1.1.1 Self-Determination as Dynamic

First, the law of self-determination is dynamic. This is evident in its transformations throughout the last hundred years and across several dimensions. The most basic evolution has been its shift in status from a political principle into one of law. While from the eighteenth century onwards, self-determination was promulgated as a political principle with a variety of meanings,Footnote ⁴ it was not considered a principle of international law during the post-World War I settlements,Footnote ⁵ and its transformation into a principle of law occurred only with the adoption of the UN Charter.Footnote ⁶ Moreover, this legal principle was not initially accompanied by rights or obligations: it was an aspirational goal rather than an operative principle.Footnote ⁷ The Charter primarily envisaged self-determination as contributing to one aim of the UN and did not impose related obligations on member states.Footnote ⁸

Self-determination came to be associated with a legal right – the right of peoples subjected to colonial rule to freely determine their international status – in the political and historical context of decolonization:Footnote ⁹ The 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (the Colonial Declaration)Footnote ¹⁰ framed self-determination in universalist language, as a right of ‘all peoples’, while specifying that the populations of trust and non-self-governing territories ‘or all other territories which have not yet attained independence’ were entitled to ‘complete independence’.Footnote ¹¹ The UN General Assembly soon afterwards clarified, in Resolution 1541, the nature of the basic colonial unit and the non-self-governing territory entitled to independence, as well as the means by which they could attain self-government.Footnote ¹²

A further shift has occurred from a legal right to a human right, marked by Common Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic and Social Rights.Footnote ¹³ Some even situate self-determination as a necessary precondition for, and means to, the realization of all other human rights.Footnote ¹⁴ Moreover, Common Article 1 provided for new dimensions of self-determination: the right to control natural wealth and resources;Footnote ¹⁵ non-interference between states in general;Footnote ¹⁶ and the right of a people of a state to freely choose their rulers.Footnote ¹⁷ Indeed, this latter development heralded the expansion to what many have called the internal dimension of self-determination, the migration of the right ‘from the international to the domestic realm’.Footnote ¹⁸ Internal self-determination is the right of peoples to enjoy the freedom of authentic self-government, which may entail autonomy vis-à-vis other entities in the state.Footnote ¹⁹ The internal dimension encompasses a right to equitable representation in legislative, executive, and judicial institutionsFootnote ²⁰ and is also said to enable peoples to freely choose their political and economic regimes and enjoy related rights, such as the right to vote, the right of peaceful assembly, and the freedom of expression.Footnote ²¹ While the expansion from external to internal did not necessarily exclude the continued application of external aspects of self-determination, it evidences the flexibility and dynamism of the principle and its ability to adapt to respond to new situations as they occur.

Another broad shift in the law of self-determination has been the gradual expansion in the identity of the holders of the right: from the aggregate populations of states, to the peoples of colonized territories, to peoples under occupation and other forms of alien domination, to Indigenous peoples. The reference to the self-determination of “peoples” in the UN Charter was apparently not intended to be understood as conferring rights to minorities or peoples in any ethno-cultural meaning of the term, nor to colonized peoples: “peoples” were to be regarded as the entire populations of states rather than sub-segments of states, and as such, the principle pertained only to relationships between states.Footnote ²² In the decolonization period, as outlined above, territorial considerations proved paramount in limiting who could hold the right.Footnote ²³ Self-determination attached to the entire populations of colonial territories, rather than peoples within a colonized territory, even though the externally imposed colonial boundaries tended to group together several cultural and ethnic groups.Footnote ²⁴ Although states did not widely contemplate that peoples would continue to have a right to self-determination after the completion of decolonization, with references in the 1960 Colonial Declaration and the 1970 Friendly Relations Declaration to ‘peoples under alien subjugation, domination and exploitation’,Footnote ²⁵ it became arguable that self-determination extended beyond the overseas colonialism of Western states to, for instance, peoples under racist regimes, occupied peoples, and the people of Palestine.Footnote ²⁶

