Self-determination and indigenous peoples

[Louis Proyect <lnp3@xxxxxxxxxxxxx>]

When the issue of self-detemination for indigenous peoples was debated at the
United Nations, we got the usual state objections that indigenous peoples
(with the "s") do not or should not have the right to self-determination
because:  it would somehow encourage rebellion or secession movements;  it
would jeopardize territorial integrity, it would upset various confederation
arrangements, etc.  Now that we are home again and need to get down to the
serious business of trying to persuade our own governments on the issue, how
do we get ready?

We are fortunate to have an excellent treatise on the subject, Maivan Clech
Lam, At the Edge of the State: Indigenous Peoples and Self-Determination
(Transnational Publshers, Inc., Ardsley, NY:  2000) (in the series,
"Innovation in International Law," Richard Falk, General Editor).  Professor
Lam, of the City University of New York School of Law, addresses all the
issues in her usual detailed way under six headings.  First, she describes
the situation of indigenous peoples today, distingishing among Indigenous,
Tribal and Minority peoples, stating the condition of indigenous peoples in
colonial and contemporary times, outlining the concerns about ethnocide and
genocide, and discussing the modern alliances of indigenous peoples.  In
section two, Professor Lam reviews the presence and activities of indidgenous
delegations to the United Nations to show the reader what has happened to
date.  This gives us both a history and a context to understand the nature of
the debate and where it is going.

Section three is important, because we ignore the solid historical
foundations for the right.  In this section, the book relates the historical
context of  the right from the 1648 Peace of Westphalia through the modern
decolonization movement.  We must remember that our discussions are within
the context of the relationship of "the state" to indigenous peoples, and the
concept of "state" began with the Peace of Westphalia.  I hark back to the
earlier Spanish foundations in my writing, and we should be aware that there
are many who question the concept of the state, and the new restorative
justice movement has implications to the effect that if people form their own
arrangements, the state could be irrelevant.

Professor Lam outlines the other precedents for the developing norm of
self-determination in section four.  It shows that the norm of
self-determination has evolved from the acceptance of the fact that European
minorities have the right and that given decolonization and modern human
rights coventions, indigenous peoples also have that right.

The book gives a good critique of the "state-centered approach to
self-determination" in section five.  What is the big problem with that?
They are contemporary opportunism (which we saw again in Geneva this year)
versus principle (something the U.S. indigenous groups called upon the State
Department to exercise), the blunt fact that we are dealing with state
totalitarianism (even in the "democratic" states), and that the debates in
Geneva are pure power politics.  Everyone can see that the world is moving to
a new internationalism, and that the more progressive states of Europe are
showing us the way.

The book ends with concrete proposals about self-determination and a final
justification for it based in necessity and social theory.

This is not a dry text on obscure legal theory based in history and social
theory.  It is written in a lively manner, and it handles all the issues
well.

One of the interesting comments I heard from State Department repesentatives
in Geneva was that in customary international law, we look to the writings of
"jurists" as a source of customary principles.  Someone asked, "But what if
we don't like a given jurist?"  Mainvan Clech Lam is indeed a jurist in the
international law sense, because her analysis is detailed and fully supported
by authority, and she is a jurist in the finest sense in the international
human rights movement because her work advances the best arguments in favor
of positive new arrangements for the exercise of self-determination by all
peoples who are in conflict with their states.  The work speaks for itself,
and I intend to study it further as we take on our governments in new
discussions of indigenous rights.  The problem at this point is that the
legalistic discussions have not been very detailed or serious.  We are at a
stage in dealing with the Declaration that we are down to the fine points of
international law, and we need to do our homework.  It's wonderful when you
can identify a major work that is precisely on the subject.  It is also a
pleasure to read more of Professor Lam's solid work, which I had the pleasure
to first encounter when we met during the Ottawa Congress of the Commission
on Folk Law and Legal Pluralism in 1989.  Her work is also available on the
web, and I recommend putting her name in quotation marks using the "google"
search engine.

James W. Zion, B.A., J.D.
Navajo Working Group for Human Rights
Albuquerque, NM

Louis Proyect
Marxism mailing list: http://www.marxmail.org/