Ethics and Culture: Indigenous People and the concept of selfdetermination

There are still peoples and herds somewhere, but not with us, my brothers: here there are states. The state? What is that? Well then! Now open your ears, for now I shall speak to you of the death of the peoples. The state is the coldest of all cold monsters. Coldly it lies, too; and this lie creeps from its mouth: "I, the state, am the people. ”^[1]

I. Introduction: Definitions & Methodology

It seems a peculiarity of modern capitalist civilisation, that wherever one looks one sees squares everywhere! Just as this piece of paper, the screen and keys it was typed on are square, so are the borders of countless states around the globe, cutting through autochthonous communities separating cultures or forging them into a state [society] often lacking their prior consent. It is not without fateful irony that, for instance, the table on which the fate of the African people was decided during the Berlin conference in 1884-85 at which the [still prevailing] borders of colonial Africa were demarcated was: Square! Square people with square minds made square decisions. However, contemporary claims of many indigenous peoples who are as diverse and irregular as the world they exist in continue to challenge the plane polygon geometry of the arbitrary and artificially constructed artefact of territorial sovereignty by demanding recognition of their, partial or full self-determination. Thus questioning the moral legitimacy of sovereign states and the international society [of states].

This paper adopts a morally permissible definition of self-determination, as both process and idea, in the ‘freedom of a people to determine the way in which they shall be governed’^[2], while showing that this true view is wrongfully monopolised by sovereign states and the international society (to a lesser extent) as they deprive indigenous people to act upon this right fully. Therefore manifesting a morally illegitimate rule over, while concurrently not permitting the freedom of choice of, many autochthonous groups around the world. Here, in addition a post-Westphalian framework on the concept of sovereignty is adopted as the moral and factual prolongation of sovereignty in its European genesis is assumed to be ethically anachronistic. In addition the semantic use of state[s] in this paper is deliberate, as one can only speak of a nation if the population is homogenous by its own definition. In the case of indigenous peoples and other minorities though a state almost always carries, even if democratic, the notion of coercive political authority. Further, a distinction between a people and peoples is not drawn, because indigenous groups are witnessed, as homogenous moral and cultural communities. Either have at least one common denominator identifiable; their individual or group aspiration is aligned to morally challenge self-determination in its predominant treatment. It is however realised that no member of any community might fit a particular mould of moral and cultural community entirely, though when asked will agree to its membership and claims in general.

The paper is divided into two main parts. Part one discusses the conceptual evolution of the concept of self-determination in respect to indigenous people in the international system of states. This first part, acts as a foundation to highlight the moral ambiguity of the concept contrasting the liberal and euro-centric tradition and continuation with emancipatory and morally sound claims of indigenous people. The section is subdivided into three stages. Thus strengthening the argument, of the perceived active [re]shaping by sovereign states and international society to ensure their preservation, while ignoring claims of indigenous peoples, through historicizing. The second part, dissects the moral legitimacy of states as a modern social construct. Here a constructivist, and more so, postmodernist conceptual framework is applied. First, a discussion on identity will highlight the need of states to create a homogeneous national identity, in which claims of indigenous people are seen to be problematic to its regeneration and/or maintenance and essentially security of survival. Second, a, if not they, contributing prevailing idea to this unmerited singular need is seen in the apparent primacy of capitalism (or more general materialism) over other forms of socio-political organization. The paper will conclude making a case for the deficiency of moral legitimacy of sovereign states and international society of states. Arguing, that it must be realised that the claims of indigenous people are not only morally just but also imperative in a progressive world of cultures and not squares. The simple right of free choice holds the prospect, even in juxtaposition with the state, for people to [re]discover and improve new and other forms of political arrangements self-determinately without a sense of domination.

II. An unfinished journey: From fourteen points to forty-five articles

Self-determination as a concept has taken an almost century long journey to extend and include indigenous claims within the international [legal] system. As the following section will elaborate it has, as Kirgis notes, ‘a great many faces’.^[3] While Kirgis focused on the United Nation era, the conception of self-determination in the international realm can be traced back even further.^[4] In addition, three evolutionary stages of conceptualisation can be identified and will be outlined below.

Woodrow Wilson was unfortunately mistaken when he in his famous Fourteen Points speech before the US congress in 1918 remarked, that ‘the day of conquest and aggrandizement is gone by’^[5] as fascism only twenty years later disproved his hope when nazism colonized in the name of a racist-nationalistic search of lebensraum. He however introduced the notion of self-determination to the international community when he asked for the establishment of an international association with ‘the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike’.^[6] The following year, as Mayall notes, self-determination was elevated ‘to the apex of political values’^[7] at the Paris Peace conference when Wilson’s brainchild the League of Nations was established. While the rest of the people in the colonial world were not of particular concern to the parties present at the peace conference, they however did ‘provide for the protection of national minorities’ within Europe. One might argue out of pragmatism as the ‘political maps of the new Europe could not be made to coincide’ with the ethnic diversity in the post Great War continent.

Yet, this first conceptualisation of self-determination in inclusive recognition of minority rights was short-lived as indicated, becoming a victim of the fascist era and did not survive in the first UN Charter after World War II. It was at this point that the ‘sovereign state and self-determining individuals triumphed in the new formulation’^{[8] [9]} eclipsing the idea that minority groups could possess rights just as the enlightened individual or incorporated legal persons in form of Multinational Corporations (MNC’s) would later in the 21st century. This does, however, not imply that minority rights necessary correspond with indigenous peoples claims, nor that minorities equate with indigenous groups as such^[10], nevertheless it indicates the origins of the notion of self-determination within the framework of territorial sovereignty based in liberal, democratic and statist circumstances.