With the adoption of the UNDRIP,Footnote ²⁷ it became clear that Indigenous peoples were also “peoples” entitled to self-determination.Footnote ²⁸ The 2007 Declaration, as the first widespread recognition by states that self-determination was not confined to colonial peoples, was a significant development in the evolution of the law of self-determination. Although Indigenous peoples are inherently strongly connected to land and place, not all have a fixed or exclusive territory: they may be geographically dispersed in the manner of a minority group throughout a more diverse population.Footnote ²⁹ Previously, peoples had been exclusively understood as aggregate populations of states or territories; the decolonization regime had bypassed Indigenous peoples, who merely ‘became the subjects of new forms of colonization’.Footnote ³⁰ That peoples can now ‘in addition be defined in terms of common ethnicity and culture is at least arguably a new feature in international law’.Footnote ³¹

Thus, while the core meaning of self-determination has become solidified and entrenched – that all peoples should be able to control their own destinies under conditions of equalityFootnote ³² – the fluid nature of self-determination means that the principle has supported various specific legal rules over the course of its history. Nothing in this history suggests that the law of self-determination cannot continue evolving, as political circumstances develop, well into the future.

1.1.2 Self-Determination as Multifaceted

The second aspect of the law that I wish to highlight thus flows from the first. Self-determination is multifaceted: it has multiple expressions with different meanings in different situations.Footnote ³³ It is not synonymous with colonial independence, or with secession, or with what is known as “internal self-determination.” So much is clear from the above account of its development. Helpful in this regard is Antonio Cassese’s conceptualization of self-determination as consisting, firstly, of a general principle, which Cassese formulates as ‘the need to pay regard to the freely expressed will of peoples’ when their fates are at issue.Footnote ³⁴ This principle, according to Cassese, ‘sets out a general and fundamental standard of behaviour’ that ‘governments must not decide the life and future of peoples at their discretion’; rather, peoples ‘must be enabled freely to express their wishes in matters concerning their condition’.Footnote ³⁵ Like any principle, self-determination is ‘general, loose and multifaceted’, lending itself to ‘various and even contradictory applications’, and with ‘great normative potential and dynamic force’.Footnote ³⁶ From the broad principle, then, one can deduce specific customary rules where ‘a broader measure of agreement has emerged among States as to … proper conduct’.Footnote ³⁷ The principle indicates the method of exercising self-determination, can act as a standard of interpretation where a customary rule is unclear or ambiguous, and can be useful in cases not covered by specific rules.Footnote ³⁸ The specific manifestations of self-determination already mentioned here, such as the right of peoples to exercise control over natural resources or the external self-determination of colonized peoples, can be thought of as specific rules under the heading of this broader principle.

1.1.3 Self-Determination as Relational

So much, so clear. But if self-determination has multiple aspects that develop over time, what principles unite its disparate elements and explain its evolution? Going some way to answer this question is self-determination’s relational nature. Self-determination fundamentally concerns the relationships between a people and others – states, empires, governments, and other peoples.Footnote ³⁹ As evident from its development, it is a specific kind of relationship – one of dominance, subjugation, or exploitation of a people by a state or other entity – that both give rise to exercises of self-determination and constitute such exercises. All peoples that exercise their right to self-determination do so in relation to another unit, typically a state, and that unit holds reciprocal obligations towards that people throughout the exercise. This is evident on the face of the language of the relevant instruments. For instance, the Colonial Declaration’s condemnation of ‘[t]he subjection of peoples to alien subjugation, domination and exploitation’Footnote ⁴⁰ immediately raises the question: subjugation by who? Domination by who? To speak of ‘dependent peoples’ fundamentally assumes a relationship between the people subjected to subjugation, domination and exploitation, and the entity that is doing the subjecting – in this case, colonizing states. The Declaration goes on to impose duties: it states that ‘armed action or repressive measures of all kinds directed against dependent peoples shall cease’,Footnote ⁴¹ again presupposing the existence of a certain relationship between a dependent people and the entity applying such measures. It prescribes the future nature of the relationship: ‘[i]mmediate steps shall be taken’ by the colonial states ‘to transfer all powers’ to the dependent peoples ‘in accordance with their freely expressed will and desire’.Footnote ⁴² Thus, in the Colonial Declaration, it is the colonial relationship of “alien subjugation, domination, and exploitation” between the colonial state and the colonized people that both give rise to an entitlement to self-determination and define the consequent obligations of the colonial state. The same lens can be applied to other relevant international instruments, as well as judicial decisions.Footnote ⁴³

