Indigenous self-determination: Between International Law and tragedy
The impact of the COVID-19 pandemic on indigenous peoples, along with the context of violence and territorial dispossession to their detriment, forces us to think of solutions from the most varied legal and political spheres.
The impact of the COVID-19 pandemic on indigenous peoples, along with the context of violence and territorial dispossession to their detriment, forces us to think of solutions from the most varied legal and political spheres. On the occasion of the International Day of the World's Indigenous Peoples, celebrated on August 9, this essay summarizes the way in which international law has addressed self-determination, with an emphasis on the need to strengthen its application to indigenous peoples. This is because of the imperative to preserve the existence of such peoples and their cultures, and the need to mitigate the effects of environmental crises of which the exposure to pathogens displaced from their natural habitat – such as SARS-COVID-2 – is only one manifestation.
2020 has been a particularly tragic year for indigenous peoples around the world, notably in the Amazon region. There, the expansion of COVID-19 has occurred in parallel with the opportunistic action of loggers, illegal miners, landowners, as well as governments willing to relax the concession of extractive mega-projects under the argument that it is necessary to promote investment in this region as a response to the economic crisis caused by the pandemic. This reality has been described by jurists, civil society organizations and the affected communities themselves through expressions such as genocide or ethnocide, usually employed in contexts of ethnic cleansing by repressive regimes or in the framework of armed conflicts. On the other hand, the ongoing environmental devastation in the region has often been described as "ecocide". To date, over 70,000 indigenous people have been infected by COVID-19 in the Americas, of which 23,000 are located in the Amazon basin and 15,000 in Brazil.
In Brazil, the tragedy faced by indigenous peoples is a direct result of government acquiescence in the destruction of natural and indigenous reservations, and the dismantling of what still remains of socio-environmental institutions.
The humanitarian crisis faced by indigenous peoples merits the use of all available political and legal tools, including those established in international law
While in most countries there has been a reduction in greenhouse gas emissions due to decreased economic activity, Brazil faces an estimated 20% increase in CO2 emissions compared to the previous year, essentially due to the advance of illegal invasions of indigenous lands, and a 35% increase in deforestation of the Amazon so far this year. Despite this calamitous situation, the environment minister recently stated during a cabinet meeting that the commotion around the coronavirus crisis in Brazil is an opportunity to accelerate the relaxation of environmental laws.
For several experts in international law, the recent complaints for ecocide and genocide against Jair Bolsonaro before the Prosecutor of the International Criminal Court are rooted in political rather than legal grounds, and it is unlikely that the Brazilian head of state will be the subject of a preliminary investigation. Despite this controversy, it is clear that the humanitarian crisis faced by indigenous peoples merits the use of all available political and legal tools, including those established in international law.
Self-determination in the political bodies of the UN
The term "self-determination" dates back to the Enlightment discourse that inspired the American and French revolutions of the late 18th century, as well as the independence movements in Latin America and the Caribbean in the early 19th century. In its embryonic meaning, the term described the might of a people to govern itself and to overthrow colonial regimes and absolute monarchies. In this context, the individual citizen became the point of reference and ethnic and cultural qualities were not duly considered in the constitutions of nation-states born of the liberal revolutions .
After World War I, although the territorial arrangements of Eastern Europe embodied in the Treaty of Versailles were based, in part, on the self-determination of European national minorities, the founding instruments of the League of Nations failed to enshrine self-determination as a founding principle in the relationship between States. Its definition as a political postulate and not as a collective right was ruled in the famous decision of the League of Nations' Committee of Jurists, regarding the demand of the population of the Aland Islands, 95% of which are Swedish-speaking, to become independent from Finland and to join Sweden .
Adopted in 1945, the first article of the Charter of the United Nations establishes the principle of self-determination as the basis for the new international order and extends it beyond the European context to include non-self-governing colonial territories . However, the Charter does not define self-determination as a collective right in itself. This meaning would be assumed by the international community from the 1960s onwards, influenced by decolonization processes.
