Self-determination has three components:1,2
2. Remedies; and,
The substance of self-determination has two basic elements:
1. Constitutive aspect:
Constitutive processes have core values of freedom and equality that produce government institutions in keeping with the interests of peoples seeking self-determination.
Self-determination entitles individuals and peoples to meaningful participation in processes leading to change in, or creation of, the governing institution over them. It has a requirement of participation such that the end result reflects the will of peoples to ‘freely determine their political status’ by virtue of the right to self-determination.
Treaties negotiated under duress, unfair bargaining conditions, or lack of mutual understanding are not sufficient to justify the extension of colonial rule or extinguish the right to self-determination.
2. Ongoing aspect:
The fruit of self-determination is the ongoing condition of freedom and equality between government institutions and peoples that live under them.
Self-determination requires the governing institution created or changed by the meaningful participation process include individuals and groups allowing them to continually freely participate in its form, content, and functioning. The ongoing process must have a government institution under which individuals and groups can make choices touching on all aspects of life on a continual basis. The government institution must allow peoples to ‘freely pursue their economic, social, and cultural development’ by virtue of their right to self-determination
Minority and Indigenous rights regimes outside of the concept of self-determination do not suffice to encompass cultural integrity. These regimes do not value the cultural freedom and equality of peoples exercising their right to self-determination and therefore cannot inclusively value their distinct ways of life as that culture extends into social, political, and economic realms. As cultural groupings are acknowledged and valued, their cultural persona and societal goals must be reflected in the governing institution for self-determination to prevail; and,
Remedies are required when self-determination’s substance is violated.
Violation of the constitutive element of self-determination in the context of colonization is predominantly historical, but the violation carries with it a link to an ongoing condition of oppression that denies self-determination. A remedy does not entail reversion to a pre-colonial status quo. It requires the creation of a new government institution that will implement self-determination allowing peoples to freely develop. Self-determination is deemed to be implemented with the:
- Emergence of peoples as a sovereign independent state;
- Free association of peoples with an independent state; or,
- Integration of peoples within an independent state on the basis of equality.
Decolonization remedies require change in the governing institution and therefore requires processes of the constitutive aspect of self-determination to arrive at the free will of peoples to determine their political status and an appropriate government institution arrangement. There are two basic types of remedies:
1. External remedies:
In most instances Indigenous peoples express preference for independent statehood, but external remedies do not need to be the formation of a new state. They can be a free will association with an independent state. However, secession is appropriate in a context where self-determination cannot be assured with any other remedy.
2. Internal remedies:
There are a plethora of potential internal remedies based on constitutive and ongoing aspects of self-determination. Internal remedies do not negate the sovereignty of Indigenous Peoples within the host state. The host state must incorporate Indigenous Peoples permanent sovereignty over lands and natural resources into the remedy.3
International law currently recognizes only the right to internal, not external, self-determination for Indigenous Peoples.1,4
Sustainability is required to maintain self-determination for all peoples, more so for Indigenous Peoples when applying internal remedies.5
The processes of sustainable Indigenous self-determination are based on the premise that Indigenous livelihoods, food security, community governance, relationships to traditional territories and resources, and spirituality can all be practised locally and regional today and with future generations. They are both community and inter-community-based to reestablish regional networks and alliances.
Sustainable Indigenous self-determination involves the ability to implement Indigenous laws in traditional territories and expand the scope of Indigenous self-determination. It starts with regenerating individual and family responsibilities.
Sustainable Indigenous self-determination requires that:
1. Colonial strategies founded on host state economic dependency are discarded;
2. The compartmentalization of current political and legal definitions of self-determination be rejected in favour of shared government and accountability mechanisms using social, economic, cultural and political factors;
3. Self-determination sustains Indigenous livelihoods at the community level through the rebuilding of family, clan, and individual roles and responsibilities for traditional territories; and,
