37 Right to Self Determination and Indigenous People

Dr. Aneesh V. Pillai

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Indigenous Peoples are those people, who are practicing unique traditions, culture and way of life and retain social, cultural, economic and political characteristics that are distinct from other segments of the population in the societies in which they live. It is estimated that all over the world, there are about 300-500 million indigenous people. They live in nearly all the countries on all the continents of the world and form a spectrum of humanity, ranging from traditional hunter-gatherers and subsistence farmers to legal scholars. In some countries, they form majority of the population while in others they comprise small minorities. Among many indigenous people are the Indians of America. For example, the Mayas in Guatemala or Aymaras of Bolivia; Saami of Northern Europe; the aborigines and Torres Strait Islanders of Australia; and the Maori of New Zealand.

Indigenous People are mostly concerned with preserving their land, protecting and conserving biological diversity and traditional knowledge, protecting their unique language and culture. However due to their distinct culture and unique position in the society, they often face discrimination from other sections of the society. The common problem of indigenous people throughout history has been the loss of their native land due to invasion of their territory and its subsequent colonization or development by the other sections of society and governments. In recent decades, the international community has shown concern towards the rights of indigenous people and given special attention towards them. As a result the question of right to self determination of indigenous people also becomes a matter of debate. Traditionally, self-determination was recognized as a right of peoples under colonial rule to gain independence. But the inclusion of the right of self-determination into international human rights law allows for a different approach to its interpretation.

Learning Outcomes

  • To understand Meaning and Definition of Indigenous People.
  • To understand the right to Self Determination and Indigenous People.
  • To understand the Interpretation of ‘Peoples’.
  • To understand the scope of Right to Self Determination in the Declaration.

Indigenous People: Meaning and Definition

Indigenous people or aboriginal people are those who were living on their land before settlers came from elsewhere. They are people who belong to pre-invasion and pre-colonial societies and consider themselves distinct from other sections of the societies prevailing in those territories. The term indigenous is derived from the Latin word ‘indigena’ meaning ‘native’ or ‘born within’. It is used to describe people belonging to ethnic group or community and who trace their traditional tribal land claim to some particular region or location. During the 20th century the term indigenous people is used to refer culturally distinct groups that had been affected by the processes of colonization.

The United Nations Special Rapporteur to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, defines Indigenous communities, peoples and nations as “…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 societies now prevailing in 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 systems”.


It is to be noted that, due to the variety and multiplicity in cultures all over the world, it is difficult to have a uniform definition of indigenous people. This fact has also been highlighted by the Background Paper for a UN Workshop on Data Collection and Disaggregation for Indigenous Peoples, 2004. It discusses some of the attempts to define indigenous peoples and states that ‘the prevailing view today is that no formal universal definition of the term is necessary’. This is further supported by the UN Declaration on the Rights of Indigenous Peoples, adopted in 2007, which does not include an official definition of the peoples to which it refers.

However, the World Bank has given certain criteria to identify and classify the indigenous people. According to World Bank, indigenous peoples can be identified in particular geographical areas by the presence in varying degrees of the following characteristics:

  • close attachment to ancestral territories and to the natural resources in these areas;
  • self-identification and identification by others as members of a distinct cultural group;
  • an indigenous language, often different from the national language;
  • presence of customary social and political institutions; and
  • primarily subsistence-oriented production.

An analysis of the numerous literatures available on the meaning of indigenous people shows that, the definition of indigenous people can include cultural groups and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region either

  • before or its subsequent colonization or annexation; or
  • alongside other cultural groups during the formation or reign of a colony or nation-state; or
  • independently or largely isolated from the influence of the claimed governance by a nation-state; and who,
  • have maintained at least in part their distinct cultural, social/organizational, or linguistic characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation-state; and
  • are self-identified as indigenous, or those recognized as such by other groups.

Thus indigenous peoples are generally having ethnic, religious, or linguistic characteristics that are different from the dominant groups in the societies where they exist.

Right to Self Determination and Indigenous People

The right to self-determination is a foundational principle of international law, enshrined in a number of United Nations instruments including the: United Nations Charter; International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR) ; and Declaration on the Rights of Indigenous Peoples. Common Article 1 of both the Covenants states that:

  • 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.
  • 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.
  • 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’.

The Declaration on the Rights of Indigenous Peoples, 2006 expressly guarantees right to self determination to indigenous people. In its Preamble the Declaration states that, ‘nothing in this Declaration may be used to deny any peoples their right to self-determination, exercised in conformity with international law’. The Article 3 specifically states that, ‘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’. Further Article 4 specifies that, ‘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’. So also the Declaration recognizes that Indigenous Peoples have a collective right to own and benefit from their land and resources and to promote and develop their culture.

