Recognition as if sovereigns? A procedural understanding of indigenous self-determination

In the last two decades we have witnessed a growing global acknowledgement of indigenous rights – manifested in the 2007 UN Declaration on the Rights of Indigenous Peoples – challenging the traditional nation-state-centred understanding of political rights and democracy. In this paper, the author argues that indigenous self-determination is to be understood as a way to level the balance of power between indigenous peoples and the nation-states in which they live. Without a solid legal foundation for indigenous peoples to define self-determination in their own languages and to negotiate the conditions of their relation with the nation-states on their own terms, the colonial past (and present) of violent conquest and domination might continue. Indigenous peoples' right to self-determination ought in this perspective to imply recognition of indigenous peoples as having a standing equal to nation-states, i.e. as if they were sovereigns. What self-determination means in political practice would thus be the outcome of negotiations between two (or more) equal political entities. In this way, the right to self-determination has to be interpreted procedurally rather than substantially.     

Protecting the economic patrimony of indigenous nations: the case of the Shuar

This article concerns contemporary problems of indigenous peoples and human rights. In general, the human rights of indigenous people occupy marginal space in the global discourse. Overcoming cultural hurdles, and recognizing that indigenous peoples are not objects of juridical concern, not abstractions of analytically precise units of analysis, but in fact are subjects who come with perspectives of identity, demand and expectations, is a necessary starting point for both the scholar and the advocate. This article deals with a particular indigenous nation in the Amazon: the Shuar. The Shuar hold important perspectives of identity, demand and expectation encompassing the critical values that sustain their lives in the community.     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

On the creation of indigenous subjects in the Russian Federation

For many of Russia's poorest people, and especially for the officially recognized ‘indigenous small-numbered peoples’, neoliberal reforms following the collapse of the Soviet Union represented a major retrenchment in ‘social citizenship’ as defined by T.H. Marshall. However, some reforms also promised increased civil, political and cultural citizenship rights, which Russia's indigenous peoples have sought to realize through new legislation and appeals to international agreements regarding the rights of indigenous peoples. But with Russia's current economic and political course geared towards maximizing revenues from the extraction and sale of natural resources, Russia's indigenous peoples have been frustrated in their efforts to realize these citizenship rights, particularly in their attempts to assert rights to land and resources through legal means. This paper draws on case studies from southern Siberia to discuss first how Russia's identity politics and an international focus on indigenous peoples have combined to create indigenous subjects in the Russian Federation, and second how the anticipated transition from indigenous subjects to indigenous citizens has for the most part failed to materialize.     

Rights of Self-delimiting Peoples: Protecting Those Who Want No Part of Us

While in recent years new charters and government actions have boosted the collective and individual rights enjoyed by “Fourth-World” indigenous peoples such as the Inuit, another set of indigenous peoples has not experienced such protection: “self-delimiting” peoples. Their rights go largely unprotected because of deliberate ambiguities in the word “indigenous”; because these peoples generally avoid all contact with the larger society, and so are unknown by it and have no voice in it; and because charters and institutions generally require validation of an indigenous people as bona fide—such as a history of contact and of evident land occupation—in order for the group to enjoy full rights protections. Both practice and theory may militate against the extension of full protection. This paper argues that theory, institutions building upon it, and practice realizable from theory and institutions must be reconsidered in terms of the particular circumstances and needs of these peoples if their rights are to be fully respected and maintained. Clear, special protection for these peoples’ rights to their culture must be established.     

Indigenous peoples and non-ferrous metals mining in the Philippines

Abstract

The Philippines is a developing country well endowed with mineral resources. In recent years, the government has made substantial efforts to encourage the exploitation of these resources. This mining-based development paradigm has come into conflict with the indigenous peoples of this nation. This conflict has entailed disputes between the mining industry and indigenous peoples about the validity of the Philippines indigenous peoples rights legislation and alleged human rights abuses on the behalf of the mining industry. The Philippines strong civil society has assisted the indigenous peoples in regard to this conflict. Possible solutions to this conflict are examined.     

