.4 Conclusions Autonomy as an exercise of the continuous right to political self-determination has become an increasingly popular means to settle potential conflicts within state borders. While one cannot speak of a right to autonomy of peoples, a variety of different models of autonomy which foresee some sort of independence of action have been installed over the past decades. The majority of these models envision not only some form of territorial/regional government, but also further participation means for the population, e.g., through democratically elected representatives, as well as a variety of jurisdictional competences in often explicitly designated fields of competence. However, even though substantive powers are exercised by the autonomous government via means of the autonomy arrangement, the explicit transfer of these competences from the central state government generally poses limits to the denomination of such situations as an exercise of sovereignty. As seen above, autonomy is a governing form which can be exercised by a variety of different subjects. Even though it constitutes a possible form of the exercise of internal self-determination, different forms of autonomy are 192 R. Hubbard, ‘Mining in Greenland and Free, Prior and Informed Consent: A Role for Corporations?’ Nordic Environmental Law Journal, issue 1, 2014, pp. 99ff.; The Arctic Institute, ‘Proposed Law Amendment May Threaten Good Greenlandic Governance’, 28 July 2014, available at http://www.thearcticinstitute.org/2014/07/072814-proposed-law-amendment -good-governance-greenland.html (last visted 19 April 2016). Rutherford Hubbard points out the current difficulties of accommodating the oftentime lengthy ‘relationship culture’ whereby the Greenlandic Inuit reach decisions. R.  Hubbard, ‘Risk, Rights and Responsibility: Navigating Corporate Responsibility and Indigenous Rights in Greenlandic Extractive Industry Development’, Michigan State International Law Review, vol. 22, no. 1, 2013, p. 149. This is in stark opposition to the relatively short consultation periods currently foreseen. One of the operations already given the green light has been the isua Iron Ore Project near Nuuk. The project operator (London Mining Greenland A/S) conducted a Social Impact Assessment, which was available for consultations and comments for approximately eight weeks, available at http://naalakkersuisut.gl/~/media/Nanoq/Files/Attached%20Files/Raastof/Hoeringer/ ISUA%202012/SIA%20London%20Mining%20final%20march%202013.pdf (last visited 19 April 2016).

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also granted to minorities, contributing to the diffuse use of terms. Precisely this mélange of categories is beneficial when it comes to the category of indigenous peoples, itself caught between being designated as peoples or minorities. According to the wording of undrip (and implicitly derived from ilo ­Convention No. 169), indigenous peoples even have the right to autonomy. At the same time though, autonomy for indigenous peoples does not possess an equally defined content as other examples of autonomy arrangements. States therefore often maintain the position that in fact indigenous peoples only ­enjoy a right to negotiate autonomy, in consideration and respect of the respective domestic circumstances. As will also be seen in Chapter 6, this is particularly the case with regard to the enjoyment of rights over natural resources, without a doubt one of the most essential but also complex fields where governing authority is fought over. With regard to the studied example of Greenland, a number of aspects can be pointed out. What can be termed a two-fold claim to political legitimacy,193 i.e. claims to sovereign governance on the basis of a colonial past as well as on the basis of an indigenous ethnic character, constitutes a prime example of difficulties associated with applying state-created normative rules in an indigenous context. As a political entity, Greenland exercises substantial territorial autonomy. The extent to which it enjoys freedoms and exercises authority is inextricably linked to the question whether one may speak of sovereignty in this situation, in particular over natural resources. Despite the status quo normative framework containing limits to Greenland’s internal and external sovereignty, on the basis of the Act on Greenland Self-Government, this question may still be answered to the positive. The fields of responsibility transferred include a number of new competences and are geared towards achieving independence, i.e. ‘sovereignty over the Greenland territory’,194 in the long run. The transfer of full competence in the essential economic field of natural resources is indicative of already existing sovereign elements incorporated into the Self-Government Act. Moreover, when compared to the above-listed categories suggested by Hurst Hannum195 to evaluate autonomy as a means to protect the rights of peoples, the Self-Government arrangement corresponds fully to language, education, government, land and natural resources requirements. Not for nothing is Greenland often referred to as a prime example of a successful autonomy agreement. 193 This has also been conceptualized in this manner by J. Strandsbjerg, ‘Making Sense of Contemporary Greenland: Indigeneity, Resources and Sovereignty’, in Polar Geopolitics?: Knowledges, Resources and Legal Regimes, R.C. Powell/K. Dodds eds., 2014, p. 273. 194 Chapter 8, Art. 21, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 195 See Section 5.2.2.

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From an indigenous viewpoint, however, the lack of special protection mechanisms stands out. Both the autonomy act as well as Greenlandic legislation fails to include indigenous rights’ standards as is most evident in the field of natural resources. While it might be argued that a government made of indigenous representatives could per se fulfill adequate safeguard requirements for indigenous peoples as contained in ilo Convention No. 169 or undrip, it must not be overlooked that the government is a public and not an indigenous body. The lack of indigenous legislation and safeguards not only raises questions of whether indigenous sovereignty and autonomy can be realized and function at the international level, but also of how indigenous rights can be incorporated into institutional frameworks. The debate has been taken up by Inuit across the Arctic which strive for a new understanding of sovereignty and towards the building of partnerships with the Arctic states they inhabit.196 What this means in the context of the Greenlandic Inuit is still to be seen and will be determined by how the Act on Greenland Self-Government and legislation passed consequent thereto will be interpreted. Core to any evaluation will be the extent to which indigenous rights are incorporated into decision-making, in particular through participatory means, and reflective of Greenlandic indigenous cultural demands. 196 Circumpolar Inuit Declaration on Sovereignty in the Arctic, April 2009, available at http:// www.inuitcircumpolar.com/sovereignty-in-the-arctic.html (last visited 19 April 2016). 2.1 ‘Sovereignty’ is a term that has often been used to refer to the absolute and independent authority of a community or nation both internally and externally. Sovereignty is a contested concept, however, and does not have a fixed meaning. Old ideas of sovereignty are breaking down as different governance models, such as the European Union, evolve. Sovereignties overlap and are frequently divided within federations in creative ways to recognize the right of peoples. For Inuit living within the states of Russia, Canada, the usa and Denmark/Greenland, issues of sovereignty and sovereign rights must be examined and assessed in the context of our long history of struggle to gain recognition and respect as an Arctic indigenous people having the right to exercise self-determination over our lives, territories, cultures and languages. 3.3 The inextricable linkages between issues of sovereignty and sovereign rights in the Arctic and Inuit self-determination and other rights require states to accept the presence and role of Inuit as partners in the conduct of international relations in the Arctic. 3.7 The extensive involvement of Inuit in global, trans-national and indigenous ­politics requires the building of new partnerships with states for the protection and promotion of indigenous economies, cultures and traditions. Partnerships must acknowledge that industrial development of the natural resource wealth of the Arctic can proceed only insofar as it enhances the economic and social well-being of Inuit and safeguards our environmental security.

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The Spatial Independence of Peoples Indigenous Peoples’ right to self-determination is about our right to freely determine our political status and freely pursue our economic, social and cultural development. It also includes our right to freely manage our natural wealth and resources for mutual benefit […]. ‘Free, prior and informed consent’ is what we demand as part of self-determination and non-discrimination from governments, multinationals and private sector. les malezer1

∵ In the analysis of peoples’ rights, the first Chapters of this book have focused on studying the extent to which peoples/indigenous peoples may enjoy full independence or de facto independence. Both categories are concerned with a plurality of aspects and relationships of an entity versus other entities ­(primarily states). In comparison, this Chapter will strive to analyze whether a spatial independence of peoples/indigenous peoples can be identified. In this context, ‘spatial independence’ will be used to describe the rights a people/ indigenous people may possess in a specific sector/area, which they may govern with almost no outside (state) interference, and which is strongly associated with land and resources. Two primary instruments will be central to this Chapter, both closely linked to the principle of self-determination. First, the principle of permanent sovereignty over natural resources (psnr), a sectoral (economic) aspect of self-determination, and second, the principle of free, prior and informed consent (fpic), which is conceptualized as a procedural manifestation of self-­ determination in relation to a certain set of pre-defined rights. As such, it cannot go further than the governing authority granted to indigenous peoples. 1 Statement by the Chairman, Les Malezer, of the Global Indigenous Caucus on the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, available at http://www.iwgia.org/images/stories/int-processes-eng/decl-rights-ind-peop/ docs/07-09-13IPCaucusStatementAdoptionDeclaration%20.pdf (last visited 19 April 2016).

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As will be shown, psnr was initially developed as an instrument which, rooted in the right to self-determination,2 aided newly evolved entities and developing states achieving economic development. While the principle of self-determination was the primary instrument which led to an end of colonial domination, effective independence was not reached until further sectoral instruments came into play to reach the aspired goal of a fair and just world community. In particular concerning the economic sector, previous injustices continued.3 To alleviate some of these, psnr functions as a tool to allocate rights with regard to ownership, use, and control of natural resources. Thus, the original primarily political focus of self-determination received more and more economic, social and cultural impetus.4 Overall, the principle of psnr is the most apparent instrument for an effective exercise of self-determination. Thus, in cases where a people or a state is hindered in their exercise of psnr, their right to self-determination is violated as well.5 The inherent link of psnr with self-determination was inter alia also confirmed by two dissenting judges in East Timor, where the International Court of Justice had found itself barred from jurisdiction due to I­ndonesia’s ­absence of consent to participate in the proceedings. In particular Judge Weeramantry clarified that, firstly, [t]he various resolutions cited provide more than sufficient reason […] for the Court to proceed on the basis that the right of self-determination has not been exercised. It is a corollary to the proposition that the right of permanent sovereignty over natural resources has, likewise, not been exercised, for self-determination includes, by very definition, the right

2 unga Res. 1314 (xiii), Recommendations Concerning International Respect for the Rights of Peoples and Nations to Self-Determination, 12 December 1958, 13 un gaor, Supp. No. 18, p. 27, un Doc. A/4090. 3 Sub-Commission on Prevention of Discrimination and Protection of Minorities: ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 118, para. 687, un Doc. E/CN.4/ Sub.2/404/Rev.1. 4 J. Crawford, ‘The Right of Self-Determination in International Law: Its Development and ­Future’, in Peoples’ Rights, P. Alston ed., 2001, pp. 20–21. 5 Sub-Commission on Prevention of Discrimination and Protection of Minorities: ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 78, para. 463, p. 121, para. 709, un Doc. E/CN.4/Sub.2/404/Rev.1.

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of permanent sovereignty over natural resources. Any act dealing with those resources, otherwise than by the East Timorese people or their duly constituted representative, thus points inexorably to a violation of a f­undamental principle, both of general international law and of the United Nations Charter.6 Secondly, in emphasizing that ‘sovereignty over their economic resources is, for any people, an important component of the totality of their sovereignty’,7 he re-called the importance of economic independence for the strive of nonself-governing peoples to achieve self-determination. Moreover, the conventional application of both self-determination and psnr can be traced back to situations in which peoples are either former colonial territories or under other forms of foreign occupation.8 Their inherent link was therefore also recognized in unga Resolution 1314 (xiii): the right of peoples and nations to self-determination as affirmed in the two draft Covenants completed by the Commission on Human Rights i­ncludes ‘permanent sovereignty over their natural wealth and resources’.9 6 Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 200 (Dissenting Opinion of Judge Weeramantry, 30 June); see also Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 276, para. 167(2) (Dissenting Opinion of ad hoc Judge Skubiszewski, 30 June). 7 Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 197 (Dissenting Opinion of Judge Weeramantry, 30 June). 8 Compare the formulations used in: unga Res. 2625 (xxv), Declaration on Principles of ­International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028 and unga Res. 3202 (S-VI), Programme of Action on the Establishment of a New International Economic Order, 1 May 1974, S-6 un gaor, Supp. No. 1, p. 5, un Doc. A/9559. 9 unga Res. 1314 (xiii), Recommendations Concerning International Respect for the Rights of Peoples and Nations to Self-Determination, 12 December 1958, 13 un gaor, Supp. No. 18, p. 27, un Doc. A/4090; see also Art. 1(2): The human right to development also implies the full realization of the right of peoples to self-determination, which includes, subject to the relevant provisions of both International Covenants on Human Rights, the exercise of their inalienable right to full sovereignty over all their natural wealth and resources. unga Res. 41/128, Declaration on the Right to Development, 4 December 1986, 41 un gaor, Supp. No. 53, p. 186, un Doc. A/41/53.

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The capability to engage in international trade activities as well as ­economic transactions with regard to natural resources in a system based on ­equality, equity and mutual benefits is decisive for the full enjoyment of ­self-­determination.10 Thus, political sovereignty and economic sovereignty are ­dependent upon each other.11 Similarly, the principle of fpic is essential in ensuring that self-­ determination, in particular economic self-determination, is fulfilled in a meaningful manner. As an indigenous right, it functions as a forceful safeguard containing a variety of elements necessary to ensure their participation in decisions affecting their lands and resources. As noted by the Swedish delegate in the United Nations General Assembly: [t]he political discussion on self-determination cannot be separated from the question of land rights. […] A large part of the realization of the right to self-determination is without doubt possible to ensure through article 19, which deals with the duty of States to consult and cooperate with ­indigenous peoples. Article 19 can be implemented in different ways, including through a consultative process between institutions representing indigenous peoples and Governments and through participation in democratic systems, such as in the current Swedish system.12 The following sections will focus on extent and application of these pillars of self-determination, assessing their legal value, diverse stakeholders, enforcement difficulties and consequences for governance.

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Sub-Commission on Prevention of Discrimination and Protection of Minorities, ‘The Right to Self-Determination – Historical and Current Development on the Basis of United Nations Instruments’, Study by Special Rapporteur, A. Cristescu, 1981, p. 78, para. 463, un Doc. E/CN.4/Sub.2/404/Rev.1. A. Anghie, Imperialism, Sovereignty, and the Making of International Law, 2005, p. 211. United Nations General Assembly, 107th plenary meeting, 13 September 2007, un Doc. A/61/PV.107, p. 24; Art. 19, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

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The Principle of Permanent Sovereignty over Natural Resources – Origins and Evolution

Initiative Sparks – United Nations General Assembly Resolution 1803 (xvii) The creation of new states in the period of decolonization went simultaneous with the development of a principle which encompassed their various demands and interests. Rooted in the right to self-determination and with the primary aim of enabling economic development for developing states, the principle of psnr builds on traditional state prerogatives such as territorial sovereignty and sovereign equality of states. This permits states to freely determine and apply laws and policies governing their people and territory under their jurisdiction and choose their own political, social and economic systems.13 The origins of psnr can be traced back to numerous resolutions which passed in the United Nations General Assembly (unga).14 Though non-­ binding, the case of psnr constitutes one of the prime examples in which unga resolutions have considerably contributed to the formation of customary international law. This has also been confirmed in several judgments of 6.1.1

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Art. 2(1), Charter of the United Nations, 24 October 1945, 1 unts 26; unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; Corfu Channel (Merits) (United Kingdom v. Albania), 1949 icj 4, p. 35 (Judgment, 9 April); Island of Palmas (United States of America v. Netherlands), 2 riaa 829, pp. 838–840 (Award, 4 April 1928); A. Cassese, International Law, 2nd ed., 2005, pp. 48–52; I. Brownlie, Principles of Public International Law, 7th ed., 2008, pp. 289–291. N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 399–401; unga Res. 626 (vii), Right to exploit freely natural wealth and resources, 21 December 1952, 7 un gaor, Supp. No. 20, p. 18, un Doc. A/2361; unga Res. 1515 (xv), Concerted action for economic development of economically less developed countries, 15 December 1960, 15 un gaor, Supp. No. 16, p. 9, un Doc. A/4684; unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; unga Res. 3016 (xxvii), Permanent sovereignty over natural resources of developing countries, 18 December 1972, 27 un gaor, Supp. No. 30, p. 48, un Doc. A/8963; S.R. Chowdhury, ‘Permanent Sovereignty over Natural ­Resources – ­Substratum of the Seoul Declaration’, in International Law and Development, M. Denters/ P. Peters/P. de Waart eds., 1988, pp. 61, 64–65.

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international judicial bodies.15 Thus, the common repetition and recitation of previous resolutions serve as proof of a strong opinio iuris that the principle of psnr has been accepted as a norm of customary international law.16 ­Furthermore, the International Court of Justice explicitly stipulated this in Armed Activities on the Territory of the Congo (Democratic Republic of the ­Congo v. Uganda), finding that the principle of permanent sovereignty over natural resources is expressed in General Assembly resolution 1803 (xcii) of 14 December 1962 and further elaborated in the Declaration on the Establishment of a New International Economic Order (General Assembly resolution 3201 (S. vi) of 1 May 1974) and the Charter of Economic Rights and Duties of States (General Assembly resolution 3281 (xxix) of 12 December 1974). While recognizing the importance of this principle, which is a principle of customary international law, the Court notes that there is nothing in these General Assembly resolutions which suggests that they are applicable to the specific situation of looting, pillage and exploitation of certain natural resources by members of the army of a State militarily intervening in another State, which is the subject-matter of the drc’s third submission.17 15

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Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 254, para. 70 (Advisory Opinion, 8 July); Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 45, para. 89 (Advisory Opinion, 21 June); Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), 1986 icj 14, p. 44, para. 72, pp. 106–107, paras. 202–203 (Judgment, 27 June); Award on the Merits in Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Texaco v. Libya), 17 ilm 1, paras. 83–86 (Award, 19 January 1977); D. Dam-de Jong, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations, 2015, p. 46. Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), 1986 icj 14, p. 100, para. 188, p. 101, para. 191 (Judgment, 27 June); L­ egality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 254, para. 70 (Advisory Opinion, 8 July); K.N. Gess, ‘Permanent Sovereignty over Natural Resources – An Analytical Review of the United Nations Declarations and Its Genesis’, International and Comparative Law Quarterly, vol. 13, no. 2, 1964, p. 400; N. Schrijver, Sovereignty over Natural Resources – ­Balancing Rights and Duties, 2008, p. 373; M.R. Islam, ‘History of the North–South Divide in International Law: Colonial Discourses, Sovereignty, and Self-Determination’, in International Environmental Law and the Global South, S. Alam/S. Atapattu/C.G. Gonzalez/ J. Razzaque eds., 2015, p. 37. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 icj 168, pp. 251–252, para. 244 (Judgment, 19 December).

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Judge Weeramantry in his dissenting opinion in East Timor even designated psnr as a right erga omnes.18 At the same time, psnr is marked by ‘extreme elasticity and generality’,19 susceptible to international policy change. The first resolution containing the principle of psnr was unga Resolution 523 (vi) from 1952.20 The debate on natural resources reflected the concerns generated due to a ‘sharp increase in the demand for raw material’21 after World War ii and the desire of newly independent states to ensure equitable and fair exploitation arrangements concerning their natural resources.22 In reaction to the altering geo-political realities which the international community was confronted with, unga Resolution 1314 (xiii) established a Commission in 1958 to conduct a ‘full survey of the status of permanent sovereignty of peoples and nations over their natural wealth and resources’23 and to determine the extent of psnr within the notion of self-determination.24 Among many resolutions to follow on the topic, law-making unga ­Resolution 1803 (xvii) stands out, generated after lengthy studies on the topic of psnr had been conducted by the Economic and Social Council, the un ­Secretariat and the Commission on psnr.25 unga Resolution 1803 (xvii) states: 18

19 20 21 22 23

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Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 215 (Dissenting Opinion of Judge Weeramantry, 30 June): However, this case has stressed the obverse aspect of rights opposable erga omnes – namely, the right erga omnes of the people of East Timor to the recognition of their self-determination and permanent sovereignty over their natural resources. [emphasis in original]; see also Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 276, (Dissenting Opinion of ad hoc Judge Skubiszewski, 30 June). Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14, p. 120, para. 26 (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 20 April). unga Res. 523 (vi), Integrated Economic Development and Commercial Agreements, 12 January 1952, 6 un gaor, Supp. No. 20, p. 20, un Doc. A/2119. Ibid. N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 4–5, 36. unga Res. 1314 (xiii), Recommendations Concerning International Respect for the Rights of Peoples and Nations to Self-Determination, 12 December 1958, 13 un gaor, Supp. No. 18, p. 27, un Doc. A/4090. Ibid.; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 59. K.N. Gess, ‘Permanent Sovereignty over Natural Resources – An Analytical Review of the United Nations Declarations and Its Genesis’, International and Comparative Law Q ­ uarterly, vol. 13, no. 2, 1964, p. 398; B. Broms, ‘Natural Resources – Sovereignty over’, in Encyclopedia of Public International Law, R. Bernhardt ed., 1997 (Volume iii), p. 521.

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1. The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned. […] 4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases the owner shall be paid appropriate compensation, in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. […].26 .

It therefore stipulates not only that psnr must be exercised in the interest of national development and well-being of the peoples concerned, but also lays out basic rules concerning the treatment of foreign investors.27 In its traditional understanding closely associated to state sovereignty,28 the principle gives states the right to possess, use and dispose freely of any surface and sub-surface natural resources, connected with their territory, and for this purpose they may not only regulate their economy but also nationalize or expropriate property, both of nationals and foreigners.29 The state therefore receives extensive utilization rights which in their widest sense even stand above land ownership rights.30 26 27

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Art. 1, paras. 1, 4, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217. S. Zamora, ‘Economic Relations and Development’, in The United Nations and International Law, C.C. Joyner ed., 1997, p. 259; Award on the Merits in Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Texaco v. Libya), 17 ilm 1, p. 30 (Award, 19 January 1977). Just see the Preamble of unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217: Noting that the creation and strengthening of the inalienable sovereignty of States over their natural wealth and resources reinforces their economic independence. unga Res. 626 (vii), Right to exploit freely natural wealth and resources, 21 December 1952, 7 un gaor, Supp. No. 20, p. 18, un Doc. A/2361; A. Cassese, Self-Determination of Peoples – A Legal Appraisal, 1995, pp. 55–56; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 22–24, 264, 285; G. Elian, The Principle of Sovereignty over Natural Resources, 1979, pp. 11–12, 15–16; K. Hossain/S.R. Chowdhury, Permanent Sovereignty over Natural Resources in International Law, 1984, p. 93. G. Hafner, Die seerechtliche Verteilung von Nutzungsrechten, 1987, pp. 164ff.; Libyan ­American Oil Company (liamco) v. Government of the Libyan Arab Republic, Ad Hoc ­Tribunal, 62 ilr 140, pp. 184–185 (Award, 12 April 1977):

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According to unga Resolution 1803 (xvii), though, profits derived from the granting of authorization for exploration, development and disposition of natural resources shall be shared proportionally.31 In cases where the state chooses to nationalize, expropriate or requisition property, it must limit this to sole instances for public purposes, and compensation shall occur in accordance with national legislation.32 In general, however, as far as possible such agreements are to be complied with in good faith.33 Furthermore, unga Resolution 1803 (xvii) emphasizes that the principle shall be exercised with respect for the rights and duties of states under international law, as well as their sovereign equality, and moreover encourages international cooperation for the economic development of developing countries.34 6.1.2 Responding to a Changing World Order The wide acceptance of the principle of psnr constituting customary international law was also evidenced by its inclusion in the iccpr as well as in the ­i cescr.35 Though the Covenants do not expressly contain the term ‘permanent sovereignty’ but merely speak of a right of free disposition which is to be exercised in consideration of general rules of international law (e.g. treaty

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33 34 35

Gradually, property came to be viewed as having a dominant ‘social function or role’, and has as such to be subervient to the public interest of the Community represented by the State. The old sacred character of property has become subject to the influence of social objectives. Its protection has thus been attenuated in domestic as well as in international law. Moreover, natural resources, in general, do not belong any more to the owner of the land, but to the Community represented by the State as a privilege of its sovereignty. This view has been adopted in Libya and expressly laid down in its legislation on mines and petroleum. B. Broms, ‘Natural Resources – Sovereignty over’, in Encyclopedia of Public International Law, R. Bernhardt ed., 1997 (Volume iii), p. 522; Art. 1, paras. 2–3, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217. Art. 1, para. 4, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; S. Zamora, ‘Economic Relations and Development’, in The United Nations and International Law, C.C. Joyner ed., 1997, p. 259. Art. 1, para. 8, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217. Preamble, Art. 1, paras. 5–7, ibid. Art. 1(2), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(2), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3.

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or ­customary international law obligations with regard to the protection of foreign investments), Article 47 of the iccpr and Article 25 of the icescr emphasize that [n]othing in the present Covenant shall be interpreted as impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.36 Hence, the Covenants prioritize the use of natural wealth and resources as fundamental in underlying the human rights contained in the Covenants.37 The scope of the principle was further clarified and developed in the following years, resulting finally in the adoption of the Charter of Economic Rights and Duties of States (cerds).38 While more concrete guidelines for implementation had begun crystallizing,39 external circumstances, such as, e.g., the oil crisis in 1973, nationalizations which sought legitimization inter alia in the principle of psnr and the extension of jurisdiction over resources of the sea, provoked developing states to establish a New International ­Economic ­Order.40 The aim was to restructure the existing economic world order to create equal, cooperative and fair terms of trade in particular for developing states. Hence, while previous documents had referred to peoples as the beneficiaries of psnr, cerds witnessed a reemphasis of the right as a state’s right. Therefore, Article 2 cerds reiterates the focus on states, reading: Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities.41

36 37 38 39 40

41

Art. 47, ibid.; Art. 25, ibid. M. Nowak, u.n. Covenant on Civil and Political Rights: ccpr Commentary, 2nd ed., 2005, pp. 24–26, 800. unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631. unga Res. 2158 (xxi), Permanent Sovereignty over Natural Resources, 25 November 1966, 21 un gaor, Supp. No. 16, p. 29, un Doc. A/6518. S.K. Chatterjee, ‘The Charter of Economic Rights and Duties of States – An Evaluation after 15 Years’, International and Comparative Law Quarterly, vol. 40, no. 3, 1991, pp. 669–670; G. Elian, The Principle of Sovereignty over Natural Resources, 1979, pp. 104–106. Art. 2(1), unga Res. 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974, S-6 un gaor, Supp. No. 1, p. 3, un Doc. A/9559.

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In addition, the sensitive topic of nationalization is especially elaborated on in more depth.42 Although the majority of developed states either abstained from voting or voted against the resolution, this can be explained by those points touching upon the treatment of transnational corporations and the ­(incomplete) obligation to pay compensation in cases of nationalization, ­expropriation or requisition of property, as the chosen regulation of these aspects led to unrest among the developed nations.43 In this context, the tribunal in Texaco Overseas Petroleum Co. v. Libya therefore noted that ‘Article 2 of this Charter must be analyzed as a political rather than a legal declaration ­concerned with the ideological strategy of development and, as such, supported only by the non-industrialized States’.44 In the following years, concerns over decreasing foreign investment brought several additional factors into the process of normative evolution. Firstly, as had already been a cornerstone in unga Resolution 1803 (xvii), new emphasis was laid on international cooperation for the promotion of development.45 Models envisioning financial support, transfer of technology and know-how were introduced.46 Secondly, a result of these active efforts by developing states was the creation of an equitable international regime concerning the exploration and exploitation of natural resources of the sea-bed based on the concept of common heritage of mankind, calling for their utilization for the benefit of 42

43 44

45

46

B.H. Weston, ‘The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth’, American Journal of International Law, vol. 75, no. 3, 1981, pp. 437–438. S.K. Chatterjee, ‘The Charter of Economic Rights and Duties of States – An Evaluation after 15 Years’, International and Comparative Law Quarterly, vol. 40, no. 3, 1991, p. 674. Award on the Merits in Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Texaco v. Libya), 17 ilm 1, para. 88 (Award, 19 January 1977); Noting this approach with concern, M.R. Islam, ‘History of the North–South Divide in International Law: Colonial Discourses, Sovereignty, and Self-Determination’, in International Environmental Law and the Global South, S. Alam/ S. Atapattu/C.G. Gonzalez/J. Razzaque eds., 2015, p. 38. Preamble, Art. 1, para. 6, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; unga Res. 32/176, Multilateral Development Assistance for the Exploration of Natural Resources, 19 December 1977, 32 un gaor, Supp. No. 39, p. 109, un Doc. A/32/39; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 113–114. G. Elian, The Principle of Sovereignty over Natural Resources, 1979, pp. 86–88; unga Res. 2626 (xxv), International Development Strategy for the Second United Nations Development Decade, 24 October 1970, 25 un gaor, Supp. No. 28, p. 39, un Doc. A/8028.

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mankind as a whole.47 This regime was also included in Part xi of the United Nations Convention on the Law of the Sea which, however, did not receive support until the envisioned management regime, though not the underlying principle, was amended by the 1994 Agreement.48 Additionally, due to growing environmental concerns in the aftermath of the 1972 Stockholm Declaration, the foundation of modern international environmental law, further General Assembly Resolutions led to the inclusion of more regulations on nature management and exploitation methods.49 unga Resolution 37/7, adopting the World Charter for Nature, is an example of the recognition of the importance of states incorporating conservation practices when conducting their activities within the scope of the principle of psnr.50 International cooperation concerning shared natural resources between two or more states also received growing attention, requiring states to accept partly limiting their own conduct due to considerations for other states. ­Article 3 cerds constituted a first step in the process resulting in the drafting of the unep Guidelines on Shared Resources, which contain proposals for ­conservation and harmonious utilization methods for states which share natural resources with other states.51 Due to the fact that diverging views existed whether the sovereignty of states concerning natural resources was to be understood as being full or in fact naturally limited, the unga merely 47

48 49 50 51

unga Res. 2574 (xxiv), Question of the reservation exclusively for the peaceful purposes of the sea-bed and the ocean floor, and the subsoil thereof, underlying the high seas beyond the limits of present national jurisdiction, and the use of their resources in the interests of mankind, 15 December 1969, 24 un gaor, Supp. No. 30, p. 10, un Doc. A/7630; unga Res. 2749 (xxv), Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, 17 December 1970, 25 un gaor, Supp. No. 28, p. 24, un Doc. A/8028; Part xi, Section 2, United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3; C.C. Joyner, ‘Legal Implications of the Concepts of the Common Heritage of Mankind’, International and Comparative Law Quarterly, vol. 35, no. 1, 1986, p. 193. E. Guntrip, ‘The Common Heritage of Mankind: An Adequate Regime for Managing the Deep Seabed?’, Melbourne Journal of International Law, vol. 4, no. 2, 2003, pp. 384–385. J. Thornton/S. Beckwith, Environmental Law, 2nd ed., 2004, p. 29; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 128. unga Res. 37/7, World Charter for Nature, October 28, 1982, 37 un gaor, Supp. No. 51, p. 17, un Doc. A/37/51. Art. 3, unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631; Environmental Law Guidelines and Principles on Shared Natural Resources, unep gc Dec. No. 6/14, 19 May 1978, 33 gaor, Supp. No. 25, p. 154, un Doc. A/33/25.

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took note of the guidelines and requested states to incorporate them in good faith.52 As international environmental law developed, the principle of psnr ­underwent further alterations. The 1992 United Nations Conference on Environment and Development (‘Earth Summit’), the results of which were proclaimed in the 1992 Rio Declaration, placed new emphasis on the connection of the principle with the aim of development, one of the original intentions of psnr.53 Developmental policies thus were moved into greater focus within the Declaration, reemphasizing the importance of the principle of psnr also again as a tool for many developing states to ensure their rights to exploit and use their natural resources located within their territory. Furthermore, it is stated in several passages within the document that environmental preservation nevertheless shall at all times be incorporated into their development process, reaffirming the importance of sustainable conduct, transnational cooperation, sound resource management and an overall precautionary approach.54 The 1992 Rio Conference went parallel to the drafting of several other environmental treaties. Examples can be seen in the un Framework Convention on Climate Change or in the Convention on Biological Diversity, which both include almost identical provisions to Principle 2 of the Rio Declaration.55 The 2002 Johannesburg Plan of Implementation dedicates a whole chapter to the protection and management of natural resources, within the context of

52

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Arts. 2–3, unga Res. 34/186, Co-operation in the Field of the Environment Concerning Natural Resources Shared by Two or More States, 18 December 1979, 34 un gaor, Supp. No. 46, p. 128, un Doc. A/34/46; V.P. Nanda, ‘Environment’, in The United Nations and International Law, C.C. Joyner ed., 1997, p. 293. Art. 1, para. 1, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; Principles 2–3, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); ­Paras. 22, 24–25, Rio Declaration on Environment and Development – ­Application and Implementation, Report of the Secretary-General, 10 February 1997, un Doc. E/ CN.17/1997/8. Principles 1, 4–7, 15, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 136–138. Arts. 1, 3, Convention on Biological Diversity, 5 June 1992, 1760 unts 79; Preamble, United Nations Framework Convention on Climate Change, 9 May 1992, 1771 unts 107; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 138.

