“All peoples have the right to self-determination”

International Covenant on Civil and Political Rights (ICCPR)

But some peoples have a more strongly implemented right to self-determination than other peoples. Colonised peoples have the right to self-determination, and indigenous peoples also have the right to self-determination, but this right is implemented very differently in both cases.

So it is important to distinguish the difference between colonised peoples and indigenous peoples, because they have different support structures in exercising their right to self-determination.

A peoples (or a polity, nation, or political community) can be colonised and not indigenous. For example, African slaves from Spanish-run slavery in Jamaica escaped and lived in the Jamaican jungle. But there were already indigenous peoples living on the island – the Arawak and Taino peoples. Later on, a British wave of colonisation came, and the non-indigenous, African Jamaicans were colonised. So these non-indigenous peoples were for a time, colonised.

Likewise, a peoples can be indigenous, but not colonised. There’s plenty of examples of this in the world. Some peoples have already decolonised, and others that were never colonised at all. Many indigenous peoples don’t need special “indigenous rights” despite being technically indigenous, because they are not in a position of subjugation.

We just happen to be both indigenous and colonised. So we have two very distinct pathways of self-determination available to us.

The Right to self-determination for colonised peoples

Self-determination for colonised peoples is: colonised peoples have a right to freely decide for themselves their international political status.

There are 3 basic self-determination pathways to decolonisation. They are independence, association and integration. I talked about this more in the “UN Decolonisation” video (see Thinking Sovereignty page on Facebook), but this post is to show how it fits in a bigger picture of self-determination.

Independence is the complete removal of all colonial control and the birth of a new system, or rebirth of the pre-colonial system.

Association is a consensual arrangement where the colonised peoples retain the freedom to modify the international status of their territory, and also retain the right to determine their own internal constitution without outside interference; yet in some ways are still administered by a seperate, independent government.

Integration is where the colonised peoples surrender their right to determining their own constitution and territorial status, and agree to become part of another independent state.

There is another option. This is what ever the colonised peoples decide for themselves. The peoples can choose another option, or a combination of these three options. The important thing is that the peoples themselves freely decide their political status as part of an international State. To assert a personality on the stage of international states.

These 3 paths under UN resolutions going back to the 50’s. Decolonisation is an established peremptory norm in international law, that means there are no “if’s or but’s” allowed; no excuses, and the international community has a binding obligation to assist peoples under colonial control in choosing and realising that choice.

Now given those options – put yourself in settler-colonial shoes. These options, especially the option of independence would amount to a internationally mandated revolution against the settler state. It would be a disaster if it were freely chosen by the colonised peoples. The international community has; under their own customary laws, an obligation to support the colonised peoples in their choice. The Montevideo Convention, and other international law also supports the colonised peoples. The only real solution for a settler colonial state is to funnel peoples under colonial subjugation towards choosing more favourable options, ones that benefit the settler state.

These days, you can’t use force to gain consent; at least not openly. So you have to persuade my other means. Carefully present those peoples under alien subjugation with limited options, and hope they say “yes” and don’t ask too many questions.

Another thing you can do as a settler state, is keep off the UN decolonisation target list. The UN maintains a list of Non-Self-Governing Territories. A special committee maintains the list and supervises the decolonisation process. The problem is that on the committee itself sits member states who directly benefit from settler colonialism. The police are policing themselves. Nevertheless, this political interference does not change the resolutions made or the established peremptory norms. As long as settler-colonial countries can keep off the list, and the colonised peoples are not aware of their options – then all is good for the settler state. But in the meantime the settler colonial state will try to funnel those subjugated peoples down the path the colony has chosen.

The Right to self-determination for indigenous peoples

The right to self-determination for “indigenous peoples” is a very different concept to the right to self-determination for colonised peoples. Indigenous peoples rights are written up in the United Nations Declaration on the Rights of Indigenous Peoples.

This declaration; once adopted, is a non-binding obligation to States to protect indigenous minority rights. The language used in the declaration makes it clear that it is mainly about indigenous peoples who are a minority within the larger nation state. The declaration writes about the relationship between “indigenous peoples” and “States”. It is not a State-to-State or a Nation to Nation relationship, it immediately implies a majority/minority dynamic.