Rethinking Democratisation and Citizenship: Legal Pluralism and Institutional Reform in Guatemala

The December 1996 peace settlement in Guatemala agreed a series of institutional reforms in order to recognise the rights of the country's indigenous peoples; some 23 different ethno‐linguistic groups which make up 60% of the overall population. This article explores the relationship between pluri‐culturalism, citizenship, democracy and law in the contemporary politics of Guatemala. While territorially autonomous regions or separate legal jurisdictions are often proposed as a means to ensure indigenous rights, I argue that within a framework of post‐conflict reconstruction, integration with a measure of autonomy for democratically organised communities is the ideal. This is linked to development of an integrative form of citizenship which combines both social membership and identity and rights. Finally, I argue that support for pro‐active efforts to challenge the legacies of authoritarianism, militarisation and inequality will be necessary in order to strengthen democracy, build a culture of citizenship and increase justice.     

Seeking Life, Finding Justice: Russian NGO litigation and Chechen Disappearances before the European Court of Human Rights

This article presents findings from an interview study of human rights practitioners who assist relatives of the disappeared from Chechnya with their complaints before the European Court of Human Rights (ECtHR). These practitioners work for nongovernmental organizations (NGOs). The study contributes to the scant literature on NGO litigation before the ECtHR and to the social scientific literature on how human rights are actively practiced. It investigates the NGOs?? intermediary position between the ECtHR and the relatives of the disappeared in Chechnya. Consequently, this article asserts that a significant aspect of this position lies in the practitioner??s capacity to mediate between an ambition to externalize local grievances to the ECtHR and the relatives?? hopes that the ECtHR can bring certainty to the uncertain loss of their disappeared relatives. From this position, several dilemmas emerge as to how international legal mechanisms can provide remedies following disappearances.     

Potential through paradox: indigenous rights as human rights

This paper takes the ratification of the U.N. Declaration on the Rights of Indigenous Peoples as its departure point. Reactions to the Declaration have thus far been mixed. According to advocates, these events signal ‘a new consensus’ that brings ‘to an end the nation states’ history of oppression of indigenous peoples’. According to critics, however, we have uncritically assumed an alliance between human rights and Aboriginal rights initiatives. This paper draws on these conflicting accounts, the theories of Rancière, and a discussion of a current Canadian court case to offer an assessment of the political possibilities of the UN declaration. Overall we argue that the value of the Declaration rests on our interpretation of the political process by which these rights are enacted. The possibilities of rights-based politics are always contextually dependent. In some instances a human rights frame can represent radical repositionings and rearticulations while at the same time always risking the possibility of co-optation. The acts of politics, in particular acts of dissensus, are the key factors that will impact whether the Rights of Indigenous Peoples lead to transformation or to the reinforcement of the status quo.     

Official apologies,reconciliation, and settler colonialism: Australian indigenous alterity and political agency

The burgeoning literature on transitional justice, truth commissions, reconciliation and official apologies tends to ignore the conditions of settler states in which ‘reconciliation’ needs to take account of indigenous minorities. The settler colonialism literature is worth including in the general discussion because it is exceptionally reflective about political theory (the constitutional recognition of indigenous rights) and ethnogenesis (the origin and viability of both settler and indigenous identities), challenging mainstream liberalism, in particular, to account for difference beyond platitudes about multiculturalism. This article highlights the postcolonial critiques of the Australian governments' apology to the indigenous peoples of the country. The authors of these critiques seek to protect indigenous alterity from the Australian state, which they regard as irredeemably colonialist, especially in its liberal and progressive mode. The article suggests that Indigenous political agency transcends the resistance/co-option dichotomy presented in much of the apology's commentary.     

Citizenship,justice and indigenous group‐specific rights—citizenship and indigenous Australia

Indigenous Australians and those supporting the cause of Aboriginal justice have used the language of citizenship rights to demand redress for indigenous peoples’ relative disadvantage. In doing so they make an appeal to rights of full participatory citizenship which have their roots in T.H. Marshall's writings. Liberal political theory, however, has resisted conceptions of citizenship which entail rights of assistance from the state: rights to welfare are more readily conceived of as charitable acts towards those members of a society unable to care for themselves. Unless the assumptions implicit in liberal conceptions of citizenship are challenged, demands for positive citizenship rights may re‐enforce stereotypes of Aboriginal inferiority. Drawing on Will Kymlicka's recent work, this article critically examines liberal conceptions of citizenship, welfare and demands for indigenous group‐specific rights as they may apply to Aboriginal and Torres Strait Islander citizenship.     