1.1.4 Self-Determination as Remedial

The final aspect that helps to explain the law’s logic is the remedial nature of the specific legal rules that have developed under the umbrella of self-determination: specific legal rules have emerged in a remedial manner so as to provide redress for ongoing situations of domination, subjugation, or exploitation. Self-determination is a continuous process whereby the law forms new remedies when so required. This can be illustrated by reference to the development of the rules on decolonization. The colonization process and the international law that accompanied and justified it denied countless non-European peoples recognition and the ability to determine their own futures.Footnote ⁴⁴ The Colonial Declaration itself, adopted in large part due to the work of the then blooming decolonization movement,Footnote ⁴⁵ recognized this and explicitly offered itself as a remedy. The preamble, recognizing ‘the passionate yearning for freedom in all dependent peoples’ and noting that ‘the continued existence of colonialism … impedes the social, cultural and economic development of dependent peoples’, proclaimed ‘the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations’.Footnote ⁴⁶ The Colonial Declaration thus ‘treats the right of self-determination as an instrument that addresses international law’s complicity with colonialism’.Footnote ⁴⁷ The right of colonial peoples to determine their own territorial status did not emerge on its own; rather, it was the response of the expanding international community to the colonial relationship between colonial powers and colonized peoples that undermined self-determination. It would not make any sense isolated from that historical and political context. Therefore, we can say that while the principle of self-determination was the entry point and legal catalyst, although the right of colonized peoples and nations to independence was regarded at the time as synonymous with the right of self-determinationFootnote ⁴⁸ decolonization procedures ‘did not of themselves embody the substance of the right … rather, they were measures to remedy a sui generis violation of the right that existed in the prior condition of colonialism’.Footnote ⁴⁹

Similarly, the international law on the rights of Indigenous peoples, including self-determination, can also be viewed as a remedy for a sui generis violation of self-determination. This stems from Indigenous peoples’ exclusion from the decolonization processes of the mid-twentieth century. The “salt water” doctrine in Resolution 1541 formally linked the right of colonized peoples to independence to Western overseas colonial dominions, which implied ‘the exclusion of Indigenous peoples clustered within independent States’ boundaries from the scope of application of the principle of self-determination’.Footnote ⁵⁰ In addition, the doctrine of uti possidetis preserved the former colonial boundaries, meaning that Indigenous peoples within a former colony that had gained independence experienced only a change in ruler.Footnote ⁵¹ Thereby Indigenous peoples were continually excluded from determining their own destiny. This continued omission ‘lies at the heart of Indigenous peoples’ expression of their demands in terms of self-determination’.Footnote ⁵² Viewed in this light, the UNDRIP, adopted following decades of global Indigenous peoples’ activism,Footnote ⁵³ is ‘essentially a remedial instrument’ based on the identification of a long-standing sui generis violation of self-determination.Footnote ⁵⁴ It was required to remedy the systemic inequality and injustice arising from international law’s failure to recognize Indigenous peoples’ sovereignty and self-determination over the course of centuries.Footnote ⁵⁵ The Declaration represents a step towards rectifying ‘the adverse consequences of how international law validate[d] morally suspect colonization projects that participated in the production of the existing distribution of sovereign power’.Footnote ⁵⁶ This is, essentially, a different angle on the “historical sovereignty” argument made by some Indigenous scholars.Footnote ⁵⁷

