Home Institution

University of North Carolina at Chapel Hill

Publication Date

Fall 2007

Program Name

Switzerland: International Studies, Organizations, and Social Justice

Abstract

The Declaration on the Rights of Indigenous Peoples was adopted by the General Assembly on 13 September 2007, after more than twenty years of negotiations between states, indigenous representatives, lawyers, and academics. Although the resulting document is controversial and complex in its treatment of several important issues, its ambiguous characterization of the collective legal right of indigenous peoples to self-determination has been chosen as the focus of this work because it is the primary right from which all other rights, and problems, are derived. The work commences with a critique of the position held by certain states that the categorization of indigenous populations as legal ‘peoples’ in the Declaration is inappropriate. Secondly, the juxtaposition between internal and external self-determination is used as a framework for analyzing the extent of self-determination that indigenous peoples are entitled to, with the conclusion that neither may states limit the right to a pre-defined outcome, nor may indigenous peoples claim an unqualified external right under international law. Thirdly, this paper argues that the historical relationship of indigenous peoples to (international) law makes the latter an insufficient tool for determining how their future rights as outlined in the Declaration should be interpreted. When the voice of reason is employed to compensate for the law’s shortfalls, it is found that an inherent right of indigenous peoples to freedom of existence accompanies and fortifies their legal right. Finally, the author speculates upon how the translation of the above interpretation of the rights of indigenous peoples into treaty law could summon a dramatic makeover of state visage throughout the international community.

Disciplines

Indian and Aboriginal Law | Race and Ethnicity

 

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