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­economic and social development.56 It stresses the importance of a sustainable and integrated implementation strategy of national and regional policies with regard to natural resources.57 This shall include, e.g., public participation at the decision-making levels, regional arrangements concerning shared resources as well as natural resources which have an effect on other territories and conservation and protection measures where appropriate. Furthermore, competing uses shall be balanced against each other and priority given to basic human needs and the restoration of fragile ecosystems.58 International coordination and cooperation is especially important with regard to those ecosystems which are essential for global food security, such as oceans and seas.59 Thus, unlike early approaches which aimed at guaranteeing states full sovereignty over their resources, the developments in the various fields of international law, under the overarching concept of sustainable development, have resulted in an integrated ecosystem approach concerning the utilization of natural resources.60 Rooted also in its type of creation – mainly through political instruments – the openness of the principle of psnr to incorporate newly evolving interests is one of the primary reasons for the concept to still possess such relevance in the 21st century. The context under which the extensive set of rights and obligations connected to the principle of psnr must be analyzed has changed in many aspects and thereby continues to be susceptible to new evolvements of law and policy. 56

57 58 59 60

Chapter 4, Plan of Implementation of the World Summit on Sustainable Development, 4 September 2002, un Doc. A/CONF.199/L.1; E. Louka, International Environmental Law – Fairness, Effectiveness, and World Order, 2006, pp. 35–37. Paras. 24–26, Plan of Implementation of the World Summit on Sustainable Development, 4 September 2002, un Doc. A/CONF.199/L.1. Para. 26, ibid. Para. 30, ibid. Principle 4, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/ CONF.151/26 (Vol. i); Paras. 31–32, Rio Declaration on Environment and Development – Application and Implementation, Report of the Secretary-General, 10 February 1997, un Doc. E/CN.17/1997/8; Preamble, Art. 1, Convention on Biological Diversity, 5 June 1992, 1760 unts 79; M.-C. Cordonier Segger/A. Khalfan, Sustainable Development Law – ­Principles, Practices, & Prospects, 2004, p. 112; W. Scholtz, ‘Greening Permanent Sovereignty Through the Common Concern in the Climate Change Regime: Awake Custodial Sovereignty!’, in Climate Change: International Law and Global Governance – Volume ii: Policy, Diplomacy and Governance in a Changing Environment, O.C. Ruppel/C. Roschmann/K. Ruppel-­ Schlichting eds., 2013, pp. 203–204.

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Rights and Duties of Permanent Sovereignty over Natural Resources – Revisited from a Current Perspective

Before turning to a more detailed analysis of the scope of psnr, i.e. a determination of objects and subjects of the principle, this section shall offer a brief overview over certain rights and obligations associated with psnr. Without pre-empting any findings as to whether (indigenous) peoples constitute subjects of psnr, focus is put on those aspects which are of interest to peoples/ indigenous peoples, thus, providing less detailed emphasis in the discussion of those aspects of psnr which would only be relevant in regard to an outcome that only states would constitute the sole subjects of psnr. Thus, in particular the discussion on details relevant in the context of a state’s right to regulate foreign investments will not be discussed at length. The Sovereign Right to Freely Dispose, Use and Exploit Natural Resources and the Freedom to Choose One’s Own Economic, Environmental and Developmental Policies – Reasoning Principles and Extent The sovereign right to freely dispose, use and exploit one’s natural resources entitles the right-bearer to, firstly, regain the sovereignty and control over their natural resources, and secondly, to use these for their economic and political development.61 In order to safeguard this legal capacity the principle builds upon numerous other rights. Thus, to be able to determine the fate of one’s natural resources it is inter alia necessary that the right-bearers enjoy the corollary rights permitting them to regulate the use and exploitation methods, whether this concerns the pre- or post-authorization phase.62 Therefore, they, 6.2.1

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A. Ziegler/L.-P. Gratton, ‘Investment Insurance’, in The Oxford Handbook of International Investment Law, P. Muchlinski et al. eds., 2008, p. 526; S.R. Chowdhury, ‘Permanent Sovereignty over Natural Resources – Substratum of the Seoul Declaration’, in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, pp. 61–62. unga Res. 626 (vii), Right to exploit freely natural wealth and resources, 21 December 1952, 7 un gaor, Supp. No. 20, p. 18, un Doc. A/2361; unga Res. 2158 (xxi), Permanent Sovereignty over Natural Resources, 25 November 1966, 21 un gaor, Supp. No. 16, p. 29, un Doc. A/6518; Art. 47, International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 25, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; Award on the Merits in Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Texaco v. Libya), 17 ilm 1, para. 59 (Award, 19 January 1977); Arts. 56(1)(a), 77, 193, United Nations Convention on the Law of the Sea, 10 December 1982, 1988 unts

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e.g., are entitled to regulate the relationship with foreign investors, the granting of concessions concerning the exploitation of certain natural resources, the length of period the authorization is valid for, the conduct of entities engaged in the exploitation and the distribution of profits. In its original conception, the ultimate control over natural resources falls to and remains at all times – hence permanent – with the state, and accordingly, activities related to their development, exploitation and utilization are ­subjected to the state’s national laws.63 A state can rely on the principle to ­invalidate existing agreements and re-negotiate existing concessions.64 Moreover, it may choose to enter into international or national contracts granting other entities access to its natural resources and is free to create an environment encouraging foreign and domestic investments by guaranteeing certain minimum degrees of investment protection.65 This occurs in the form of regional and multilateral trade agreements (which include investment provisions) but most often takes place via investment codes or Bilateral Investment Treaties (bits).66 However, contracts entered into may not permanently infringe the state’s sovereign rights (legislation, executive and judicial powers)

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3; Preamble, International Tropical Timber Agreement, 27 January 2006, 2801 unts Doc. TD/TIMBER.3/12; Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 unts 119; Preamble, Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone, 30 November 1999, 2319 unts 81; Art. iv, Treaty for Amazonian Cooperation, 3 July 1978, 1202 unts 71; Art. 5(c), Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 June 1999, un Doc. MP.WAT/2000/1, EUR/ICP/EHCO 020205/8Fin. Art. 3, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217. S.R. Chowdhury, ‘Permanent Sovereignty over Natural Resources – Substratum of the Seoul Declaration’, in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, p. 62; H. Reinhard, Rechtsgleichheit und Selbstbestimmung der Völker in wirtschaftlicher Hinsicht – Die Praxis der Vereinten Nationen, 1980, p. 57. A. Ziegler/L.-P. Gratton, ‘Investment Insurance’, in The Oxford Handbook of International Investment Law, P. Muchlinski et al. eds., 2008, p. 528. Ibid.; Foreign investments constitute both a valuable but at the same time partly dangerous asset for the development of a state’s national economy. For a developing country it is inevitable to stimulate its own development by attracting foreign investors. As often concessions and authorizations granted to multinational corporations hand over control over some of the most important resources of the state, it is particularly important to emphasize the corollary right to be able to regulate foreign investments to retain an effective saying in the exploitation and development of its natural resources (see also M. Sornarajah, The International Law on Foreign Investment, 2nd ed., 2004, p. 40).

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and furthermore must be entered into freely.67 From this follows, that in those situations in which circumstances at the time of conclusion of an agreement, or even occurring after, lead to situations which notoriously violate the underlying premise of sovereignty over natural resources, one may re-evaluate and adjust treaties and contracts, ultimately by resorting to the nationalization, expropriation or requisitioning of property, leading to a transfer of ownership.68 A further basic component of the principle of psnr is the freedom to decide on the best suitable policies concerning the environment, development and economy of the nation. This roots in two fundamental ideas of the law of nations: the sovereign equality of states on the one hand and, on the other hand, the duty not to intervene in matters within domestic jurisdiction.69 Concerning the former, as the world order consists of states which enjoy equal rights and duties, their choice of political, economic, social and cultural systems does not alter their standing within a hierarchy in which all states in their relations to one another are understood to be on a horizontal level.70 The Friendly Relations Declaration confirms the inclusivity of this element as part of the wider category of the principle of sovereign equality.71 Moreover, the duty not 67

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Principle 5.2, Seoul Declaration on the Progressive Development of Principles of Public International Law Relating to a New International Economic Order, reprinted in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, p. 409; Art. 8, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; unga Res. 3171 (xxviii), Permanent Sovereignty over Natural Resources, 17 December 1973, 28 un gaor, Supp. No. 30, p. 52, un Doc. A/9030; S.R. Chowdhury, ‘Permanent Sovereignty over Natural Resources – S­ ubstratum of the Seoul Declaration’, in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, pp. 62–63. Art. 4, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; S.R. Chowdhury, ‘Permanent Sovereignty over Natural Resources – Substratum of the Seoul Declaration’, in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, pp. 63–64; P. ­Muchlinski, ‘Policy Issues’, in The Oxford Handbook of International Investment Law, P. Muchlinski et al. eds., 2008, p. 27. G. Abi-Saab, ‘Permanent Sovereignty over Natural Resources and Economic Activities’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, pp. 597–618; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 274–275. Art. 2(1), Charter of the United Nations, 24 October 1945, 1 unts 26. Principle 6(e) (The principle of sovereign equality of states), unga Res. 2625 (xxv), ­Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; G. Abi-Saab, ‘Permanent

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to ­intervene implies that the choice of policies of another state cannot give a state the right to intervene, whether directly or indirectly, e.g., by exercising economic or political coercion.72 On the contrary, states are rather under the duty to cooperate with one another inter alia in order to maintain international peace and security.73 Introduced in the Friendly Relations Declaration, cerds re-emphasizes in its Article 1 that states enjoy the sovereign right to freely choose their economic systems.74 The extent of this liberty is further specified in its subsequent articles. For example, Article 4 lays out that states may, irrespective of their economic, social or political systems, engage in and regulate freely their foreign economic relations and investments.75 In order to achieve the aim of development, they are free to choose the model which in their opinion will suit best.76 In addition, states have ‘the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies’.77 Included in the Rio Declaration especially due to efforts of developing states, the clause is rooted in their concern that environmental considerations would be used by

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74 75 76

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­Sovereignty over Natural Resources and Economic Activities’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, p. 598. Principle 3 (The duty not to intervene in matters within the domestic jurisdiction of any state), unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028; Art. 2(7), Charter of the United Nations, 24 October 1945, 1 unts 26; B. Conforti, ‘The Principle of Non-Intervention’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, pp. 470, 472; H. Reinhard, Rechtsgleichheit und Selbstbestimmung der Völker in wirtschaftlicher Hinsicht – Die Praxis der Vereinten Nationen, 1980, pp. 280–281. Principle 4 (The duty of States to co-operate with one another), unga Res. 2625 (xxv), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October 1970, 25 un gaor, Supp. No. 28, p. 123, un Doc. A/8028. Art. 1, unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 ­December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631. Art. 4, ibid. Art. 7, unga Res. 3281 (xxix), ibid.; G. Abi-Saab, ‘Permanent Sovereignty over Natural Resources and Economic Activities’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, p. 599. Principle 2, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); see also Preambular para. 8, United Nations Framework Convention on Climate Change, 9 May 1992, 1771 unts 107; Preambular para. 15, United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 unts 3.

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industrialized nations as an excuse for interfering within their domestic affairs, and moreover that developing states would become subject to unachievable conditions in international developmental and trade agreements with regard to environmental protection.78 While this does not exempt developing states from their obligations arising from international law with regard to the conservation and utilization of their natural resources, the goal of achieving development is moved into greater concern.79 Finally, the freedom to decide upon one’s own policies applies with regard to interstate-relations as well. Nevertheless, states have the obligation to formulate and pursue policies which comply with their international obligations, especially as inherent in psnr itself. 6.2.2 The Duties of Permanent Sovereignty over Natural Resources In an interconnected world rights will very seldom come without the opposite side of the coin. Perceiving psnr as an expression of economic sovereignty emphasizes the freedom of states to freely decide in regard to use, exploitation and protection of their natural wealth and resources, however, also goes in hand with the realization that they are still bound by international law. Departing from this premise, Franz X. Perrez, for example, distinguishes the obligations in connection with psnr into three categories: limitations to the right from above (referring to international obligations states freely entered into which may relate to the exploration, development and disposition of natural resources), from beside (referring to those obligations which exist due to the natural limits to sovereignty, i.e. where the sovereignty of another state begins), and from below (referring to the fact that according to the human rights covenants psnr is enjoyed by peoples and not states).80 Thus, though the principle of psnr had its origin mainly as an instrument of developing states to strengthen their position towards their former colonizing states, international law limits their exercise of the right. Obligations 78

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Art. 3, Convention on Biological Diversity, 5 June 1992, 1760 unts 79; Principle 21, Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, un Doc. A/CONF.48/14 (1972), reprinted in (1972) 11 ilm 1416; Art. 193, United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3; N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 275–276; E. Louka, International Environmental Law – Fairness, Effectiveness, and World Order, 2006, p. 29. Principles 1, 2(a), Annex iii, Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests, Report of the United Nations Conference on Environment and Development, 2–14 June 1992, un Doc. A/CONF.151/26 (Vol. iii). F.X. Perrez, Cooperative Sovereignty – From Independence to Interdependence in the Structure of International Environmental Law, 2000, pp. 97–107.

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deriving from various sectors of law which are directed towards all states have created an extensive legal framework within which the conduct of states is no longer without limitations. The most important obligations will be dealt with in the following sections. As a preliminary remark, attention should be drawn to the fact that peoples and indigenous peoples, though constituting subjects of the rights of psnr, currently are not understood as direct addressees of a number of its obligations, at least not at the international level. Hence, an obligation can only be said to exist where another subject has the right to demand such conduct. The Duty of a State to Exercise Permanent Sovereignty over Natural Resources in the Interest of National Development and the Well-Being of the People unga Resolution 1803 (xvii) explicitly declares that psnr

6.2.3

must be exercised in the interest of […] national development and of the wellbeing of the people of the State concerned.81 Within one article two obligations, which cannot necessarily always both be fulfilled at the same time, are laid out.82 Thus, even though every state has the right to freely dispose, exploit and use its natural resources, and for this purpose may regulate its economy, in theory this shall only occur to further its national development and benefit the well-being of its people.83 In this regard, it has even been argued that states are trustees and not holders of the right.84 The duty to use one’s natural resources to improve the nation’s progress and economic development serves as justification for many of the extensive rights connected to the principle.85 With one of the aims of psnr being to eliminate previous injustices and to create equal players in the modern world, the rights 81 82 83 84

85

Art. 1, unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217. N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 293. G. Elian, The Principle of Sovereignty over Natural Resources, 1979, p. 98. Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 ­November 2013, para. 132: ‘Article 21 of the African Charter presupposes that that right is held in trust for the people’. See also D. Dam-de Jong, ‘International Law and Resource Plunder: The Protection of Natural Resources During Armed Conflict’, Yearbook of International Environmental Law, vol. 19, 2008, p. 34. S.R. Chowdhury, ‘Permanent Sovereignty over Natural Resources – Substratum of the Seoul Declaration’, in International Law and Development, M. Denters/P. Peters/P. de

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which peoples and states become bearers of are linked therewith and thus, shall be used in accordance.86 In this sense, steps taken to further the development shall ultimately benefit the people of the state.87 This was also explicitly incorporated into the African Charter on Human and Peoples’ Rights which states in Article 21 that: 1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.88 In this regard, the African Commission on Human and Peoples’ Rights explained in Front for the Liberation of the State of Cabinda that state parties were obliged to ‘protect their citizens from exploitation by external economic powers and to ensure that groups and communities, directly or through their respresentatives, are involved in decisions relating to the disposal of their wealth’.89 The ‘distributional concern’90 between the majority population and often vulnerable communities poses difficult questions to national decision-makers

86

87

88 89

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Waart eds., 1988, p. 62; M. Bedjaoui, ‘The Right to Development’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, p. 1184. M. Bedjaoui, ‘The Right to Development’, in International Law: Achievements and Prospects, M. Bedjaoui ed., 1991, p. 1177; Preamble, unga Res. 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974, S-6 un gaor, Supp. No. 1, p. 3, un Doc. A/9559. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001, paras. 57–58; Preamble, unga Res. 41/128, Declaration on the Right to Development, 4 December 1986, 41 un gaor, Supp. No. 53, p. 186, un Doc. A/41/53; M.S. Choudhury, ‘Oil and Water do Mix: The Case of Saudi Arabia’, The Journal of Developing Areas, vol. 37, no. 2, 2004, pp. 169–170; N.J. Udombana, ‘The Third World and the Right to Development: Agenda for the Millennium’, Human Rights Quarterly, vol. 22, no. 3, 2000, p. 766. Art. 21, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217. Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 November 2013, para. 129; See also The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001, para. 57. L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 790.

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but, as will be seen below,91 also to international law. While the linking of both aspects in one aspiratory provision implies that a certain balancing of interests should take place between these two considerations, there are only few further indications as to how these objectives should be brought into balance. However, even though it remains unclear how a state shall proceed in case its population exists, e.g., of multiple peoples or various indigenous peoples and whether similar standards as inter alia in the case of minority protection are to be applied,92 the African Commission’s reference to the need to involve these groups in the decision-making process constitutes an important indicator to ensure equitable consideration of all parties.93 6.2.4 The Duty to Respect Others ‘All nature wears one universal grin’.94 The political motivation to follow this realization by drafting corresponding legal terms took until the late 1960s, driven by efforts to regulate those environmental harmful acts transcending boundaries. Hence, the need for coordinated international co-operation in this field became apparent. The duty to respect others finds particular reflection 91 92

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See on this Sections 6.4.1 and 6.4.2. For example, as was stated by the Human Rights Committee in Sandra Lovelace v. Canada, Human Rights Committee, Communication No. 24/1977, 68 ilr 17, paras. 15–16, un Doc. CCPR/C/13/D/24/1977 (Views of 30 July 1981): not every interference can be regarded as a denial of rights within the meaning of Art.27 iccpr [but] restrictions […] must have both a reasonable and objective justification and be consistent with the other provisions of the Covenant. In more detail, the African Commission thus elaborated that the term ‘peoples’ in Article 21 could: mean either the entire peoples of a given state or a ‘peoples’ within the state. The Commission believes that in the first context, Article 21 of the African Charter empowers a State Party to exercise the guaranteed right free from interference from any other African or non-African state. This has to be the explanation for sub-Articles 4 and 5 of Article 21 which speak to State Parties. However, the Commission believes that a ‘peoples’ within an existing state can be beneficiaries of the right in Article 21 to the extent that it imposes a duty on the Respondent State to ensure that resources are effectively managed for the sole and equal benefit of the entire peoples of the state. Accordingly, the African Commission is of the view that one aspect of the right in Article 21 of the African Charter is the duty of the State to involve representatives of its peoples in decisions concerning the management of national wealth and natural resources. Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 ­November 2013, paras. 130–131. As addressed in Section 6.5, the manner of the participation process is key in reaching the objective of equitable consideration. H. Fielding, Tom Thumb the Great, 1730.

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in the formulation of psnr in the field of international environmental law. Though young and strongly influenced by a number of soft law agreements, international environmental law is under the steady influence of rapidly developing technology, necessitating dynamic and quick response. The principle of psnr became a recognized instrument for states at the peak of a period marked by the desire to extend national sovereignty with regard to national resources as far as possible. Conservation efforts and concerns for the environment did not become relevant until a decade later. Nevertheless, in light of the principle’s evolvement, international cooperation and obligations with regard to the environment have become an inherent part of psnr. Environmental norms can limit a state’s right to dispose of its natural resources. For this reason, the balancing of sovereign rights with environmental protection norms results in only few customary environmental norms in this field, often times ‘limited’ to procedural obligations such as the requirement to conduct an environmental impact assessment.95 While the importance of such procedural 95

Several environmental principles have been incorporated into international conventions, e.g., the principles of sustainable development, common but differentiated responsibilities, sustainable use, equitable utilization, inter- and intragenerational equity and the precautionary principle. However, these instruments to a large degree remain soft law instruments and consequently their application has been scarce. While the precautionary principle has been incorporated into binding instruments as well, this has primarily taken place within ec legislation. An example can be seen in the ec Habitats Directive: Council Directive 92/43/EEC, 21 May 1992, Conservation of Natural Habitats and Wild Fauna and Flora, o.j. L 206, 22 July 1992, P. 0007. In comparison, sustainable development has rather remained a ‘concept of integration’, basically entailing a means of achieving development that meets the needs of the present without compromising the ability of future generations to meet their own needs (1987 Brundtland Report, unga Res. 42/187, Report of the World Commission on Environment and Development, 11 December 1987, 42 un gaor, Supp. No. 49, p. 154, un Doc. A/42/49). Hence, three sectors – economic, social and environmental – function in interplay with each other. Each part shall be understood as an element of an inter-related network, and their application shall supplement and not exclude each other. Overall, therefore, according to the principle of integration all social, economic, financial, environmental and human rights aspects shall be taken into consideration when taking decisions with regard to development. See on this in more detail, inter alia, K. Bosselmann, ‘The Concept of Sustainable Development’, in Environmental Law for a Sustainable Society, K. Bosselmann/D. Grinlinton eds., 2002, pp. 82, 87–88; G. Winter, ‘A Fundament and Two Pillars – The Concept of Sustainable Development 20 Years after the Brundtland Report’, in Sustainable Development in International and National Law: What did the Brundtland Report do to Legal Thinking and Legal Development, and Where can we go From Here?, H.C. Bugge/C. Voigt eds., 2008, pp. 27–28; M.-C. Cordonier Segger, ‘Sustainable Development in International Law’, in Sustainable Development in International and National Law: What did the Brundtland Report do to Legal Thinking and Legal

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obligations as independent normative rules must not be underestimated, the International Court of Justice – to the dismay of the dissenting Judges Simma and Al-Khasawneh – has so far missed the opportunity to tie abidance by the ‘larger’ substantive obligation to the necessary fulfilment of prior assessment and cooperation obligations.96 Focus will be laid on the discussion of the relationship between two entities, both subjects of the right to psnr. Here, the obligation not to cause damage, and its inherent element of prevention, as the substantive norm have found the clearest reflection in international treaties, customary international law as well as cases.97 Furthermore, the principle of equitable utilization shall be briefly discussed, as this directly deals with situations of shared resources. 6.2.4.1 The Obligation Not to Cause Damage The obligation not to cause damage to the territory of another state can be traced back to the Trail Smelter arbitration in which the tribunal came to the conclusion that: […] no State has the right to use or permit the use of its territory in such a manner as to cause injury […] in or to the territory of another […] when the case is of serious consequence and the injury is established by clear and convincing evidence.98 Shortly thereafter, the International Court of Justice in its judgment in the Corfu Channel case stated that every state has the obligation to ensure that its

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Development, and Where can we go From Here?, H.C. Bugge/C. Voigt eds., 2008, p. 166; International Law Association, ‘New Delhi Declaration: The Principles of Law Relating to Sustainable Development of April 2, 2002 – The 70th Conference of the International Law Association, held in New Delhi, India’, reprinted in International Environmental Agreements: Politics, Law and Economics, vol. 2, no. 2, 2002, pp. 211–216. Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14, p. 120, paras. 26f. (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 20 April). Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 241, para. 29, 429, p. 504 (Advisory Opinion, Dissenting Opinion of Judge Weeramantry, 8 July); Aerial Herbicide Spraying (Ecuador v. Colombia), 2008 icj para. 37 (Application Instituting Proceedings, 31 March); Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Provisional Measures), 2006 icj 113, p. 132, para. 72 (Order, 13 July); see also J. Thornton/ S. Beckwith, Environmental Law, 2nd ed., 2004, p. 42; A.E. Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’, Journal of Environmental Law, vol. 17, issue 1, 2006, pp. 3–4. Trail Smelter Case (United States of America v. Canada), 3 riaa 1905, p. 1965 (Award, 16 April 1938; 11 March 1941).

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territory was not used for acts which would infringe the rights of other states.99 The obligation not to cause damage has been recognized as customary international law, and is contained in numerous international conventions and declarations.100 Compliance with this obligation will be measured by the standard of due diligence, a widely recognized concept of international law, requiring states to take all reasonable and appropriate steps called for in the given situation.101 The required steps vary on a case-by-case basis, depending on factors such as the activity undertaken, its location, size, time period, technology or material used.102 Hence, no obligation of result is owed, but necessarily this can only be achieved by taking certain anticipatory steps. In addition, the realization that often the reinstatement of the environment proves difficult as a matter of financial as well as practical nature has altered the emphasis in the regulation of international environmental law. More focus has been laid on the obligation to prevent environmental harm from occurring in the first place, accompanied by obligations to co-operate in this matter and 99

Corfu Channel (Merits) (United Kingdom v. Albania), 1949 icj 4, p. 22 (Judgment, 9 April); E. Louka, International Environmental Law – Fairness, Effectiveness, and World Order, 2006, pp. 476–477. 100 Principle 21, Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, un Doc. A/CONF.48/14 (1972), reprinted in (1972) 11 ilm 1416; Principle 2, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); T. Kuokkanen, International Law and the Environment – Variations on a Theme, 2002, pp. 66, 94; M.N. Shaw: International Law, 6th ed., 2008, p. 853; Preamble, Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 unts 293; Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, 1673 unts 125; Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, 429, p. 504 (Advisory Opinion, Dissenting Opinion of Judge Weeramantry, 8 July); see also J. Thornton/S. Beckwith, Environmental Law, 2nd ed., 2004, p. 42; A.E. Boyle, ‘Globalising Environmental Liability: The Interplay of National and International Law’, Journal of Environmental Law, vol. 17, issue 1, 2006, pp. 3–4. 101 Corfu Channel (Merits) (United Kingdom v. Albania), 1949 icj 4, pp. 18–20 (Judgment, 9 April); United States Diplomatic and Consular Staff in Tehran (Merits) (United States of America v. Iran), 1980 icj 3, pp. 31–33, paras. 63–68 (Judgment, 24 May). 102 Velásquez Rodriguez v. Honduras, 1988 Inter-Am.Ct.H.R. (Ser. C) No. 4, 28 ilm 291, p. 325, para. 175 (Judgment, 29 July); Commentary to the Articles on the Prevention of Transboundary Harm from Hazardous Activities, Report of the International Law Commission on the work of its 53rd session, Yearbook of the ilc (Vol. ii), 56 un gaor, Supp. No. 10, un Doc. A/56/10 (2001), at p. 154; Principle 11, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/Conf.151/26 (Vol. i).

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to mitigate the possible effects of harm occurring through notifications and consultations.103 Understood as a corollary to the obligation not to cause damage, its status has also been confirmed inter alia by numerous international conventions104 as well as by the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons of 1996.105 The obligation not to cause damage has a direct effect on a state’s exercise of its psnr. In a number of instruments, both the obligation and psnr have been drafted into one single provision, making it evident that a balance between both sides shall be reached.106 Thus, neither a state’s exercise of its ­sovereignty over its natural resources, nor the obligation not to cause damage are ­absolute.107 The emphasis will shift from the right of one state to the right of another when certain thresholds are fulfilled, such as being a result of ­human activity, having physical consequences (unlike, e.g., economical), or 103 R.M.M. Wallace, International Law, 5th ed., 2005, pp. 214–216; See, e.g., Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7, p. 78, para. 140 (Judgment, 25 September); Commentary to the Articles on the Prevention of Transboundary Harm from Hazardous Activities, Report of the International Law Commission on the work of its 53rd session, Yearbook of the ilc (Vol. ii), 56 un gaor, Supp. No. 10, pp. 148–149, un Doc. A/56/10 (2001); Principle 24, Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, un Doc. A/CONF.48/14 (1972), reprinted in (1972) 11 ilm 1416; unga Res. 2995 (xxvii), Co-operation between States in the field of the environment, 15 December 1972, 27 un gaor, Supp. No. 30, p. 42, un Doc. A/8730; T. Scovazzi, ‘State Responsibility for Environmental Harm’, Yearbook of International Environmental Law, vol. 12, 2001, p. 50. 104 For example, Art. 194, United Nations Convention on the Law of the Sea, 10 December 1982, 1833 unts 3; Protocol on Environmental Protection to the 1959 Antarctic Treaty, 4 October 1991, 30 ilm 1455; Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 unts 293. 105 Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, pp. 241–242, para. 29 (Advisory Opinion, 8 July). 106 Principle 21, Stockholm Declaration of the United Nations Conference on the Human Environment, 16 June 1972, un Doc. A/CONF.48/14 (1972), reprinted in (1972) 11 ilm 1416; Principle 2, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); F.X. Perrez, ‘The Relationship Between “Permanent Sovereignty” and the Obligation not to Cause Transboundary Environmental Damage’, Environmental Law, vol. 26, no. 4, 1996, p. 1202. 107 O. Schachter, ‘The Emergence of International Environmental Law’, Journal of International Affairs, vol. 4, issue 2, 1991, pp. 463–464; F.X. Perrez, ‘The Relationship Between “Permanent Sovereignty” and the Obligation not to Cause Transboundary Environmental Damage’, Environmental Law, vol. 26, no. 4, 1996, p. 1202.

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crossing national boundaries. The vaguest and therefore most difficult to determine aspect of the threshold is, however, that the damage caused must be serious or significant.108 The limitation of the principle of psnr, which some say is inherent in the notion of the principle itself,109 has found considerable support in international law, and it has been furthermore confirmed by international tribunals that in application of the obligation not to cause damage states must choose the measures and procedures which they deem necessary for the avoidance of damage, or else for its remediation.110 6.2.4.2 The Equitable Utilization of Shared Natural Resources The principle of equitable utilization has firmly claimed a place in r­egard to the management of shared natural resources. As was recognized in ­Pulp Mills – ­discussing the utilization of a transboundary river –, conduct by one party wouldmost not be equitable ‘if the interests of the other riparian State in the shared resource and the environmental protection of the latter were not taken into account’.111 Taking into account the interests of the ­other party entails a case-by-case balancing approach, inter alia depending on ­applicable ­instruments and provisions, concerned parties and interests, and involved institutions as well as resource.112 To achieve equitable utilization, cooperation and coordination of policies with regard to possible exploitation or conservation policies are necessarily required.113 Therefore, a process of prior consultation and negotiation shall take

108 Trail Smelter Case (United States of America v. Canada), 3 riaa 1905, p. 1965 (Award, 16 April 1938; 11 March 1941); P. Sands/J. Peel, Principles of International Environmental Law, 3rd ed., 2012, p. 196. 109 F.X. Perrez, ‘The Relationship Between “Permanent Sovereignty” and the Obligation not to Cause Transboundary Environmental Damage’, Environmental Law, vol. 26, no. 4, 1996, p. 1212. 110 United Nations Compensation Commission, Governing Council, Report and Recommendations Made by the Panel of Commissioners Concerning the Third Installment of ‘F4’ Claims, 18 December 2003, p. 15, para. 50, un Doc. S/AC.26/2003/31. 111 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14, p. 74, para. 177 (Judgment, 20 April). 112 P. Sands/J. Peel, Principles of International Environmental Law, 3rd ed., 2012, pp. 214–215. 113 N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 243; E. Louka, International Environmental Law – Fairness, Effectiveness, and World Order, 2006, p. 53.

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place.114 The parties shall then reach an agreement based on equitable terms, a formulation which introduces a certain discretion to create fairness.115 Confirmed in a number of judicial decisions,116 equitable utilization strives to achieve a fair result in the distribution of a shared natural resource. A  ­precise definition of shared resources still lacking, those resources which are ‘­located’ in the territory of two or more states are considered to constitute the minimum core of agreement. Wider definitions also include those resources which are shared by the international community, i.e. the global commons.117 However, where treaties or a practice have developed with regard to a particular resource, equitable elements of consideration have crystallized. For example, equitable in this context can therefore mean a fifty-fifty allocation, or taking into consideration the special needs of those using the resource, prior usage or its location.118 Further examples of factors which shall be taken into account when negotiating can be found in the 1997 United Nations Watercourses Convention which proposes non-exhaustively: the natural character of the international watercourse; the social and economic needs of the states; the dependency of the population; the effects flowing from the use on other watercourse states; the existing and potential uses; conservation, protection, development and economy of use of the water resource; and the availability of alternatives.119 As it remains to the parties to determine the weight each factor 114 Lake Lanoux Arbitration (France v. Spain), 12 riaa 281 (Award, 16 November 1957); Art. 3, unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631; O. McIntyre, Environmental Protection of International Watercourses Under International Law, 2007, p. 58. 115 O. McIntyre, Environmental Protection of International Watercourses Under International Law, 2007, p. 66; Resolution on Utilization of Non-Maritime Watercourses (Except for Navigation), reprinted in ‘The Salzburg Session of the Institut de Droit International’, American Journal of International Law, vol. 66, no. 3, 1962, p. 737. 116 Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7, p. 56, para. 85 (Judgment, 25 September); Case Concerning Pulp Mills on the River Uruguay ­(Argentina v. Uruguay), 2010 ICJ 14, p. 74, para. 177 (Judgment, 20 April); Fisheries J­ urisdiction Case (Merits) (United Kingdom v. Iceland), 1974 icj 3, p. 31, para. 72 (Judgment, 25 July). 117 P. Reszat, Gemeinsame Naturgüter im Völkerrecht – Eine Studie zur Knappheit natürlicher Ressourcen und den völkerrechtlichen Regeln zur Lösung von Nutzungskonflikten, 2004, pp. 104–107. 118 Fisheries Jurisdiction Case (Merits) (United Kingdom v. Iceland), 1974 icj 3, p. 31, para. 71 (Judgment, 25 July); D.K. Anton/D.L. Shelton, Environmental Protection and Human Rights, 2011, pp. 96–97. 119 unga Res. 51/229, Annex, Art. 6(1)(a-g), Convention on the Law of Non-Navigational Uses of International Watercourses, 21 May 1997, 51 un gaor, Supp. No. 49, p. 7, un Doc. A/51/49.