Essentially liberal, state and euro-centric conceptualisations of self-determination continued to flourish, while group, non-state and cultural relativist views of indigenous peoples found only peripheral entry and grounding in the newly formed international [legal] system. It took until 1959, when the International Labour Organization (ILO) Convention 107^[11] went into force, that any international legal bindings of indigenous rights were admitted into the ‘the empire of [statist] uniformity’.^{[12] [13]} A closer inspection of the convention reveals its integrative and assimilative nature , which did not, arguably purposely, aim to threaten the statist monopoly over autonomy and self-determination as described earlier. In this regard it is especially important to note that self-determination entered after World War II into, a one might say, second phase with the era of freedom from colonial rule and domination, while still leaving most territorial boundaries unchanged in persistent disregard for autochthonous considerations.^[14]

The successive convention as found in Convention 169, which became effective in 1991, did improve relatively substantial to the former as for instance in Article 6(b) the right to ‘freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making’ was finally granted to indigenous peoples.^[15] The convention, as Keal observes, however still lacks any ‘effective rights to autonomy’.^[16] Further, as the list of signatories reveals so far only seventeen (17) countries have ratified the convention, thereby underlying the unwillingness of the majority of states to follow suit in support of indigenous claims.^[17]

Other bodies dealing with the particular issues (advisory, advocacy and presentational) of indigenous people within the United Nations regime are the in 1982 established Working Group on Indigenous People (WGIP)^[18] and the United Nations (UN) Permanent Forum on Indigenous People (PFII)^[19] established at the interim of the Decade of the World’s Indigenous Peoples (1995-2004). As part of the aforementioned bodies, the International Covenant on Civil and Political Rights (ICCPR)^{[20] [21]} and International Covenant on Economic, Social and Cultural Rights (ICESCR) as well as the Universal Declaration state in Article 1 respectively that ‘all peoples have the right of self-determination’. In addition Article 27 of the ICCPR stipulates that a countries minority has the right ‘to enjoy their own culture, to profess and practice their own religion, or to use their own language’.^[22]

[...]

^[1] Nietzsche, Friedrich, translated by Hollingdale, R.J., ‘Thus spoke Zarathustra - a book for everyone and no one’, Penguin Books, London, 1969,page 75

^[2] Webster’s Universal College Dictionary, Gramcery Books, NewYork, 1997, page 712

^[3] Kirgis, Frederic L., ‘The degrees of self-determination in the United Nations era’, American Journal of International Law, Vol. 8, No. 2 1994, page 304

^[4] Note : The struggle of people for self-determination is as long as human societies exist, however as the confines of the paper trails in the footpath of the contemporary state system it will look at only a limited time window which highlights the evolution of the system in regard to the concept, deemed necessary for the exercise with its confines!

^[5] Wilson, Woodrow, ‘The fourteen points’, in Phil Williams et al, Classic Readings ofInternational Relations, Harcourt Brace College Publishers, Orlando, 1999, page 23

^[6] Ibid, Wilson, ‘The fourteen points’, 1999, page 25

^[7] Mayall, James, ‘Non-intervention, self-determination and the “new world order”’, International Affairs, Vol. 67, No. 3, 1991,page 424

^[8] Mayall, ‘Non-intervention, self-determination and the "new world order”' 1991, page 424

^[9] Mayall, ‘Non-intervention, self-determination and the "new world order”’, 1991, page 424 Note: See also amongst others Onuf, Nick, ‘International Relations in a constructed world’, 1998 delivering the argument of sovereignty based in the idea(ls) of liberal democratic individualism.

^[10] Keal, Paul, ‘Recovering rights: land, self-determination and sovereignty’, in ‘European conquest and the right of indigenous peoples: the moral backwardness ofinternationalsociety’, Cambridge University Press, Cambridge, 2003, chapter 4, page115

^[11] ILO, Convention 107, 1957, accessed online 9th of September 2006 at http://www.ilo.org/ilolex/cgi-lex/convde.pl7C107

^[12] Inayatullah Naem, Blaney David L., ‘International Relations and the problem of difference’, ch. 6 ‘Multiple and Overlapping sovereignties’, Routledge, New York and London, 2004, page 187

^[13] ILO, Convention 107, 1957

^[14] Onyango, Oloka J., ‘Heretical reflections on the right of self-determination: prospects and problems for a democratic global future in the new millennium’, American University InternationalLawReview, Vol.15,No.1,1999, page 164

^[15] ILO, Convention 169, 1991, accessed online 9th of September 2006 at http://www.ilo.org/ilolex/cgi-lex/convde.pl7C169

^[16] Keal, ‘Recovering rights: land, self-determination and sovereignty’, 2003, page 116

^[17] ILO, Ratification of Convention 169, accessed online 9th of September 2006 at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl7C169 Note: Interestingly the majority of signatories are South American states, which have suffered severe losses of indigenous people during the conquest of the Spanish, and have gained independence from colonial powers earlier than most other former colonies. Especially in light of recent developments with the growing number of indigenous groups entering governments as for instance in Venezuela and Bolivia. A sign of emancipation?

^[18] UN, accessed online on the 10th of September 2006 at http://www.un.org/esa/socdev/unpfii/ for a comprehensive overview of the

^[19] UNHCR, accessed online on the 10th of September 2006 at http://www.unhchr.ch/indigenous/groups-01.htm for a comprehensive overview of the PFII

^[20] ICCPR, accessed online 9th of September 2006 at http://www1.umn.edu/humanrts/instree/b3ccpr.htm

^[21] ICESCR, accessed online 9th of September 2006 at http://www.unhchr.ch/html/menu3/b/a_cescr.htm

^[22] ICCPR, Article 27