Principles of international environmental protection - Introduction to International Environmental Law - page 86

community that the indigenous peoples living in their territories are the 'peoples'
referred to in the common Article 1. There is no universally accepted defi nition
of indigenous peoples, but these basic elements are agreed: they are peoples who
lived in the area before the settlers came, have maintained their traditional live-
lihoods, wish to continue their cultural existence through their own institutions,
and are normally in a non-dominant position within mainstream society.
Article 1 is applied to indigenous peoples by both of the major committees
that monitor the main human rights treaties: the Human Rights Committee
monitoring the ICCPR and the committee monitoring the ICESCR.
Although this is a fairly recent development (since 1999), the work of the
committees is relevant when assessing which of the rights of the indigenous
peoples can be matched with the sovereign rights of a state.
Negotiations regarding what constitutes the self-determination of indigenous
peoples have been ongoing for some time. The UN Declaration on the Rights
of Indigenous Peoples took over 20 years to negotiate. One of the most
challenging issues was self-determination. A draft declaration on indigenous
peoples was accepted in the UN as the basis for further negotiations in 1994.
It recorded the full self-determination of indigenous peoples in a very ambitious
way, comparable to common Article 1 of the ICCPR and ICESCR: indige-
nous peoples have full freedom to decide on their political status, including the
option of full independence (sometimes called 'external self-determination').
After this, negotiations in the UN between states and indigenous peoples
became diffi cult. Initially, the indigenous peoples were not prepared to back
down from external self-determination and so the states involved refused even
to enter negotiations starting from this premise.
A compromise was eventually reached in 2006 and the UN's principal human
rights body, the Human Rights Council (UNHRC), accepted the declaration,
although it signifi cantly watered down the right of indigenous peoples to self-
determination. Although Article 3 still states that indigenous peoples have the
right to freely determine their political status, Article 4 defi nes the content of
this right: autonomy or self-government in matters relating to their internal and
local affairs. Even this was not suffi cient for some African states, which feared
that the indigenous peoples in their territories would demand their own inde-
pendent state. The fi nal declaration accepted by the UN General Assembly in
2007 states that the self-determination rights of indigenous peoples may not
threaten the territorial integrity or political unity of states, precluding any right
to secession (the creation of a new state out of part of a larger one).
The Declaration on the Rights of Indigenous Peoples is a declaration by the
UN General Assembly and hence not legally binding as such. It is, however,
the result of a lengthy negotiation process, in which states and indigenous
peoples reached, through compromise, an understanding of what group and
individual rights indigenous peoples actually have. The declaration partly
records existing customary international law. Moreover, as a declaration by the
UN General Assembly (where almost all the world's states are represented) it