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shall have in the deliberations, the principle has weak normative content. This, however, enables it to function as a balancing tool for parties and in particular judges in achieving equitable utilization practices. In particular the question whether in connection with the obligation to exercise psnr in the interest of the well-being of the people, and where i­ ndigenous peoples are recognized as parallel subjects of psnr, the principle of equitable utilization of natural resources is also applicable within state boundaries is so far unclear. This will be discussed in more detail in the following sections. 6.3

Defining the Scope – Objects and Subjects of the Principle

For a precise assessment of the consequences of the application of psnr, the scope of the principle must be considered in more detail, in particular in order to determine its ‘objects’ and to delineate which entities can claim entitlement to the set of rights and obligations (i.e. to identify its ‘subjects’). Regarding the first element (objects), most commonly, the principle of psnr is found to encompass the right to possess, use and freely dispose of one’s natural wealth and resources.120 For a short period, there were attempts by developing nations to expand this, particularly evident in the formulation chosen in the New International Economic Order: 4. The new international economic order should be founded on full respect for the following principles: […] (e) Full permanent sovereignty of every State over its natural resources and all economic activities. In order to safeguard these resources, each State is entitled to exercise effective control over them and their exploitation with means suitable to its own situation, including the right to nationalization or transfer of ownership to its nationals, this right being an expression of the full permanent sovereignty of the State. No State may be subjected to economic, political or any other type of coercion to prevent the free and full exercise of this inalienable right.121 120 The formulation can be found especially throughout several unga Resolutions that have been dealt with above; see also Art. 1(2), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(2), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3. 121 unga Res. 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974, S-6 un gaor, Supp. No. 1, p. 3, un Doc. A/9559 [emphasis added]. See

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Key emphasis of the phrasing was seen to relate to the control over the production and exploitation of natural resources.122 For example, the 1994 Energy Charter Treaty defines economic activity (in the energy sector) as the exploration, extraction, refining, production, storage, land transport, transmission, distribution, trade, marketing, or sale of Energy Materials and Products.123 Though these efforts of explicit reformulation found little support by developed nations and some of the more recent instruments returned to the ­original phrasing of natural wealth and resources,124 it is now understood that the rights associated with psnr also include, e.g., production facilities for the processing of natural resources.125 To date, no legal definition of the term natural resources has been agreed upon. Depending on the field of expertise, it is possible to identify several methods. For example, a geological scientist will define natural resources as any material phenomena of nature freely given to man and his activities, the elements of land, air and sea associated with such, as well as their means of use for human beings, and an economist will depart from similar elements,

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also the formulation contained in Article 2 of the Charter of Economic Rights and Duties of States: Every State has and shall freely exercise full permanent sovereignty, including possession, use and disposal, over all its wealth, natural resources and economic activities. unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631. H. Reinhard, Rechtsgleichheit und Selbstbestimmung der Völker in wirtschaftlicher Hinsicht – Die Praxis der Vereinten Nationen, 1980, p. 36. Art. 1(5), Energy Charter Treaty, 17 December 1994, 2080 unts 100. unga Res. 41/128, Declaration on the Rights to Development, 4 December 1986, Annex 41 un gaor, Supp. No. 53, p. 186, un Doc. A/41/53; Preamble, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, Report of the International Law Commission on the work of its 53rd session, 56 un gaor, Supp. No. 10, p. 366, un Doc. A/56/10 (2001); N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 12–19. But see unga Res. 62/274, Strengthening transparency in industries, 26 September 2008, 62 un gaor, Supp. No. 49, p. 13, un Doc. A/62/49, which reaffirms the right of every state to ‘freely exercise full permanent sovereignty over all its wealth, natural resources and economic activities’. See, for example, M. Sornarajah’s discussion on this where he points to the fact that it has been a long-lived practice of European states to consider the right of control over economic affairs as inherent within state sovereignty, M. Sornarajah, The International Law on Foreign Investment, 3rd ed., 2010, p. 119.

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­ owever focusing on their economic value for man.126 Other scholars choose to h create categories, differentiating between natural resources (as stemming from nature), man-made resources (created by mankind), and induced resources (the results of natural resources used by man-kind in, e.g., agriculture).127 ­Nevertheless, due to the vastness of activities and diverse management issues connected therewith, the regulation of natural resources is fragmented by ­location, exploitation methods and overall aim.128 Thus, no exhaustive definition of natural resources is listed within one instrument. A wide understanding of the term can include climate, population, cultural, intellectual, technological and economic resources as well as non-extractive industries.129 However, from a practical point of view, and drawing from international treaties which contain definitions of resources within their scope of application, natural resources in general consist of natural occurrences of nature, such as oil, gas, minerals, fresh water, oceans, seas, air, forests, soils, genetic material and other biotic components of ecosystems with actual or potential use or value for humanity.130 Furthermore, as the principle of psnr rests on the assumption of a certain territorial sovereignty, it can be assumed that the term includes natural resources found not only on the surface of the earth or on the sea-bed, but also located below and above it.131 As will be seen, where states 126 N. Ginsburg, ‘Natural Resources and Economic Development’, Annals of the Association of American Geographers, vol. 47, no. 3, 1957, p. 204; B.J. Skinner, ‘Earth Resources’, Proceedings of the National Academy of Sciences of the United States of America, vol. 76, no. 9, 1979, pp. 4212–4213. 127 B. Husch, ‘Guidelines for Forest Policy Formulation’, fao Forestry Paper 81, 1987, p. 51 (drawing from G.J. Cano, ‘A Legal and Institutional Framework for Natural Resources Management’, fao Legislative Studies No. 9, Rome 1975). 128 C. Deere, ‘Sustainable International Natural Resources Law’, in Sustainable Development Law – Principles, Practices, & Prospects, M.-C. Cordonier Segger/A. Khalfan eds., 2004, p. 295. 129 G. Elian, The Principle of Sovereignty over Natural Resources, 1979, pp. 11–12; N. Schrijver, ‘Permanent Sovereignty over Natural Resources versus Common Heritage of Mankind – Contradictory or Complementary Principles of International Economic Law’, in International Law and Development, M. Denters/P. Peters/P. de Waart eds., 1988, pp. 90–91. 130 Art. 2, Convention on Biological Diversity, 5 June 1992, 1760 unts 79; Art. 77(4), United Nations Convention on the Law of the Sea, 10 December 1982, 1988 unts 3; G. Elian, The Principle of Sovereignty over Natural Resources, 1979, pp. 11–12; C. Deere, ‘Sustainable International Natural Resources Law’, in Sustainable Development Law – Principles, Practices, & Prospects, M.-C. Cordonier Segger/A. Khalfan eds., 2004, pp. 297–298. 131 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, p. 11, para. 11, un Doc. E/CN.4/Sub.2/2004/30/Add.1; S.T. Bernárdez, ‘Territorial Sovereignty’, in Encyclopedia of Public International Law, R. Bernhardt ed., 1997 (Volume iv), 2000, p. 824.

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are considered right-bearers of psnr, this appears non-problematic. However, where (indigenous) peoples claim psnr, states often maintain that their right to resources does not extend to sub-surface resources (see also Annex).132 This issue directly relates to the second determining factor of entitlement, i.e. who constitutes a subject of psnr. The original intention of the principle of psnr was to aid peoples under colonial domination as well as developing states in achieving equitable terms concerning natural resources and thus strengthening their social and economic development.133 Once the decolonization process had reached its end, the following unga resolutions referred less frequently to peoples but mainly stressed the principle as constituting a right of ‘all states’.134 In particular the circumstance that the obligations contained in psnr had gained more significance, not only by reference to the fact that the principle was to be exercised in the interest of national development and the well-being of the peoples of the state concerned, but also by inclusion of more extensive obligations concerning the management and utilization methods available to states with regard to natural resources, prompted the inclusion of all states within the scope of application of the principle.135 Thus, especially the link to multinational resource extraction concessions and environmental conservation practices are seen as sovereign (state) prerogatives. Nevertheless, this does not lead to the conclusion that other subjects were necessarily excluded from the operative range of psnr. The wording of unga Resolution 1803 (xvii), the most widely accepted document defining the extent of the rule as understood as customary international law, stipulates that the principle shall apply to ‘peoples and nations’,136 as does common Article 1(2) of the iccpr and the icescr which declares that ‘all peoples may, for their own 132 See in more detail in this Chapter, Section 6.4.1. 133 unga Res. 523 (vi), Integrated Economic Development and Commercial Agreements, 12 January 1952, 6 un gaor, Supp. No. 20, p. 20, un Doc. A/2119; unga Res. 626 (vii), Right to exploit freely natural wealth and resources, 21 December 1952, 7 un gaor, Supp. No. 20, p. 18, un Doc. A/2361. 134 Art. 5, unga Res. 1515 (xv), Concerted action for economic development of economically less developed countries, 15 December 1960, 15 un gaor, Supp. No. 16, p. 9, un Doc. A/4684; unga Res. 3281 (xxix), Charter of Economic Rights and Duties of States, 12 December 1974, 29 un gaor, Supp. No. 31, p. 50, un Doc. A/9631; unga Res. 37/7, World Charter for Nature, 28 October 1982, 37 un gaor, Supp. No. 51, p. 17, un Doc. A/37/51. 135 N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 8. 136 unga Res. 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962, 17 un gaor, Supp. No. 17, p. 15, un Doc. A/5217; F.X. Perrez, ‘The Relationship Between “Permanent Sovereignty” and the Obligation not to Cause Transboundary Environmental Damage’, Environmental Law, vol. 26, no. 4, 1996, p. 1194.

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ends, freely dispose of their natural wealth and resources […]’.137 In addition, the right to psnr is firmly rooted in the right to self-determination. Both are continuously recognized to apply to peoples under ‘alien subjugation, domination and exploitation’, and a restrictive understanding of psnr by nature of the evolvement of its obligations should therefore not be presumed lightly. The dually addressed subjects of psnr are also listed, e.g., in Article 13 of the 1978 Vienna Convention on Succession of States in Respect of Treaties, which stipulates that Nothing in the present Convention shall affect the principles of international law affirming the permanent sovereignty of every people and every State over its natural wealth and resources.138 Thus, as the discussion with regard to self-determination has already revealed, to maintain that the right to psnr applies only to states as representatives of their population at first glance might be outdated. Depending on the source, there are a number of indications that psnr is vested in peoples, or at minimum in peoples and states jointly.139 Most recently, it has also been discussed to be extended to indigenous peoples. The result of shifting the right from states to (indigenous) peoples with regard to natural resources would certainly result in a complex relationship between competing sovereign interests, even more so, if the result is joint ownership. 6.4

Permanent Sovereignty over Natural Resources as a Spatial Tool for Independence of Peoples/Indigenous Peoples?

Inter alia from its inclusion into both Human Rights Covenants140 psnr reflects a prime example for the dichotomy between state sovereignty and h ­ uman 137 Art. 1(2), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(2), International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; H. Reinhard, Rechtsgleichheit und Selbstbestimmung der Völker in wirtschaftlicher Hinsicht – Die Praxis der Vereinten Nationen, 1980, p. 2. 138 Art. 13, Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 unts 3; cf. Arts. 15(4), 38(2), Vienna Convention on the Succession of States in Respect of State Property, Archives and State Debts, 8 April 1983, un Doc. A/CONF.117/14. 139 E. Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’, George Washington International Law Review, vol. 38, 2006, p. 43; D. Dam-de Jong, International Law and Governance of Natural Resources in Conflict and PostConflict Situations, 2015, p. 66. 140 Art. 1(2), International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171; Art. 1(2), International Covenant on Economic, Social and Cultural Rights,

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rights (in particular economic rights such as the right to property) in relation to control over natural resources. Along these lines, collective interests and collective exercise must be distinguished. The former relates to the fact that the peoples of a state are the intended beneficiaries of a state’s exercise of psnr. Particularly exemplary of this is Security Council Resolution 1457 (2003) which states that the natural resources of the Democratic Republic of the Congo should be exploited transparently, legally and on a fair commercial basis, to benefit the country and its people.141 Judge Koroma confirms this in his Declaration in Armed Activities on the Territory of the Congo, emphasizing the exercise in the interest of the well-being of the people of the state as an absolute, non-derogable threshold in the exercise of a state’s right to psnr.142 Understanding psnr in this way perceives states under the obligation to act in the interest of their population, similar to a trusteeship function.143 Yet, human rights law lends to the argument that peoples are the subjects of psnr as well.144 Not only does control over natural resources often relate to the degree of autonomy granted to a people but it functions as an instrument for the fulfillment of their right to economic self-determination.145 Despite a certain agreement that psnr is not solely a sovereign right, proposals

141 142

143 144 145

16 December 1966, 993 unts 3; cf. unga Res. 1514 (xv), Declaration on the Granting of Independence to Colonial Countries and Peoples, 14 December 1960, 15 un gaor, Supp. No. 16, p. 66, un Doc. A/4684; Art. 5, unga Res. 1515 (xv), Concerted action for economic development of economically less developed countries, 15 December 1960, 15 un gaor, Supp. No. 16, p. 9, un Doc. A/4684; Art. 21, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217. unsc Res. 1457 (2003), Democratic Republic of the Congo, 24 January 2003, un Doc. S/RES/1457; see also the discussion above in this Chapter, Section 6.2.4. As he stresses, It [the Court] makes clear that such resources should be exploited ‘in the interest of… the well-being of the people of the State concerned’. These rights and interests remain in effect at all times, including during armed conflict and during occupation. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. ­Uganda), 2005 icj 168, p. 289, para. 11 (Declaration by Judge Koroma, 19 December). J. Gilbert, ‘The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right’, Netherlands Quarterly of Human Rights, vol. 31, no. 3, 2013, p. 325. Ibid., at p. 326. H. Hannum/R.B. Lillich, ‘The Concept of Autonomy in International Law’, in Models of Autonomy, Y. Dinstein ed., Tel Aviv 1981, p. 241.

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how to reconcile the rights-based control over natural resources with the core ­sovereign interest of the state have only recently begun to be brought forward. The discussion when peoples might be a subject of psnr can be distinguished into two broad categories. Firstly, peoples have been recognized as direct right-holders in those situations where the right of subsistence (in particular in connection with the right to food) has been invoked. In this regard, the African Commission has confirmed in The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria that where a state has failed to protect a people from the actions of private oil companies which have had a devastating effect on their well-being, this violates Article 21 of the African Charter (Right to Free Disposal of Wealth and Natural Resources).146 Similar has also been emphasized with regard to the right to water and its relation to the right of subsistence. For example, General Comment No. 15 by the Committee on Economic, Social and Cultural Rights states: Taking note of the duty in article 1, paragraph 2, of the Covenant, which provides that a people may not ‘be deprived of its means of subsistence’, States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.147 Jérémie Gilbert even goes so far to describe this as a remedial understanding of psnr, similar to the right to remedial secession.148 He, however, leaves unanswered what the practical consequences thereof would be. Other authors instead emphasize the general accountability of the state for a potential misuse of its resources which can be invoked under certain human rights instruments.149 146 Art. 21, African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217; The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001, paras. 57–58; J. Gilbert, ‘The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right’, Netherlands Quarterly of Human Rights, vol. 31, no. 3, 2013, p. 330, referring to further support by Philip Alston and the un Special Rapporteur on the Right to Food, Olivier de Schutter. 147 Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, 26 November 2002, un Doc. E/C.12/2002/11. 148 J. Gilbert, ‘The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right’, Netherlands Quarterly of Human Rights, vol. 31, no. 3, 2013, p. 331. 149 L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 805.

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Secondly, arguments have concentrated on a new understanding of ‘sovereign rights bearer’.150 This relates partly to the issue of governing authority stemming from the people of a state and not the fictitious abstract entity. But most prominent in the discussion is attributing psnr to indigenous peoples as an instrument to ensure their rights to land and natural resources.151 The argument is two-fold. On the one hand, states in their conduct are bound by numerous obligations towards indigenous peoples. On the other hand, however, it has been argued that indigenous peoples in their own capacity constitute subjects of the principle. As will be seen, this ultimately would result in a right to consent/object to any proposed activity/policy. The following sections shall therefore determine their position as objects or subjects of the principle and the consequences flowing thereof. Indigenous Peoples – Inherent Obligations within Permanent Sovereignty over Natural Resources States, in their exercise of psnr, shall engage in resource utilization and exploitation in such a manner which benefits the peoples of the state.152 Within the international legal framework, it is currently the state which is under the obligation to prevent, protect and claim compensation for any possible damage caused by another state.153 With regard to indigenous peoples, states are even more urged to take special care, especially also due to the fact that indigenous peoples often play an

6.4.1

150 E. Duruigbo, ‘Permanent Sovereignty and Peoples’ Ownership of Natural Resources in International Law’, George Washington International Law Review, vol. 38, 2006, p. 43; L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 795. 151 J. Gilbert, ‘The Right to Freely Dispose of Natural Resources: Utopia or Forgotten Right’, Netherlands Quarterly of Human Rights, vol. 31, no. 3, 2013, p. 327; L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 795. 152 See above in this Chapter, Section 6.2.3. 153 In this context, see also for example Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), where Ecuador admitted that it had not consulted with the affected community, but alleged that in fact the corporation had to fulfill this obligation. As discussed in more detail below in Section 6.6.2, this was rejected by the Inter-American Court of Human Rights. See also Art. 3, Protocol to the Pact on Security, Stability and Development in the Great Lakes Region Against the Illegal Exploitation of Natural Resources, 30 November 2006: Article 3. Permanent Sovereignty over Natural Resources

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essential part for the environmentally friendly management and development of natural resources since their holistic traditional scientific knowledge most often reflects sustainable management practices.154 Therefore it is necessary that their identity, culture and interests are respected and preserved to enable their continuous participation in the regulation of the matter.155 Article 25 undrip explicitly recognizes the special relationship of indigenous peoples to their land and resources and emphasizes their right to strengthen and m ­ aintain their distinctive spiritual relationship.156 Thus, states are under the obligation to incorporate, on a national, regional or international level, models which strengthen the role of indigenous peoples especially concerning their lands,

1. Member States shall freely dispose of their natural resources. This right shall be exercised in the exclusive interest of the people. In no case, the populations shall a State be deprived of it. 2. In case of spoliation, the dispossessed Member State shall have the right to the lawful recovery of its property, as well as to adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation, based on mutual respect, equitable exchange and the principles of international law. 4. Member States shall develop and implement a participatory and transparent mechanism for the exploitation of natural resources, according to their respective economic and social systems. 154 Principle 22, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/CONF.151/26 (Vol. i); Section iii, Chapter 26, para. 1, Recognizing and Strengthening the Role of Indigenous People and Their Communities, Report of the United Nations Conference on Environment and Development, Rio, 3–14 June 1992, p. 385, un Doc. A/CONF.151/26/ Rev.1 (Vol. i); Paras. 40 (h)(f), paras. 24–26, Plan of Implementation of the World Summit on Sustainable Development, 4 September 2002, un Doc. A/CONF.199/L.1. 155 Principle 22, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/ CONF.151/26 (Vol. i); N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, pp. 313–315; Section iii, Chapter 26, para. 1, Recognizing and Strengthening the Role of Indigenous People and Their Communities, Report of the United Nations Conference on Environment and Development, Rio, 3–14 June 1992, p. 385, un Doc. A/ CONF.151/26/Rev.1 (Vol. i); Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, p. 15, un Doc. E/C.19/2009/CRP.7. 156 Art. 25, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49.

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territories and natural resources.157 The latter shall be recognized as property of indigenous peoples and protected from activities which might cause damage to the environment, culture or society of the community.158 Furthermore, for enabling just participation it is also necessary to establish effective mechanisms for prevention and redress within the legislation of the state.159 Participation models shall be conducted in good faith, and include representatives chosen according to indigenous peoples’ own procedures.160 The process shall be fair, independent, impartial, open and transparent, and reflecting the state’s obligation to take the distinctive features of its indigenous peoples into account.161 While it can be said that the obligation goes so far to include the requirement to establish legislative schemes which can be invoked by indigenous ­peoples to protect their wide range of rights concerning the ownership, ­control and utilization of natural resources, this – as is shown in more detail below – occurs primarily within the legal sphere of the state.162 In their conduct, states are thus responsible for ensuring that their management, planning and ­development activities cause no adverse impacts on indigenous peoples.163 157 Section iii, Chapter 26, paras. 1, 3(a), 6, Recognizing and Strengthening the Role of Indigenous People and Their Communities, Report of the United Nations Conference on Environment and Development, Rio, 3–14 June 1992, p. 385, un Doc. A/CONF.151/26/Rev.1 (Vol. i). 158 Art. 26(3), Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; Section iii, Chapter 26, para. 3(a), Recognizing and Strengthening the Role of Indigenous People and Their Communities, Report of the United Nations Conference on Environment and Development, Rio, 3–14 June 1992, p. 385, un Doc. A/CONF.151/26/Rev.1 (Vol. i); Para. 44(f), paras. 24–26, Plan of Implementation of the World Summit on Sustainable Development, 4 September 2002, un Doc. A/CONF.199/L.1. 159 Section iii, Chapter 26, para. 3(b), Recognizing and Strengthening the Role of Indigenous People and Their Communities, Report of the United Nations Conference on Environment and Development, Rio, 3–14 June 1992, p. 385, un Doc. A/CONF.151/26/Rev.1 (Vol. i). 160 Permanent Forum on Indigenous Issues, ‘A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure and management arrangements’, 8th Session, 18–29 May 2009, p. 15, un Doc. E/C.19/2009/CRP.7. 161 Art. 27, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; Art. 8(j), Convention on Biological Diversity, 5 June 1992, 1760 unts 79. 162 N. Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties, 2008, p. 319. 163 Art. 24(2)(b), Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995,

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The obligation on states to take legislative or other regulatory measures to put these rights into effect is particularly relevant in the context of foreign investments, as under the current investment law regime the interests of indigenous peoples are usually limited to the role of an externality.164 However, due to the sui generis relationship of indigenous peoples with their lands and resources, the rights of indigenous peoples ‘give a different dimension to their right to natural resources’165 in comparison to other marginalized communities not afforded such special protection.166 Indigenous Peoples as Right-Bearers – Locating ‘Sovereignty’ in Permanent Sovereignty over Natural Resources Already early in the drafting process of undrip, the Draft Declaration of Principles adopted by the Indigenous Peoples read:

6.4.2

Indigenous nations and peoples are entitled to the permanent control and enjoyment of their aboriginal ancestral-historical territories. This includes air space, surface and subsurface rights, inland and coastal waters, sea ice, renewable and non-renewable resources, and the economies based on these resources.167

2167 unts 89; Principle 2.6, Nuuk Declaration on Environment and Development in the Arctic, 16 September 1993, http://arcticcircle.uconn.edu/NatResources/Policy/nuuk.html (last visited 19 April 2016). 164 See, inter alia, Glamis Gold Ltd. (Claimant) v. United States of America (Respondent), nafta/uncitral Award, 8 June 2009; International Law Association, C. Binder/ J.A. ­Hofbauer, ‘Case Study: Glamis Gold Ltd. (Claimant) v United States of America (Respondent), nafta/uncitral Award, 8 June 2009’, annexed to the Committee Report on the Implementation of the Rights of Indigenous Peoples, South Africa 2016; Burlington Resources Inc. v. Ecuador, icsid Case No. ARB/08/5, Decision on Jurisdiction, 2 June 2010; International Law Association, C. Binder/J.A. Hofbauer, ‘Case Study: Burlington Resources Inc. v Ecuador/Kichwa Indigenous People of Sarayaku v Ecuador’, annexed to the Committee Report on the Implementation of the Rights of Indigenous Peoples, South Africa 2016. 165 S. Errico, ‘The Controversial Issue of Natural Resources: Balancing States’ Sovereignty with Indigenous Peoples’ Rights’, in Reflections on the un Declaration on the Rights of Indigenous Peoples, S. Allen/A. Xanthaki eds., 2011, p. 334. 166 L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 809. 167 Commission on Human Rights, ‘Study of the Problem of Discrimination Against Indigenous Populations’, Annex v, Principle 4, Declaration of Principles adopted by the ­Indigenous Peoples, 24 August 1987, un Doc. E/CN.4/Sub.2/1987/22.

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Over the course of the last three decades, the claims made by indigenous peoples with regard to land rights and natural resources have received much ­attention. In 2004, Special Rapporteur Erica-Irene A. Daes finalized her report on Indigenous peoples’ permanent sovereignty over natural resources for the Commission on Human Rights in which she came to the conclusion by analyzing international, regional and domestic legislation, adjudication and practice that indigenous peoples indeed also had the right to psnr.168 Projects in the interest of national development have often led to detrimental consequences for affected communities. Commercial resource exploitation concessions, large-scale infrastructure operations and development projects have resulted in dispossessions, forced evictions and relocations, and violations of numerous human rights.169 The realization of these severe impacts has contributed to the recognition that the traditional understanding of psnr and its inherent conflict of ownership and interests of the concerned entities, i.e. peoples, has changed. Hence, with regard to the application of this principle to indigenous peoples, Special Rapporteur Daes stated that: The proposition, and indeed the conclusion […], that the principle of permanent sovereignty over natural resources must now be applied to indigenous peoples, is one that has emerged from international law.170

168 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, p. 9, para. 1, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 169 Examples are too numerous to list, but see, e.g., on the link between (climate) project finance operations and human rights violations of indigenous communities J.A. Hofbauer, ‘Operationalizing Extraterritorial Obligations in the Context of Climate Project Finance – The Barro Blanco Case’, Journal of Human Rights and the Environment, vol. 7, issue 2, 2016. With regard to the exploitation of minerals and fossil fuels see Human Rights Council, Report of the Special Rapporteur on the rights of indigenous peoples, S. James Anaya, ‘Extractive industries and indigenous peoples’, 1 July 2013, un Doc. A/HRC/24/41. For an excerpt of associated human rights violations see, e.g., un News Centre, ‘Indigenous Peoples Suffer Abuses in Race for Natural Resources – un Rights Expert (Special Rapporteur James Anaya)’, 20 September 2011, available at http://www.un.org/apps/news/ story.asp?NewsID=39637#.VxpYC0bBFv0 (last visited 19 April 2016). With regard to hydropower dams and indigenous peoples see the discussion in J. Cariño, ‘The World Commission on Dams: A Review of Hydroelectric Projects and the Impact on Indigenous Peoples and Ethnic Minorities’, Cultural Survival Quarterly, vol. 23, no. 3, 1999, p. 53. 170 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final

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Indigenous claims with regard to psnr occur particularly against the background of their close link with their lands, territories and resources. The SubCommission on the Promotion and Protection of Human Rights defined this profound connection by three elements: (1) the relationship constitutes itself via social, cultural, spiritual, economic and political dimensions and responsibility; (2) the relationship consists especially of elements of collectivity; and (3) it is understood under the over-arching aspect of inter-generationality.171 Thus, if indigenous peoples possessed the right, it would encompass guarantees for their exercise of traditional activities and practice of their culture as well as enable their development by capacitating them to utilize their natural resources and share the benefits obtained.172 In her studies on the topic, Special Rapporteur Daes listed five main reasons why the principle of psnr would find direct application to indigenous peoples: First, indigenous peoples are in a similar position as colonized peoples; second, they likewise are subject to unjust and unequitable economic arrangements concerning their lands and resources; third, psnr is thus necessary to re-evaluate this situation and create new arrangements; fourth, indigenous peoples have the right to development; and fifth, the natural resources concerned by the principle of psnr have belonged to the indigenous peoples, just as their lands and territories, since times before they came under alien domination.173 Thus, consequent to the recognition that indigenous peoples are subjects of the right to self-determination, she further considered that ‘in order to be meaningful, this modern concept of self-determination must

report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, p. 9, para. 1, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 171 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, p. 9, para. 20, un Doc. E/CN.4/Sub.2/2001/21. 172 A. Xanthaki, ‘The Right to Self-Determination: Meaning and Scope’, in Minorities, Peoples and Self-Determination – Essays in Honour Of Patrick Thornberry, N. Ghanea/A. Xanthaki eds., 2005, p. 30; Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, p. 7, para. 12, un Doc. E/CN.4/Sub.2/2001/21. 173 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Working Paper by Erica-Irene A. Daes, 30 July 2002, p. 3, para. 7(a-e), un Doc. E/CN.4/ Sub.2/2002/23.

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l­ogically and legally carry with it the essential right of permanent sovereignty over natural resources’.174 Despite this forceful argumentation, undrip does not explicitly contain a right of indigenous peoples to psnr. With regard to natural resources, Article 26 undrip merely stipulates that: 1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. 2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired. 3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.175 Thus, even though indigenous peoples enjoy land and resource rights sui generis,176 it remains questionable if they enjoy the full right of psnr. Lilian Aponte Miranda rightly points to the fact that 174 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, p. 7, para. 17, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 175 Art. 26, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49; see also Art. 14(1), ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383; Committee on the Elimination of Racial Discrimination, General Recommendation No. 23, Rights of Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex v, p. 122, para. 5; Aurelia Cal. et al. v. Attorney General of Belize, Supreme Court of Belize, Claim No. 121/2007, para. 131 (Judgment, 18 October 2007). 176 Traditional land tenure regimes of indigenous peoples have become recognized as ­constituting sui generis forms of land and resources rights, despite often lacking a title of ownership in the ordinary sense. Not only is their collective interest and relationship with the concerned land core to these considerations, but that in itself grants a multitude of further rights. For example, lands, territories and resources which indigenous peoples have traditionally owned and that they have been dispossessed of, shall be restituted or at minimum compensated for. As a consequence, they also enjoy the right to develop their own political, economic and social systems and determine and develop their priorities

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Indigenous peoples’ sovereignty over land and natural resources should be distinguished from arguments that indigenous peoples bear human rights with respect to ownership, use, and control of their traditional land and resources. While the first line of argument draws from an a­ pplicability of the interpretative evolution of the right to permanent sovereignty over natural resources under international law, the second argument draws from the interpretative evolution of multiple human rights precepts.177 In this regard, particular emphasis must be laid on the applicability of the term ‘sovereignty’ concerning indigenous peoples, which precedes any discussion of whether indigenous peoples might claim permanent sovereignty over natural resources.178 The final report by Special Rapporteur Daes underlines that this sovereignty with regard to indigenous peoples functions within the principle of territorial integrity and that it ‘refers to the right to manage, govern, or regulate the use of the resources by the indigenous people itself, by individuals, or by others’.179 Though she departs from the categorical application of psnr as a sovereign right when she continues in her analysis that ‘permanent’ refers ‘to an inalienable human right of indigenous peoples’ arising inter alia out of ‘the right of self-determination, the right to own property, the right to for the development of their lands, territories and resources. Moreover, states shall ensure that no damaging or hazardous activities for the environment or productive capacity of the lands, territories and resources of indigenous peoples occur, without these consenting to such. See, inter alia, Awas Tingni (Merits) (The Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua), 2001 Inter-Am.Ct.H.R. (Judgment, 31 August), pp. 75–76, paras. 150–151; Delgamuukw and Others v. The Queen in Right of British Columbia and Others; First Nations Summit and Others, Interveners, Supreme Court of British Columbia, 115 ilr 446 (Judgment, 11 December 1997); S.J. Anaya, Indigenous Peoples in International Law, 2nd ed., 2004, p. 142; S.J. Anaya, ‘International Human Rights and Indigenous Peoples: The Move Toward the Multicultural State’, Arizona Journal of International & Comparative Law, vol. 21, no. 1, 2004, p. 38; ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383; unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 177 L. Aponte Miranda, ‘The Role of International Law in Intrastate Natural Resource Allocation: Sovereignty, Human Rights, and Peoples-Based Development’, Vanderbilt Journal of Transnational Law, vol. 45, 2012, p. 807. 178 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, p. 7, para. 18, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 179 Ibid., at p. 15, para. 46.

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exist as a people, and the right to be free from discrimination’,180 the sovereign character becomes evident when she locates the permanent right to own and control the resources with the indigenous peoples and points to the need to create ‘international mechanisms and bodies capable of preventing the unjust loss of indigenous resources’.181 However, difficulties ensue from the issue whether ‘two “sovereigns” can exist within one State or share in the same resources’.182 Tensions in this regard particularly arise through the principle of permanent sovereignty over natural resources reiterating the territorial aspect of self-determination,183 focusing on a sovereign power which may exercise territorial authority. Though there are certain legal constructions which avoid answering the question of sovereign ownership by providing interim provisions regulating questions of management or utilization rights,184 constitutional practice varies significantly with regard to property and ownership rights of natural resources. As the final report by Special Rapporteur Erica-Irene A. Daes discusses, sovereignty in the terms of psnr means legal, governmental control and management authority over natural resources. However, by recognizing sovereignty as limited, in particular by obligations entered into, cooperative approaches towards shared natural resources are possible.185 In a theoretical sense, therefore, joint authority over natural resources is possible and as discussed above, equitable considerations shall be taken into consideration in resolving conflicting utilization policies.186 The special relationship of indigenous peoples 180 181 182 183

Ibid., at p. 15, para. 47. Ibid. Ibid., at p. 7, para. 18. C.J. Iorns, ‘Indigenous Peoples and Self-Determination: Challenging State Sovereignty’, Case Western Reserve Journal of International Law, vol. 24, issue 2, 1992, p. 283. 184 See, e.g., N. Haysom/S. Kane, ‘Negotiating Natural Resources for Peace: Ownership, Control, and Wealth-Sharing’, Briefing Paper, October 2009, p. 8, available at http:// comparativeconstitutionsproject.org/files/resources_peace.pdf (last visited 19 April 2016), discussing the provisions on control and sharing of natural resource benefits contained in Sudan’s 2005 Comprehensive Peace Agreement (cpa), which however did not address ownership over the concerned resources. 185 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, Annex ii, pp. 7–9, paras. 18, 20, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 186 See also International Labour Organisation, Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ilo Convention No. 169, Geneva 2009, stipulating with regard to land and

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to their land and natural resources undoubtedly constitutes a significant factor in the balancing process. In any event, as several arguments point to the conclusion that the claim that indigenous peoples constitute subjects of psnr must be distinguished from a state’s permanent sovereign authority over its natural resources, the following will assess how the rights of indigenous peoples to their natural resources have been incorporated into international as well as domestic (primarily constitutional) instruments. Normative Framework of Indigenous Permanent Sovereignty over Natural Resources The normative framework regarding indigenous peoples distinguishes natural resource ownership more clearly from natural resource rights than is the case concerning land and territorial ownership and rights. Thus, while Article 14 of ilo Convention No. 169 expressly speaks of ‘rights of ownership and possession of the peoples concerned over they lands which they traditionally occupy’,187 Article 15 states:

6.4.3

(1) The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. (2) In cases in which the State retains the ownership of mineral or subsurface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes or the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.188

territories that shared territories will result in ‘complementary rights within a given area’, p. 95. 187 Art. 14(1), ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383 [emphasis added]. 188 Art. 15(1)(2), ibid.