Article 3 is used like the skeletal foundation which stated the right of self-determination of indigenous peoples in the similar terms of Common Article 1 of the Covenants. And Article 4 is the most important article about the indigenous peoples’ right of self-determination as some scholars insisted. Because this article claimed clearly that the right to self-government and autonomy are the measures to realize this right.

The right of self-determination is usually understood as the right of a group of people to be collectively self-governing. It is a foundational right, without which Indigenous peoples’ rights cannot be fully realized. Kenneth Deer, former co-chair of the Indigenous Peoples’ Caucus, once stated, “All our rights either flow from or are linked to our right of self-determination. These include our right to land, our right to natural resources, our right to our language and culture, our right to our songs… ‘Free, prior and informed consent’ also flows from the right to self-determination.” Indigenous Peoples contend that this right is inherent, and that the struggle is the international world failing to recognize these rights. With the threats of contemporary forms of colonization, such as globalization and bio-colonialism, Indigenous Peoples are faced with a pressing situation that calls for the immediate recognition of their inherent right to self determination and the ability to exercise that right freely16. The claim by Indigenous peoples to the right of self-determination raises two questions:

  • Do Indigenous  people  satisfy  the  definition  of  ‘peoples’  in  international  human  rights instruments?; and
  • What is the scope of Right to Self-Determination guaranteed under the provisions of Declaration on the Rights of Indigenous Peoples?

1. The Interpretation of ‘Peoples’

The human rights covenants and other international instruments declare that “peoples” have the right of self-determination. Whether indigenous peoples group can come under the concept “peoples” in the international law is an important controversial issue in the contemporary time. It is an established rule under international law that, terminologies used in international instruments must be interpreted according to their plain meaning. One of the literal meaning supplied by the Webster’s dictionary, it defines a people as “the entire body of persons who constitute a community or other group by virtue of a common culture, religion, or the like. The UNESCO International Meeting of Experts for the Elucidation of the Concepts of Rights of Peoples, 1989 has provided a detailed and standard description of “people”. According to the description which is some times referred to as the “Justice Kirby definition”, a people is: “a group of individual human beings who enjoy some or all of the following common features:

  •  a common historical tradition;
  •  a racial or ethnic identity;
  •  cultural homogeneity;
  •  linguistic unity;
  •  religious or ideological affinity;
  •  territorial connection;
  •  common economic life.”

In addition to the above description, the UNESCO Experts added that: “the group must be of a certain number which need not be large…but which must be more than a mere association of individuals within a state” ; the group as whole must have the will to be identified as a people or the consciousness of being a people…”; and “the group must have institutions or other means of expressing its common characteristics and will for identity.” It is submitted that the above presupposes self-identification, numerical superiority and dominant position in the existing state to which the group belong.


The above characteristics expressed a kind of opinion that “the word ‘peoples’ should designate large, homogeneous national groupings; that the right of self-determination should be accorded only to peoples who lay an informed claim to it; and that politically backward peoples should be placed in the care of an international trusteeship system which would see to it that they develop the capacity to exercise their right of self-determination.


Further, some other jurists had interpreted the idea of ‘people’ as includes only peoples occupying a geographical area which, in the absence of foreign domination, would have formed an independent State (colonial territories, Trust Territories, etc.); and another, the commoner situation of peoples occupying a territory that has become independent, but who may be subjected to new forms of oppression, in particular, neocolonialism.


An analysis of various definitions and interpretations provided to the word ‘people’ it can be seen that there is a difference between “people” as an entity on one hand and “indigenous people” as an entity on the other hand. The difference lies in the fact of dominant position in the existing state and numerical superiority characteristics of “people” which are lacking in “indigenous people. It is to be noted here that only a “people” can claim both ‘Internal and External self-determination’. Therefore an “indigenous people” since not come under the term ‘peoples’ are entitled only to ‘Internal self-determination’. In other words, the right to ‘External self – determination’ inheres only in ‘peoples’ and not in indigenous peoples. The United Nations paid attention on whether indigenous peoples could be recognized as “peoples” who enjoyed the right of self-determination in the international law, since the UN Working Group on Indigenous Populations established23. To restrict the application of right to self determination to indigenous people, it selected the term “population” instead of “peoples”. Thus it can be concluded that at international law in the context of right to self determination, the term ‘peoples’ does not include the indigenous people and as a result they are not entitled for the right to external self determination. However, this narrow view has been criticized and argues the inclusion of groups within the population of states as ‘peoples’ for the purpose of claiming right to self-determination.