4. Indigenous Peoples use rebuilt sustainable local and regional economies to influence the global political economy.
1. (1993) Anaya, S. J, A Contemporary Definition of the International Norm of Self-Determination, Transnat’l & Contemp. Probs. 3: p. 131-164. https://caid.ca/ConDefIntNorSelDet1993.pdf
2. (2005) Dalton, J. E., International Law and the Right of Indigenous Self-Determination: Should International Norms be Replicated in the Canadian Context? Institute of Intergovernmental Relations, Queens University. https://caid.ca/IntRigSelDet2005.pdf
3. (2004) United Nations Economic and Social Council, 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, at para. 6, 8, 10, 17, 30, 32, 39, 40, 43 & 48. E/CN.4/Sub.2/2004/30 https://caid.ca/UNIndPermSovNatRes2004.pdf
6. “The interest in the application of this principle to indigenous peoples follows from the similarity of their circumstances to the situation of the peoples to whom the principle was first applied. The principle of permanent sovereignty over natural resources in modern law arose from the struggle of colonized peoples to achieve political and economic self-determination after the Second World War. The principle is this: Peoples and nations must have the authority to manage and control their natural resources and in doing so to enjoy the benefits of their development and conservation. Since the early 1950s, the principle has been advocated as a means of securing for peoples emerging from colonial rule the economic benefits derived from the natural resources within their territories and to give newly independent States the legal authority to combat and redress the infringement of their economic sovereignty arising from oppressive and inequitable contracts and other arrangements orchestrated by other States and foreign companies. The principle was and continues to be an essential precondition to a people’s realization of its right of self-determination and its right to development.” [Emphasis Added]
8. “As a result, it has become clear that meaningful political and economic self-determination of indigenous peoples will never be possible without indigenous peoples’ having the legal authority to exercise control over their lands and territories. Moreover, these exchanges have led to a growing recognition that an appropriate balance can be reached between the interests of States and the interests of indigenous peoples in the promotion and protection of their rights to self-determination, to their lands, territories and resources, and to economic development.” [Emphasis Added]
10. “While the principle originally arose as merely a political claim by newly independent States and colonized peoples attempting to take control over their resources, and with it their economic and political destinies, in 1966 permanent sovereignty over natural resources became a general principle of international law when it was included in common article 1 of both International Covenants on Human Rights. Common article 1 provides in pertinent part:
“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 cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”” [Emphasis Added]
17. “There is a growing and positive trend in international law and practice to extend the concept and principle of self-determination to peoples and groups within existing States. While understood to no longer include a right to secession or independence (except for a few situations or under certain exceptional conditions), nowadays the right to self-determination includes a range of alternatives including the right to participate in the governance of the State as well as the right to various forms of autonomy and self-governance. In order to be meaningful, this modern concept of self-determination must logically and legally carry with it the essential right of permanent sovereignty over natural resources. The considerations that lie behind this observation must now be examined.” [Emphasis Added]
30. “Thus, we may conclude that the term “sovereignty” may be used in reference to indigenous peoples without in the least diminishing or contradicting the “sovereignty” of the State. The well-established use of the term in many areas of the world rules out any such implication.” [Emphasis Added]
32. “With an understanding of how the concept of sovereignty is applied to indigenous peoples, it becomes further apparent that, when examining their right of self-determination, the principle of permanent sovereignty over natural resources should also apply to indigenous peoples. There are a number of reasons for this. They include the following:
(a) Indigenous peoples are colonized peoples in the economic, political and historical sense;
(b) Indigenous peoples suffer from unfair and unequal economic arrangements typically suffered by other colonized peoples;
(c) The principle of permanent sovereignty over natural resources is necessary to level the economic and political playing field and to provide protection against unfair and oppressive economic arrangements;
(d) Indigenous peoples have a right to development and actively to participate in the realization of this right; sovereignty over their natural resources is an essential prerequisite for this; and
(e) The natural resources originally belonged to the indigenous peoples concerned and were not, in most situations, freely and fairly given up.” [Emphasis Added]
39. “To recapitulate, the developments during the past two decades in international law and human rights norms in particular demonstrate that there now exists a developed legal principle that indigenous peoples have a collective right to the lands and territories they traditionally use and occupy and that this right includes the right to use, own, manage and control the natural resources found within their lands and territories. It remains to state if possible the content and scope of this right as well as its possible limitations.”
40. “Indigenous peoples’ permanent sovereignty over natural resources might properly be described as a collective right by virtue of which the State is obligated to respect, protect, and promote the governmental and property interests of indigenous peoples (as collectivities) in their natural resources.” [Emphasis Added]
43. “There is not such agreement concerning subsurface resources despite the fact that several domestic and international cases have recognized such a right. 46 Indeed, as noted above, in many countries, subsurface resources are declared by law to be the property of the State. Such legal regimes have a distinct and extremely adverse impact on indigenous peoples, because they purport to unilaterally deprive the indigenous peoples of the subsurface resources that they owned prior to colonial occupation and the creation of the present State. Other property owners in the State never owned such resources and thus were never deprived of them. Thus, the system of State ownership of subsurface resources is distinctly discriminatory in its operation as regards indigenous peoples. The result of these legal regimes is to transfer ownership of indigenous peoples’ resources to the State itself. Of course, in some situations, the ownership of the resources in question was transferred freely and lawfully by the indigenous people who held it. These situations do not concern us here. However, as a general matter it is clear that indigenous peoples were not participants in the process of adopting State constitutions and cannot be said to have consented to the transfer of their subsurface resources to the State. The exclusion of indigenous peoples from constitution-making has been noted by this Special Rapporteur in a previous work.” [Emphasis Added]
48. “Are there any qualifications or limitations on this right? Few if any rights are absolute. Limitations, if any, on this right of indigenous peoples to their natural resources must flow only from the most urgent and compelling interest of the State. For example, article 4 of the International Covenant on Civil and Political Rights provides for limitations on some rights only “in time of public emergency which threatens the life of the nation and which is officially proclaimed”. Few if any limitations on indigenous resource rights are appropriate, because the indigenous ownership of the resources is associated with the most important and fundamental of human rights: the rights to life, food, and shelter, the right to self-determination, and the right to exist as a people. The principal question is whether under any circumstances a State should exercise the State’s powers of eminent domain to take natural resources from an indigenous people for public use while providing fair and just compensation. Indigenous peoples’ representatives have argued in the working group on the draft United Nations declaration of the Commission on Human Rights that States should never compulsorily take indigenous lands or resources even with payment of compensation. States already have taken far too much of indigenous lands and resources, and, it is argued, States rarely or never have a truly urgent or compelling need to take indigenous lands or resources. States have not yet provided comments or suggestions for this paper that relate to this critical issue. As a result it may be premature to reach a conclusion on the question of States’ authority to compulsorily take indigenous resources with fair and just compensation.” [Emphasis Added]
4. (2015) Dessanti, C., Indigenous Peoples’ Right to Self Determination in International Law. Intra Vires 1.1 (fall 2015): p. 45-55. https://caid.ca/IndPeoRigSelDet2015.pdf
5. (2008) Corntassel, J., Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse. Alternatives 33: p. 105-132. https://caid.ca/TowSusSelDet2008.pdf