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Ownership over natural resources depends on domestic (most often constitutional) regulations.189 The concepts of ownership and property vary greatly among states and even within one state, different types of ownership can exist. Quite often, ownership is defined in negative terms as constituting ‘a right to dispose of property factually and legally in all respects insofar as limitations do not apply by way of agreement, legislation or general legal principles’.190 Especially the issue of whether subsurface resources fall to the owner of the land or to the state (or a federal part of the state) is regulated differently. Historically, it is long recognized that states are free to regulate which system of ownership (public or private) applies in this context.191 The United States of America constitutes one of few states which grant ownership of both surface and (all) subsurface resources to private land owners. This applies to all private owners, though ownership may be split by ­agreement. The applicability was also noted with special regard to tribes at several occasions.192 In comparison, of the 22 state parties of ilo Convention No. 169 (see the Annex193 for an overview of the relevant provisions), all states reserve ownership of at least hydrocarbons and certain mineral resources to the state, and aside from autonomous exceptions also with regard to land inhabited/owned by peoples/indigenous peoples. The separation of ownership of land and certain valuable subsurface resources can be traced back to Roman law, known as the distinction between dominium directum (dominion

189 Y. Omorogbe/P. Oniemola, ‘Property Rights in Oil and Gas Under Domanial Regimes’, in Property and the Law in Energy and Natural Resources, A. McHarg/B. Barton/A. Bradbrook/L. Godden eds., 2011, pp. 117–118. 190 See for example, A. Rønne, ‘Public and Private Rights to Natural Resources and Differences in Their Protection’, in Property and the Law in Energy and Natural Resources, A. McHarg/B. Barton/A. Bradbrook/L. Godden eds., 2011, p. 62, with further references. 191 Ibid., at p. 65. 192 See, inter alia, International Labour Conference, Provisional Record, 76th Session, Geneva 1989, Fourth item on the agenda: Partial revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), p. 25/19, para. 136; as recently confirmed by an Indian Supreme Court Judgment (Threesiamma Jacob & Ors. v. Geologist, Department of Mining and Geology & Ors. Civil Appeal No. 4549 of 2000, 8 July 2013), this also is the case in India. The judges argued in para. 57 that We are of the opinion that there is nothing in the law which declares that all mineral wealth sub-soil rights vest in the State. On the other hand, the ownership of sub-soil/ mineral wealth should normally follow the ownership of the land, unless the owner of the land is deprived of the same by some valid process. 193 See Annex 291–304.

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of the soil) and dominium utile (possessory title, which includes the right to use and profit from the soil).194 In this sense, the studied constitutions include provisions which state that (all or a certain category of) natural resources are ‘inalienable and imprescriptible property’ (Bolivia), ‘absolute, exclusive, inalienable and imprescriptible domain’ of the state (Chile), ‘inalienable and absolute assets’ (Ecuador), ‘dominio eminente, inalienable e imprescriptible’ (Honduras), ‘patrimony of the Nation’ (Peru) and ‘inalienable and not transferable’ (Venezuela). Moreover, they include affirmations which stipulate that they ‘may not be permanently removed from State ownership’ (Costa Rica) or that ‘the State may grant concessions […] for a limited time’ (Paraguay), further emphasizing the sovereign character of the ownership. Denmark’s relationship with Greenland ­constitutes an ­exception in this regard as ownership over subsoil mineral resources is transferred to the Greenland Self-Government. According to the Mineral Resources Act,195 this even extends to the territorial sea, continental shelf area and exclusive economic zone of Greenland, areas almost exclusively reserved to the state.196 Similarly, the Autonomy Statute for the Regions of the Atlantic Coast in Nicaragua requires the approval of the Regional Autonomous Council regarding any resource exploitation activity located in the autonomous region.197 Many states in general reserve ownership over all natural resources (surface and subsurface, renewable and non-renewable) to the state as the s­ overeign authority (Argentina, Bolivia, Central African Republic, Nicaragua, Peru). ­Additionally, while those states which make mention of the rights of indigenous peoples in their constitutions or acts of legislation often grant them 194 Y. Omorogbe/P. Oniemola, ‘Property Rights in Oil and Gas Under Domanial Regimes’, in Property and the Law in Energy and Natural Resources, A. McHarg/B. Barton/A. Bradbrook/L. Godden eds., 2011, p. 120. 195 Section 9, Greenland Parliament Act No. 7 of 7 December 2009, with amendments from Greenland Parliament Act No. 26 of 18 December 2012, translation available at https:// govmin.gl/images/stories/about_bmp/Unofficiel_translation_-_Mineral_Resources_Act_ as_amended_by_act_no_6_of_june_8_2014_-_pdf.pdf (last visited 19 April 2016). 196 A. Rønne, ‘Public and Private Rights to Natural Resources and Differences in Their Protection’, in Property and the Law in Energy and Natural Resources, A. McHarg/B. Barton/A. Bradbrook/L. Godden eds., 2011, p. 65. 197 In practice, however, the application and interpretation of this arrangement still poses great difficulties, especially with regard to questions in relation to natural resources. See also A.M. Larson/J. Lewis-Mendoza, ‘Decentralisation and Devolution in Nicaragua’s North Atlantic Autonomous Region: Natural Resources and Indigenous Peoples’ Rights’, International Journal of the Commons, vol. 6, no. 2, 2012, p. 179.

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ownership rights over their land, with regard to natural resources merely rights to participate (Argentina, Bolivia, Brazil, Colombia, Ecuador, Nicaragua), to be consulted (Bolivia, Brazil, Ecuador, Nicaragua, Venezuela), or to be informed (Ecuador, Norway, Venezuela) are foreseen. Provisions which grant ­preferential or exclusive use and exploitation rights for indigenous peoples are comparatively scarce, and limited to renewable natural resources (Bolivia), or non-strategic resources (Mexico). In conformity with this legislative background, the second paragraph of ­Article 15 of ilo Convention No. 169 provides that where the state ‘retains ownership of mineral or sub-surface resources or rights to other resources ­pertaining to lands’, it shall consult these peoples to determine to which extent their interests would be affected, and wherever possible, they shall participate in the benefits of such activities.198 As the Guide to ilo Convention No. 169 further states, it is the state, and not the private corporation or other contracting partner licensed to conduct operations with regard to the concerned resources, which must ensure that these rights are ensured.199 Thus, initially the state retains the authority200 towards third parties to opt on which policies and activities to pursue and further its national development. For this purpose, in the past states have reserved the right to extinguish the rights and land titles of indigenous peoples, without their consent, i.e. they have expropriated or purchased the land, commonly without just compensation.201 As justification, states invoked criteria of their national interest, putting the general aim of economic development of a region ahead of the specific interest of an indigenous people’s interest in the area.202 Clear rules preventing such unilateral 198 Art. 15(1)(2), ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. 199 International Labour Organisation, Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ilo Convention No. 169, Geneva 2009, p. 107. 200 This is particularly so where the sub-surface resources have not been traditionally used by the indigenous community. See M. Åhrén, Indigenous Peoples’ Status in the International Legal System, 2016, p. 215. 201 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, ­Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, pp. 14–15, para. 42, un Doc. E/CN.4/Sub.2/2001/21. 202 Delgamuukw and Others v. The Queen in Right of British Columbia and Others; First ­Nations Summit and Others, Interveners, Supreme Court of British Columbia, 115 ilr 446, pp. 514–515, para. 165 (Judgment, 11 December 1997); Commission on Human Rights, ­‘Indigenous Issues – Human rights and Indigenous Issues, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,

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conduct  – despite the formally envisioned shared control and management authority over natural resources – are still lacking. In realization of this difficulty in ensuring equitable consideration of indigenous peoples, undrip therefore reflects the expansion of consultation rights into what now entails the obligation to obtain the free, prior and informed consent of the concerned indigenous people. Thus, even if ownership is not explicitly recognized at the international or national level, when viewing the issue as one of joint or divided management, regulation and utilization rights, it becomes decisive to what extent indigenous peoples are entitled to participate in the decision-making concerning the management, development and use of the natural resource.203 Hence, with regard to lands, territories and ­resources undrip states: 1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources. 2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.204 In the immediate context of the claim of indigenous peoples to constitute subjects of psnr, their right of free, prior and informed consent is therefore key. This second instrument of spatial independence is core for the realization of indigenous peoples’ rights. In particular, it emphasizes that the conflict of sovereign interests between states and indigenous peoples in the context of their rights over their natural resources could potentially be resolved in the interest of the latter. Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2001/65’, 21 January 2003, p. 5, paras. 6, 8, un Doc. E/CN.4/2003/90. 203 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, Indigenous Peoples and their Relationship to Land’, Final working paper prepared by the Special Rapporteur, Erica-Irene A. Daes, 11 June 2001, p. 26, para. 83, un Doc. E/CN.4/Sub.2/2001/21. 204 Art. 32(1)(2), Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49 [emphasis added].

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The Right to Free, Prior and Informed Consent (fpic)

Freedom and consent – two basic determinants underlying society, and reflected in the basic thought that one has the freedom to consent to the governing mechanisms as well as to measures which affect the being.205 This ­fundamental idea that the individual is not a mere playing figure of the state finds its evolvement in international law already in the international human rights movement setting in in the middle of the past century. In addition, and most important in the context of this study concerning peoples, elements of these factors have been incorporated into the collective right to free, prior and informed consent (fpic). The following sections will provide a historical account of the shaping of the right, detail its contents and then – by case analyses – assess its normative reflection. Through this, its role in designating authority will be determined. 6.5.1 The Historical Development of the Right to fpic The origins of the right to fpic can be traced back to developments in medical ethics after the end of World War ii. The 1947 Nuremberg Code, which was pronounced in the Nuremberg Medical Trial,206 consisted of ten basic principles intended to guide future human medical research and experimentation. Above all, the Code included the requirement of voluntary and informed consent by the subject to the participation in any scientific human experiment.207 205 J. Locke, Second Treatise of Government, 1690, edited, with an Introduction by C.B. McPherson, 1980, Section 22: THE natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule. The liberty of man, in society, is to be under no other legislative power, but that established, by consent, in the commonwealth; nor under the dominion of any will, or restraint of any law, but what that legislative shall enact, according to the trust put in it. Freedom then is not what Sir Robert Filmer tells us, Observations, A. 55. a liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws: but freedom of men under government is, to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things, where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man: as freedom of nature is, to be under no other restraint but the law of nature. 206 In re Brandt et al. (The Medical Trial), United States Military Tribunal, 20 August 1947, 14 Annual Digest and Reports of Public International Law Cases 296 (1947). 207 B.M. Dickens, ‘Information for Consent in Human Experimentation’, The University of ­Toronto Law Journal, vol. 24, no. 4, 1974, pp. 381–384.

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It has been understood to consist of four elements: first, the patient must have the legal and factual capacity to consent; second, all relevant information must have been fully disclosed to him; third, the patient must have understood this information; and finally, voluntarily consented to the treatment.208 Though not legally binding, the principles were later incorporated and expanded by the 1964 Declaration of Helsinki adopted by the World Medical Association, and received full international recognition.209 Another field in which the right to fpic developed into a leading principle relates to the handling and transport of hazardous substances. Where a ­possible harm to the environment or humans can occur, every state, as an expression of its sovereign rights, shall have the possibility of assessing the risk and its c­ apability of handling it in advance in order to avoid potential conflicts.210 For example, the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal211 contains an extensive ­detailing of how prior informed consent (pic) can be put into effect when dealing with a state-to-state relationship. The Convention foresees that the importing or transit state must be notified in advance of the transboundary movement and must consent in written form to the proposed waste transport or disposal. Only after receiving written consent – as well as confirmation of a contract concerning the assurance of environmentally sound management of the waste by the importing state – may the exporting state allow the transboundary movement to commence.212 In the same year, pic was also introduced by the Food and Agriculture ­Organization of the un (fao) and the United Nations Environment Programme (unep) with regard to their attempts of regulating pesticides, respectively chemicals. The pic procedure introduced finally culminated in the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. Therein chemicals 208 P. Andanda, ‘Module Two: Informed Consent’, Developing World Bioethics, vol. 5, no. 1, 2005, pp. 17–19. 209 E. Talati, ‘An Open Door to Ending Exploitation: Accountability for Violations of Informed Consent under the Alien Tort Statute’, University of Pennsylvania Law Review, vol. 155, no. 1, 2006, pp. 257–261. 210 M. Nakagawa, ‘Overview of Prior and Informed Consent From an International Perspective’, Sustainable Development Law & Policy, vol. iv, no. 2, 2004, pp. 4–5; A. Kiss/D. Shelton, Guide to International Environmental Law, 2007, pp. 150–151. 211 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, 1673 unts 125. 212 Art. 6(2)(3)(4), ibid.

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are listed in Annex iii, each subject to a decision by every state party whether or not import thereof is allowed.213 A similar expression of a state’s sovereign rights can be identified in the context of access to genetic resources. Hence, the 1992 Convention on Biological Diversity (cbd) stipulates explicitly that in: [r]ecognizing the sovereign rights of States over their natural resources, the authority to determine access to genetic resources rests with the national governments and is subject to national legislation.214 A direct consequence of this is that pursuant to Article 15(5) cbd: [a]ccess to genetic resources shall be subject to prior informed consent of the Contracting Party providing such resources.215 The pic requirement thus functions as a correlative tool to ensure the psnr of states, and at the time of drafting of the Convention was perceived as quite controversial as it stood directly in opposition to claimed intellectual property rights over certain naturally occurring resources, which developed nations claimed to have ‘identified’. However, assuming the entitlement over their territory, states sought to ensure their position as primary beneficiaries over their resources in this manner.216 6.5.2 fpic as an Indigenous Right Though the cbd contained strong state-protective provisions, it also evidenced the growing recognition of the interests of indigenous peoples, as can be seen inter alia in the Rio Declaration. Therein, the traditional knowledge and ­practice of indigenous peoples was recognized as essential for environmental management and development. In addition, as ‘victims of ­environmental

213 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 unts 337; A. Kiss/D. Shelton, Guide to International Environmental Law, 2007, pp. 151–152. 214 Art. 15(1), Convention on Biological Diversity, 5 June 1992, 1760 unts 79. 215 Art. 15(5), ibid. 216 D. Alexander, ‘Some Themes in Intellectual Property and the Environment’, Review of European Community & International Environmental Law, vol. 2, no. 2, 1993, p. 118; P. Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 519.

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d­ egradation and protectors of vulnerable ecosystems’217 they played a central role in achieving sustainable development.218 Therefore, in a first step, Article 8(j) cbd, albeit with a mere programmatic formulation and subject to national legislation, acknowledges traditional knowledge of indigenous and local communities and its importance with regard to biological diversity and puts forth to promote the ‘wider application with the approval and involvement of the holders of such knowledge’.219 Despite the vague formulation and to a large degree lacking substantive content, the provision has gained significant value through the establishment of a working group in 1998 to enhance the role of indigenous peoples with regard to the protection of biological diversity.220 Their work, inter alia, culminated in Decision V/16,221 recognizing that access to traditional knowledge, innovations and practices is conditioned on consent or approval of the indigenous community concerned, as well as the drafting of the 2002 Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits Arising out of their Utilization. Throughout the drafting process stakeholders from various

217 United Nations, Human Rights and the Environment. Preliminary Report submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 2 August 1991, un Doc. E/CN.4/Sub.2/1991/8, para. 23. 218 Principle 22, Annex, Rio Declaration on Environment and Development, Report of the United Nations Conference on Environment and Development, 10 August 1992, un Doc. A/ CONF.151/26 (Vol. i). 219 Art. 8(j), Convention on Biological Diversity, 5 June 1992, 1760 unts 79; A.v. Hahn, Traditionelles Wissen indigener und lokaler Gemeinschaften zwischen geistigen Eigentumsrechten und der public domain, 2004, pp. 63–65. 220 A. Meyer, ‘International Environmental Law and Human Rights: Towards the Explicit Recognition of Traditional Knowledge’, Review of European Community & International Environmental Law, vol. 10, no. 1, 2001, pp. 41–42. 221 Convention on Biological Diversity, cop 5 Decisions, Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, 15–26 May 2000 – Nairobi, Kenya, Decision V/16 ‘Article 8(j) and related provisions’, available at http://www.cbd.int/ decision/cop/default.shtml?id=7158 (last visited 19 April 2016): 4. The ecosystem approach is a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use of biological diversity in an equitable way. 5. Access to traditional knowledge, innovations and practices of indigenous and local communities should be subject to prior informed consent or prior informed approval from the holders of such knowledge, innovations and practices. [emphasis added]

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backgrounds, and especially also indigenous communities, participated in formulating a system of equitable benefit sharing arrangements.222 Unlike with regard to hazardous substances and the protection of a state’s interest, however, at first the formulation of participation mechanisms in the context of indigenous peoples remained vague and at best promotional. As one of the first institutions to concern itself with the matter – under the aspect of its development programs –, the World Bank Group decided in 1991 to revise its previously integrationist approach to indigenous peoples, as laid out in Operational Manual Statement 2.34 ‘Tribal People in Bank-Financed Projects’,223 and adopted Operational Directive 4.20.224 Putting emphasis on consultation efforts, the World Bank opted to include ‘informed participation’ of indigenous peoples.225 Its requirements were laid out as: 8. […] [I]dentifying local preferences through direct consultation, incorporation of indigenous knowledge into project approaches, and appropriate early use of experienced specialists are core activities for any project that affects indigenous peoples and their rights to natural and economic resources.226 However, inter alia in light of the slack compliance with the policy,227 efforts by indigenous forums in the revision process of Operational Directive 4.20 as 222 Convention on Biological Diversity, cop 6 Decisions, Sixth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, 7–19 April 2002 – The Hague, Netherlands, Decision VI/24, ‘Access and benefit-sharing as related to genetic resources’, available at http://www.cbd.int/decision/cop/default.shtml?id=7198 (last visited 19 April 2016). 223 World Bank, Operational Manual Statement 2.34 on Tribal People in Bank-Financed Projects, February 1982, reprinted in opcs Working Paper, ‘Implementation of the World Bank’s Indigenous Peoples Policy – A Learning Review (fy 2006–2008)’, August 2011, pp. 44–46. 224 S.S. Åkernark, ‘The World Bank and Indigenous Peoples’, in Minorities, Peoples and SelfDetermination, N. Ghanea/A. Xanthaki eds., 2005, p. 96; S. Errico, ‘The World Bank and Indigenous Peoples: the Operational Policy on Indigenous Peoples (O.P. 4.10) Between Indigenous Peoples’ Rights to Traditional Lands and to Free, Prior, and Informed Consent’, International Journal on Minority and Group Rights, vol. 13, 2006, pp. 368–371. 225 The World Bank Operational Manual, Operational Directive 4.20 on Indigenous Peoples (replaced in 2005 with Operational Policy 4.10), September 1991, available at http://www .ifc.org/wps/wcm/connect/835cc50048855270ab94fb6a6515bb18/OD420_Indigenous Peoples.pdf?MOD=AJPERES (last visited 19 April 2016), para. 8. 226 Ibid. 227 F. MacKay, ‘Universal Rights or a Universe unto Itself? Indigenous Peoples’ Human Rights and the World Bank’s Draft Operational Policy 4.10 on Indigenous Peoples’, American

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well as in the drafting process of the Involuntary Resettlement Policy (op 4.12) showed their demand to include the right to fpic.228 Initially, though, these demands were rejected, as the concept of fpic was found too difficult to implement and non-reflected in national legislation.229 Nevertheless, fpic had become recognized as an instrument which carried benefits with it in regard to environmental and social risks associated with large-scale development activities.230 After a preliminary focus had been on indigenous peoples’ concerns within the United Nations for over a decade, first reports by former Special Rapporteur José Martínez Cobo and the un Working Group on Indigenous Populations on matters concerning participation of indigenous peoples were issued throughout the 1980s.231 A study on treaties between indigenous populations and states was authorized in 1987.232 Furthermore, in 1985, the Working Group began working on a Draft Declaration on the Rights of Indigenous Peoples. A first draft in 1988 already contained provisions providing for the obligations of states to seek the ‘free and informed consent’ of indigenous peoples in relation to activities concerning the ownership and possession of lands as well as development programs regarding the exploitation or exploration of natural resources pertaining to their traditionally owned territories.233 In 1994, the SubCommission on Prevention of Discrimination and Protection of ­Minorities

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­ niversity International Law Review, vol. 17, 2002, pp. 584–586; B. Kingsbury, ‘Operational U Policies of International Institutions as Part of the Law-Making Process: The World Bank and Indigenous Peoples’, in The Reality of International Law – Essays in Honour of Ian Brownlie, G.S. Goodwin-Gill/S. Talmon eds., 1999 (reprinted 2003), pp. 327–329. F. MacKay, ‘Indigenous Peoples and International Financial Institutions’, in International Financial Institutions and International Law, D.D. Bradlow/D.B. Hunter eds., 2010, p. 290. Memorandum by former Bank President James Wolfensohn to the Executive Directors, Operational Policy on Involuntary Resettlement, Draft OP/BP 4.12, 28 September 2011, para. 18: The reasons for not including such a provision are the following: the concept of prior, informed consent is very difficult to operationalize; it is not reflected in the legal framework of any country, whether developing or developed; it is contrary to the principle of eminent domain in effect in most countries. S.H. Baker, ‘Why the ifc’s Free, Prior, and Informed Consent Policy Does Not Matter (Yet) to Indigenous Communities Affected by Development Projects’, Wisconsin International Law Journal, vol. 30, no. 3, 2012–2013, p. 674. D. Sanders, ‘The un Working Group on Indigenous Populations’, Human Rights Quarterly, vol. 11, no. 3, 1989, pp. 406ff. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution 1987/17, 2 September 1987. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Discrimination Against Indigenous Populations, A Working Paper by Ms. Erica-Irene A. Daes

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adopted the Draft Declaration and submitted it to the un Commission on Human Rights.234 In the meantime, the first binding international document recognizing participation rights of indigenous peoples was the Convention concerning Indigenous and Tribal Peoples in Independent Countries (ilo Convention No. 169),235 drafted in 1989 and entering into force in 1991. However, it only employs the term ‘free and informed consent’ in the context of forced relocation,236 otherwise merely relying on ‘consultations’,237 leaving significant loopholes for states to escape from fully recognizing indigenous peoples’ rights to decide on their own development process.238 Moreover, the manual on the use of ilo

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­Containing a Set of Draft Preambular Paragraphs and Principles for Insertion Into a Universal Declaration on Indigenous Rights, 21 June 1988, un Doc. E/CN.4/Sub.2/1988/25: 12. The right of ownership and possession of the lands which they have traditionally occupied. The lands may only be taken away from them with their free and informed consent as witnessed by a treaty or agreement. 13. The right to recognition of their own land-tenure systems for the protection and promotion of the use, enjoyment and occupancy of the land. 14. The right to special measures to ensure their control over surface resources pertaining to the territories they have traditionally occupied, including flora and fauna, waters and sea ice. 16. The right to protection against any action or course of conduct which may result in the destruction, deterioration or pollution of their land, air, water, sea ice, wildlife or other resources without free and informed consent of the indigenous peoples affected. The right to just and fair compensation for any such action or course of conduct. 17. The duty of States to seek and obtain their consent, through appropriate mechanisms, before undertaking or permitting any programmes for the exploration of ­exploitation of mineral and other subsoil resources pertaining to their traditional territories. Just and fair compensation should be provided for any such activities undertaken. Sub-Commission on Prevention of Discrimination and Protection of Minorities, Draft United Nations Declaration on the Rights of Indigenous Peoples, 1994/45, 26 August 1994, p. 103, un Doc. E/CN.4/Sub.2/1994/56. ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. Art. 16, ibid. For example, Art. 6(2), ibid.: The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures. B. McGee, ‘The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed Consent to Development’, Berkeley Journal of International Law, vol. 27, no. 1, 2009, pp. 585–587.

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Convention No. 169 explicitly denies that any sort of veto right has been accorded to indigenous peoples, though the objective of the consultation shall be to obtain consensus.239 Still, the growing attendance and participation of indigenous peoples at international sessions resulted in the launching of the International Decade of the World’s Indigenous Peoples from 1994–2005 by the un,240 subsequently of the 2nd International Decade until 2015,241 and in the creation of the United Nations Permanent Forum on Indigenous Issues (unpfii) in 2000, an advisory body to ecosoc.242 After the unpfii in its first three sessions had identified fpic ‘as a major methodological challenge’,243 and held a Workshop on the matter in the beginning of 2005,244 unga Res. 60/142, containing the ­Programme of Action for the 2nd International Decade, listed as one of its five main objectives: Promoting full and effective participation of indigenous peoples in decisions which directly or indirectly affect their lifestyles, traditional lands and territories, their cultural integrity as indigenous peoples with collective rights or any other aspect of their lives, considering the principle of free, prior and informed consent.245 The inclusion of fpic as one of the primary objectives with regard to indigenous rights reflected the importance of the previously held Workshop and its emphasis on fpic as an instrument to realize indigenous self-determination. 239 International Labour Organisation, ilo Convention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual, Geneva 2003, p. 16. 240 unga Res. 48/163, International Decade of the World’s Indigenous People, 21 December 1993, 48 un gaor, Supp. No. 49, p. 281, un Doc. A/48/49. 241 unga Res. 59/174, Second International Decade of the World’s Indigenous People, 24 February 2005, 59 un gaor, Supp. No. 49, p. 344, un Doc. A/59/49. 242 ecosoc Res. 2000/22, Establishment of a Permanent Forum on Indigenous Issues, 28 July 2000. 243 Permanent Forum on Indigenous Issues, Report of the International Workshop on ­Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples, 17 February 2005, un Doc. E/C.19/2005/3, para. 1. 244 Ibid. 245 unga Res. 60/142, Programme of Action for the Second International Decade of the World’s Indigenous People, 16 December 2005, 60 un gaor, Supp. No. 49, p. 344, un Doc. A/60/49 (adopting the Draft Programme of Action for the Second International Decade of the World’s Indigenous People as included in the Report of the Secretary-General, un Doc. A/60/270, 18 August 2005).

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Moreover, the link to the extractive sector played a key role for the development of fpic within the United Nations framework, constituting a thematic focus of former Special Rapporteur S. James Anaya from 2011 to 2014. In his statements and annual reports, the content of undrip, with a specific focus on his understanding of fpic, was particularly highlighted.246 Thus, undrip contains several provisions explicitly referring to fpic. These range from the prohibition of relocation,247 to factual thresholds,248 the implementation of legislative and administrative measures that may affect indigenous peoples,249 the storage or disposal of hazardous materials in the lands or territories of indigenous peoples,250 and, in the context of determining their authority over their lands most importantly, in connection with ‘the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources’.251 fpic as a safeguard252 or tool to ensure indigenous peoples a de facto authority over certain areas has been interpreted into other legal instruments, most prominently by the Committee on the Elimination of Racial Discrimination, which in its General Recommendation No. 23 stated that 5. The Committee especially calls upon States parties to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources and, where they have been deprived of their lands and territories traditionally owned or otherwise inhabited or used without their free and informed consent, to take steps to return those lands and territories. Only when this is for factual 246 C.M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources – The Transformative Role of Free, Prior and Informed Consent, 2015, p. 128. 247 Art. 10, Annex, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49. 248 Arts. 11, 28, ibid. 249 Art. 19, ibid. 250 Art. 29, ibid. 251 Art. 32, ibid. 252 See also the terminology used by S. James Anaya with regard to the extractive industries: [C]onsultation and free, prior and informed consent are best conceptualized as ­safeguards against measures that may affect indigenous peoples’ rights. Other such safeguards include but are not limited to carrying out prior impact assessments, the establishment of mitigation measures, benefit-sharing and compensation for any impacts, in accordance with international standards. Human Rights Council, ‘Report of Special Rapporteur on the Rights of Indigenous Peoples’, James Anaya, 6 July 2012, un Doc. A/HRC/21/47, para. 80.

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reasons not possible, the right to restitution should be substituted by the right to just, fair and prompt compensation. Such compensation should as far as possible take the form of lands and territories.253 Other institutions, especially the World Bank, however, have – even in recent revisions and despite more progressive standards having been included by the International Finance Corporation (the commercial lending institution of the World Bank)254 – maintained that not fpic but only free, prior and informed consultation is required.255 This varying understanding of this form of participation will be analyzed in more detail below. 253 Committee on the Elimination of Racial Discrimination, General Recommendation No. 23, Rights of Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex v, p. 122; International Council of Mining & Metals, Indigenous Peoples and Mining – Position Statement May 2013, available at http://www.icmm.com/document/5433 (last visited 19 April 2016), revising its earlier policy which focused on consultation rather than consent (available at https://www.icmm.com/document/293 (last visited 19 April 2016)). 254 International Financial Corporation (ifc), Performance Standards on Environmental and Social Sustainability, 1 January 2012, para. 12: There is no universally accepted definition of fpic. For the purposes of Performance Standards 1, 7, and 8, ‘fpic’ has the meaning described in this paragraph. fpic builds on and expands the process of icp described in Performance Standard 1 and will be established through good faith negotiation between the client and the affected Communities of Indigenous Peoples. The client will document: (i) the mutually accepted process between the client and affected Communities of Indigenous Peoples, and (ii) evidence of agreement between the parties as the outcome of the negotiations. fpic does not necessarily require unanimity and may be achieved even when individuals or groups within the community explicitly disagree. 255 The World Bank Operational Manual, Operational Policy 4.10 on Indigenous Peoples, July 2005 (revised April 2013), para. 1, available at https://policies.worldbank.org/sites/ppf3/ PPFDocuments/090224b0822f89d5.pdf (last visited 19 April 2016) clarifying that: Fn 4. ‘Free, prior, and informed consultation with the affected Indigenous Peoples’ communities’ refers to a culturally appropriate and collective decision-making process subsequent to meaningful and good faith consultation and informed participation regarding the preparation and implementation of the project. It does not constitute a veto right for individuals or groups (see paragraph 10). 10. Consultation and Participation. Where the project affects Indigenous Peoples, the borrower engages in free, prior, and informed consultation with them. To ensure such consultation, the borrower: (a) establishes an appropriate gender and intergenerationally inclusive framework that provides opportunities for consultation at each stage of project preparation and implementation among the borrower, the affected Indigenous Peoples’ communities, the Indigenous Peoples Organizations (ipos) if any, and other local civil society organizations (csos) identified by the affected Indigenous Peoples’ communities;

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6.5.3 Free, Prior and Informed Consent – Determining Content In the exercise of self-determination, conflict situations where a state claims self-determination in the name of its entire population and indigenous peoples claim likewise with regard to a certain territory are far from unlikely to occur. From a normative perspective, the present constitutional and international law situation has not arrived so far to explicitly transfer sovereignty over land and resources to indigenous peoples. Instead, in order to effectuate ­self-determination, ‘effective participation’ as a procedural safeguard in the course of development and investment projects is resorted to. fpic serves to fill the substantive elements of the participatory process. It creates ‘safe spaces’ where indigenous communities can enjoy authentic indigenous sovereignty.256 Yet, as will be seen on the basis of the following case and legislation analysis, theory and practice on the content of fpic diverge significantly. The following exemplary content is assigned to free, prior and informed consent in training manuals and guidelines on its implementation. According to an International Workshop on Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, consent is to be obtained freely, i.e. absent of ‘coercion, intimidation or manipulation’.257 In addition, this refers to aspects of (non-legal) self-determination as the affected community shall be entitled to determine the process, timeline and decision-making structure.258 The element ‘prior’ entails that consent ‘has been sought sufficiently in advance of any authorization or commencement of activities and that r­ espect (b) uses consultation methods appropriate to the social and cultural values of the affected Indigenous Peoples’ communities and their local conditions and, in designing these methods, gives special attention to the concerns of Indigenous women, youth, and children and their access to development opportunities and benefits; and (c) provides the affected Indigenous Peoples’ communities with all relevant information about the project (including an assessment of potential adverse effects of the project on the affected Indigenous Peoples’ communities) in a culturally appropriate manner at each stage of project preparation and implementation. [footnotes omitted]. See also F. MacKay, ‘Indigenous Peoples and International Financial Institutions’, in International Financial Institutions and International Law, D.D. Bradlow/ D.B. Hunter eds., 2010, p. 294. 256 S. Wiessner, ‘Indigenous Sovereignty: A Reassessment in Light of the un Declaration on the Rights of Indigenous Peoples’, Vanderbilt Journal of Transnational Law, vol. 41, 2008, p. 1174. 257 Permanent Forum on Indigenous Issues, Report of the International Workshop on ­Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples, 17 February 2005, un Doc. E/C.19/2005/3, para. 46(i). 258 un-redd Programme, Guidelines on Free, Prior and Informed Consent, Geneva 2013, p. 18.

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is shown for time requirements of indigenous consultation/consensus processes’.259 And ‘informed’ relates to a sum of factors which are to be taken into consideration when information is provided to the affected indigenous community, inter alia covering the following aspects: nature, size, pace, reversibility and scope of project/activity; reason for or purpose of the project/activity; duration; affected areas; preliminary assessment of likely economic, social, cultural and environmental impacts and potential risks (in respect of the precautionary principle); fair and equitable benefit-sharing; involved personnel; procedures that the project may entail.260 Information delivered shall inter alia be accessible, clear, consistent, accurate, transparent, objective, complete, delivered in the appropriate language and manner.261 The core question, however, concerns the meaning of ‘consent’ and whether this amounts to a de facto veto power.262 The drafting process of Article 19 undrip (originally Article 20) reflects this fine balance. Originally formulated as ‘States shall obtain the free and informed consent of the peoples concerned before adopting and implementing such measures [legislative or administrative measures that may affect them]’,263 the final version adopted reads: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.264

259 Permanent Forum on Indigenous Issues, Report of the International Workshop on ­Methodologies Regarding Free, Prior and Informed Consent and Indigenous Peoples, 17 February 2005, un Doc. E/C.19/2005/3, para. 46(i). 260 Ibid. 261 un-redd Programme, Guidelines on Free, Prior and Informed Consent, Geneva 2013, p. 18. 262 C.M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources – The Transformative Role of Free, Prior and Informed Consent, 2015, p. 161. 263 Commission on Human Rights, ‘Indigenous Issues – Human Rights and Indigenous ­Issues, Report of the Working Group Established in Accordance with Commission on ­Human Rights Resolution 1995/32 of 3 March 1995 on its eleventh session’, 22 March 2006, un Doc. E/CN.4/2006/79, p. 46; see for state criticism of the broadness of the original formulation United Nations General Assembly, 107th plenary meeting, 13 September 2007, un Doc. A/61/PV.107. 264 Art. 19, unga Res. 61/295, United Nations Declaration on the Rights of Indigenous ­Peoples, 13 September 2007, 61 un gaor (vol. iii), Supp. No. 49, p. 15, un Doc. A/61/49.

