From Westphalian Order to UNDRIP: Indigenous Peoples’ Journey to Recognition

Mohammad Umar* | Aug. 30, 2020

Background

Indigenous communities have a long history of struggle, especially, as one of the worst victims of the grim chain of events that colonization unleashed.

The classical Westphalian world order was almost orthodox and uncompromising in considering nation-states as its sole focal point. ‘Indian’  as the terminology, was used to identify the aboriginals or indigenous peoples by the European settlers in the annexed territories. A reflection of how they were perceived could be found in Francisco de Vitoria’s account wherein he refers Indians as ‘unfit to found or administer a lawful State’.  Vitoria, the Spanish theologian and jurist,  was a complex figure of his time. He argued- ‘at the time of the Spaniard’s first voyages to America they took with them no rights to occupy the lands of indigenous population’.  He even conceded the presence and ability of universal reasoning in Indians, but in a strange twist, he also tagged them as backward, barbaric, uncivilised and therefore subject to sanctions because they failed to comply with universal standards. In Vitoria’s scheme, Indians who inevitably and invariably violated jus gentium were denied the status of an all-powerful sovereign that could administer the law.  After an excellent analysis of Vitoria’s work, Professor Antony Anghie comes to the following conclusion–

clearly, then, Vitoria’s work suggests that the conventional view that sovereignty doctrine was developed in the West and then transferred to the non-European world is, in important respects, misleading. Sovereignty doctrine acquired its character through the colonial encounter. This is the darker history of sovereignty…

Pre-United Nations (UN) Era

By the late 19th Century, indigenous communities in the mainstream global psyche were still ‘backward’. The newly emerged nation-states took upon themselves to meet at the Berlin Africa Conference (1884-1885) and discuss the issue of African aboriginals. The idea was to ‘integrate’ the aboriginal population into the ‘civilised world’.

In order to realize this disguised benevolence, the ‘trusteeship doctrine’  was introduced to establish the legal relationship between nations and indigenous populations.  It was formalized through the Covenant of the League of Nations, 1919.  Even though the text (particularly Article 22) of the Covenant did not mention indigenous people (using only ‘peoples’), the structure of its language had a direct impact on their future. As per the Covenant, parties ‘which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’ should be governed by the principle that ‘the well-being and development of such peoples form a sacred trust of civilisation’. Further, the Covenant proposed:

the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.

Post UN Efforts and the UNDRIP, 2007

The International Labour Organization (ILO) became the first inter-governmental organization to give special attention to the concerns of indigenous people in 1957 with the adoption of the Convention (No.107) Concerning the Protection and Integration of Indigenous and Tribal and Semi-Tribal Populations in Independent Countries. For the first time, indigenous people were defined and were not generalized or dismissed as just ‘populations’. The Convention sought to address the crisis of forced and underpaid labour in former Spanish and Portuguese colonies in Latin America. Hence, while referring to the indigenous communities belonging to these places, the preamble declared:

it (is) desirable both for humanitarian reasons and in the interest of the countries concerned to promote continued action to improve the living and working conditions of these populations by simultaneous action in respect of all the factors which have hitherto prevented them from sharing fully in the progress of the national community of which they form part.

But this convention was rejected by the indigenous communities for the simple reason that it adopted the same ‘integration’ based approach, which was used in the Covenant. It compromised their cultural identity and distinctiveness.  Apart from the rejection by indigenous people themselves, Convention 107 could not garner the popular support and could manage the support of just 17 states.

With nation-state system as the global political framework, indigenous communities now demanded what scholars call ‘internal self-determination’.  The ILO again took up the matter and in 1989 adopted the Convention (No.169) Concerning Indigenous and Tribal Peoples in Independent Countries.  This was more acceptable to the indigenous populations in the sense that it diluted the paternalism of states and gave the right of self-identification as indigenous people to the people themselves.  Significantly, it also recognized their cultural distinctiveness and autonomy.

It was of course, too radical to swallow for the powers of the day. Therefore, despite espousing progressive ideas, Convention 169 could muster the ratification of 22 states only.

UNDRIP

The two ILO Conventions were not very successful in terms of the number of adherents, but they did the critical job of formally flagging major issues affecting the indigenous communities. It was soon realized that a more concrete step is required. The UN Economic and Social Council proposed that permanent sovereignty over natural resources is not the sole prerogative of the ‘States’, the indigenous people have a claim too.  Reminiscent of the third world struggle against the political domination of the West in the 1970s, this was exciting. Land rights and rights like self-determination and cultural identities took the center stage in negotiations and after jotting the initial draft in 1994 the UN finally passed the historical– Declaration on the Rights of Indigenous Peoples in 2007.  Some of the key inclusions in the declaration were/are-

1. No strict definition of indigenous people.
2. Right of self-determination.
3. Maintaining their identity.
4. Right to land, resources and territories which they have traditionally owned.
5. Participation in the decision-making process.
6. Restitution and fair compensation of the lands taken.
7. Fair, independent, impartial and open adjudication.
8. No militarization of the areas belonging to indigenous people.

UNDRIP was adopted in the General Assembly with the approval of 143 member states. Although a soft law instrument; its content was pivotal in the determination of the political agency of the indigenous peoples. The idea of agency, however, should not be narrowed to understand self-preservation in a notional sense. Unless there is a substantive, real-time change in the treatment meted out to tribal or the indigenous communities, most promises under UNDRIP would remain hollow.

References :

1. Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal 101 (CUP, 1995).
2. Antony Anghie, Imperialism, Sovereignty and the Making of International Law 29 (CUP, 2005).
3. Covenant of the League of Nations (28 April 1919).
4. Erica-Irene A. Daes, Indigenous Peoples’ Permanent Sovereignty Over Natural Resources, E/CN.4/Sub.2/2004/30.
5. ILO Convention No. 169, 1650 U.N.T.S. 383, 27 June 1989.
6. ILO Convention No.107, 8 U.N.T.S 247, 26 June 1957.
7. J. R. Martínez Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1983/21/Add.8, 30 September 1983, paras 379, 380.
8. Maria Victoria Cabrera Ormaza, Rethinking the Role of Indigenous Peoples in International Law: New Developments in International Environmental Law and Development Cooperation, 4:1 GoJIL 265-268 (2012).
9. UNDRIP, GA Res. 61/295, 13 September 2007.

*About the Author

This is an edited excerpt from the paper presented at the Annual International Studies Convention (2014), held at Jawaharlal Nehru University on the theme Power, Resistance and Justice in the International System: Perspectives from the South. Umar is an Assistant Professor of Law at Bennett University, India and the Founder Advisor of Weera Centre.

✉ mdumar2417@gmail.com

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