The progressive colonial emancipation in Africa and Asia led the UN General Assembly to adopt resolutions 1514 (XV) and 1541 (XV) in December 1960, which recognize the autonomy of colonial peoples to freely express their will. These resolutions gave way to the international recognition of peoples, and not of independent territories or those in the process of emancipation, as holders of the right to self-determination. This position was ratified by the International Court of Justice in its 1975 Advisory Opinion in the case concerning Western Sahara. Titled "Declaration on the Granting of Independence to Colonial Countries and Peoples", resolution 1514 (XV) defines self-determination as the right of the peoples of the world to "freely determine their political status and freely pursue their economic, social and cultural development".
After the aforementioned resolutions, the position known as the "salt water doctrine" or "blue water rule" prevailed, which contended that self-determination did not apply to ethnic minorities within States that had already achieved independence. In other words, the international community decided, initially, to limit recognition of the right to self-determination to the decolonization processes of peoples located in overseas enclaves, and not to indigenous peoples and/or ethnic and national minorities within independent States.
Self-determination in International Human Rights Law (IHRL)
Universal Human Rights System
Article 1 of the Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural Rights (ICESCR) expressly enshrines the right to self-determination, but the initial interpretation of the respective committees was influenced by the exclusion of the principle of self-determination of ethnic minorities within independent States. It should be noted, however, that even before the principle was recognized in intergovernmental forums, several indigenous peoples and civil society organizations had been demanding its recognition at the domestic and international levels.
Express recognition of self-determination for indigenous peoples in an international instrument would only come in 2007
As a result of decades of mobilization, the right to self-determination was progressively recognized in favor of indigenous peoples, based on the normative and jurisprudential framework of the IHRL. This recognition gained greater momentum in the context of overcoming the integrationist paradigm that prevailed for several years in constitutional systems, especially in Latin America. Starting in the 1980s, several countries on the continent adopted Political Charters that incorporated the multicultural paradigm into the approach to the relationship between indigenous peoples and States. At the international level, the overcoming of the integrationist paradigm was materialized with the adoption of Convention 169 of the International Labour Organization (ILO), in June 1989, strengthened by the UN Declaration on the Rights of Indigenous Peoples of 2007, and with a vast jurisprudence of supranational human rights bodies.
ILO Convention 169 internationalized the commitment to preserve indigenous cultures, recognizing their right to decide autonomously on their development priorities and to participate directly in any and all State decisions that affect them, through consultation and free, prior and informed consent (FPIC). Although it does not expressly establish the right to self-determination, it enshrines the autonomy of indigenous peoples to freely determine their ways of life and their priorities for economic, social, and cultural development. Express recognition of self-determination for indigenous peoples in an international instrument would only come in 2007, through the United Nations Declaration on the Rights of Indigenous Peoples, specifically in articles three and four . This effort was followed by the American Declaration on the Rights of Indigenous Peoples, adopted by the OAS General Assembly in June 2016, whose Articles III and XXI enshrine the same fundamental right.
However, before the adoption of these instruments, international law and comparative constitutional law attributed multiple meanings to the term "self-determination" that denote, in general, the following situations: 1) the processes of decolonization; 2) the right of independence of a sovereign State from others (external self-determination); and 3) the right of peoples to freely determine their political status and to seek their own development within a given State (internal self-determination).
In its General Comment No. 12 of 1984, the Human Rights Committee emphasized the external aspect of this right. Subsequently, in 1996, the Committee on the Elimination of Racial Discrimination clarified, in General Comment No. 21, the internal aspect of self-determination, which entails that "all peoples have the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development". In turn, the Committee on Economic, Social and Cultural Rights has expressed its opinion on the right to self-determination provided for in Article 1 of the ICESCR in favor of indigenous peoples.