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In comparison, with regard to forced relocation, Article 10 undrip expressly states that ‘[n]o relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned’.265 With regard to the formulation adopted in the final version of the Declaration, former Special Rapporteur James Anaya points out that it ‘should not be regarded as according indigenous peoples a general “veto power”’ but that it requires a negotiation process ‘towards mutually acceptable arrangements’.266 He contrasts this to mere consultation obligations which often constitute ‘mechanisms for providing indigenous peoples with information about decisions already made or in the making, without allowing them genuinely to influence the decision-making process’.267 The final outcome also corresponded to objections made by states which have many mining operations taking place in or near areas where indigenous peoples live,268 and has thus been largely interpreted in this manner by ­scholarly opinion as well. Still, there have been some institutions which have attempted to install a broader understanding on these terms. The following section will therefore discuss how these criteria are interpreted and applied in practice.

265 Art. 10, ibid. (see also the formulation in Art. 29 with regard to the storage or disposal of hazardous materials on indigenous peoples’ lands or territories); Art. 16(2) ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383, states in this regard: Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. 266 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya’, 15 July 2009, un Doc. A/HRC/12/34, para. 46; cf. M. Castan, ‘drip Feed: The Slow Reconstruction of SelfDetermination for Indigenous Peoples’, in Research Handbook on International Human Rights Law, S. Joseph/A. McBeth eds., 2010, pp. 501–507. 267 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya’, 15 July 2009, un Doc. A/HRC/12/34, para. 46. 268 See also C.M. Doyle, Indigenous Peoples, Title to Territory, Rights and Resources – The Transformative Role of Free, Prior and Informed Consent, 2015, p. 161, referring to Australia and Canada.

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Free, Prior and Informed Consent (fpic) in Jurisprudence

6.6.1 United Nations Human Rights Treaty Bodies The past years – especially since the adoption of undrip in 2007 – have seen an increase of references to fpic by United Nations treaty bodies. As discussed above, the Committee on the Elimination of Racial Discrimination was one of the first to include the obligation of states to ensure that ‘no decisions directly relating to their [indigenous peoples’] rights and interests are taken without their informed consent’.269 It has also included references to fpic in its concluding observations270 as well as its decisions.271 The Human Rights Committee has made explicit reference to fpic in the individual communication Poma Poma v. Peru272 concerning the withdrawal of water from indigenous land by the drilling of wells. The Committee held that participation in the decision-making process must be effective, which ­requires not mere consultation but the free, prior and informed consent of the members of the community. In addition, the measures must respect the principle of proportionality so as not to endanger the very survival of the community and its members.273 269 Section 4(d), Committee on the Elimination of Racial Discrimination, General Recommendation No. 23, Rights of Indigenous Peoples, 18 August 1997, un Doc. A/52/18, Annex v, p. 122. 270 See, inter alia, Committee on the Elimination of Racial Discrimination, ‘Concluding ­Observations of the Committee on the Elimination of Racial Discrimination – Ecuador’, 22 September 2008, un Doc. CERD/C/ECU/CO/19, para. 16: The Committee urges the State party to […], in light of its general recommendation 23, section 4 (d), consult the indigenous population concerned at each stage of the process and obtain their consent in advance of the implementation of projects for the extraction of natural resources. See also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Initial Report of Togo’, 3 June 2013, un Doc. E/C.12/TGO/CO/1, para. 26; ­Committee on the Elimination of Racial Discrimination, ‘Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination – Mexico’, 13 January 2012, un Doc. CERD/C/MEX/Q/16-17, para. 17. 271 Decision 1(67) on Suriname, Committee on the Elimination of Racial Discrimination, 1 November 2005, para. 3, un Doc. CERD/C/DEC/SUR/4; Decision 2(54) on Australia, Committee on the Elimination of Racial Discrimination, 18 March 1999, para. 9, un Doc. A/54/18. 272 Poma Poma v. Peru, Human Rights Committee, Communication No. 1457/2006, un Doc. CCPR/C/95/D/1457/2006 (Views of 24 April 2009). 273 Ibid., at para. 7.6 [emphasis added].

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As the community had not been consulted by Peru regarding the construction of the wells, and this had had a profound impact on their traditional economic activity, the Human Rights Committee concluded that the state had violated the complainant’s rights (Ms. Poma Poma, a member of the affected community) to enjoy her own culture together with the other members of her community as protected under Article 27 iccpr.274 The cescr has also referenced fpic in its recent General Comment No. 21 on the right of everyone to take part in cultural life where it states that States parties must […] take measures to recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources, and, where they have been otherwise inhabited or used without their free and informed consent, take steps to return these lands and territories.275 Moreover, both Committees have referred to the need to incorporate legislation on fpic on multiple occasions.276 Formulated at times stronger than in case-law (see below), the advocatory function of these Committees is cause for some misconceptions relating to 274 Ibid., at para. 7.7. 275 Committee on Economic, Social and Cultural Rights, General Comment No. 21, Rights of Everyone to Take Part in Cultural Life, 21 December 2009, un Doc. E/C.12/GC/21, para. 36. 276 See, inter alia, Human Rights Committee, ‘Concluding Observations of the Human Rights Committee – Togo’, 18 April 2011, un Doc. CCPR/C/TGO/CO/4, para. 21; Human Rights Committee, ‘Concluding Observations of the Human Rights Committee – Panama’, 17 April 2008, un Doc. CCPR/C/PAN/CO/3, para. 21; Human Rights Committee, ‘Concluding Observations of the Human Rights Committee – Nicaragua’, 12 December 2008, un Doc. CCPR/C/NIC/CO/3, para. 21; Human Rights Committee, ‘Concluding Observations of the Human Rights Committee – Colombia’, 4 August 2010, un Doc. CCPR/C/COL/CO/6, para. 25; Human Rights Committee, ‘Concluding Observations of the Human Rights Committee – Kenya’, 31 August 2012, un Doc. CCPR/C/KEN/CO/3, para. 24; Committee on Economic, Social and Cultural Rights, ‘Concluding Observations – Ecuador’, 7 June 2004, un Doc. E/C.12/1/Add.100, paras. 12, 35; Committee on Economic, Social and Cultural Rights, ‘Concluding Observations – Russian Federation’, 22 May 2011, un Doc. E/C.12/RUS/CO/5, para. 7; Committee on Economic, Social and Cultural Rights, ‘Concluding Observations – New Zealand’, 31 May 2012, un Doc. E/C.12/NZL/CO/3, para. 11; See for more un-redd Programme, Legal Companion to the un-redd Programme Guidelines on Free, Prior and Informed Consent (fpic) – International Law and Jurisprudence: Affirming the Requirement of fpic, Geneva 2013.

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fpic and – as even criticized by former Special Rapporteur James Anaya277 – shifts the debate to whether fpic in fact incorporates a veto power. 6.6.2 The Inter-American System Over the past years, the Inter-American system has become one of the most ­active and progressive human rights systems with regard to indigenous ­peoples. The Inter-American Court of Human Rights has repeatedly recognized the special value of natural resources and territory to indigenous peoples. For e­ xample, in Awas Tingni, the Court reaffirmed that for indigenous communities relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.278 Both the Inter-American Commission on Human Rights and the Inter-­ American Court of Human Rights have deduced special protection rights for indigenous peoples inter alia from the provisions regarding the rights to life, liberty and personal security, residence and movement, the preservation of health and well-being, culture, judicial well-being, as well as the Convention’s protection of property.279 The explicit mention of the requirement of consent was made in Mary and Carrie Dann v. United States.280 The siblings Marie and Carrie Dann, members of the Western Shoshone indigenous people, argued that their lands – part of the ancestral territory of the Western Shoshone – were appropriated as federal property through an unfair procedure before the Indian Claims C­ommission

277 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya’, 15 July 2009, un Doc. A/HRC/12/34, para. 48. 278 Awas Tingni (Merits) (The Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua), 2001 Inter-Am.Ct.H.R. (Judgment, 31 August), p. 75, para. 149. 279 Inter alia, Arts. 4, 7, 21, 22, 25, American Convention on Human Rights, 21 November 1969, 1144 unts 123. 280 Mary and Carrie Dann v. United States of America, Inter-American Commission on Human Rights, Case 11.140, Report No. 75/02, Doc. 5 Rev. 1 (27 December 2002); A detailed discussion of the case can also be found in A. Page, ‘Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System’, Sustainable Development Law & Policy, vol. 4, no. 2, 2004, pp. 17–18.

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(icc)281 and were then permitted to be prospected.282 In particular, they argued that land title had never actually been litigated by the icc or by the United States judiciary.283 After the Commission held that it had to consider the complaints of violations of the American Declaration in the context of the evolving rules and principles of human rights law […] [which] encompass distinct human rights considerations relating to the ownership, use and occupation by indigenous communities of their traditional lands284 it proceeded by reminding that there was international acknowledgment by itself, the Inter-American Court of Human Rights, the International Labour Organisation, the Human Rights Committee, the Committee to Eradicate All Forms of Discrimination and the domestic legal systems of many states that there was a particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used, the preservation of which is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection.285 On this basis, the Commission continued to state that […] Articles xviii [Right to a fair trial] and xxiii [Right to property] of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole. This requires at a minimum that all of the members of the community are fully and accurately informed of the nature and consequences of the process 281 The Indian Claims Commission was a quasi-judicial body established in 1946 by the ­United States Congress to determine land issues of Indian tribes. 282 Mary and Carrie Dann v. United States of America, Inter-American Commission on H ­ uman Rights, Case 11.140, Report No. 75/02, Doc. 5 Rev. 1 (27 December 2002), para. 2. 283 Ibid., at para. 43. 284 Ibid., at para. 124. 285 Ibid., at para. 128.

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and provided with an effective opportunity to participate individually or as collectives.286 Since it had become clear at the point that the Danns had attempted to intervene in the prior domestic proceedings to remove the contested land from the federal claim that the collective interest of the Western Shoshone indigenous people had not been adequately taken into consideration, the Commission concluded that the dismissal of the Dann’s request to intervene was not sufficient in order for the State to fulfill its particular obligation to ensure that the status of the Western Shoshone traditional lands was determined through a process of informed and mutual consent on the part of the Western Shoshone people as a whole.287 The Inter-American Commission has since confirmed its finding on numerous occasions. In Maya Indigenous Community of the Toledo District v. Belize, concerning logging and oil concessions granted to foreign investors on the Maya’s traditionally owned land, it reiterated its previous statements with regard to the necessity of effective consultations with and the informed consent of the Maya people in order to ensure effective protection of communal property rights.288 A particularly evident case can be examined when looking at the Twelve Saramaka Clans proceedings. The Republic of Suriname, a Dutch colony until 1975, has a national economy which to a large degree is dependent on the natural resource extraction industry, i.e. gold and bauxite mining and logging.289 There are more than 18000 members of tribal and indigenous peoples in Suriname, yet despite international efforts it currently does not have any legislation on indigenous peoples’ land and other rights.290 Nevertheless, even though not party to ilo Convention No. 169, Suriname is bound by its international ­obligations entered into which protect the rights of indigenous 286 Ibid., at para. 140 [emphasis added]. 287 Ibid., at para. 141 [emphasis added]. 288 Maya Indigenous Communities of Toledo District v. Belize, Inter-American Commission on Human Rights, Case 12.053, Report No. 40/04, 135 ilr 1, p. 59, para. 142, pp. 63–64, paras. 152–153 (12 October 2004). 289 Committee on the Elimination of Racial Discrimination, ‘Concluding Observations of the Committee on the Elimination of Racial Discrimination – Suriname’, 13 March 2009, un Doc. CERD/C/SUR/CO/12, at p. 3, para. 12. 290 Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 18 August 2011, un Doc. A/HRC/18/35/Add.7, para. 17; International Work Group for Indigenous Affairs, ‘Indigenous Peoples in Suriname’, available at http:// www.iwgia.org/regions/latin-america/suriname (last visited 19 April 2016).

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peoples, in particular the American Convention on Human Rights, the iccpr and the International Convention on the Elimination of All Forms of Racial Discrimination.291 Article 41 of Suriname’s 1987 Constitution declares: Natural riches and resources are property of the nation and shall be used to promote economic, social and cultural development. The nation shall have the inalienable right to take complete possession of the natural resources in order to apply them to the needs of the economic, social and cultural development of Suriname.292 Against this background, the Republic of Suriname granted logging concessions to foreign investors to operate in the territory which the Saramaka people have traditionally inhabited, without informing, participating or consulting the affected communities in advance.293 In 2006, the Saramaka people filed a claim with the Inter-American Commission on Human Rights, resulting in Report 09/06. Therein, the Commission held that the right of property, cultural integrity and due process of the Saramaka people had been violated, and after no sufficient response was taken by the Surinamese authorities, the case was submitted to the Inter-American Court of Human Rights.294 In the Application to the Inter-American Court, the Commission in particular held that the state, when granting the forestry and mining concessions in the affected territory, neither consulted with, nor obtained the free and informed consent of the Saramaka people, which as tribal people have a close and spiritual connection with the land, and furthermore are dependent on the

291 Human Rights Council, Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya, 18 August 2011, un Doc. A/HRC/18/35/Add.7, paras. 7, 13. 292 Art. 41, Constitution of Suriname, 1987, with Reforms of 1992, translation available at http://pdba.georgetown.edu/Constitutions/Suriname/english.html (last visited 19 April 2016). 293 Concessions were granted to Tacoba nv, a subsidiary of China International Marine Containers Limited, which then withdrew in 1999. It was replaced by Ji Shen Wood Industries which protected its concession with the help of the Surinamese National Army. See Free, Prior and Informed Consent: Two Cases from Suriname, Forest Peoples Programme, March 2007, fpic Working Papers, pp. 7–8, available at http://www.forestpeoples.org/­ documents/law_hr/fpic_suriname_mar07_eng.pdf (last visited 19 April 2016). 294 Application to the Inter-American Court of Human Rights in the Case of Twelve Saramaka Clans against the Republic of Suriname, Inter-American Commission on Human Rights, Case No. 12.338, paras. 11, 69 (23 June 2006).

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woods for their survival.295 Again reiterating its previous case-law, the Commission further stated: in light of the way international human rights legislation has evolved with respect to the rights of indigenous peoples, that the indigenous people’s consent to natural resource exploitation activities on their traditional territories is always required by law.296 The Inter-American Court of Human Rights passed its judgment on the case in 2007, confirming much of the Commission’s findings. In particular, it held that indigenous and tribal peoples have the right to own the natural resources they have traditionally used within their territory for the same reasons that they have a right to own the land they have traditionally used and occupied for centuries.297 Necessary for the physical and cultural survival of such peoples, the entitlement to ownership and control over natural resources guarantees their protection from extinction.298 The Court also reasoned that the right to use and enjoy their territory would be rendered meaningless if they did not enjoy the same rights with regard to the natural resources located on and within the land as the demand for collective land ownership by members of indigenous and tribal peoples derives from the need to ensure the security and permanence of their control and use of the natural resources, which in turn maintains their very way of life.299 Hence, it concluded that those ‘natural resources traditionally used and necessary for the very survival’ – regardless of lying on or within the land – are protected under Article 21 of the American Convention on Human Rights (achr, right to property).300 After finding that indeed the concerned resources 295 Ibid., at paras. 82, 89, 107, 111, 136. 296 Ibid., at para. 154. 297 Case of the Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 28 November 2007), para. 121. 298 Referring also to Case of the Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), Inter-Am.Ct.H.R. (Judgment, 17 June 2005), paras. 135–136. 299 Case of the Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 28 November 2007), para. 122 [emphasis added]. 300 Ibid.

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essential to the Saramaka would likely be affected by the extraction and logging activities, the Court reminded that the right to property under Article 21 of the achr is not absolute and that restrictions of property rights are permissible in limited circumstances, i.e. when previously established by law; necessary; proportional; and with the aim of achieving a legitimate objective in a democratic society.301 Furthermore, when concerned with property rights of indigenous and tribal peoples, an additional factor is whether the ‘restriction amounts to a denial of their traditions and customs in way that endangers the very survival of the group and of its members’.302 In this regard, the Court listed three safeguards which the state must abide by: First, the State must ensure the effective participation of the members of the Saramaka people, in conformity with their customs and traditions, regarding any development, investment, exploration or extraction plan (hereinafter ‘development or investment plan’) within Saramaka territory. Second, the State must guarantee that the Saramakas will receive a reasonable benefit from any such plan within their territory. Thirdly, the State must ensure that no concession will be issued within Saramaka territory unless and until independent and technically capable entities, with the State’s supervision, perform a prior environmental and social impact assessment.303 In detailing these safeguards, the Court not only quoted Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples but then engaged in a further analysis of the requirement of ensuring effective participation and the difference between ‘consultation’ and ‘consent’. It inter alia found that the duty to actively consult: – requires the state to both accept and disseminate information; – entails constant communication; – must be undertaken in good faith, through culturally appropriate procedures; – must have the objective of reaching an agreement; – must be undertaken at the early stages of development to provide time for internal discussion and proper feedback to the state; 301 Ibid., at paras. 126–127. 302 Ibid., at para. 128. 303 Ibid., at para. 129 [emphasis added, footnote omitted].

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– the communities must have been made aware of possible risks to ensure acceptance which is knowingly and voluntarily.304 Most notably, the Court came to the conclusion that in situations which are linked to: large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions.305 Hence, according to the Court’s judgment – reemphasized a year later in its Interpretation of the Judgment306 –, for the Saramaka people to effectively enjoy their rights over their lands and territories, it is necessary that they also are the right-bearers with regard to any natural resources located on and within their areas which are necessary for their very survival, and the state in principle is not permitted to interfere with their ownership rights. However, in limited circumstances, the state may claim an own entitlement to psnr and use the resources for the aim of development. This always triggers a participation process, involving genuine consultations. Especially in those instances where this touches upon the subsistence of the affected indigenous peoples though, activities may only be undertaken after obtaining their free, prior, and informed consent. This strong statement has been relativized307 in the Inter-American Court’s more recent case-law though. In 2012, a landmark judgment in Kichwa

304 Ibid., at para. 133. 305 Ibid., at para. 134; see also Committee on the Elimination of Racial Discrimination, ­‘Concluding Observations of the Committee on the Elimination of Racial Discrimination – Ecuador’, 2 June 2003, un Doc. CERD/C/62/CO/2, at pp. 3–4, para. 16. 306 Case of the Saramaka People v. Suriname (Interpretation of the Judgment on Preliminary Objections, Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 12 August 2008), para. 17. 307 Note, however, that some authors have interpreted the Court’s reference to ilo Convention No. 169’s terminology ‘with the aim of reaching an agreement or obtaining consent’ in connection with the right to effective participation as implying the same standard. See, inter alia, E.C. Olivares Alanís, ‘Indigenous Peoples’ Rights and the Extractive Industry: Jurisprudence From the Inter-American System of Human Rights’, Goettingen Journal of International Law, vol. 5, no. 1, 2013, p. 213; L. Brunner/K. Quintana, ‘The Duty to Consult

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Indigenous Peoples of Sarayaku v. Ecuador was issued.308 The case is part of a unique example for the triangular relationship between investors, states and indigenous communities, as aspects of it were also subject to the investment law proceedings Burlington Resources Inc. v. Ecuador.309 Moreover, the outcome of the proceedings in front of the Inter-American Court have been noted as a ­success story of a decade-long resistance against oil, logging and mining activities throughout the Ecuadorian Amazon.310 It focuses on a dispute between the Sarayaku people and the state regarding the granting of a hydrocarbons exploration and exploitation contract in 1996 in the territory inhabited by several indigenous associations, communities and peoples, inter alia the Sarayaku as the largest of these settlements.311 The first four years of the contract were foreseen as the seismic survey phase, where inter alia the environmental impact assessment (eia) was to be conducted. Once approved, the exploitation phase was to last for at least 20 years. In the course of the eia, cgc was also required to include aspects of the populations or communities potentially affected by the contract.312 The final eia was approved by Ecuador in 1997.313 One year later, Ecuador became party to ilo Convention No. 169 and adopted the 1998 Constitution, recognizing the collective rights of indigenous and Afro-Ecuadorian Peoples.314 In light of building tensions and actions by indigenous organizations against cgc’s workers,

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in the Inter-American System: Legal Standards After Sarayaku’, asil Insights No., vol. 16, issue 35, 2012, text at fn 23ff. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012). Burlington Resources Inc. v. Ecuador, icsid Case No. ARB/08/5, Decision on Jurisdiction, 2 June 2010; See also in more detail International Law Association, C. Binder/J.A. Hofbauer, ‘Case Study: Burlington Resources Inc. v Ecuador/Kichwa Indigenous People of Sarayaku v Ecuador’, annexed to the Committee Report on the Implementation of the Rights of Indigenous Peoples, South Africa 2016. S. Herencia Carrasco, ‘Public Interest Litigation in the Inter-American Court of Human Rights: The Protection of Indigenous Peoples and the Gap Between Legal Victories and Social Change’, Revue Québécoise de Droit International, Hors-série: L’État de droit en Amérique Latine et au Canada, 2015, p. 199. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), at paras. 63–65. Ibid., para. 68. Ibid., para. 69. Articles 83 and 84(5) of the 1998 Constitution (Decreto Legislativo No. 000. RO/1 de 11 de Agosto de 1998) were particularly relevant: Artículo 83.- Los pueblos indígenas, que se autodefinen como nacionalidades de raíces ancestrales, y los pueblos negros o afroecuatorianos, forman parte del Estado ecuatoriano, único e indivisible.

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­ cuador ­suspended the project until 2002 in order to develop community E relations. cgc continued to negotiate with the Sarayaku, offering m ­ onetary payments and other benefits. The Sarayaku – but not the other affected ­communities – rejected the company’s offer. Nevertheless, after cgc issued an updated ­environmental impact study, they were permitted to resume their operations in 2002. Despite objections by the Sarayaku, by mid-2003 the oil company had planted multiple explosives within the Sarayaku territory, destroyed a spiritual site, caves, water resources and underground rivers, and cut down trees and plants of great environmental and cultural value.315 The decision by Ecuador to allow the resumption of activities was inter alia met with precautionary measures issued by the Inter-American Commission in 2003 and the provisional measures ordered by the Inter-American Court in 2004.316 While the activities of the cgc oil consortium were then again halted, the explosives remained on the territory and a number of further incidents of alleged threats, harassments and attacks were reported.317 As Ecuador acknowledged that it failed to conduct prior consultations with the affected communities on its own, a particular focus was laid on whether this obligation could have been or was satisfied by the cgc consortium.318 In its elaborations, the Court referred to its previous Saramaka judgments on multiple occasions, in particular in the context of the required measures to guarantee the right to communal property and the survival of the indigenous peoples as such. Yet, it refrained from considering whether a right to consent might be accorded in the given circumstances,319 instead embarking

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Artículo 84.- El Estado reconocerá y garantizará a los pueblos indígenas, de conformidad con esta Constitución y la ley, el respeto al orden público y a los derechos humanos, los siguientes derechos colectivos: 5. Ser consultados sobre planes y programas de prospección y explotación de recursos no renovables que se hallen en sus tierras y que puedan afectarlos ambiental o culturalmente; participar en los beneficios que esos proyectos reporten, en cuanto sea posible y recibir indemnizaciones por los perjuicios socio-ambientales que les causen. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), paras. 104–105. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Precautionary Measures), Inter-American Commission on Human Rights, 5 May 2003, OEA/Ser.L/V.II.118, doc. 5 rev. 2; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Provisional Measures), Inter-Am.Ct.H.R. (Order, 6 July 2004). Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), paras. 107–108. Ibid., at para. 124. It might be argued that on the facts of the case it was so apparent that Ecuador hat not consulted the affected indigenous community that it was not necessary to proceed to assess whether consent would have been required. However, it might also be argued that

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on a d­ etailed discussion of the participatory process which ‘guarantees the right to consultation’.320 By reference to Article 31(3) vclt, the Court took developments from ilo Convention No. 169 into consideration, which recognizes the right to prior, free and informed consultations in numerous situations, and which has been incorporated into the domestic legal system of several ­member states of the Organization of American States.321 Additionally, as also other states had incorporated similar provisions (Canada, United States of America and New Zealand), the Court concluded that the obligation to consult, in addition to being a treaty-based provision, is also a general principle of law. […] [N]owadays the obligations of States to carry out special and differentiated consultation processes when certain interests of indigenous peoples and communities are about to be affected is an obligation that has been clearly recognized.322 As to the content of the right to consultation, the Court held that the state had the obligation to consult the community – – – – – – –

in an active and informed manner; in accordance with its customs and traditions; within the framework of continuing communication between the parties; in good faith, using culturally-appropriate procedures; aimed at reaching an agreement; during the early stages of the development or investment plan; to ensure that the members of the people or the community are aware of the potential benefits and risks.323

In application of these elements, the Inter-American Court emphasized that in order for the requirement of effective participation to establish a true dialogue between the parties and be based on mutual trust, it was essential to remember that consultations had to be carried out in good faith, i.e. in ‘absence of any form of coercion by the State or by agents or third parties that act

320 321 322 323

the Court in fact was attempting to soften its previous statement made in Saramaka. This will not be clarified entirely until further pending cases have been decided by the Commission/Court. Ibid., at para. 157. Ibid., at paras. 161ff. Ibid., at paras. 164–165. Ibid., at para. 177.

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with its authority or acquiescence’.324 It also pointed out that this meant that practices which attempted to ‘undermine the social cohesion of the affected communities, either through corruption of community leaders or by establishing parallel leaders, or through negotiations with individual members of the community that are contrary to international standards’325 were incompatible with good faith requirements and emphasized that the obligation to consult is the responsibility of the State; therefore the planning and executing of the consultation process is not an obligation that can be avoided by delegating it to a private company or to third parties, much less delegating it to the same company that is interested in exploiting the resources in the territory of the community that is the subject of the consultation.326 In conclusion, the Court found that the rights of the Sarayaku people as a collective subject of international law were violated by Ecuador by failing to carry out the process of consultations in accordance with the principles of international law and domestic law. Ecuador had therefore violated rights recognized in the American Convention on Human Rights, the Ecuadorian Constitution and ilo Convention No. 169. Especially the findings that the consultation process is the responsibility of the state can be read as a response to the common concerns arising in the context of large-scale development projects where economic interests of the private corporation directly engaging in negotiations might distort the objective of achieving a true dialogue between the parties. At the same time, while constituting a safeguard for the protection of indigenous interests, it can also restrict the role of the affected indigenous peoples in their relations to third parties. Moreover, in practice, especially with regard to foreign project financing, safeguard policies of lenders and involved institutions often require the consultation process to be conducted by the project operator.327 This was also realized by the Inter-American Commission in its report on Kaliña and Lokono Peoples v. Suriname and confirmed by the Inter-American Court in its 2015 324 Ibid., at para. 186. 325 Ibid. 326 Ibid., at para. 187. 327 See, e.g., International Financial Corporation (ifc), Performance Standards on Environmental and Social Sustainability, 1 January 2012, paras. 26ff.; See also J. Hofbauer/M. Mayrhofer, ‘Panama Case Report’, ClimAccount – Human Rights Accountability of the eu and Austria for Climate Policies in Third Countries and their possible Effects on Migration, 2016.

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judgment.328 In these proceedings, the Inter-American bodies were called upon to address a series of human rights violations of the Kaliña and Lokono peoples occurring in the context of the operation of bauxite mining concessions. Particular concerns related to the absence of appropriate legislative or other measures protecting inter alia their right to collective ownership. As the concessions had been awarded in 1958, and thus prior to Suriname’s ­ratification of the achr in 1987, the issue of participation in that process only was material for the outcome of the proceedings as far as it was of a ‘continuing nature’.329 In its 2013 Report, the Inter-American Commission seems to have followed the more cautious approach by the Court in Sarayaku in its assessment of ‘the right to free, prior and informed consultation’330 as derived from the right to self-determination. In particular, it explained that this comprised the positive duty of States to provide suitable and effective mechanisms to seek to obtain prior, free, and informed consent in accordance with the customs and traditions of the indigenous peoples before undertaking activities that may adversely affect their interests or their rights to their lands, territory or natural resources.331 Additionally, the Commission explained that the state has to guarantee that ‘indigenous peoples be consulted on any matters that might affect them’ and that ‘the purpose of such consultations should be to obtain their free and informed consent’.332 Hence, the focus is therefore on the state’s ‘obligation to protect’, an approach which can be reconciled with the practice of foreign investor’s directly undertaking the consultation process. However, at the same time, it must be noted that the formulation used (‘to provide suitable and effective mechanisms to seek to obtain prior, free, and informed consent’) is considerably weaker than had been the case just six years earlier in the Commission’s Application to the Inter-American Court in Saramaka (‘the indigenous people’s consent to natural resource exploitation 328 Report 79/13, Kaliña and Lokono Peoples. Suriname, Inter-American Commission on ­Human Rights, Case No. 12.639 (18 July 2013); Case of the Kaliña and Lokono Peoples v. S­uriname (Merits, Reparations and Costs), Inter-Am.Ct.H.R. (Judgment, 25 November 2015). 329 Report 79/13, Kaliña and Lokono Peoples. Suriname, Inter-American Commission on ­Human Rights, Case No. 12.639, para. 72 (18 July 2013). 330 Ibid., at para. 119. 331 Ibid., at para. 120. 332 Ibid., at para. 127.

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activities on their traditional territories is always required by law’333), despite the facts concerning similar issues (granting of mining concessions) in the same state. Even though the Inter-American Commission also briefly cited the Court’s findings in Saramaka in a later passage,334 it laid its primary focus on substantiating the elements of the consultation process: In order to be consistent with inter-American human rights law, the consultation with the indigenous peoples must fulfill certain requirements: it must be prior, that is to say, it must be conducted ‘from the first stages of planning or preparation of the proposed measures, so that the indigenous peoples can truly participate in and influence the decision-making process’. It also must be culturally appropriate and take the traditional methods used by the people concerned to take decisions, as well as their own forms of representation. It must be informed, which requires that full and accurate information be provided to the communities consulted regarding the nature and consequences of the process. The consultation must also be conducted in good faith and for the purpose of reaching an agreement. Regarding the good faith requirement, the Court has emphasized specifically that said requirement ‘is incompatible with practices such as attempts to disintegrate the social cohesion of the affected communities, whether it is through the corruption of communal leaders or the establishment of parallel leaderships, or through negotiations with individual members of the community that are contrary to international standards’.335 Similarly, the Inter-American Court in its 2015 judgment in the context of the extraction operations carried out from 1997 onwards found that restrictions on the right to property of indigenous and tribal peoples had to comply with three safeguard guarantees: effective participation, sharing of benefits from the plan implemented on their territory, and a prior social and environmental impact assessment.336 Its passage on the objective of the effective participation 333 Application to the Inter-American Court of Human Rights in the Case of Twelve Saramaka Clans against the Republic of Suriname, Inter-American Commission on Human Rights, Case No. 12.338, para. 154 (23 June 2006). 334 Report 79/13, Kaliña and Lokono Peoples. Suriname, Inter-American Commission on ­Human Rights, Case No. 12.639, para. 128 (18 July 2013). 335 Ibid., para. 129 [footnotes omitted]. 336 Case of the Kaliña and Lokono Peoples v. Suriname (Merits, Reparations and Costs), ­Inter-Am.Ct.H.R., para. 201 (Judgment, 25 November 2015).

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­process (whether entailing free, prior and informed consent or consultation) is, however, vague. Thus, even though the state had submitted that it was in the process of developing ‘a protocol that reflects the principle of free, prior and informed consent’,337 the Inter-American Court formulated this as: ‘the State has expressed its willingness to continue working to ensure the prior, free and informed consultation of the indigenous and tribal peoples’.338 In any event, as the state had however not adopted said protocol, it concluded that Suriname had failed to ensure the effective participation. In light of the Court’s reluctance to further confirm the question whether consent is required in those circumstances which threaten the survival of the affected group, the outcome of future cases before the Court concerned with this matter will be decisive in bringing more clarity to the matter. In this regard, the Court will likely also pay close attention to the further development of the issue by other national, regional or international institutions. 6.6.3 Other Regional Human Rights Bodies As a region hit hard by so-called ‘land-grabbing’,339 the approach taken by the African Commission on Human and Peoples’ Rights with regard to the protection of indigenous land and resource rights is particularly interesting. Though the African Charter on Human and Peoples’ Rights, adopted in 1981, does not refer to ‘indigenous’ peoples, the African Commission has recognized that its provisions protect indigenous rights.340 337 Ibid., at para. 204. 338 Ibid., at para. 210. 339 According to estimates by Global Land Project, in 2009 between 51 and 63 million ha land in 27 African states were assigned in land deals or under negotiation, see Table 1, Global Land Project, Land Grab in Africa – Emerging Land System Drivers in a Teleconnected World, 2010, available at http://www.globallandproject.org/arquivos/GLP_report_01.pdf (last visited 19 April 2016). This equals approximately the total area of France; see also S. Smis/D. Cambou/G. Ngende, ‘The Question of Land Grab in Africa and the Indigenous Peoples’ Right to Traditional Lands, Territories and Resources’, Loyola of Los Angeles International and Comparative Law Review, vol. 35, 2012–2013, pp. 493ff. 340 See, inter alia, Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Populations, adopted by the African Commission on Human and Peoples’ Rights at its 41st Ordinary Session held in May 2007 in Accra, Ghana; A.L. Abebe, ‘Limitations to the Rights of Indigenous Peoples in Africa: A Model for Balancing National Interest in Development With the Rights of Indigenous Peoples?’, African Journal of International and Comparative Law, vol. 20, no. 3, 2012, p. 408.