This relationship dynamic is not applicable to colonised peoples who have not yet exercised their right to self-determination in the international sense. Colonised peoples; who also happen to be indigenous, still have the opportunity to negotiate (or re-negotiate) internationally-binding treaty terms as part of an association arrangement. This would allow them to prioritise and secure terms that are most important to them, and secure those terms under international law. This is far more secure than aspiring, non-binding declarations. UNDRIP is unnecessary for colonised peoples.

On the roadmap image I have illustrated this in yellow on the right side of the map. Decolonisation in blue has to happen first for UNDRIP to be relevant.

Note the capitalisation of some terms used throughout the UNDRIP. States is a proper noun with a big “S”, but indigenous peoples is used as an adjective/noun with a small “i”. This is not being disrespectful, it means that States is clearly defined, whereas indigenous peoples is a more general, non-specific term. One big problem with UNDRIP; at least for colonised indigenous peoples who still retain a distinct status from the colonial nation state, is that there is no hard definition of “indigenous”. There is a UN working definition from 1986 (scroll pdf to point 379) which is roughly based on cultural continuity.

Ultimately it is up to States to implement in their own legislation and definitions of whom; amongst their own state’s population, are the “indigenous peoples”.

Some countries such as Bangladesh and Indonesia have denied having any indigenous peoples at all. In Africa, only small tribal minorities are officially considered to be “indigenous”, even though most African people in Africa are indigenous to Africa. There is a cultural distinction and cultural continuity aspect to the term. I think the term will one day be seen as a “social construct” in the same way race is seen as outdated today. The term is a mixture of a peoples origin, their connection with the land, their subjugation and miraculous survival under waves of human migration crashing on top of them, and a Disney-like perception from outsiders of their cultural “uniqueness”. It is a narrow term, and there is not much scope for change and adaption in the fast-changing world. Neither is there much appreciation for more subtle aspects of identity and practices, aspects which may continue in the “non-continuous” “non-authentic” cultures that doesn’t quite make the official definition.

Implications in Australia

One of the assessment principles of the Uluru Statement is that it

Advances self-determination and the standards established under the United Nations Declaration on the Rights of Indigenous Peoples.

Final Report of the Referendum Council

This is not self-determination for colonised peoples as in General Assembly resolutions 1514, 1541 etc., It is self-determination for indigenous peoples which is a very different thing.

In Australia, the term “Aboriginal and Torres Strait Islander peoples” is a properly defined legal term, and by the criteria is determined by the Aboriginal and Torres Strait Islander community itself. “Indigenous Australian” is at this point in time used interchangeably with “Aboriginal and Torres Strait Islander peoples”. BUT… that is only at this current point in time. Ultimately, the definition of the term “Indigenous Australians” is the prerogative of the Australian people, not of Aboriginal and Torres Strait Islander peoples. There is a danger that one day you may wake up to realise, yes you are still Aboriginal, your community still accepts you, you have technically decolonised, but your community cannot show a strong enough cultural continuity to be “Indigenous Australians”. Or it could backfire in the other direction – when Pauline Hanson reckons she is an “Indigenous Australian” – she might be right depending on how Australians define the term. UNDRIP will only help those who are officially “indigenous”.

I suspect that the criteria will be tightened rather than loosened; and “Indigenous Australian” will eventually mean a Native Title holder. I doubt it is a mere coincidence that Native title holders are the only Aboriginal and Torres Strait Islander peoples who have proven themselves to comply with the absolutely most restrictive interpretation possible of the UN 1986 working definition (refer to section 380). Logically, if Australia wants to restrict the definition of “Indigenous Australian” as much as possible to reduce their obligations under UNDRIP while still being technically compliant, then the Native Title holder criteria adapted as a new “Indigenous Australian” definition fits this perfectly.

Conclusion

UNDRIP is; for colonised peoples, a big carrot leading them up a mine-ridden path. There are better options already existing from the UN decolonisation framework, there is no reason why these options should not be available to peoples under the “settler” brand of colonial subjugation. There are ways to bring better options for self-determination up and make them available, ways both for peoples who have no treaties (eg. in Australia and British Colombia) and those that already have treaties but never ceded sovereignty over their territory. One important thing is that there is wider awareness of these options. I will write/talk about more in my next post or video about how to make these paths available.

Here is the full roadmap image:

See also the Facebook page “Thinking Sovereignty” for the UN Decolonisation video for more detail.