COMMENTARY

A Commentary on Indigenous Rights

In our last issue (Vol. 2, No. 1), we reviewed the current state of the Draft Declaration on Rights of Indigenous Peoples being developed by the UN Working Group on Indigenous Populations. This document, with the many implications it has for the structure of the world system of states, is in danger of being subverted by competing standards which recently have been promulgated by two major institutions, the International Labor Organization (ILO) and the World Bank, both of which operate independently within the United Nations. It seems crucial that those concerned with the affairs of indigenous peoples understand the nature of this competition and the effect it may have on the development of indigenous rights.

In 1989, the ILO issued Convention 169 (which superseded a previous document, Convention 107 of 1957), pertaining to the rights of "indigenous peoples." Under Convention 169 (as discussed in our last issue), indigenous peoples are not understood to possess rights which "may attach to the term (peoples) under international law"; instead, they have the same rights as everyone else. The Convention, and the ILO itself, proposes to overcome the conditions of discrimination in which indigenous peoples often find themselves. As with most anti-discriminatory thinking, the ILO approach is to prescribe social integration, both explicitly and implicitly attempting to establish the "equal rights" of indigenous peoples (that is, "populations") within "national societies" that enclose them. The ultimate prescription is for the retrenchment and legitimation of state controls through provisions that indigenous peoples must be "respected" and given rights to "participate" in the workings of the national societies which states purport to representrespect and participation, that is, according to the rules of the game which originate in state authorities, with ultimate decision-making powers monopolized by those authorities. Heavily criticized by indigenous representatives such as Sharon Venne (see Without Prejudice, Vol. 2, No. 2, 1989), ILO Convention 169 can be understandably perceived as a dangerous piece of assimilationist legislation.

More recently, in 1991, the World Bank issued Operational Directive-4.20, which declared a set of rights somewhat different from those defined by the ILO, and which also warrants close scrutiny. The Directive is intended to ensure that indigenous peoples who happen to be in the way of development projects funded by the Bank, mostly in Third World countries, "benefit" from those projects, that "potentially adverse effects" of such projects will be "avoided" or "mitigated," and that, in addition, "special action" will be taken when the social and economic status of indigenous peoples "restricts their capacity to assert their interests and rights in land and other productive resources." The Bank document, like ILO Convention 169, asserts the need for "respect," "direct consultation," and "informed participation" of indigenous peoples in the development projects which are imposed upon them. The Directive also concedes ultimate decision-making power to state authority. What this has meant, on occasion, is that states can simply turn to alternate funding sources in order to avoid the Bank's control of their projects, narrow though it is.

Neither the ILO Convention nor the Bank Directive makes either explicit or implicit reference to the exact status that indigenous peoples should have in relation to state societies. Both documents seem to concede the power of determining indigenous status to the state. The Draft Declaration also leaves the status question to be inferred, but in close examination of its articles, one may discern that indigenous peoples are understood to have the right to either a dual status or, alternatively, to several options which correspond to the choices available to decolonizing peoples. As far as dual status is concerned, the Declaration clearly protects indigenous peoples from discrimination and inequality in relation to dominant populations, while it simultaneously recognizes their unique (or remedial) rights to control their own identities, territories, resources, political organizations, economies, systems of justice, systems of education, languages, religions, and "cultures" (which includes things like art forms, music, dance, dress, diet, healing practices, and social customs). These rights emanate from the historical relations of indigenous peoples with the states which enclose them; to have inherent authority over their own destinies is embedded conceptually in their existence as self-determining entities prior to the organization of the state. This same normative principle also establishes the apparent options of indigenous peoples, as victims of (internal) colonization, to choose independence from, free association with, or integration within the states that dominate them (as outlined under GA Resolution 1514 of 1960).

In either analysis, according to the clear intent of the Draft Declaration, indigenous peoples should be able to include or exclude themselves, in relation to dominant societies, to the extent that they feel the need to, in order to determine their destinies. They have both equal and unique rights, and simultaneous protection from both discrimination and exclusion, from both forced integration and forced segregation. There should be no contradiction understood with such dualism or range of choice. The Declaration finds a middle ground of cooperative co-existence, protecting indigenous peoples from being extinguished through genocide and/or ethnocide, while addressing states' concerns about their potential for fragmentation through secessionism. Here, secession must be taken to imply that a constituent people or nation has at some time acceded or consented to integration within a state and then has chosen to separate. Although few indigenous nations actually aspire to become independent states, many would not regard their aspirations for self-determination as secessionist in any case, since they never gave their informed consent to integration into the state and so should not be understood to be seceding if they ever should want to separate and become states in their own right (unlike Slovenia or Slovakia, for instance, and more like Latvia or Micronesia, taking cases from the recent history of state-creation to illustrate the point).

Neither the ILO Convention nor the Bank Directive acknowledges or refers itself to the parallel development of the Draft Declaration. The ILO/Bank documents potentially preempt the Working Group by enlisting states (individually or collectively) to their respective programs before the Draft Declaration ever comes to debate within the UN General Assembly. States which have already conformed (even in rhetoric, if not in policy) to ILO or World Bank norms and principles will not be likely even to consider the applicability of the Draft Declaration to their particular situations. Why would they want to? The Draft Declaration is by far a more comprehensive and far-reaching set of ideas and goals. Moreover, it is only a declaration of aspirations, not an international legal instrument intended to create binding legal obligations for ratifying states. Given credit for being "rational utility maximizers," states will take options which give them maximum freedom of movement through maximum ambiguity.

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Fourth World Bulletin • February 1993