Under a relational, remedial account, then, ‘the law of self-determination is the law of remedies for serious deficiencies of freedom and equality’.Footnote ⁵⁸ Self-determination is a continuous, ongoing process – a ‘constant entitlement’Footnote ⁵⁹ – in which new remedies come to be required by law.Footnote ⁶⁰ Just as decolonization procedures were not the substance of the right, but rather measures to remedy what the international community had come to recognize as a violation of the rights of colonized peoples, the rules on the self-determination of Indigenous peoples reflected in the UNDRIP are also remedial measures for a sui generis situation of domination, subjugation, or exploitation.

1.2.1 The Exercise of Public Authority through Treaty-Making and International Organizations

It is trite to say that states collectively exercise broad powers through the making of treaties, pooling their sovereignty at the inter-state level in order to meet some shared objective, for instance, in the making of plurilateral or “megaregional” trade and investment agreements.Footnote ⁶³ This can be seen as groups of states exercising public authority in a shared or collective manner. The making of megaregional trade agreements, for instance, is an act that may affect individuals and communities within the states parties (as well as outside the states parties), and this effect may be seen to stem from the joint act of the states parties rather than only from the state in which an individual finds themselves.

In addition to bilateral or plurilateral settings, states make international law, make policy and set standards through intergovernmental organizations, and at times assign such functions to those organizations themselves. But states are not always, or necessarily, the only agents. The growth of international organizations – and the expansion of their powers ‘through informal processes of discourse, practice and (re)interpretation’ – is well documented.Footnote ⁶⁴ International organizations, enabled by the doctrine of implied powers,Footnote ⁶⁵ among other factors, have come to exercise extensive powers with far-reaching impacts on individuals, communities, and domestic societies,Footnote ⁶⁶ through their ability to make laws,Footnote ⁶⁷ set standards,Footnote ⁶⁸ make decisions and recommendations,Footnote ⁶⁹ and disseminate information.Footnote ⁷⁰ These activities can be viewed as the exercise of public authority.Footnote ⁷¹ To a certain extent, and in some cases, international organizations may be said to exercise these broad powers in their own right;Footnote ⁷² at the same time, in some circumstances, the exercise of public authority by an organization may be attributed to the collective member states of an organization.Footnote ⁷³ The limitations of what had been the default response of international law to the rise of organizations – a functional approach that tended to shield international organizations themselves from external legal scrutiny or accountability and has regarded organizations as mere agents of their collective principal member states – have been widely recognized.Footnote ⁷⁴ International organizations are now seen, at least under some approaches, as autonomous global actors in their own right: ‘not … neutral arenas for the solution of common problems but rather sites of power, even of dominance’.Footnote ⁷⁵ This book is, in part, situated in the vein of international legal scholarship that has thus turned to critiquing international organizations’ lack of accountability to those affected by their activities – those ‘disempowered disparate domestic electorates, who could not benefit from the traditional constitutional checks and balances found in many democracies intended to limit executive discretion’Footnote ⁷⁶ – and studying ways in which they can be held to account.Footnote ⁷⁷

1.2.2 A Relationship of Domination

Rather than further expound upon the ways in which the activities of international organizations and state collectives may affect vulnerable or marginalized groups in general, or the global public at large, I will here elaborate on the ways in which international organizations and collectives of states exert power over Indigenous peoples. I will suggest that this exhibits the qualities of a relationship of the kind self-determination is concerned with: that is, one of alien domination, subjugation, or exploitation. While different from the formally colonial relationship between a people and a state, this relationship is such as to justify the application of the law of self-determination.