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In 2010, the African Commission issued its decision in the Endorois case.341 The case concerned allegations that the Endorois had been forcibly removed from their ancestral lands inter alia in the Lake Bogoria area (Kenya) without prior consultations or adequate and effective compensation.342 After pointing out the emerging consensus on the evolvement of the categories of peoples and indigenous peoples,343 the Commission continued to assess the alleged violations of rights in the context of their application with regard to indigenous peoples, referring to numerous cases by the Inter-American Court of Human Rights. It especially drew from the Awas Tingni and Saramaka cases, finding that ‘special measures of protection are owed to members of the tribal community to guarantee the full exercise of their rights’.344 In assessing whether the encroachment of the community’s right to property was in accordance with the law, it applied a two-pronged test – ‘in the interest of public need or in the general interest of the community’ and ‘in accordance with appropriate laws’.345 It was then with regard to the latter of these two criteria that the Commission found that the removal must not only satisfy Kenyan law but also international law. This included the elements of compensation and consultation, where the threshold was especially stringent in favor of indigenous peoples ‘as it also requires that consent be accorded’.346 Referring again to the conditions established in Saramaka (effective ­participation, guarantee to receive a reasonable benefit, and prior environmental and social impact assessment), the Commission held that a violation of Article 14 of the 341 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010. 342 Ibid., at para. 2. 343 Ibid., at para. 151: The African Commission is thus aware that there is an emerging consensus on some objective features that a collective of individuals should manifest to be considered as “peoples”, viz: a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious and ideological affinities, territorial connection, and a common economic life or other bonds, identities and affinities they collectively enjoy – especially rights enumerated under Articles 19 to 24 of the African Charter – or suffer collectively from the deprivation of such rights. What is clear is that all attempts to define the concept of indigenous peoples recognize the linkages between peoples, their land, and culture and that such a group expresses its desire to be identified as a people or have the consciousness that they are a people. 344 Ibid., at para. 197. 345 Ibid., at paras. 211ff. 346 Ibid., at paras. 225–226 [emphasis in original].

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African Charter (right to property) had occurred.347 Similar was stated with regard to the right to development (Article 22), where the Commission held that: any development or investment projects that would have a major impact within the Endorois territory, the State has a duty not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions.348 The African regional human rights protection system is therefore strongly influenced by the jurisprudence of the Inter-American system. The African Commission has been similarly progressive as the Inter-American Commission and has issued documents confirming that its member states must take ‘all necessary measures […] to ensure participation, including the free, prior and informed consent of communities, in decision making related to natural resources governance’.349 Yet, it has so far not managed to detail the obligation any further. Even less input stems however from the European regional human rights system. The European Convention on Human Rights, adopted in 1950, is silent on any special protection afforded to indigenous peoples, even though particularly the Saami in Northern Europe span across several states, as do Denmark (Greenland) and Russia contain indigenous peoples. One of the early cases taken by indigenous peoples to the European Commission, Alta, dealt with the construction of a dam in the Alta valley, inundating parts of the valley and allegedly interfering with their right to respect for family life (Article 8 echr) and to enjoy their possessions under Article 1 of Protocol No. 1 echr even if they did not possess formal title to the land.350 After accepting that the consequences of the construction of a hydroelectric power plant could constitute an interference with the applicants’ private life, the Commission however held: in comparison with the vast areas in northern Norway which are used for reindeer breeding and fishing, the Commission considers that it is only a comparatively small area which will be lost for the applicants, for such purposes, as a result of the Alta river project. Furthermore, under 347 Ibid., at paras. 226–227. 348 Ibid., at para. 291. 349 African Commission on Human and Peoples’ Rights, Resolution on a Human RightsBased Approach to Natural Resources Governance, 51st Session, 2 May 2012. 350 G. and E. v. Norway (Alta case), European Commission of Human Rights, Application Nos. 9278/81 and 9415/81, Admissibility, 3 October 1983.

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the term of Article 8, para. 2 of the Convention, an interference with the rights set out in Article 8, para. 1 is permissible if it is in accordance with the law and necessary in a democratic society for one of the purposes enumerated, inter alia, the economic well-being of the country.351 With regard to the applicants’ submission under Article 1 of Protocol No. 1 echr, the Commission found that they had ‘in no way substantiated that they have property rights or claims’ and summarized that the ‘[t]raditional use of vast territories for grazing, hunting and fishing’ did not amount to a property right.352 Even though more recent cases have been more forthcoming to recognize traditional practices of indigenous peoples as possessions within the meaning of Article 1 of Protocol No. 1 echr,353 there is still a clear tendency of the European Court of Human Rights to require indigenous peoples to establish their immemorial usage rights within their state’s domestic judicial system.354 The insufficiency of this approach was also pointed out by Judge Ziemele in Handölsdalen, calling for the need to take account of the evolution of rights and the particular circumstances of indigenous peoples.355 351 Ibid. 352 Ibid. 353 Könkämä and 38 other Saami villages v. Sweden, European Commission of Human Rights, Application No. 27033/95, Admissibility, 25 November 1996: The Commission considers that the exclusive hunting and fishing rights claimed by the applicant Saami villages in the present case can be regarded as possessions within the meaning of Article 1 of Protocol No. 1. 354 See on this, inter alia, T. Koivurova, ‘Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects’, International Journal on Minority and Group Rights, vol. 18, 2011, p. 21. 355 Handölsdalen Sami Village and Others v. Sweden, European Court of Human Rights, Application No. 39013/04, Judgment, 30 March 2010: 10. […] The standard is that parties are afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage with respect to the adversary. In cases where one party by definition is disadvantaged, proper access to court is ensured by adopting such procedures and safeguards as indeed enable that party to enjoy the same opportunities. This is what the cerd meant when criticising the fact that the burden of proving the right rests exclusively with the Sami, because the whole system presumes that the landowners have the right and they do not have to prove anything. There is therefore no doubt in my mind that the applicants’ access to court was not effective. It could not be effective until and unless the entire approach to land disputes of this kind is revised to take account of the rights and particular circumstances of indigenous peoples. The excessive legal costs and the

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6.6.4 Selected National Decisions and Practice While there are a number of states which include consultation obligations in their national legislation,356 there are only few national decisions and even less acts of legislation which provide for fpic and thereby determine its content and scope. A leading case is Delgamuukw in front of the Supreme Court of British Columbia (Canada). In the dispute which concerned more than 58 000 square kilometers of territory in north-western British Columbia, the Court inter alia held that: [A]boriginal title encompasses within it a right to choose to what ends a piece of land can be put. […] This aspect of aboriginal title suggests that the fiduciary relationship between the Crown and aboriginal peoples may be satisfied by the involvement of aboriginal peoples in decisions taken with respect to their lands. There is always a duty of consultation. Whether the aboriginal group has been consulted is relevant to determining whether the infringement of aboriginal title is justified, in the same way that the Crown’s failure to consult an aboriginal group with respect to the terms by which reserve land is leased may breach its fiduciary duty at common law […]. The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when

fact that the applicants had to borrow money from their own Fund are elements of the overall unfairness. 356 For an overview of domestic legislation on consultation by oas states, see the analysis by the Inter-American Court of Human Rights in Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), paras. 164ff., referring to domestic laws by Argentina (participation), Chile (hear and ­consider), Colombia (prior consultation), United States of America (prior consultation), Mexico (prior consultation), Nicaragua (process of discussion), Peru (prior c­ onsultation) and Venezuela (prior information and consultation).

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provinces enact hunting and fishing regulations in relation to aboriginal lands.357 This was later confirmed and detailed in Haida Nations, where the Canadian Supreme Court especially discussed the spectrum between mere consultations in good faith and the requirement to reach full consent identified in ­Delgamuukw. The Court highlighted that though a meaningful process of ­consultation must occur, this did not entail a duty to agree.358 It then continued to state that: At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C] onsultation’ in its least technical definition is talking together for mutual understanding” [source omitted] the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decisionmaking process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case.359 The Canadian Supreme Court further emphasized that the process did not give a veto right, and referred to the fact that the ‘consent’ Delgamuukw spoke of was only appropriate in cases of established rights, and there only on very serious issues, as ‘what is required is a process of balancing interests, of give and take’.360 In the recent Tsilhqot’in Nation case, the Supreme Court reiterated 357 Delgamuukw and Others v. The Queen in Right of British Columbia and Others; First Nations Summit and Others, Interveners, Supreme Court of British Columbia, 115 ilr 446, p. 516, para. 168 (Judgment, 11 December 1997). 358 Haida Nation v. British Columbia (Minister of Forests), Supreme Court of Canada, 2004 scc 73 (Judgment, 18 November 2004), para. 42. 359 Ibid., at paras. 43–44. 360 Ibid., at paras. 24, 48.

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its prior case-law and highlighted the temporal dimension of the obligation, namely: The practical result may be a spectrum of duties applicable over time in a particular case. At the claims stage, prior to establishment of Aboriginal title, the Crown owes a good faith duty to consult with the group concerned and, if appropriate, accommodate its interests. As the claim strength increases, the required level of consultation and accommodation correspondingly increases. Where a claim is particularly strong – for example, shortly before a court declaration of title – appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. Finally, once title is established, the Crown cannot proceed with development of title land not consented to by the title-holding group unless it has discharged its duty to consult and the development is justified pursuant to s. 35 of the Constitution Act, 1982.361 Several factors become evident in light of this development: the Canadian Supreme Court understands fpic as a continuing procedural right. It is not an absolute right of the indigenous people concerned – thus, does not provide them with a veto right – but rather constitutes a duty to accommodate their interests into state policies and decisions. The clearer title and claims are established, the more the decision of the affected indigenous people must be taken into account. And finally, once title is established, in serious cases consent by the indigenous people is necessary unless the state ‘has discharged its duty to consult and the development is justified’.362 Hence, despite the strong wording resorted to by the Canadian Supreme Court, ultimately fpic remains a balancing exercise between the affected indigenous interests and the overall interest of the state to further its national development. In 2011, Colombia’s Constitutional Court decided the historic landmark case T-129, halting three projects as the affected indigenous peoples had not been consulted. With regard to the question whether the right amounted to a veto right, the Court held: Conforme a lo expuesto, para la Corte el criterio que permite conciliar estos extremos depende del grado de afectación de la comunidad, eventos específicos en que la consulta y el consentimiento pueden incluso llegar 361 Tsilhqot’in Nation v. British Columbia, Supreme Court of Canada, 2014 scc 44 (Judgment, 26 June 2014), para. 91. 362 Haida Nation v. British Columbia (Minister of Forests), Supreme Court of Canada, 2004 scc 73 (Judgment, 18 November 2004), para. 48.

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a determinar la medida menos lesiva, como medida de protección de las comunidades.363 States who have implemented fpic into their legislation tend to phrase it as an objective rather than as an absolute right. By far, the most progressive ­legislation in this regard stems from the Philippines, defining in its Indigenous Peoples’ Rights Act (No. 8371) that fpic shall mean the consensus of all members of the iccs/ips to be determined in accordance with their respective customary laws and practices, free from any external manipulation, interference and coercion, and obtained after fully disclosing the intent and scope of the activity, in a language and process understandable to the community;364 The Act applies fpic in relation to relocation, access to natural, biological and genetic resources, a number of prohibitive provisions with regard to community intellectual rights, rights to religious and cultural sites.365 In comparison, in Peru, the recently adopted Law of Prior Consultation With Indigenous and Original Peoples stipulates in Article 3 ‘[l]a finalidad de la consulta es alcanzar un acuerdo o consentimiento’ [‘the purpose of the consultation is to agree or consent’].366 This corresponds with the majority of legislation, as also discussed by the Inter-American Court in Sarayaku extensively, which foresee rather a right to consultation/effective participation rather than to consent.367 363 Sentencia T-129/11, Colombia Constitutional Court (Judgment, 3 March 2011), p. 73; see also D. Bonilla Maldonado, ‘Self-Government and Cultural Identity: The Colombian Constitutional Court and the Right of Cultural Minorities to Prior Consultation’, in Constitutionalism of the Global South – The Activist Tribunals of India, South Africa, and Colombia, D. Bonilla Maldonado ed., 2013, p. 243. 364 Republic Act No. 8371, Indigenous Peoples’ Rights Act, Philippines, 29 October 1997. 365 Ibid.; see also on the issues of implementation oxfam America Briefing Paper, ‘Free Prior and Informed Consent in the Philippines – Regulations and Realities’, September 2013, available at http://www.oxfamamerica.org/static/media/files/fpic-in-the-philippines -september-2013.pdf (last visited 19 April 2016). 366 Law of Prior Consultation With Indigenous and Original Peoples (Ley del derecho a la consulta previa a los pueblos indígenas u originarios reconocido en el Convenio 169 de la Organización Internacional del Trabajo (oit), Ley No 29785), Peru, 6 September 2011, available at http://www.leyes.congreso.gob.pe/Documentos//ExpVirPal/Normas _Legales/29785-LEY.pdf (last visited 19 April 2016). 367 Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012), paras. 164ff.

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6.7 Conclusions The Chapter dealt with two primary instruments inherently related to the right to self-determination, psnr and fpic. Over the course of time, both have been associated with sub-state entities as subjects, thus constituting ideal examples to study the extent of sovereign authority granted to peoples/indigenous peoples. psnr has evolved from a principle reinforcing the independence of newly independent states to a safeguard of entities under some sort of foreign or alien occupation. Furthermore, the principle is marked – as cited above – by its ‘extreme elasticity and generality’368 in its application. As explored throughout this study, this constitutes an argumentative point of departure for extending psnr to indigenous peoples. With the growing awareness of and attention afforded to indigenous peoples within the international legal framework, ­gaining authority over land and natural resources has become recognized as particularly essential for ensuring their survival. As contained in the term itself, the right to psnr implies that the subject possesses the sovereign right to freely dispose, use and exploit its natural resources. While a number of obligations are inherent within psnr, ultimate control over the natural resources remains with the sovereign right-bearer. This assertion must, however, be viewed with caution in the case of indigenous peoples. In particular, the question arises whether in fact indigenous peoples enjoy psnr as a consequence of the evolution of a sovereign right or ‘merely’ on the basis of human rights law. This is decisive in determining who possesses sovereign authority in the case of conflicting interests and who may exercise their free consent with regard to third parties, particularly foreign investors. On a theoretical level, the claim advanced by indigenous peoples to constitute right-bearers to psnr is closely linked to their claim to constitute full subjects of the right to self-determination. Even though achieving statehood in the majority of situations will either not be sought or, in any event, will only be possible in limited (most exceptional) circumstances, gaining full sovereign authority in a spatial context is viewed as a means to protect their sui generis land and resource rights. Arguments focus especially on their similar position to colonial peoples, unequitable economic arrangements concerning their territories and resources, the necessity to reevaluate this situation, their right to development and their long possession of land and resources. Viewed abstractly, the principle itself does not provide an obvious answer to the conflict arising from two competing claims to psnr within one state. From 368 Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14, p. 120, para. 26 (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 20 April).

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the obligations inherent in psnr, neither the duty to exercise psnr in the interest of the well-being of the people nor the duty to respect others offer clear indications in whose favor the right must be exercised. Though some guidance can be sought from situations of shared transboundary resources, in particular through the incorporation of equitable considerations, the comparatively little judicial practice available tends to relate to the field of human rights, and thus, to resolve conflicts by subsuming violations under human rights provisions. States are therefore entitled to conduct a balancing exercise between two competing interests, the right to national development and the obligation to afford protection to indigenous rights. This is also in line with undrip which – though recognizing land and resource rights – refrains from including any reference to the territorial authority or to sovereign rights of indigenous peoples. Moreover, though Special Rapporteur Daes emphasizes the sovereign and permanent character of indigenous land and resource rights, she recognizes that under a status quo assessment, it would be necessary to create international mechanisms to operationalize these rights. Her conclusion can also be confirmed by studying the existing constitutional and legislative framework applicable in the context of natural resources (see also the relevant excerpts contained in the Annex). Hence, in particular with regard to subsurface resources, the majority of states retain authority. Only in cases of extensive autonomy, and here especially in the case of Greenland which – as stated above – is on the path towards independence, do states recognize the exercise of sovereign rights by peoples/indigenous peoples. Thus, if the sovereign elements of psnr are understood to entail legal and governmental control as well as the management authority over natural resources, indigenous peoples cannot be said to be equal subjects of psnr in comparison to states. Instead, their right amounts to increased participation rights, implemented in particular through fpic, a procedural manifestation of self-determination. In contrast to psnr, the origins of fpic can be traced to the international human rights movement and, despite its recent collective dimension, has its roots in the protection of the rights of individuals. Infiltrated into the field of indigenous rights through the work of international financial institutions which were particularly concerned with the issue by the financing of numerous large-scale development projects which caused great harm to indigenous territories and resources, ‘informed participation’ was thought to reduce international criticism and local resistance. Firmly incorporated into undrip with regard to several provisions, fpic has been recognized as a safeguard for the protection of indigenous land and resource rights. The crux of the matter relates, however, to the question to which extent fpic in fact creates a de facto authority for indigenous peoples.

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Thus, whether fpic operationally requires the consent of the affected community with regard to their lands and resources, effectively creating a veto power (even though involved stakeholders are careful to avoid this term), or whether undrip’s final wording ‘in order to obtain their […] consent’ merely reinforces the obligation to ensure adequate participation. Notable in this context is the divergence of choice of formulation with regard to forced relocations (Article 10 undrip) as well as the storage of hazardous materials on indigenous lands (Article 29 undrip) in comparison to natural resources, the former both being drafted in a more straightforward manner. As can be seen in the cases discussed above, fpic is a not a set standard but its precise implications are granted on a case-by-case basis. Article 34 of ilo Convention No. 169 also explicitly incorporates this standard of flexibility: The nature and scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country. Nevertheless, the criteria applied to determine to which extent one can speak of an obligation to obtain consent have been slightly detailed over the past decade, both by regional human rights instruments as well as in national courts. Three points can be made: firstly, the obligation to obtain fpic falls to the state, not the project operator. Secondly, this relates to both surface as well as subsurface resources located on the lands or territories of the affected community. Thirdly, where the physical or cultural survival of an indigenous people is concerned, the obligation to obtain consent is near to but not absolute. The manner in which fpic must be operated has also been detailed by case-law, which will not be repeated at this stage. However, what should be pointed out is the aim of fpic to achieve ‘mutually acceptable arrangements’369 via balancing the interests of the state to further its national development and the affected people with each other. In light of the above, it must therefore be concluded that generally neither psnr nor fpic equip indigenous peoples with sovereign authority over their natural resources. However, both principles operationalize the right to self-determination through emphasizing effective participatory safeguards to ensure the sui generis land and resource rights of indigenous peoples.

369 Human Rights Council, ‘Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, James Anaya’, 15 July 2009, un Doc. A/HRC/12/34, para. 46.

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Concluding Remarks and Outlook The legal unit humanity is divided, only temporarily and by no means forever, into states, formed in more or less arbitrary fashion… hans kelsen1

∵ For almost a century, the principle of self-determination has stood at the heart of struggles to independence, evolving and influenced by international politics. Over time, it has received normative confirmation and now stands recognized as one of the fundamental principles of international law. Moreover, the importance of rights which peoples/indigenous peoples are entitled to is steadily increasing as inter alia evidenced by the recognition of the growing role of non-state actors as subjects of international law. While each of the aspects of the principles of self-determination has been analyzed and discussed in great depth, its role in a changing world order designating sovereign governing authority is in constant flux and thereby calls for regular re-evaluation. Additionally, as concluded in Chapter 3, the juxtaposition of certainty as to the legal status of self-determination and uncertainty as to its content, including especially its criteria of application, provides for fertile ground for constant evolution. On the basis of the foregoing Chapters, a few general conclusions may be drawn with regard to the relationship of sovereignty and the exercise of the right to self-determination. First, sovereignty relates to that functional power of a governing entity which grants such freedom of action and choice which the exercise of the right to self-determination seeks to gain. Thus, at the outset, self-determination functions as the primary tool to realize the sovereignty of ‘peoples’. Despite the finding that sovereignty is not singularly linked to statehood but is a consequence of the power that an entity exercises, under the current state of international law, peoples/indigenous peoples are only in 1 H. Kelsen, Das Problem der Souveränität, 1920, p. 319: Die Rechtseinheit der Menschheit, die nur vorläufig und keineswegs endgültig in mehr oder weniger willkürlich gebildete Staaten gegliedert ist…[translation by the author].

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e­ xceptional circumstances equipped with classic (state-like) sovereign powers, usually voluntarily granted by their home state. However, as explored throughout this study, the carving of an independent space to exercise freedom of action and choice can take place through a number of different models, and can result in the exercise of varying degrees of independence. In this vein, selfdetermination can be exercised through autonomous arrangements, through extensive land and resource rights and through procedural means aimed at securing the right to participate as actors in the international legal system. Each of these ‘spheres of independence’ has been assessed with consideration for the underlying principles’ objectives, evolutionary space, and extent of sovereignty transferred to peoples/indigenous peoples. A second conclusion therefore relates to the question whether the underlying structures of international law and the applicable principles respond to the claim of peoples/ indigenous peoples to be sovereign entities and, as such, entitled to sovereign rights. In this context, the relevance of the overlapping – but partly also the distinctness – of the categories of peoples and indigenous peoples becomes particularly evident. Thus, both with regard to the objectives and evolutionary intent of the principle of self-determination, it can be asserted that peoples and indigenous peoples have been recognized to possess the same political consciousness and thus an equal entitlement to all aspects of self-­determination. That this has been recognized by the African Commission2 is particularly noteworthy in light of the unique understanding of peoples’ rights in the African context.3 Hence, the determination to which extent a right stemming from the principle of self-determination can be exercised is thus dependent on a number of political, historical and geographic factors and not whether or not an entity has ‘indigenous’ characteristics. At the same time, as regards indigenous peoples, an additional layer of protection can be identified. In part, this also rests in an altered understanding of sovereignty as a concept to ensure the protection of the distinctness of indigeneity.4 As indigenous sovereignty is still difficult to place within the 2 Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of E­ ndorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010, paras. 127, 151. See also Chapter 2, Section 2.5.1. 3 Cf. The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001, para. 68. 4 See in this regard particularly Chapter 5, Section  5.3, in the context of Greenland’s Inuit and the Circumpolar Inuit Declaration on Sovereignty in the Arctic, April 2009, available at http://www.inuitcircumpolar.com/sovereignty-in-the-arctic.html (last visited 19 April 2016).

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i­ nternational legal order, these claims are often couched in classic i­ nternational law i­nstruments, such as the principle of permanent sovereignty over n ­ atural resources,5 or based on a distinct interpretation of certain human rights.6 However, as seen in Chapter 6, precisely this leads to operational gaps and challenges in relation to the exercise of the right to self-determination with regard to indigenous peoples. Additionally, this is owed to the variety of legal fields – ranging inter alia from human rights law, to investment law, environmental law and to economic law – which are impacted by the exercise of such rights by indigenous peoples and which have not always adapted to potential new sovereign subjects. One consequence thereof is, for example, that in foreign investment or international project finance disputes, the role of indigenous peoples in the proceedings is limited to a factual externality, without any directly enforceable rights against the foreign investor or project operator. As regards the extent to which the analyzed principles can be said to transfer sovereignty on peoples/indigenous peoples, the findings – though not ­surprising – rest on a number of important elements of international law. The underlying structures of how international law is shaped encourage the deliberate use of principles which are susceptible to evolution by both policy change and continuous interpretation when being applied by international judicial bodies. In the context of self-determination, the flexibility of international law in achieving a balance of interests between power-blocks has been put to the test more than once throughout the past century. Several waves of self-determination have been identified, ranging from the re-ordering p ­ rocess in Europe encouraged by the victors of World War i, to the decolonization movement, to the political landslides occurring after the break-up of the ­Soviet Union, to d­ efragmented societal movements, and lastly, to the increase of indigenous internationalism claiming rights and concepts associated with earlier exercises of the right. The corresponding normative framework has consequently adapted over time, however, without the necessity of changing terms. As pointed out in Chapter 1, the evolvement of international relations, the constant restructuring of the world order (both in terms of composition and in values) will continue to be subject to a rescaling of sovereignty between entitled subjects. 5 Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Final report of the Special Rapporteur, Erica-Irene A. Daes, 12 July 2004, un Doc. E/CN.4/Sub.2/2004/30/Add.1. 6 Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 November 2013, para. 106.

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In order to assess the extent of sovereign authority self-determination is capable of transferring on peoples/indigenous peoples, four categories in theory directed at granting sovereignty to an entity were analyzed: the right to statehood, the right to autonomy, the right to permanent sovereignty over natural resources (psnr), and the right to free, prior and informed consent (fpic). Each of these categories is marked in itself by constant evolution and strongly influenced by a number of non-legal factors. The most politically disputed among these rights naturally is statehood, inter alia based on the existential fear of existing states. Neither the concept of statehood nor its defining criteria are settled, allowing for the infiltration of a number of extralegal factors in the determination of whether an entity has successfully become a state. Moreover, while the classic doctrine and practice is focused on emphasizing effectiveness and stability as structural elements, it can be argued that justice and morality as well as the overarching concept of legality have become additional influencing criteria in the practical assessment of statehood by other actors of the international community. This points to the need to combine the traditonal factual criteria with two types of assessments, i.e. legal elements or elements which can be deduced from the understanding of international law as reflective of certain core values (Chapter 4). Whether peoples/indigenous peoples may therefore declare independence and resulting from that receive sovereign authority will depend not only on them fulfilling the factual conditions of statehood but additionally whether there is some overarching aspect, e.g., of justice, which weighs stronger than forcing them to remain within their current territorial boundaries. A further expression of political self-determination is autonomy. With regard to peoples, there is a surprisingly strong agreement that there is no right to autonomy per se (Chapter 5). This is somewhat weaker in the case of indigenous peoples, though it is often maintained by states that indigenous peoples only have a right to negotiate autonomy. In practice, this usually does not amount to territorial autonomy but often ‘only’ forms of cultural autonomy. In any event, the wide variety of forms of autonomy established by constitutional and domestic provisions shows a strong dependence on the willingness of a state, posing limits to the denomination of such arrangements as an exercise of sovereign authority. However, when autonomy arrangements are entered into voluntarily by home states, such as in the case of Denmark and Greenland, autonomy can authorize entities to exercise a wide range of sovereign powers. One of the reasons for the extensive transfer of powers certainly is the agreement that with time Greenland will become fully independent. Both at present and even more when it has achieved independence, the question how indigenous rights

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will be incorporated into a state’s legal framework consisting of a population which is approximately 90% indigenous will be particularly interesting, especially in light of the current struggle Greenland faces how to position itself in the rapidly changing Arctic environment. This development offers new economic potential to the local inhabitants of Greenland, which is necessary for Greenland to eventually become independent, but at the same time it is full of risks to their cultural identity. Legislative guarantees ensuring indigenous participation in decision-making and benefit-sharing are particularly crucial. From an indigenous perspective, however, the lack of special protection mechanisms stands out. Both the autonomy act as well as Greenlandic legislation fails to include indigenous rights’ safeguards, as is most evident in the field of natural resources. While it might be argued that a government made of indigenous representatives could per se fulfill adequate safeguard requirements for indigenous peoples as contained in ilo Convention No. 169 or undrip, it must not be overlooked that the people of Greenland have been defined in political terms7 and that the Greenlandic government is a public and not an indigenous body. The lack of indigenous legislation and safeguards not only raises questions of whether indigenous sovereignty and autonomy can be realized and function at the international level, but also of how indigenous rights can be incorporated into institutional frameworks. In light of the significance which land and natural resources have not only for the economic self-determination of peoples but also for the survival of indigenous peoples, both the recognition of psnr as a political instrument to safeguard the independence of newly independent states and the realization that it constitutes ‘for any people […] an important component of the totality of their sovereignty’8 account for its essential role in the current ­debate. Though the terminological basis remains the same, psnr as granted to peoples/ indigenous peoples lacks crucial elements of the sovereign origins of the rights. Thus, to draw from the basic understanding of sovereignty, the full e­ xtent of psnr necessarily entails both internal and external elements. A ­decisive factor therefore relates to who is entitled to enter into agreements with third p ­ arties. 7 See, inter alia, The Greenland-Danish Self-Government Commission’s Report on SelfGovernment in Greenland, Executive Summary, April 2008, p. 5, available at http://www .arcticgovernance.org/the-greenland-danish-self-government-commissions-report-on-self -government-in-greeland.4633171-137746.html (last visited 19 April 2016); Preamble, Schedule to the Act, Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). 8 Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 197 (Dissenting Opinion of Judge Weeramantry, 30 June).

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However, as constitutional, legislative9 as well as judicial practice10 shows, the sovereign authority remains with the state with the exception of some few examples of extensive autonomy, e.g., the Self-Government Act of Greenland. Peoples/indigenous peoples are thus forced to resort to human rights law to domestically (or through regional human rights courts) claim the infringement of rights associated with the particular natural resource. The distinct interpretation and application of psnr when applicable to peoples within a state can also be reasonend by its underlying objectives. Thus, though inherently linked with the right to self-determination, the origin and evolution of psnr and self-determination are opposite. Self-determination is a right which evolved from an instrument always pertaining to peoples as its primary subjects and psnr stems from a principle originally conceptualized for the further safeguarding of entities which already had achieved independence. Also with regard to indigenous peoples, the analogous application of psnr is therefore not quite as natural. In this sense, Chapter 6 concludes that rather than reinforcing the sovereign independence psnr primarily strengthens the participatory rights of peoples/ indigenous peoples. Moreover, even though the outcome of the decisionmaking process within a state will not necessarily end in favor of the affected people/indigenous people, the overall objective to achieve equitable consideration of the parties introduces at least in part sovereign attributes which are couched in international law. Over the past two decades, particularly with regard to indigenous peoples, such participatory rights have found their most forceful instrument in the concept of fpic, a principle which developed already early on as a part of human rights law, and which slowly evolved into an essential safeguard for indigenous land and resource rights. In this context, the difficulties relate primarily to the fact whether fpic requires actual consent by the affected indigenous peoples or whether there is merely an obligation on states to attempt in good faith to achieve consent, containing the procedural elements of ensuring a participation process which occurs at the earliest stage possible and respectful of indigenous traditions and decision-making. The extent and meaning of fpic has been discussed by a number of judicial and non-judicial bodies, and the near future promises many more. Thus, within the next few years the operational functioning of fpic will become much clearer. Nevertheless, under the current status quo, it can be said with some certainty that fpic does not equip indigenous peoples with true sovereignty 9 10

See for both also the Annex. See particularly the case law by the African Commission on Human and Peoples’ Rights.

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with regard to their land and resources as the decision-making process remains with the state. Consequently, there might always be situations in which the interests of the state weigh stronger than the consent of indigenous peoples. Though the affected group will have the right to redress (through means of restitution or compensation), this generally is no different than the legal entitlements of non-sovereign property owners in this regard. Hence, as stated above, under the current state of law, only in exceptional circumstances are peoples/indigenous peoples equipped with sovereign powers, usually voluntarily granted by their home state. That, however, does not mean that international law is restrictive to the further evolution of new forms of governance. As emphasized several times throughout this study, international law remains mute on which form of governance should be exercised. Instead, it offers a framework of international principles which must be respected by international actors and enables these to enter into international relations. Over time, international law operates in a constant exercise of re-imaging international relations. As recent examples – growing in number (e.g. the eu or the Arctic Council) – show, there are indications that increasingly transnational or sub-levels of sovereign governance will become more favorable forms of societal organization than maintaining the current state-­centered structure.

Annex Constitutional and domestic legislation of state parties of ilo Convention No. 169 relating to natural resources.

Argentine Republic

National Constitution of the Argentine Republic, 22 August 1994 (with Section 124 granting the provincial governments ‘the original dominion over the natural resources existing in their territory’): Section 75. Congress is empowered: 17. To recognize the ethnic and cultural pre-existence of indigenous peoples of Argentina. To guarantee respect for the identity and the right to bilingual and intercultural education; to recognize the legal capacity of their communities, and the community possession and ownership of the lands they traditionally occupy; and to regulate the granting of other lands adequate and sufficient for human development; none of them shall be sold, transmitted or subject to liens or attachments. To guarantee their participation in issues related to their natural resources and in other interests affecting them. The provinces may jointly exercise these powers.1

Plurinational State of Bolivia

Constitution of the Plurinational State of Bolivia, February 2009 (with Article 311 granting property of all natural resources to the Bolivian people which shall be managed by the state and Articles 349ff. specifying these ultimate control powers by the state): Article 359. i. Hydrocarbons, regardless of the state in which they are or how they arise, are inalienable and imprescriptible property of the Bolivian people. The State, on behalf of the Bolivian people, exercises ownership of all hydrocarbon production in the country and is the only authorized for marketing. All the income received from the sale of hydrocarbons shall belong to the State. 1 Translation available at http://pdba.georgetown.edu/Constitutions/Argentina/argen94_e .html (last visited 19 April 2016). © koninklijke brill nv, leiden, ���6 | doi 10.1163/9789004328709_009

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ii. No contract, agreement or arrangement, form, direct or indirect, express or implied, may be wholly or partially violate the provisions of this Article. In the case of breach of contracts shall be automatically void and those who have agreed, signed, approved or executed, they commit crime of treason. Article 30. ii. In the framework of the unity of the State, and in accordance with this Constitution, the nations and rural native indigenous peoples enjoy the following rights: 6. To the collective ownership of land and territories. […] 15. To be consulted by appropriate procedures, in particular through their institutions, each time legislative or administrative measures may be foreseen to affect them. In this framework, the right to prior obligatory consultation by the State with respect to the exploitation of non-renewable natural resources in the territory they inhabit shall be respected and guaranteed, in good faith and upon agreement. 16. To participate in the benefits of the exploitation of natural resources in their territory. 17. To autonomous indigenous territorial management, and to the exclusive use and exploitation of renewable natural resources existing in their territory without prejudice to the legitimate rights acquired by third parties. […]2

Federative Republic of Brazil

Constitution of the Federative Republic of Brazil, 5 October 1988 (with Article 20 foreseeing as property of the Union inter alia the hydraulic energy potentials, the mineral resources, including those of the subsoil, the natural underground cavities and the archaeological and historic sites, and those lands traditionally occupied by the Indians): Article 231. Paragraph 2 – The lands traditionally occupied by Indians are intended for their permanent possession and they shall have the ­exclusive usufruct of the riches of the soil, the rivers and the lakes existing therein. 2 Translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=189098 (last visited 19 April 2016).