Inter-American Human Rights System (IAHRS)
The link between collective property rights and free, prior, and informed consent with the principle of indigenous self-determination has been recently recognized in the doctrine of the Inter-American Commission and the jurisprudence of the Inter-American Court (IACt-HR). The Court's 2007 judgment in the Case of the Saramaka People v. Suriname is a landmark in this regard. In ruling on the right to free, prior and informed consent, the Court emphasized that it derives not only from ILO Convention 169, which has not been ratified by Suriname, but is inherent to indigenous self-determination contained in Article 1 of the ICCPR.
In the 2012 case of Sarayaku v. Ecuador, the IACt-HR was even more emphatic in ruling on the link between indigenous land rights and the right to self-determination. The ruling emphasizes that this link is indissociable from the cultural identity of indigenous peoples and noted that "States have an obligation to ensure that indigenous peoples are properly consulted on matters that affect or could affect their cultural and social life, in accordance with their values, traditions, customs and forms of organization”. The Court stressed that "cultural identity is a fundamental right – and one of a collective nature – of the indigenous communities, which should be respected in a multicultural, pluralistic and democratic society" (para. 217). In the Case of Kaliña and Lokono Peoples v. Suriname, the Court reiterated that the right to collective property of indigenous peoples must be interpreted in light of the obligations provided for in Article 1 of the ICESCR, and other international instruments that protect indigenous self-determination.
The Inter-American Commission on Human Rights has also addressed the right to self-determination through thematic reports, such as the 2013 report on Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas, the 2015 report on Indigenous Peoples, Communities of African Descent and Extractive Industries, and the report on the situation of the Indigenous and Tribal Peoples of the Pan-Amazon Region.
Despite the previously mentioned precedents and the recent tendency of the IAHRS’ bodies to address different rights of indigenous peoples on the basis of the principle of self-determination, the Universal Human Rights System continues to be the main source of norms and pronouncements in this area. In this sense, there is an expectation that the IAHRS bodies will develop more specific standards and echo the demands of indigenous organizations, so that the link with their territories and natural resources will be protected within the framework of their autonomy and self-determination.
Despite the tension that still exists between the right to self-determination and the principle of the territorial integrity of States, the IHRL has developed important standards on the internal aspect of self-determination, in order to extend its application to indigenous peoples and traditional communities within their States.
The COVID-19 crisis is only the prelude to an environmental crisis whose outcome will likely be much more catastrophic
This aspect is articulated with other equally protected principles, such as self-government and autonomy in the indigenous organization, through its own decision-making processes and political institutions. Under this logic, indigenous self-determination has been widely recognized in the IHRL and in the Comparative Constitutional Law, and it is necessary, in any case, to continue advancing in obtaining new standards and pronouncements that develop clearer parameters of State action in this area.
It should be noted here that the COVID-19 crisis is only the prelude to an environmental crisis whose outcome will likely be much more catastrophic unless the international community of States, businesses and humanity in general assume a more rational way of using natural resources. One of the ways to achieve this goal is to respect the ability of indigenous peoples to manage their territories and the natural resources therein autonomously.
Guaranteeing the right to indigenous self-determination means preserving a way of life that is more harmonious with nature. In this sense, the recognition of this right must be understood as an imperative not only to preserve the physical and cultural integrity of indigenous peoples and traditional communities, but also as a commitment to prevent and mitigate the effects of the climate crisis and the various environmental crises of our time.
 ERIC J. HOBSBAWM, Nations and Nationalism since 1780: programme, myth, reality. 2nd Ed., Cambridge University Press, 1992, p. 19.
 See Romualdo Bermejo García, El Derecho de autodeterminación de los pueblos a la luz del Derecho Internacional, p. 2. As far as it is relevant, the mentioned decision underlined that
Although the principle that people should be able to dispose of themselves occupies an important place in modern political thought, especially after the world war, it should be noted that it is not inscribed in the Covenant of the League of Nations. And the enshrining of this principle in a number of international treaties is not enough to make it one of the positive rules of the Law of Nations.
 See chapters XI (Declaration regarding Non-Self-Governing Territories), XII (International Trusteeship System) and XIII (Trusteeship Council) of the UN Charter.
 These articles state the following:
Article 3 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.
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.
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