Korea's technological development

Abstract

Indigenous peoples’ rights, including the right to self-determination, are increasingly codified in international law and policy and disseminated globally by international organizations. These norms mark a profound change in the ideals of citizenship promoted by the international community, away from linguistically and institutionally homogenous citizenship in centralized states to group-differentiated citizenship in decentralized, multi-level and multi-lingual states that use local and regional autonomy for the accommodation of indigenous peoples. Essential to realizing these norms is the devolution of some degree of autonomy to sub-central state units substantially controlled by indigenous communities. Because the transfer of powers to indigenous peoples is crucial to their accommodation, protection and participation in modern states, and because decentralization programs are an important component of reform agendas in most developing countries, it is important to understand how these emerging norms are integrated into real-world decentralization processes.

This article analyzes the application of the World Bank's safeguards policy for indigenous peoples within the institution's support to decentralization reform in Cambodia. The analysis demonstrates that under certain circumstances, the policy not only fails to translate into effective protection but leads to outcomes diametrically opposed to its objectives. In its current design, Bank support to decentralization contributes to the marginalization of indigenous peoples in Cambodia and undermines the institutional, cultural and natural resources upon which their empowerment and participation depends. In environments in which full compliance might be unrealistic to accomplish by individual projects, safeguard obligations lead to a strategy on the part of Bank projects of avoiding geographical and policy areas that are likely to trigger the safeguards policy, in order to reduce projects’ vulnerability to non-compliance claims. The article discusses how more effective application of the safeguards policy might be achieved and how strategies for the empowerment of indigenous peoples can more effectively draw on decentralization frameworks.     

A comparative view of indigenous citizenship issues

Following the Wik decision it is being suggested that Australia ought now to revisit the translation of special legal norms formulated in international law with respect to the human rights of indigenous citizens. These have previously underpinned developments in both Australia and Scandinavia with respect to indigenous people. Recent Australian developments, particularly the struggle over indigenous property rights, exemplify the argument of O'Neill (1997) in the first volume of Citizenship Studies, which points to the absorption of civic autonomy by market sovereignty. O'Neill is correct to suggest that the dominance of market sovereignty reduces the political participation of those incapable of the competitive struggle for private affluence and that this has a squalid dimension. Central to this is the denial of the notion of community and dominance of the market. This dominance has obscured the significance of the Australian High Court's recognition of aboriginal land rights in Mabo. The decision put the incorrect application of terra nullius—or no man's land—to Australia to rights. It made it possible for the nation to contemplate indigenous sovereignty consequent upon the recognition of native title property rights. Australia's translation of those rights with the Native Title Act 1993 (Cth) looked to international law for its rationale. The rights of the Sami people have been developed in Scandinavia largely with reference to the evolution of international law on indigenous peoples. As we approach 2000, Australia cannot continue to ignore the special legal norms in international law relating to citizenship of indigenous peoples. International law informs attempts by indigenous people in modern times to regain some of what they lost in the past.     

Towards cultural citizenship? Cultural rights and cultural policy in Taiwan

This article reviews existing literature on the construction of cultural citizenship, and argues that cultural citizenship expands the concept of ‘citizenship’, promotes citizens' consciousness and ensures the protection of minority rights. Since the 1990s, three cultural policies have arisen related to cultural citizenship in Taiwan: ‘Community Renaissance’, ‘Multicultural Policy’ and the ‘Announcement of Cultural Citizenship’. ‘Cultural citizenship’ has expanded the concept of citizenship in two ways. First, it has led to the consideration of the minority rights of Taiwanese indigenous peoples, the Hakkas, foreign brides and migrant workers in ‘citizenship’; and second, it has placed emphasis on ‘cultural rights’ in addition to civil rights, political rights and social rights. This article begins by exploring what approach to cultural citizenship is used in cultural policy, and what approach is suitable for practising cultural citizenship in Taiwan. I argue that minority groups practise their cultural rights with the public participation of Community Renaissance. Taiwan's case bears out Stevenson's view: a society of actively engaged citizens requires both the protection offered by rights and opportunities to participate. Finally, this article shows the challenges and contradictions of cultural citizenship in Taiwan: the loss of autonomy and the continuation of cultural inequality.     

Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective

Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations. In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon. To explain why this is happening, the article introduces two ideas: first, the emergence of the judiciary as an organ of governance and its attendant problems, and second, the internally biased nature of the rights discourse which tends to reproduce binary arguments for either increasing State capacity or for increasing choice of goods in the marketplace. The article concludes by exploring lessons from the jurisprudence of other countries and international law and urges the Indian Supreme Court to reinvent a jurisprudence informed more by the social movements of the poor. A shorter version of this article is forthcoming as “Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective” in C. Rajkumar and K. Chockalingam (eds.) Human Rights, Criminal Justice, and Constitutional Empowerment: Essays in Honor of Justice V.R. Krishna Iyer (Oxford University Press, India edition, 2006).