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Paragraph 3 – Hydric resources, including energetic potentials, may only be exploited, and mineral riches in Indian land may only be prospected and mined with the authorization of the National Congress, after hearing the communities involved, and the participation in the results of such mining shall be ensured to them, as set forth by law.3

Central African Republic

Mining Code, law 09.005 of Central African Republic, 29 April 2009: Article 6. Les gîtes naturels de substances minérales contenus dans le sol et le sous-sol de la République Centrafricaine sont, de plein droit, propriété exclusive, inaliénable et imprescriptible de l’Etat, qui en assure la mise en valeur ou en faisant appel à l’initiative privée conformément aux dispositions de la présente Loi. Toutefois, les titulaires de droit minier ou de carrières d’exploitation acquièrent la propriété des produits marchands en vertu de leur droit. La propriété des gîtes des substances minérales, y compris les eaux souterraines et les gîtes géothermiques dont il est question à l’alinéa 1er du présent article constitue un droit immobilier distinct et séparé des droits découlant d’une concession foncière. En aucune manière, le concessionnaire foncier ne peut se prévaloir de son titre pour revendiquer un droit de propriété quelconque sur les gîtes géothermiques que renfermerait sa concession.4

Republic of Chile

Constitution of the Republic of Chile, 21 October 1980 (with Article 1 of the Mining Code of Chile, 21 October 1980 confirming the constitutional provisions, translation available at http://www.cochilco.cl/descargas/english/legislation/mining_code.pdf?idNorma=1004876&buscar=Ley+20.363 (last visited 19 April 2016)):

3 Translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=218270 (last visited 19 April 2016). 4 Available at http://www.ilo.org/dyn/natlex/docs/SERIAL/83176/100671/F523877437/­CAF-831 76.pdf (last visited 19 April 2016).

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Article 24. […] The State has absolute, exclusive, inalienable and imprescriptible domain over all mines, including guano deposits, metalliferous sands, salt mines, coal and hydrocarbon deposits and the other fossil substances, with the exception of superficial clays, despite the ownership held by individuals or body corporates over the land in which the above should be contained. The superficial landed property shall be subject to the obligations and limitations prescribed for by law to facilitate exploration, exploitation and development of said mines.5

Republic of Colombia

Constitution of Colombia, 1 April 2005 (with Article 332 stating that the ‘state is the owner of the subsoil and of the natural, nonrenewable resources’): Article 330. […] Paragraph. Exploitation of natural resources in the indigenous (­Indian) territories will be done without impairing the cultural, social, and economic integrity of the indigenous communities. In the decisions adopted with respect to the said exploitation, the government will encourage the participation of the representatives of the respective communities.6

Republic of Costa Rica

Political Constitution of the Republic of Costa Rica, 7 November 1949, as amended 2005: Article 121. In addition to other powers vested in it by this Constitution, the Legislative Assembly has exclusive powers to: […] 5 Translation available at http://confinder.richmond.edu/admin/docs/Chile.pdf (last visited 19 April 2016). 6 Translation available at http://confinder.richmond.edu/admin/docs/colombia_const2.pdf (last visited 19 April 2016).

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14. Order the disposal or public use of property that belongs to the Nation. The following property may not be permanently removed from State ownership: a. Any power that may be obtained from public waters within the national territory; b. Deposits of coal, wells and deposits of oil and any other hydrocarbons, as well as any deposits of radioactive minerals existing within the national territory; […]7

Kingdom of Denmark

Denmark’s Act on Subsoil Exploitation (No. 960 of 2011), available at http:// www.ens.dk/sites/ens.dk/files/oil-gas/licences/legislation-and-guidelines/ ca2011_960en.pdf (last visited 19 April 2016), provides that ‘raw materials in the Danish subsoil’ shall belong to the Danish state. The Act however does not apply to Greenland or the Faroe Islands. With regard to Greenland therefore see: Greenland Parliament Act No. 7 of 7 December 2009, on mineral resources and mineral resource activities (the Mineral Resources Act), with amendments from Greenland Parliament Act No. 26 of 18 December 2012: Article 2.–(1) The Greenland Self-Government has the right to control and use mineral resources in the subsoil in Greenland. Article 9.–(1) The Greenland Parliament Act extends to the territorial land and territorial sea off Greenland and in the continental shelf area and the exclusive economic zone off Greenland.8

Commonwealth of Dominica

Dominica Constitution of 1978:

7 Translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=219959 (last visited 19 April 2016). 8 Translation available at https://govmin.gl/images/stories/about_bmp/Unofficiel_translation_-_Mineral_Resources_Act_as_amended_by_act_no_6_of_june_8_2014_-_pdf.pdf (last visited 19 April 2016).

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Section 7. Except with his own consent, a person shall not be subject to the search of his person or his property or the entry by others on his premises. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provisionthat is reasonably required in the interest of defence, public safety, public order, public morality, public health, town and country planning, the development and utilisation of mineral resources of the development and utilisation of mineral resources or the development or utilisation of mineral resources or the development or utilisation of any property for a purpose beneficial to the community;9 Mining Law No. 146 of the Dominican Republic, 4 June 1971: Article 1.– Mineral substances of every nature which are found in the soil of the national territory as well as in the underwater soil and subsoil of the territorial sea, belong to the State.10

Republic of Ecuador

Constitution of the Republic of Ecuador, 20 October 2008 (with Article 1 counting nonrenewable natural resources of the state to ‘its inalienable and absolute assets […] not subject to a statute of limitations’): Article 57. Indigenous communes, communities, peoples and nations are recognized and guaranteed, in conformity with the Constitution and human rights agreements, conventions, declarations and other international instruments, the following collective rights: […] 4. To keep ownership, without subject to a statute of limitations, of their community lands, which shall be unalienable, immune from seizure and indivisible. These lands shall be exempt from paying fees or taxes. 9 10

Translation available at http://pdba.georgetown.edu/constitutions/dominica/dominica78.html (last visited 19 April 2016). Translation available at http://policy.mofcom.gov.cn/english/flaw!fetch.action?libcode= flaw&id=733a7b46-be51-4f5d-888d-34c49f121a9d&classcode=700 (last visited 19 April 2016).

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5. To keep ownership of ancestral lands and territories and to obtain free awarding of these lands. 6. To participate in the use, usufruct, administration and conservation of natural renewable resources located on their lands. 7. To free prior informed consultation, within a reasonable period of time, on the plans and programs for prospecting, producing and marketing nonrenewable resources located on their lands and which could have an environmental or cultural impact on them; to participate in the profits earned from these projects and to receive compensation for social, cultural and environmental damages caused to them. The consultation that must be conducted by the competent authorities shall be mandatory and in due time. If consent of the consulted community is not obtained, steps provided for by the Constitution and the law shall be taken. […]11

Republic of Fiji

Constitution of the Republic of Fiji, 6 September 2013: 30. – (1) All minerals in or under any land or water, are owned by the State, provided however, that the owners of any particular land (whether customary or freehold), or of any particular registered customary fishing rights shall be entitled to receive a fair share of royalties or other money paid to the State in respect of the grant by the State of rights to extract minerals from that land or the seabed in the area of those fishing rights.12

Republic of Guatemala

Constitution of the Republic of Guatemala, 31 May 1985, as amended 17 ­November 1993 (with Article 121 explicitly foreseeing the ‘subsoil, hydrocarbon and mineral deposits, as well as any other organic or inorganic substances of the subsoil’ as state assets): 11

Translation available at http://pdba.georgetown.edu/Constitutions/Ecuador/english08 .html (last visited 19 April 2016). 12 Translation available at http://www.fiji.gov.fj/getattachment/8e981ca2-1757-4e27-88e0 -f87e3b3b844e/Click-here-to-download-the-Fiji-Constitution.aspx (last visited 19 April 2016).

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Article 67. Protection of Indigenous Agricultural Lands and Cooperatives. The lands of the cooperatives, native communities, or any other forms of communal possession or collective of agrarian ownership, as well as the family heritage and popular housing will enjoy the special protection of the State, preferential credit and technical assistance, which may guarantee their ownership and development in order to insure an improved quality of life to all inhabitants. The indigenous communities and others which may own land that historically belongs to them and which they have traditionally administered in special form will maintain that system. Article 68. Lands for Indigenous Communities. Through special programs and adequate legislation, the State will provide State lands to the indigenous communities that may need them for their development Article 125. Exploitation of Natural Non-renewable Resources. The technical and rational exploitation of hydrocarbons, minerals, and other non-renewable natural resources is declared to be of public utility and need. The State will establish and propitiate its own conditions for their exploration, exploitation, and commercialization.13

Republic of Honduras

Ley General de Minería (Honduras), 2 April 2013: Artículo 2.– El Estado de Honduras ejerce dominio eminente, inalienable e imprescriptible, sobre todos los minerales que se encuentren en el territorio nacional, mar territorial, plataforma maritima continental y zone económica exclusiva. En ejercicio de su derecho de dominio, el Estado regula los recursos minerales inorgánicos y fiscaliza el aprovechamiento técnico y racional de los mismos.14

13 14

Translation available at http://www.right2info.org/resources/publications/laws-1/guate mala_constitution_eng (last visited 19 April 2016). Available at http://www.eisourcebook.org/cms/February%202016/Honduras%20Mining %20Act%202013%20%28in%20Spanish%29.pdf (last visited 19 April 2016).

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United Mexican States

Political Constitution of the United Mexican States, 5 December 1917, as amended 26 February 2013: Article 27. […] The following elements are the property of the Nation: all natural resources of the continental shelf and the seabed of the islands; all minerals and substances that are in seams, layers, masses or deposits and that have a nature different from the components of the soil, such as minerals from which metals and metalloids are extracted; beds with gemstones or salt; salt mines formed by sea water; the products derived from rock breaking, when their exploitation requires underground works; minerals or organic deposits susceptible to be utilized as fertilizers; solid mineral fuels; petroleum and all solid, liquid or gaseous hydrocarbons; and the space located over national territory, according to the extension and terms established by International Law. […] Article 2. A. This Constitution recognizes and protects the indigenous peoples’ right to self-determination and, consequently, the right to autonomy, so that they can: vi. Attain preferential use of the natural resources of the sites inhabited by their indigenous communities, except for the strategic resources defined by this Constitution. The foregoing rights shall be exercised respecting the forms of property ownership and land possession established in this Constitution and in the laws on the matter as well as respecting third parties’ rights. To achieve these goals, indigenous communities may form partnerships under the terms established by the Law.15

Federal Democratic Republic of Nepal

Mines and Minerals Act of Nepal, No. 2042 (14 July 1985), as amended 2010: Section  3. Property of Government of Nepal: All minerals lying or discovered on the surface or underground in any land belonging to an 15 Translation available at http://portal.te.gob.mx/sites/default/files/consultas/2012/04/ cpeum_ingles_ref_26_feb_2013_pdf_81046.pdf (last visited 19 April 2016).

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i­ndividual or the government within Nepal shall be the property of the Government of Nepal.16

The Netherlands

Mining Act of the Netherlands, 1 January 2003, as amended in 2012: Article 3.1. Minerals are the property of the state.17

Republic of Nicaragua

Political Constitution of the Republic of Nicaragua, 19 November 1986, as amended 2005 (with Article 102 recognizing natural resources as national patrimony): Article 89. The communities of the Atlantic Coast are indivisible parts of the Nicaraguan people, and as such they enjoy the same rights and have the same obligations. The communities of the Atlantic Coast have the right to preserve and develop their cultural identities within the national unity, to provide themselves with their own forms of social organization, and to administer their local affairs according to their traditions. The State recognizes communal forms of land ownership of the communities of the Atlantic Coast. Equally it recognizes their enjoyment, use and benefit of the waters and forests of their communal lands. Article 180. The communities of the Atlantic Coast have the right to live and develop themselves under the forms of social organization that correspond to their historic and cultural traditions. The State guarantees these communities the benefits of their natural resources, the effectiveness of their forms of communal property and the free election of their authorities and representatives. Furthermore, it guarantees the preservation of their cultures and languages, religions and customs.

16

Translation available at http://faolex.fao.org/docs/pdf/nep107984.pdf (last visited 19 April 2016). 17 Translation available at http://www.nlog.nl/resources/Legislation/Mining%20Act%20 English%20Translation%202%20jan%202012.pdf (last visited 19 April 2016).

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Article 181. The State shall organize by means of a law the regime of autonomy for the indigenous peoples and ethnic communities of the Atlantic Coast, which shall have to contain, among other rules: the functions of their government organs, their relation with the Executive and Legislative Power and with the municipalities, and the exercise of their rights. This law shall require for its approval and reform the majority established for the amendment of constitutional laws. The concessions and contracts of rational exploitation of the natural resources granted by the State in the Autonomous Regions of the Atlantic Coast must have the approval of the corresponding Regional Autonomous Council. The members of the Regional Autonomous Councils of the Atlantic Coast can lose their condition for the reasons and procedures established by law.18 Autonomy Statute for the Regions of the Atlantic Coast of Nicaragua, No. 28, 1987: Article 9. The right to own communal lands shall be recognized in the rational use of the mineral, forest, fishing, and other natural resources of the Autonomous Regions, and said use should benefit the inhabitants equitably, by means of the agreements between the Regional Government and the Central government.19

Kingdom of Norway

Act of 19 June 2009, No. 101 relating to the acquisition and extraction of mineral resources (Norwegian Minerals Act): Section 7. Categories of minerals used in the Act In this Act, ‘minerals owned by the State’ means: (a) metals with a specific gravity of 5 grammes/cm3 or greater, including chromium, manganese, molybdenum, niobium, vanadium, iron, nickel, copper, zinc, silver, gold, cobalt, lead, platinum, tin, zinc, zirconium, tungsten, uranium, cadmium and thorium, and ores of such metals. Alluvial gold, however, shall not fall within the definition; (b) the metals titanium and arsenic, and ores of these; 18 19

Translation available at https://www.constituteproject.org/constitution/Nicaragua_2005 .pdf (last visited 19 April 2016). Translation available at http://calpi.nativeweb.org/doc_3.html (last visited 19 April 2016).

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(c) pyrrhotite and pyrite. In this Act, ‘minerals owned by a landowner’ means all minerals that are not minerals owned by the State pursuant to the first paragraph. However, this shall not apply to petroleum pursuant to the Act of 4 May 1973 No. 21 relating to exploration and extraction of petroleum located in the ground on Norwegian onshore territory. Section 13. Application for an exploration permit A party that wishes to secure a right to explore deposits of minerals owned by the State shall apply to the Directorate of Mining for an exploration permit. An exploration permit may only be refused if the applicant has previously breached material provisions imposed by or pursuant to this Act. The exploring party may only be granted one exploration permit for a given area. A party that holds an extraction permit for deposits of minerals owned by the State may not apply for an exploration permit for any part of the same area. In Finnmark, the Directorate of Mining shall inform the landowner, the Sameting (the Sami Parliament), the relevant area board and district board for reindeer management, and the municipality of the permit.20

Republic of Paraguay

Political Constitution of Paraguay, 20 June 1992, as amended 2011: Article 64. Of the Property of the Community The indigenous peoples have [the] right to communal ownership of the land [propiedad comunitaria], in [an] extension and quality sufficient for the preservation and the development of their particular [peculiares] forms of lifestyles. The State will provide them gratuitously with these lands, which will be non-seizable [inembargables], indivisible, non-transferrable, imprescriptible, not susceptible to guarantee contractual obligations nor to be leased; likewise, they will be exempt from taxes. The removal or transfer of [the indigenous peoples] from their habitat without their express consent is prohibited Article 112. Of the Domain of the State 20

Translation available at http://www.regjeringen.no/upload/NHD/Vedlegg/lover/mineral sact_translation_may2010.pdf (last visited 19 April 2016).

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The dominion [dominio] over the hydrocarbons, solid, liquid and g­ aseous minerals that are found in a natural state in the territory of the Republic, with the exception of the petrous, earthy and calcareous substances[,] corresponds to the State. The State may grant concessions to persons or to public or private enterprises, mixed, national or foreign, for the ­prospecting, the exploration, the research, the mining [cateo] or the exploitation of deposits [yacimientos] for a limited time. The law will regulate the economic regime that contemplates the interests of the State, those of the concessionaires and those of the owners that could be affected.21

Republic of Peru

Political Constitution of Peru, 29 December 1993 (with Article 66 stipulating that ‘Natural resources, renewable and non renewable, are patrimony of the Nation. The State is sovereign in their utilization.’) Article 89. The rural and native communities have legal existence and are corporate entities. They are autonomous in their organization, community work, and the use and free disposal of their lands, as well as in the economic and administrative aspects within the framework provided by law. The ownership of their lands may not prescribe, except in the case of abandonment described in the preceding article. The State respects the cultural identity of the rural and native communities.22

Kingdom of Spain

Ley 34/1998 del sector de hidrocarburos (Spain), 7 October 1998: Artículo 2. Régimen de actividades.

21 22

Translation available at https://www.constituteproject.org/constitution/Paraguay_2011 .pdf (last visited 19 April 2016). Translation available at http://www.congreso.gob.pe/Docs/files/CONSTITUTION_27_11 _2012_ENG.pdf (last visited 19 April 2016).

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1. A los efectos del artículo 132.2 de la Constitución tendrán la consideración de bienes de dominio público estatal, los yacimientos de hidrocarburos y almacenamientos subterráneos existentes en el territorio del Estado y en el subsuelo del mar territorial y de los fondos marinos que estén bajo la soberanía del Reino de España conforme a la legislación vigente y a los convenios y tratados internacionales de los que sea parte.23

Bolivarian Republic of Venezuela

Constitution of the Bolivarian Republic of Venezuela, 15 December 1999: Article 12. Mineral and hydrocarbon deposits of any nature that exist within the territory of the nation, beneath the territorial sea bed, within the exclusive economic zone and on the continental shelf, are the property of the Republic, are of public domain, and therefore inalienable and not transferable. The seacoasts are public domain property. Article 119. The State recognizes the existence of native peoples and communities, their social, political and economic organization, their cultures, practices and customs, languages and religions, as well as their habitat and original rights to the lands they ancestrally and traditionally occupy, and which are necessary to develop and guarantee their way of life. It shall be the responsibility of the National Executive, with the participation of the native peoples, to demarcate and guarantee the right to collective ownership of their lands, which shall be inalienable, not subject to the law of limitations or distrait, and nontransferable, in accordance with this Constitution and the law. Article 120. Exploitation by the State of the natural resources in native habitats shall be carried out without harming the cultural, social and economic integrity of such habitats, and likewise subject to prior information and consultation with the native communities concerned. Profits from such exploitation by the native peoples are subject to the Constitution and the law.24

23 24

Available at https://www.boe.es/buscar/doc.php?id=BOE-A-1998-23284 (last visited 19 April 2016). Translation available at http://www1.umn.edu/humanrts/research/venezuela-constitu tion.html (last visited 19 April 2016).

Table of Treaties, Conventions, Legislation, Resolutions, and Rules

International Treaties and Conventions

Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims in Armed Conflicts (First Additional Protocol), 8 June 1977, 1125 unts 609. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 unts 217. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 unts 89. American Convention on Human Rights, 21 November 1969, 1144 unts 123. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 22 March 1989, 1673 unts 125. Charter of the Organization of American States, 30 April 1948, 119 unts 3. Charter of the United Nations, 24 October 1945, 1 unts 26. Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 unts 151. Convention for the Protection of the Ozone Layer, 22 March 1985, 1513 unts 293. Convention on Biological Diversity, 5 June 1992, 1760 unts 79. Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 unts 277. Convention on the Rights and Duties of States, Montevideo, 26 December 1933, 165 lnts 19. Convention on the Rights of the Child, 20 November 1989, 1577 unts 3. Covenant of the League of Nations, 28 April 1919. Energy Charter Treaty, 17 December 1994, 2080 unts 100. General Act of the Berlin Conference on West Africa, 16 February 1885, available at http://africanhistory.about.com/od/eracolonialism/l/bl-BerlinAct1885.htm (last visited 19 April 2016). ilo Convention (No. 107) concerning the protection and integration of indigenous and other tribal and semi-tribal populations in independent countries, 26 June 1957, 328 unts 247. ilo Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 1650 unts 383. International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171.

306

Treaties, Conventions, Legislation, Resolutions, and Rules

International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3. International Tropical Timber Agreement, 27 January 2006, 2801 unts Doc. TD/ TIMBER.3/12. Paris Convention Concerning the Territory of Memel, 8 May 1924, 29 lnts 85. Peace Treaty of Kiel, 14 January 1814, Martens’ Nouveau recueil général de traités et autres actes relatifs aux rapports de droit international, vol. 1, p. 678. Protocol on Environmental Protection to the 1959 Antarctic Treaty, 4 October 1991, 30 ilm 1455. Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 17 June 1999, un Doc. MP.WAT/2000/1, EUR/ICP/EHCO 020205/8Fin. Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution to Abate Acidification, Eutrophication and Ground-Level Ozone, 30 November 1999, 2319 unts 81. Protocol to the Pact on Security, Stability and Development in the Great Lakes Region Against the Illegal Exploitation of Natural Resources, 30 November 2006. Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 10 September 1998, 2244 unts 337. Statute of the International Court of Justice, 26 June 1945, 1 unts 993. Statute of the Permanent Court of International Justice, 19 December 1920, 6 lnts 379. Stockholm Convention on Persistent Organic Pollutants, 22 May 2001, 2256 unts 119. Treaty for Amazonian Cooperation, 3 July 1978, 1202 unts 71. Treaty of Peace with Italy, Provisions agreed upon by the Austrian and Italian Governments (Gruber-de-Gasperi Agreement), 5 September 1946, 49 unts 184. Treaty of St. German with Czecho-Slovakia, 10 September 1919, 22 ukts 531. United Nations Convention on the Law of the Sea, 10 December 1982, 1988 unts 3. United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 14 October 1994, 1954 unts 3. United Nations Framework Convention on Climate Change, 9 May 1992, 1771 unts 107. Vienna Convention on Succession of States in Respect of Treaties, 23 August 1978, 1946 unts 3. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331. Vienna Convention on the Succession of States in Respect of State Property, Archives and State Debts, 8 April 1983, un Doc. A/CONF.117/14.

Treaties, Conventions, Legislation, Resolutions, and Rules



307

Resolutions and International Documents

1987 Brundtland Report, unga Res. 42/187, Report of the World Commission on Environment and Development, 11 December 1987, 42 un gaor, Supp. No. 49, p. 154, un Doc. A/42/49. 1991 Report of the csce Meeting of Experts on National Minorities, 30 ilm 1692 (1991). Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Populations, adopted by the African Commission on Human and Peoples’ Rights at its 41st Ordinary Session held in May 2007 in Accra, Ghana. African Commission on Human and Peoples’ Rights, Resolution on a Human RightsBased Approach to Natural Resources Governance, 51st Session, 2 May 2012. Brunhart, H., ‘Statement at the 47th Session of the United Nations General Assembly’, 23 September 1992, un Doc. A/47/PV.9. Charter of Paris for a New Europe, 21 November 1990, 30 ilm 193. Cobo, J.M., ‘Study of the Problem of Discrimination Against Indigenous Populations – Volume 5: Conclusions, Proposals and Recommendations’, un Doc. E/CN.4/ Sub.2/1986/7/Add.4 (March 1987). Commentary to the Articles on the Prevention of Transboundary Harm from Hazardous Activities, Report of the International Law Commission on the work of its 53rd session, Yearbook of the ilc (Vol. ii), 56 un gaor, Supp. No. 10, un Doc. A/56/10 (2001). Commission on Human Rights, ‘Indigenous Issues – Human rights and Indigenous Issues, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in accordance with Commission resolution 2001/65’, 21 January 2003, un Doc. E/ CN.4/2003/90. Commission on Human Rights, ‘Indigenous Issues – Human Rights and Indigenous Issues, Report of the Working Group Established in Accordance with Commission on Human Rights Resolution 1995/32 of 3 March 1995 on its eleventh session’, 22 March 2006, un Doc. E/CN.4/2006/79. Commission on Human Rights, ‘Indigenous Issues – Report of the Working Group ­Established in Accordance with Commission on Human Rights Resolution 1995/32’, 6 February 2001, un Doc. E/CN.4/2001/85. Commission on Human Rights, ‘Indigenous Issues – Report of the Working Group ­Established in Accordance with Commission on Human Rights Resolution 1995/32’, 7 January 2004, un Doc. E/CN.4/2004/81. Commission on Human Rights, ‘Prevention of Discrimination and Protection of Indigenous Peoples, Indigenous Peoples’ Permanent Sovereignty over Natural Resources’, Working Paper by Erica-Irene A. Daes, 30 July 2002, un Doc. E/CN.4/Sub.2/2002/23.

308

Treaties, Conventions, Legislation, Resolutions, and Rules

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318

Treaties, Conventions, Legislation, Resolutions, and Rules

unga Res. 742 (viii), Factors which should be taken into account in deciding whether a Territory is or is not a Territory whose people have not yet attained a full measure of self-government, 27 November 1953, 8 un gaor, Supp. No. 17, p. 21, un Doc. A/2630. unga Res. 849 (ix), Cessation of the transmission of information under Article 73 e of the Charter in respect of Greenland, 22 November 1954, 9 un gaor, Supp. No. 21, p. 27, un Doc. A/2890. unga, ‘Backing Request by Serbia, General Assembly Decides to Seek International Court of Justice Ruling on Legality of Kosovo’s Independence’, 8 October 2008, un Doc. GA/10764. United Nations Compensation Commission, Governing Council, Report and Recommendations Made by the Panel of Commissioners Concerning the Third Installment of ‘F4’ Claims, 18 December 2003, un Doc. S/AC.26/2003/31. United Nations General Assembly, 107th plenary meeting, 13 September 2007, un Doc. A/61/PV.107. United Nations General Assembly, Draft International Covenants on Human Rights, 1 July 1955, un Doc. A/2929. United Nations Security Council Official Records, No. 128, ‘Israel’s application for ­admission to membership in the United Nations’, 383rd meeting, 2 December 1948. United Nations Security Council, Report of the Secretary-General on his Mission of Good Offices in Cyprus, 28 May 2004, un Doc. S/2004/437. United Nations, Article 73 – Repertory of Practice of United Nations Organs (1945– 1954), Volume 4. United Nations, Human Rights and the Environment. Preliminary Report submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 2 August 1991, un Doc. E/CN.4/Sub.2/1991/8. unsc Res. 1244 (1999), Kosovo, 10 June 1999, un Doc. S/RES/1244. unsc Res. 1345 (2001), Letter dated 4 March 2001 from the Permanent Representative of the Former Yugoslav Republic of Macedonia to the United Nations addressed to the President of the Security Council (S/2001/191), 21 March 2001, un Doc. S/ RES/1345. unsc Res. 1371 (2001), The former Yugoslav Republic of Macedonia, 26 September 2001, un Doc. S/RES/1371. unsc Res. 1393 (2002), Georgia, 31 January 2002, un Doc. S/RES/1393. unsc Res. 1427 (2002), Georgia, 29 July 2002, un Doc. S/RES/1427. unsc Res. 1457 (2003), Democratic Republic of the Congo, 24 January 2003, un Doc. S/RES/1457. unsc Res. 1524 (2004), Georgia, 30 January 2004, un Doc. S/RES/1524. unsc Res. 1590 (2005), Sudan, 24 March 2005, un Doc. S/RES/1590.

Treaties, Conventions, Legislation, Resolutions, and Rules

319

unsc Res. 216 (1965), Question concerning the situation in Southern Rhodesia, 12 ­November 1965, 20 un scor, p. 8, un Doc. S/RES/216. unsc Res. 402 (1976), Complaint by Lesotho against South Africa, 22 December 1976, 31 un scor, p. 13, un Doc. S/RES/402. unsc Res. 541 (1983), Cyprus, 18 November 1983, 38 un scor, p. 15, un Doc. S/RES/541. unsc Res. 787 (1992), Bosnia and Herzegovina, 16 November 1992, un Doc. S/RES/787. unsc Res. S/5002 (1961), 24 November 1961, un Doc. S/5002. Vienna Declaration and Programme of Action, adopted at World Conference on Human Rights, 25 June 1993, un Doc. A/CONF.157/23. World Bank, Operational Manual Statement 2.34 on Tribal People in Bank-Financed Projects, February 1982, reprinted in opcs Working Paper, ‘Implementation of the World Bank’s Indigenous Peoples Policy – A Learning Review (fy 2006–2008)’, August 2011, pp. 44–46.



National Legislation

Act of 19 June 2009, No. 101 relating to the acquisition and extraction of mineral resources (Norwegian Minerals Act), translation available at http://www.regjeringen. no/upload/NHD/Vedlegg/lover/mineralsact_translation_may2010.pdf (last visited 19 April 2016). Act on Greenland Self-Government (Act No. 473 of 12 June 2009), translation available at http://www.stm.dk/_a_2957.html (last visited 19 April 2016). Annex i to the Act on Greenland Self-Government, Fields of Responsibility assumed by the Greenland Home Rule Government (i and ii) and Greenland Self-Government (iii) respectively, available at http://www.stm.dk/multimedia/ GR_oversigt_sagsomr_270110_UK.pdf (last visited 19 April 2016). Autonomy Statute for the Regions of the Atlantic Coast of Nicaragua, No. 28, 1987, translation available at http://calpi.nativeweb.org/doc_3.html (last visited 19 April 2016). Constitution of Colombia, 1 April 2005, translation available at http://confinder.richmond.edu/admin/docs/colombia_const2.pdf (last visited 19 April 2016). Constitution of Suriname, 1987, with Reforms of 1992, translation available at http:// pdba.georgetown.edu/Constitutions/Suriname/english.html (last visited 19 April 2016). Constitution of the Bolivarian Republic of Venezuela, 15 December 1999, translation available at http://www1.umn.edu/humanrts/research/venezuela-constitution. html (last visited 19 April 2016). Constitution of the Federative Republic of Brazil, 5 October 1988, translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=218270 (last visited 19 April 2016).

320

Treaties, Conventions, Legislation, Resolutions, and Rules

Constitution of the Plurinational State of Bolivia, February 2009, translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=189098 (last visited 19 April 2016). Constitution of the Republic of Chile, 21 October 1980, translation available at http:// confinder.richmond.edu/admin/docs/Chile.pdf (last visited 19 April 2016). Constitution of the Republic of Ecuador, 20 October 2008, translation available at http://pdba.georgetown.edu/Constitutions/Ecuador/english08.html (last visited 19 April 2016). Constitution of the Republic of Fiji, 6 September 2013, translation available at http:// www.fiji.gov.fj/getattachment/8e981ca2-1757-4e27-88e0-f87e3b3b844e/Click-here -to-download-the-Fiji-Constitution.aspx (last visited 19 April 2016). Constitution of the Republic of Guatemala, 31 May 1985, as amended 17 November 1993, translation available at http://www.right2info.org/resources/publications/ laws-1/guatemala_constitution_eng (last visited 19 April 2016). Constitutional Act of Denmark, 5 June 1953, translation available at http://www.stm .dk/_p_10992.html (last visited 19 April 2016). Council Directive 92/43/EEC, 21 May 1992, Conservation of Natural Habitats and Wild Fauna and Flora, o.j. L 206, 22 July 1992, P. 0007. Council Regulation (eu) No 927/2012 of 16 July 2012 establishing the deadline in the event of underutilisation of fishing opportunities under the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community on the one hand, and the Government of Denmark and the Home Rule Government of Greenland, on the other hand, oj L 293, 23 October 2012. Declaration of the Rights of Man and of the Citizen, 26 August 1789. Denmark’s Act on Subsoil Exploitation (No. 960 of 2011), available at http://www.ens .dk/sites/ens.dk/files/oil-gas/licences/legislation-and-guidelines/ca2011_960en.pdf (last visited 19 April 2016). Dominica Constitution of 1978, translation available at http://pdba.georgetown.edu/ constitutions/dominica/dominica78.html (last visited 19 April 2016). Greenland Parliament Act No. 7 of 7 December 2009, with amendments from Greenland Parliament Act No. 26 of 18 December 2012, translation available at https://govmin.gl/images/stories/about_bmp/Unofficiel_translation_-_Mineral_Resources_ Act_as_amended_by_act_no_6_of_june_8_2014_-_pdf.pdf (last visited 19 April 2016). Law of Prior Consultation With Indigenous and Original Peoples (Ley del derecho a la consulta previa a los pueblos indígenas u originarios reconocido en el Convenio 169 de la Organización Internacional del Trabajo (oit), Ley No 29785), Peru, 6 September 2011, available at http://www.leyes.congreso.gob.pe/Documentos//ExpVirPal/ Normas_Legales/29785-LEY.pdf (last visited 19 April 2016). Ley 34/1998 del sector de hidrocarburos (Spain), 7 October 1998, available at https:// www.boe.es/buscar/doc.php?id=BOE-A-1998-23284 (last visited 19 April 2016).