2. Scope of Right to Self Determination in the Declaration

The right to self determination of indigenous people is specifically guaranteed under the provisions of the Declaration on the Rights of Indigenous Peoples, 2006. It is a collective right held by all members of an indigenous community as a group and must be exercised in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith. Like other rights in the Declaration, the right to self-determination is universal, inalienable and indivisible. It is also interdependent and interrelated with all of the other rights in the Declaration. It is a general understanding that the right to self-determination is a “foundational” right, without which the other human rights of indigenous peoples, both collective and individual, cannot be fully enjoyed”. Therefore, for the effective realization of various other rights mentioned under the Declaration, the implementation of right to self-determination is fundamental. Hence, it is necessary to determine the scope of right to self-determination guaranteed under the Declaration.

According to James Anaya, ‘the essential idea of self-determination is that human beings, individually and as groups, are equally entitled to be in control of their own destinies, and to live within governing institutional orders that are devised accordingly. However, it does not mean that every group that can be identified as a people has a free standing right to form its own state or to dictate any one particular form of political arrangement. Rather self-determination means that peoples are entitled to participate equally in the constitution and development of the governing institutional order under which they live and, further, to have that governing order be one in which they may live and develop freely on a continuous basis.”

Analyzing the content of right to self-determination on the basis of this understanding the right to self-determination means that Indigenous peoples are entitled to determine their relationship with the State and be involved in setting up the States’ governing structure. It also means that Indigenous peoples have the right to maintain their own political systems and institutions, as stated in Article 5. When there are violations of the right to self-determination, the UN Declaration recognizes that Indigenous peoples are entitled to a remedy.

Further it can be seen that, the UN Declaration provides some examples of what self-determination includes for Indigenous peoples: Article 4 discusses the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing these functions. Article 5 recognizes the right of Indigenous peoples to maintain their political, legal, economic, social and cultural institutions – and also the right to participate in the political, economic, social and cultural life of the country they live in. The right to self-determination is also connected to  articles 20, 33, 34 and 35. These articles include references to the right to have their own institutions and pursuing economic activities, the right to determine their own identity or membership in accordance with their own customs and traditions, the right to these institutional structures which may include legal systems, and determining the responsibilities of persons to their communities.


It is to be noted here that, the Declaration does not limit self-determination only to control over the internal affairs. But the provisions of the Declaration also discuss the international aspects of Indigenous peoples’ right to self-determination. For example Articles 6 and 36 of the UN Declaration states that, Indigenous peoples have a right to a nationality, and to maintain and develop relationships with members of their community, as well as other communities within or outside their respective country. These contacts may be for various activities and purposes, and need to be facilitated by the State with the cooperation of Indigenous people. Article 36 further recognizes that Indigenous peoples have a right to have relations with other peoples across international borders. So also the Article 41 requires governments to work with Indigenous peoples to establish ways of ensuring Indigenous peoples participate in making decisions on issues that affect them, which would include ongoing participation in international forums.


A close analysis of the provisions of UN Declaration shows that, the right to self-determination guaranteed under Article 3 & 4 is limited to the concept of internal self-determination as understood under the international law. The right to self-government and autonomy is the basic content of internal self-determination and it can be claimed by indigenous people also. The provisions of the Declaration itself support this narrow interpretation of right to self-determination. For example, Article 35 in the Declaration states that, ‘indigenous peoples have the right to determine the responsibilities of individuals to their communities’, which is a kind of the social aspect of internal self-determination. Article 18 states that, ‘indigenous peoples have the right to participate in decision-making in matter which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions’ and Article 23 states ‘indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development’. ‘In particular, indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programs affecting them and, as far as possible, to administer such programs through their own institutions’ which is a kind of the democratic aspect of internal self-determination. Further, Article 46 provides that, ‘nothing in the 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’ which excludes any possibility of claim for external self-determination, especially the independence or secession26. Thus it can be concluded that the Declaration guarantees only a right to internal self-determination to the indigenous people.


The right to self-determination of indigenous people is a collective human right guaranteed under the Declaration. However, such a right does not cover the entire scope of right to self-determination as guaranteed under international human rights instruments. Though the right to self-determination is guaranteed under the UN Declaration on the Rights of Indigenous Peoples, it has only a limited scope as it includes only internal self-determination. Moreover, the Declaration is not a binding international instrument. But considering the plight of indigenous people in various parts of the world it is imperative to relook the whole issue of right to self-determination by international community.

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  1. Who are Indigenous Peoples?”,http://www.un.org/esa/socdev/unpfii/documents/5session_ factsheet1.pdf.
  2. See, “Rights of Indigenous Peoples”, available at http://www1.umn.edu/humanrts/edumat/study guides/ indigenous.html.
  3. K C Joshi, International Law and Human Rights, EBC, 2006.
  4. AneeshV. Pillai, “Protection of Rights of Indigenous People: International and National Legal Perspective”, Bharati Law Review, April – June, 2014, pp. 24-34.
  5. Kristina Roepstorff, “Self-Determination of Indigenous Peoples within the Human Rights Context: A Right to Autonomy?” http://www.lawanddevelopment.org/docs/selfdetermination.pdf.