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A challenge for environmental governance: institutional change in a traditional common-property forest system

This article examines how the Miskito peoples of Río Plátano, Honduras have responded to agricultural expansion by migrant farmers and ranchers onto their ancestral forest lands, and considers the policy options for supporting the common-property system of the Miskito and the forests they have historically conserved. The analysis compares institutional changes in the common-property systems of three Miskito communities, each with a different history of colonization. The findings illustrate that the Miskito response to the colonists has been multifaceted, and that while the Miskito leaders have made institutional changes to strengthen their common-property system, these changes are not necessarily reflected in the daily decisions of the Miskito people. The findings suggest that policies that support indigenous rulemaking abilities, specifically policies that legitimize indigenous rights to their lands and provide the resources to apply those rights, may be vital to maintain robust common-property systems and the frontier forests in the region.     

Competing masculinities: Probing political disputes as acts of violence against women from Southern Sudan and Darfur

This article identifies the major forces militating against the promotion of women's rights in the Sudan. These factors are intimately linked to the country's multiple political disputes including Darfur and southern Sudan. The effects of political violence is elaborated through a detailed examination of women’s political, economic and cultural rights. The article concludes by identifying the promotion of good governance and democratization as fundamental pre-requisites for advancing human rights and sustainable peace in the war-torn nation. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each state, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. The University Declaration of Human Rights (Article 22)     

New Governance, the Internet, and Country Code Top-Level Domains in Europe

Much academic work on governance in recent years has explored responses that states have made to sectors of the economy, usually historically well rooted nationally, that have been subject to globalizing pressures. Less work exists on responses that are being made to new parts of the economy emerging outside the nation state with inherently global characteristics. The Internet—and specifically its naming and addressing system—provides an example of how the state has aimed to assert public interest governance authority in a system initially absent of its influence. This article explores the nature and consequences of this activity in the process contributing to the study of the Internet and governance. Working within the limitations but also the opportunities created by policy norms developed at the global level, the article finds that the state has been instrumental in the development of novel public–private governance systems for Internet country code Top-Level Domains.     

The Rehnquist Court and Indigenous Rights: The Expedited Diminution of Native Powers of Governance

The U.S. Supreme Court has long played a prominent role in defining,critiquing, and, in some cases, rearranging the political relationshipbetween indigenous peoples and the states and the federal government,and in enlarging or reducing the inherent sovereign status ofnative peoples. This article assesses the most recent SupremeCourt opinions that are systematically, and without referenceto judicial precedent, redefining the political status of tribalnations by reducing their heretofore acknowledged sovereignauthority from an internal perspective and especially from anintergovernmental standpoint. Although the U.S. Congress stilladheres to a policy of tribal self-determination, the Courtis dramatically and permanently minimizing the rights of tribesto practice political, economic, and cultural self-determinationbecause in the opinion of a majority of the justices, thereare only two sovereigns in the United States: states and thefederal government.     

The Active Child Citizen: Lessons from Canadian Policy and the Children's Movement

The United Nations Convention on the Rights of the Child has advanced a model of active citizenry for children, which is difficult to reconcile with the still dominant Western notions of childhood that fetishize innocence and attribute passivity and incompetence to children. This article explores the manner in which state policy, Canadian courts, and children's politics in Canada have responded to the imaginary of the active child citizen. The Canadian government has provided limited political space to young people and has narrowly construed children's participation rights as limited to family law and juvenile justice. The reluctance of adult decision-makers to open up policy-making to the contributions of children has been further hindered by the current anti-democratic cast of neo-liberal governance. This article examines how quasi-judicial tribunals and the Canadian courts have invoked the Convention in their dealings with child asylum seekers, only to construct childhood participation and childhood protection as mutually exclusive. The article concludes with a brief exploration of the alternative model of children's citizenship revealed by the children's movement organization, Free the Children. In contrast to the relative failure of adult decision-makers to implement the participation rights of children, the contemporary children's movement advances a view of children as empowered, knowledgeable, compassionate and global citizens, who are nonetheless, like other marginalized groups, in need of special, group-differentiated protections.