Treaties, Conventions, Legislation, Resolutions, and Rules

321

Ley General de Minería (Honduras), 2 April 2013, available at http://www.eisourcebook .org/cms/February%202016/Honduras%20Mining%20Act%202013%20%28in%20 Spanish%29.pdf (last visited 19 April 2016). Mines and Minerals Act of Nepal, No. 2042 (14 July 1985), as amended 2010, translation available at http://faolex.fao.org/docs/pdf/nep107984.pdf (last visited 19 April 2016). Mining Act of the Netherlands, 1 January 2003, as amended in 2012, translation available at http://www.nlog.nl/resources/Legislation/Mining%20Act%20English%20 Translation%202%20jan%202012.pdf (last visited 19 April 2016). Mining Code of Chile, 21 October 1980, translation available at http://www.cochilco .cl/descargas/english/legislation/mining_code.pdf?idNorma=1004876&buscar=L ey+20.363 (last visited 19 April 2016). Mining Code, law 09.005 of Central African Republic, 29 April 2009, available at http:// www.ilo.org/dyn/natlex/docs/SERIAL/83176/100671/F523877437/CAF-83176.pdf (last visited 19 April 2016). Mining Law No. 146 of the Dominican Republic, 4 June 1971, translation available at http:// policy.mofcom.gov.cn/english/flaw!fetch.action?libcode=flaw&id=733a7b46-be51 -4f5d-888d-34c49f121a9d&classcode=700 (last visited 19 April 2016). National Constitution of the Argentine Republic, 22 August 1994, translation available at http://pdba.georgetown.edu/Constitutions/Argentina/argen94_e.html (last visited 19 April 2016). Political Constitution of Paraguay, 20 June 1992, as amended 2011, translation available at https://www.constituteproject.org/constitution/Paraguay_2011.pdf (last visited 19 April 2016). Political Constitution of Peru, 29 December 1993, translation available at http://www .congreso.gob.pe/Docs/files/CONSTITUTION_27_11_2012_ENG.pdf (last visited 19 April 2016). Political Constitution of the Republic of Costa Rica, 7 November 1949, as amended 2005, translation available at http://www.wipo.int/wipolex/en/text.jsp?file_id=219959 (last visited 19 April 2016). Political Constitution of the Republic of Nicaragua, 19 November 1986, as amended 2005, translation available at https://www.constituteproject.org/constitution/­ Nicaragua_2005.pdf (last visited 19 April 2016). Political Constitution of the United Mexican States, 5 December 1917, as amended 26 February 2013, translation available at http://portal.te.gob.mx/sites/default/files/ consultas/2012/04/cpeum_ingles_ref_26_feb_2013_pdf_81046.pdf (last visited 19 April 2016). Republic Act No. 8371, Indigenous Peoples’ Rights Act, Philippines, 29 October 1997. Saami Parliament Act of Finland (laki saamelaiskäräjistä, Act No. 974/1995), 17 July 1995.

322

Treaties, Conventions, Legislation, Resolutions, and Rules

The Greenland Home Rule Act, Act No. 577, 29 November 1978, available at http:// www.stm.dk/_p_12712.html (last visited 19 April 2016). The Republic of Bolivia, National Law No. 3760 as amended by National Law No. 3897 (Rights of Native Peoples), 26 June 2008, Gaceta Oficial from 11 July 2008. The Unanimous Declaration of the Thirteen United States of America, 4 July 1776.

Table of Cases

pcij/icj Judgments and Advisory Opinion

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 icj 403 (Advisory Opinion, 22 July). Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, 2010 icj 403, p. 478 (Advisory Opinion, Declaration of Judge ­Simma, 22 July). Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, 2010 icj 403, p. 618 (Advisory Opinion, Separate Opinion of Judge Yusuf, 22 July). Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, 2010 icj 403, p. 523 (Advisory Opinion, Separate Opinion of Judge Cançado Trindade, 22 July). Accordance with International Law of the Unilateral Declaration of Independence in ­Respect of Kosovo, Written Statement by the Russian Federation (Request for an ­Advisory Opinion, 16 April 2009). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Statement by Argentina (Request for an Advisory Opinion, 17 April 2009). Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Written Comments of the Kingdom of the Netherlands (Request for an Advisory Opinion, 17 July 2009). Aegean Sea Continental Shelf (Greece v. Turkey), 1978 icj 3 (Judgment, 19 December). Aerial Herbicide Spraying (Ecuador v. Colombia), 2008 icj (Application Instituting Proceedings, 31 March). Aerial Herbicide Spraying (Ecuador v. Colombia), 2009 icj (Memorial of Ecuador, ­Volume i, 28 April). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 icj 168 (Judgment, 19 December). Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), 2005 icj 168, p. 284 (Declaration by Judge Koroma, 19 December). Barcelona Traction, Light and Power Company, Limited (Second Phase) (Belgium v. Spain), 1970 icj 3 (Judgment, 5 February). Case concerning Application of the Convention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia) (Preliminary Objections), 1996 icj 595, p. 658 (Dissenting Opinion by ad hoc Judge Kreca, 11 July). Case Concerning East Timor (Portugal v. Australia), 1995 icj 90 (Judgment, 30 June).

324

Table of Cases

Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 139 (Dissenting ­Opinion of Judge Weeramantry, 30 June). Case Concerning East Timor (Portugal v. Australia), 1995 icj 90, p. 224 (Dissenting ­Opinion of ad hoc Judge Skubiszewski, 30 June). Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), 1999 icj 1045 (­Judgment, 13 December). Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), 1999 icj 1045, p. 1113 (Declaration of Judge Higgins, 13 December). Case Concerning Maritime Delimitation and Territorial Questions (Qatar v. Bahrain) ­( Jurisdiction and Admissibility), 1995 icj 6 (Judgment, 15 February). Case Concerning Oil Platforms (Iran v. United States of America) (Preliminary Objection), 1996 icj 803 (Judgment, 12 December). Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Provisional Measures), 2006 icj 113 (Order, 13 July). Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14 (Judgment, 20 April). Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), 2010 icj 14, p. 108 (Joint Dissenting Opinion of Judges Al-Khasawneh and Simma, 20 April). Case Concerning Rights of Nationals of the United States of America in Morocco (France v. United States of America), 1952 icj 176 (Judgment, 27 August). Case Concerning Sovereignty over Certain Frontier Land (Belgium v. Netherlands), 1959 icj 209 (Judgment, 20 June). Case Concerning Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. ­Malaysia), 2002 icj 625 (Judgment, 17 December). Case Concerning the Dispute Regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009 icj 213 (Judgment, 13 July). Case Concerning the Frontier Dispute (Burkina Faso v. Mali), 1986 icj 554 (Judgment, 22 December). Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7 (Judgment, 25 September). Case Concerning the Gabčikovo Nagymaros Project (Hungary v. Slovakia), 1997 icj 7, p. 120 (Separate Opinion of Judge Bedjaoui, 25 September). Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), 1994 icj 6 (Judgment, 3 February). Case of the S.S. Lotus (France v. Turkey) (Merits), 1927 pcij 5 (ser. A.) No. 10 (Judgment, 7 September). Corfu Channel (Merits) (United Kingdom v. Albania), 1949 icj 4 (Judgment, 9 April). Customs Regime between Germany and Austria (Protocol of March 19th, 1931), 1931 pcij 37 (ser. A/B) No. 41 (Advisory Opinion, Individual Opinion of Judge M. Anzilotti, 5 September).

Table Of Cases

325

Fisheries Jurisdiction Case (Merits) (United Kingdom v. Iceland), 1974 icj 3 (Judgment, 25 July). Jurisdictional Immunities of the State (Germany v. Italy; Greece Intervening), 2012 icj 99, p. 179 (Dissenting Opinion of Judge Cançado Trindade, 3 February). Interpretation of the Agreement of 25 March 1951 between the who and Egypt, 1980 icj 73 (Advisory Opinion, 20 December). Interpretation of the Statute of the Memel Territory (United Kingdom, France, Italy, ­Japan v. Lithuania), 1932 pcij 294 (ser. A/B) No. 49 (Judgment, 11 August). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16 (Advisory Opinion, 21 June). Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), 1971 icj 16, p. 59 (Advisory Opinion, Separate Opinion of Judge Zafrulla Khan, 21 June). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136 (Advisory Opinion, 9 July). Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004 icj 136, p. 207 (Advisory Opinion, Separate Opinion of Judge Higgins, 9 July). Legal Status of Eastern Greenland (Denmark v. Norway), 1933 pcij 22 (ser. A/B) No. 53 (Judgment, 5 April). Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226 (Advisory Opinion, 8 July). Legality of the Threat or Use of Nuclear Weapons, 1996 icj 226, p. 429 (Advisory Opinion, Dissenting Opinion of Judge Weeramantry, 8 July). Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. United States of America), 1986 icj 14 (Judgment, 27 June). Nationality Decrees Issued in Tunis and Morocco, 1923 pcij 7 (ser. B) No. 4 (Advisory Opinion, 7 February). North Sea Continental Shelf (Merits) (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands), 1969 icj 4 (Judgment, 20 February). Reparations for Injuries suffered in the Service of the United Nations, 1949 icj 174 (­Advisory Opinion, 11 April). The Greco-Bulgarian ‘Communities’, 1930 pcij 4 (ser. B) No. 17 (Advisory Opinion, 31 July). United States Diplomatic and Consular Staff in Tehran (Merits) (United States of ­America v. Iran), 1980 icj 3 (Judgment, 24 May). Western Sahara, 1975 icj 12 (Advisory Opinion, 16 October). Western Sahara, 1975 icj 12, p. 104 (Advisory Opinion, Separate Opinion of Judge Petrèn, 16 October).

326

Table of Cases

International Arbitration

Award on the Merits in Dispute between Texaco Overseas Petroleum Company/California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Texaco v. Libya), 17 ilm 1 (Award, 19 January 1977). Burlington Resources Inc. v. Ecuador, icsid Case No. ARB/08/5, Decision on J­ urisdiction, 2 June 2010. Deutsche Continental Gas-Gesellschaft v. Polish State, Germano-Polish Mixed Arbitral Tribunal, Award, 11 August 1929, 5 Annual Digest and Reports of Public ­International Law Cases 11 (1929). Glamis Gold Ltd. (Claimant) v. United States of America (Respondent), nafta/uncitral Award, 8 June 2009. Iron Rhine (‘IJzeren Rijn’) Railways (Belgium v. Netherlands), pca, Award (24 May 2005). Island of Palmas (United States of America v. Netherlands), 2 riaa 829 (Award, 4 April 1928). Lake Lanoux Arbitration (France v. Spain), 12 riaa 281 (Award, 16 November 1957). Libyan American Oil Company (liamco) v. Government of the Libyan Arab Republic, Ad Hoc Tribunal, 62 ilr 140 (Award, 12 April 1977). Trail Smelter Case (United States of America v. Canada), 3 riaa 1905 (Award, 16 April 1938; 11 March 1941).



Jurisprudence by Human Rights Monitoring Institutions

Apirana Mahuika et al. v. New Zealand, Human Rights Committee, Communication No. 547/1993, un Doc. CCPR/C/70/D/547/1993 (Views of 11 November 2000). Application to the Inter-American Court of Human Rights in the Case of Twelve Saramaka Clans against the Republic of Suriname, Inter-American Commission on Human Rights, Case No. 12.338 (23 June 2006). Awas Tingni (Merits) (The Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua), 2001 Inter-Am.Ct.H.R. (Judgment, 31 August). Case of Freedom and Democracy Party (özdep) v. Turkey (Merits and Just Satisfaction), European Court of Human Rights, Application No. 23885/94, 8 December 1999 (Judgment). Case of Loizidou v. Turkey (Merits), European Court of Human Rights, Application No. 15318/89, 18 December 1996 (Judgment, Concurring opinion of Judge Wildhaber, joined by Judge Ryssdal). Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations), Inter-Am.Ct.H.R. (Judgment, 27 June 2012).

Table Of Cases

327

Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Precautionary Measures), Inter-American Commission on Human Rights, 5 May 2003, OEA/Ser.L/V.II.118, doc. 5 rev. 2. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Provisional Measures), Inter-Am.Ct.H.R. (Order, 6 July 2004). Case of the Kaliña and Lokono Peoples v. Suriname (Merits, Reparations and Costs), Inter-Am.Ct.H.R. (Judgment, 25 November 2015). Case of the Saramaka People v. Suriname (Interpretation of the Judgment on ­Preliminary Objections, Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 12 August 2008). Case of the Saramaka People v. Suriname (Preliminary Objections, Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 28 November 2007). Case of the Xákmok Kásek Indigenous Community v. Paraguay (Merits, Reparations, and Costs), Inter-Am.Ct.H.R. (Judgment, 24 August 2010). Case of the Yakye Axa Indigenous Community v. Paraguay (Merits, Reparations and Costs), Inter-Am.Ct.H.R. (Judgment, 17 June 2005). Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission on Human and Peoples’ Rights, Communication No. 276/2003, Recommendations of 4 February 2010. Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Human Rights Committee, Communication No. 167/1984, 96 ilr 667, un Doc. CCPR/C/38/D/167/1984 (Views of 14 February 1984). Front for the Liberation of the State of Cabinda v. Republic of Angola, African Commission on Human and Peoples’ Rights, Communication No. 328/06, Recommendations of 5 November 2013. G. and E. v. Norway (Alta case), European Commission of Human Rights, Application Nos. 9278/81 and 9415/81, Admissibility, 3 October 1983. Handölsdalen Sami Village and Others v. Sweden, European Court of Human Rights, Application No. 39013/04, Judgment, 30 March 2010. Hingitaq 53 and Others v. Denmark (Admissibility), European Court of Human Rights, Application No. 18584/04, 12 January 2006 (Decision). Ilmari Länsman et al. v. Finland, Human Rights Committee, Communication No. 511/1992, un Doc. CCPR/C/52/D/511/1992 (Views of 26 October 1994). Ivan Kitok v. Sweden, Human Rights Committee, Communication No. 197/1985, 96 ilr 637, un Doc. CCPR/C/33/D/197/1985 (Views of 10 August 1988). J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, ­Human Rights Committee, Communication No. 760/1997, Views of 6 ­September 2000, un Doc. CCPR/C/69/D/760/1997 (2000), Individual Opinion by Martin Scheinin (concurring).

328

Table of Cases

Jouni E. Länsman et al. v. Finland, Human Rights Committee, Communication No. 671/1995), 115 ilr 300, un Doc. CCPR/C/58/D/671/1995 (Views of 30 October 1996). Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, Communication No. 75/92, Recommendations of October, 1995. Kevin Mgwanga Gunme v. Cameroon, African Commission on Human and Peoples’ Rights, Communication No. 266/03, Recommendations of 27 May 2009. Könkämä and 38 other Saami villages v. Sweden, European Commission of Human Rights, Application No. 27033/95, Admissibility, 25 November 1996. Mary and Carrie Dann v. United States of America, Inter-American Commission on ­Human Rights, Case 11.140, Report No. 75/02, Doc. 5 Rev. 1 (27 December 2002). Maya Indigenous Communities of Toledo District v. Belize, Inter-American Commission on Human Rights, Case 12.053, Report No. 40/04, 135 ilr 1 (12 October 2004). Report 79/13, Kaliña and Lokono Peoples. Suriname, Inter-American Commission on ­Human Rights, Case No. 12.639 (18 July 2013). Sandra Lovelace v. Canada, Human Rights Committee, Communication No. 24/1977, 68 ilr 17, un Doc. CCPR/C/13/D/24/1977 (Views of 30 July 1981). Sudan Human Rights Organisation & Centre of Housing Evictions and Human Rights (cohre) v. Sudan, African Commission on Human and Peoples’ Rights, Communication No. 279/03-296/05, Recommendations of 27 May 2009. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Advisory Opinion OC-16/99, Inter-Am.Ct.H.R. (1 October 1999). The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, Recommendations of 27 October 2001. Velásquez Rodriguez v. Honduras, 1988 Inter-Am.Ct.H.R. (Ser. C) No. 4, 28 ilm 291 (Judgment, 29 July).



National Cases

Aurelia Cal. et al. v. Attorney General of Belize, Supreme Court of Belize, Claim No. 121/2007 (Judgment, 18 October 2007). Delgamuukw and Others v. The Queen in Right of British Columbia and Others; First Nations Summit and Others, Interveners, Supreme Court of British Columbia, 115 ilr 446 (Judgment, 11 December 1997). Haida Nation v. British Columbia (Minister of Forests), Supreme Court of Canada, 2004 scc 73 (Judgment, 18 November 2004). Hingitaq 53, Petersen and Others v. Office of the Prime Minister of Denmark (Thule Tribe Case), Denmark, Supreme Court, 28 November 2003, 143 ilr 277.

Table Of Cases

329

Johnson v. M’Intosh, 21 u.s. 543, 28 February 1823. Mabo and Others v. State of Queensland (No. 2), High Court of Australia, 112 ilr 457 (Judgment, 3 June 1992). Re Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec From Canada, Supreme Court of Canada, 20 August 1998, 115 ilr 536. Sentencia T-129/11, Colombia Constitutional Court (Judgment, 3 March 2011). Threesiamma Jacob & Ors. v. Geologist, Department of Mining and Geology & Ors., ­Indian Supreme Court, Civil Appeal No. 4549 of 2000, 8 July 2013. Tsilhqot’in Nation v. British Columbia, Supreme Court of Canada, 2014 scc 44 (­Judgment, 26 June 2014).

Other China-Measures Affecting Trading Rights and Distribution Services for Certain Publication and Audiovisual Entertainment Products, WT/DS363/AB/R, Appellate Body Report (21 December 2009). In re Brandt et al. (The Medical Trial), United States Military Tribunal, 20 August 1947, 14 Annual Digest and Reports of Public International Law Cases 296 (1947). Report of the International Committee of Jurists entrusted by the Council of the League of Nations with the Task of giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question (October 1920), League of Nations Official Journal Special Supplement No. 3. Report presented to the Council of the League of Nations by the Commission of ­Rapporteurs, ln Council Doc. B7/21/68/106 (16 April 1921). United States-Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/ AB/R, Appellate Body Report (12 October 1998).

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Index Aaland Islands 2n6, 64–65, 125, 157n34 Autonomy as exercise of self-determination 69, 77, 148–150, 156, 163–166, 192–193, 286 characteristics of 150–155, 164–165 constitutionalized 148, 150, 155, 157, 286 foreign relations 152–153, 157–158 fpic 172 Greenland See Greenland human rights 156–157, 160 ilo Convention No. 169 168–169 indigenous peoples 149, 166–172, 193, 286 institutionalized 148–149, 152 minorities 149, 157n33, 158–163, 193 natural resources 240–241 See also Natural resources, autonomy non-self-governing territories 163 See also Greenland participation 148, 161n55, 165, 171, 192 peoples 149, 158, 163–166, 193, 286 powers transferred 152–154, 286 right to 149, 155–159, 162, 166–172, 192–193, 286 self-determination See Self-determination, political, internal self-government 148, 150–152, 161, 163, 165, 167 sovereignty See Sovereignty, autonomy territorial 150–151, 162, 286 undrip See United Nations Declaration on the Rights of Indigenous Peoples (undrip) Awas Tingni v. Nicaragua 53n131, 237n176, 259, 273 Badinter Commission 66n21, 97n58, 106n99, 112n139, 162 Belgian Thesis 73–74 Collective rights 24, 32, 34, 49, 52, 59, 62, 78, 157n33, 172, 235, 244, 266, 281

exercise 228–229 interest 228, 236n176, 261 Delgamuukw v. British Columbia 237n176, 242n202, 276–277 East Timor 3n6, 66n21, 67n24, 68n27, 112n140 Diss. Op. Skubiszewski 197n6, 201n18 Diss. Op. Weeramantry 196–197, 201, 287n8 Endorois v. Kenya 33n46, 36n62, 171n97, 273, 284n2 Environmental impact assessments  217–218, 264, 266–267, 271 Extralegal factors 17, 89, 92–94, 97, 121, 131, 146, 283–284, 286 Financial institutions fpic 249, 253, 269, 281 ifc 253, 269n327 World Bank 45n101, 92n38, 248, 249n229, 253 Foreign investments 188, 202–203, 205, 209–210, 212, 233, 261–262, 266, 270, 280, 285 bits 210 fpic African Commission on Human and Peoples’ Rights 272–274 cerd 252–253, 257 consent 230, 254, 259, 264–265, 267, 272–273, 277–279, 282, 288 consultation 242, 250, 253, 256, 264, 267–269, 271–272, 277, 279 content 43, 252, 254–256, 288 development projects 249, 252–254, 265, 269, 281 domestic legislation 249, 254, 258, 261–262, 266n314, 268–269, 276, 279 Europe 274–275 extractive sector 252–253, 261, 271 hazardous substances 237n176, 245, 248, 252, 282 historical development 244–253

Index Human Rights Committee 257–258 human rights 244, 258, 263, 270–271, 274–275, 281, 289 ilo Convention No. 169 242, 250–251, 256n265, 265, 268–269, 282 Inter-American system 259–272, 274 natural resources 242–243, 254, 263, 282 See also Natural resources participation 248–251, 253–254, 264–265, 268, 271–272, 281, 288 procedural 195, 254, 278, 281 psnr 246, 265 relocation 250, 252, 256, 279, 282 self-determination 79, 195, 198, 251, 270, 282 status of 250, 260 sovereignty 195, 245–246, 282 traditional knowledge 246–247 undrip See United Nations Declaration on the Rights of Indigenous Peoples (undrip), fpic veto 251, 255–256, 259, 277–278, 282 World Bank See Financial institutions, World Bank Friendly Relations Declaration 68, 70, 77, 91, 92n40, 125, 129, 140, 148, 211–212 draft proposal 156n31 safeguard clause 125, 140 Greenland Alfredsson 82, 174–176, 187n172 autonomy 149, 151n8, 157n38, 166, 172, 176, 179, 183, 188–189, 192, 281 colonial status 172–173, 175, 186–187, 193 Commission on Self-Governance  178–180, 186 constitutional status 174–177 foreign relations 177, 182–183, 189 fpic 188, 191 history 172–180 home rule 176–178 independence 120, 176, 183, 185, 190, 193, 286 indigenous peoples 186–194, 274, 286–287 non-self-governing territory 173–174 peoples 180–181, 185–193, 287

361 psnr 189, 241 referendum 175–176, 180, 185 resources 120, 178, 180, 182–184, 189–191, 193, 241, 281, 295 self-determination 172, 174–175, 179–180, 186, 286 self-government 180, 184, 187–188, 191 Act on 158n39, 180–186, 189–190, 288 sovereignty 185, 190, 193 – economic 172, 179, 190, 193 Independence de facto 60, 148–150, 163, 171 See also Autonomy full 60, 84, 99, 121, 145 See also Self-determination, political, external See also Statehood functional 103–104 principle 114–116 secession See Secession sovereignty 16, 61, 63, 70, 77n74, 87, 90, 103–104, 114–116, 185 spatial 61, 195 varying degrees of 16, 60–61, 146, 154, 284 Indigenous peoples as minorities 50–52, 54, 58, 74 as peoples 30, 36, 40–41, 50, 54–56, 138, 144, 284 autonomy 44, 46, 54, 166–172 See also Autonomy, indigenous peoples characteristics 46, 53 colonial 140–142, 147, 235, 280 definition of 45–49 ethnic 35 fpic See fpic Greenland See Greenland, indigenous peoples historical development 36–40, 137, 141–142, 249–252 human rights 40, 50–52, 258–259, 263, 270, 280, 285 land rights 39, 43, 53, 230–231, 236n176, 241–242, 259, 261–262 psnr

362 Indigenous peoples (cont.) See psnr, indigenous peoples resources 43, 53, 138–139, 230–233, 287 ownership 239–240, 263 rights 239, 242, 263 right to enjoy their own culture 52, 138–139, 258 salt water criterion See Self-determination, salt water criterion secession See Secession, indigenous peoples self-determination 40–42, 53, 55, 138–142, 147, 235, 251, 280, 285 self-government 44, 139, 143 sovereignty See Sovereignty, indigenous peoples subjects of international law 36, 38, 269 undrip See United Nations Declaration on the Rights of Indigenous Peoples (undrip) International law as a process 1–3, 5, 97 development of 4–17, 82, 97, 137, 201, 206–207, 217, 284–285 foundations 85, 284–285 principles 3–4, 15–16, 59, 66, 82, 90–94, 131, 201, 204, 208, 217, 280, 283, 285 sources 4–5, 137, 155–156, 199 treaties See Treaties values 16, 112, 137, 146–147, 286 Island of Palmas 16n66, 37, 87, 92n35, 99n67, 99n70, 100n76, 114n144, 199n13 Katangese Peoples’ Congress 3n6, 33, 34n51, 126n205 Kichwa Indigenous People of Sarayaku  12n50, 13n51, 55n141, 230n153, 265–270, 276n356, 279 Kosovo Advisory Opinion 122n184, 127n211, 132–137 Declaration Simma 135 Sep. Op. Cançado Trindade 147n305 Sep. Op. Yusuf 135 Statements by states 75n63, 124n194, 128 Kosovo 30, 132–133, 127n36, 159n44

Index Minorities 49–52, 54, 58, 65, 78, 142–143, 159–163 See also Autonomy, minorities Natural resources autonomy 153, 165, 171, 228, 240–241, 281 constitutional regulation 238–242, 254, 262, 281, 288 See also Annex 291–304 definition of 224–225 equitable sharing/utilization 205, 216, 221–223, 238, 288 fpic 243 See also fpic, natural resources Greenland See Greenland, resources indigenous peoples See Indigenous peoples, resources international obligations 206, 213, 217–223 psnr 196 See also psnr ownership 191, 211, 227, 239–242, 270 right to 230–233, 238–242 shared 206, 208, 218, 221–223, 238, 281 sub-soil 165, 225–226, 240–242, 263, 281–282 Normative uncertainty development of international law See International law, development of indigenous peoples 147 interpretation 6, 15 principles 16, 66, 82, 93–94, 284 secession 2, 120 self-determination 2–3, 15, 66–67, 82–83, 93, 284 sovereignty 93 Peoples autonomy 158 See also Autonomy, peoples African Commission on Human and Peoples’ Rights 32–36, 59, 216n93, 272–273, 284 characteristics 32, 34 Charter of the United Nations 23, 27, 59 civitas 25

Index collective rights See Collective rights colonial 27, 29–30, 34, 130, 142–143 definition of 20–32, 57–58, 216n93 distinct community 31, 35, 57, 62, 163 ethnic 20, 23, 26, 34, 57, 160 generic term 21, 30 Greenland See Greenland, peoples human rights 160 – covenants 23–24, 50–54, 59 indigenous See Indigenous peoples League of Nations 21, 22n, 23, 160 Marx 26 minorities See Minorities national 26 nations 27–28, 57, 95, 124 political 20–21, 25, 186, 287 right to development 20, 35, 59, 60n, 235, 274, 280 rights 19–20, 31, 33, 58–60 sovereignty See Sovereignty, peoples states 28, 30, 57, 146 subjects of self-determination 26–31, 57 territorial 20–21, 23 psnr content 202–203, 209, 223–224 evolution 208, 217–218, 288 environmental law 206–208, 218–223 foreign investments See Foreign investments historical development 79, 195, 199, 201–208, 213–214, 280 human rights 204, 227–229, 237, 288 – covenants 203–204, 213, 226–227 indigenous peoples 138, 209, 223, 226–227, 230–243, 280, 287–288 natural resources See Natural resources objects 223–226 obligations 213–223, 228, 230–233, 281 peoples 197, 204, 209, 215, 216n93, 226–229, 287–288 remedial 229 rights 202, 209–213

363 self-determination 59, 79–80, 195–197, 227–229, 235, 282 sovereignty 196–198, 202, 209–211, 213, 228–230, 233–239, 280–281, 287 states 204, 226, 228, 230, 240–241, 265 status of 196–197, 199–201, 203, 214 subjects 196–197, 204, 209, 226–228, 230 Pulp Mills on the River Uruguay 218, 221, 222n116 Joint Diss. Op. Al-Khasawneh, ­Simma 201n19, 218n96, 280 Reference Re Secession of Quebec 3n6, 19n1, 30n38, 75n65, 77n74, 126–127, 131–132, 148 Saramaka People v. Suriname 46n104, 261–265, 267, 271n333, 273 Secession Bangladesh 76n68, 130–131 colonial 140–142 consent 122–123, 130 indigenous peoples 71, 137–145, 147, 280, 286 Kosovo See Kosovo Advisory Opinion peoples 30, 71, 122–123, 141–143, 145–147, 286 (primary) right to 76, 121, 124 remedial secession 2, 64, 125–132, 141, 149 sanction 128–129, 143–144 self-determination 134 See also Self-determination, political, external separation 122–123 territorial integrity 121, 127, 129, 131, 147 Self-determination autonomy 69–70, 156, 162, 164, 286 See also Autonomy, as exercise of self-determination culture 80–81 See also Indigenous peoples, right to enjoy their own culture decolonization 64, 66, 70, 72–73, 75, 79, 130 economic 59, 78–80, 165, 195–197, 228, 287 See also psnr, self-determination

364 Self-determination (cont.) entitlements 83 erga omnes 67–68, 201n18 fpic See fpic, self-determination Greenland See Greenland, self-determination historical development 2n6, 63–68 human rights 66, 69, 77, 83, 162, 203–204 independence 68, 70, 283 indigenous peoples See Indigenous peoples, self-determination ius cogens 67, 112n140, 129 minorities See Minorities New International Economic Order 79n82, 204, 223–224 non-self-governing territories 72–73, 163 See also Greenland, non-self-governing territory Lenin 63 participation 16, 69, 77, 148, 165, 190, 194, 231 See also fpic, participation peoples See Peoples, subjects of self-determination political 69–78 – external 70, 72–76, 102, 122, 147 – internal 64, 70, 77–78, 123, 139, 148, 156, 158, 286 – representation 71, 138, 189, 284 psnr See psnr, self-determination salt water criterion 73, 142 secession See Secession social 80 sovereignty 15–16, 63, 70, 91–93, 148, 190, 283 statehood See Secession See Self-determination, political, external See Statehood, self-determination status of 2–3n6, 66, 68, 81–82

Index territorial integrity 90, 92, 163 Wilson 64, 159 serac v. Nigeria 33n45, 215n87, 215n89, 229, 284n3 South West Africa Advisory Opinion 2n6, 12n50, 15, 66n21, 72n47, 111n131, 200n15 Sep. Op. Zafrulla Khan 158n42 Sovereignty 15 autonomy 154, 171, 192, 286 content 16, 63, 85–90, 92 economic resources 197, 202, 208, 227–229 See also psnr, sovereignty external 87 fpic See fpic, sovereignty functional power 16, 88, 99, 283 Greenland See Greenland, sovereignty independence See Independence, sovereignty indigenous peoples 37, 44, 137, 140, 142, 147, 170–171, 190, 194, 237–238, 280–281, 284–285, 287 Island of Palmas See Island of Palmas limits 90–92, 121, 131, 213, 227 non-interference 86–87, 90, 114, 211–213 origins 85–86 peoples 86–87, 145, 283–284 principle 16, 91–92 psnr See psnr, sovereignty self-determination See Self-determination, sovereignty sovereign – equality 79n82, 91–94, 97, 108, 114, 199, 203, 211 – governance 15, 57, 69, 89, 101, 114, 165, 193, 238, 283, 289 – independence 60, 87, 114 – rights 17, 57, 145, 194n196, 209–210, 212, 217, 228, 230, 237, 245–246, 280–281, 284 – territory 85, 89, 99, 199 subjects 86, 88–89, 142, 230 Westphalia See Westphalia

365

Index State See Statehood Statehood civilization 118–119 criteria 95–97, 104–105, 116–117, 120–121, 146 declaration of independence 111, 133–134 See also Kosovo Advisory Opinion definition of 57, 94–97 economic viability 119–120, 145 effectiveness 97, 100–105, 115–116, 146, 286 government 101–104 independence 95–96, 102–104, 114–116 indigenous peoples See Secession, indigenous peoples historical development 85, 94–97 legal order 118 legality 104–105, 111–112, 137, 146, 286 peoples 116n157, 146 See also Secession, peoples permanence 117 population 98, 117 recognition 96, 102, 105–108, 111, 113, 117, 121, 131, 134 non-recognition 107, 110–111 secession See Secession self-determination 113, 286 See also Self-determination, political, external sovereign equality See Sovereignty, sovereign equality stability 102 subjects 84, 94, 111 territory 99–100, 117 – acquisition of 100n76

United Nations membership 108 Sustainable development 138, 207–208, 217n95, 231, 247 Treaties Interpretation 13, 21, 23–24, 33, 268, 285 evolutionary 3, 12–15, 284 generic terms 13–15, 21, 30 law-making 7, 285 vclt 8–9, 13–14, 158, 268 United Nations Declaration on the Rights of Indigenous Peoples (undrip) content 43, 252 autonomy 166–170, 193 fpic 243, 252, 255–256, 264, 281–282 natural resources 191, 194, 231–232, 236, 243, 252, 281 participation 191, 232 self-determination 41, 138 drafting of 41, 144–145, 169–170, 233, 249, 255–256 implementation 43–44, 187–188, 198, 254–255 safeguard clause 140 status 41–44 Wall Advisory Opinion 3n6, 66n21, 68n27 Sep. Op. Higgins 76n75 Western Sahara Advisory Opinion 2n6, 16n66, 66n21, 70n38, 98n64, 101, 174n111 Sep. Op. Petrèn 93 Westphalia Peace of Westphalia 85–86 post-Westphalian notion of sovereignty 190 system 89