Before moving to specific examples, it is helpful to understand the relationship between international organizations and collectives of states on the one hand, and Indigenous peoples on the other, as structural, arising from the public or regulatory authority situated in international organizations. In the language of self-determination, an international organization, or a group of states acting collectively, can “dominate” an Indigenous people, interfering with its ability to determine its own destiny. Under the definition of domination developed by Philip Pettit and Iris Marion Young, an agent dominates another ‘when the agent has power over that other and is thus able to interfere with the other arbitrarily’; interference is when ‘one agent blocks or redirects the action of another in a way that worsens that agent’s choice situation by changing the range of options’, and it is “arbitrary” ‘when it is chosen or rejected without consideration of the interests or opinions of those affected.Footnote ⁷⁸ An entity may therefore dominate another without ever actually interfering with it; domination ‘consists in standing in a set of relations which makes an agent able to interfere arbitrarily with the actions of others’.Footnote ⁷⁹ International organizations and collectives of states acting together are manifestly able to interfere with other agents, including peoples; they wield public authority in a way that can directly or indirectly change the range of options available to peoples. It is this structural possibility of interference – which may be positive or negative – that constitutes domination.

The remainder of this section illustrates this point by reference to actual examples of domination and interference, in the sense meant by Pettit and Young, in the realm of state collectives and international organizations carrying out law-making, standard-setting, and policymaking activities that affect peoples. This is not the only field of activity that is relevant: decision-making, for instance, regarding development projects and finance, international territorial administration, and other activities of international organizations and state collectives are also pertinent. While not exhaustive, this section is intended to contain sufficient detail to demonstrate that international organizations, and states acting collectively, have exercised power through the making of standards and policies affecting peoples in myriad fields of activity.

International organizations and other intergovernmental bodies have on several occasions been fora for the setting of standards that have defined the rights and self-determination of Indigenous peoples in general. Examples of such instruments include the UNDRIP, which self-evidently goes to the heart of Indigenous peoples’ affairs and concerns, and its development by states and UN organs clearly demonstrates the power the latter exercise over Indigenous peoples.Footnote ⁸⁰ Similar instruments on Indigenous peoples’ rights developed in international fora include the American Declaration on the Rights of Indigenous Peoples, the International Labour Organization (ILO) Convention No. 169, and the Draft Nordic Sámi Convention.Footnote ⁸¹

Other international organizations have developed, or are in the process of developing, policies and standards on topics that by their nature affect or have the potential to affect Indigenous peoples’ self-determination. For instance, WIPO develops laws and policies relating to intellectual property,Footnote ⁸² including standard-setting activities affecting Indigenous peoples in respect of their traditional knowledge. Recognition that the WIPO framework is unable to provide protection to many forms of traditional knowledge, which are left vulnerable to misappropriation and “biopiracy,”Footnote ⁸³ led to the establishment in 2000 of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).Footnote ⁸⁴ Since then, the IGC has been undertaking textual negotiations on draft instruments related to traditional knowledge, traditional cultural expressions, and genetic resources.Footnote ⁸⁵ It has produced Draft Articles on the Protection of Traditional Knowledge, the Protection of Traditional Cultural Expressions, and a consolidated document relating to intellectual property and genetic resources.Footnote ⁸⁶ There is a great deal at stake for Indigenous peoples in these negotiations: ‘[f]or a people whose relationship of dependence with their ecosystem is first nature and a basis for their knowledge and socioeconomic and cultural life … intellectual property’s role in knowledge enclosure is a fundamental human rights issue bordering on life and survival’.Footnote ⁸⁷ The IGC process has the potential to address Indigenous peoples’ ‘claims for cultural recognition’ and ‘significantly accommodat[e] an alternative indigenous understanding of knowledge’.Footnote ⁸⁸ The conclusion of international agreements on genetic resources, traditional knowledge, and traditional cultural expressions ‘would be a landmark in international law and in IP law, and could potentially contribute to the prevention of their misappropriation’.Footnote ⁸⁹

The traditional knowledge and self-determination of Indigenous peoples are also implicated in activities under the Convention on Biological Diversity (CBD). The CBD itself recognizes ‘the close and traditional dependence of many indigenous and local communities embodying traditional lifestyles on biological resources’,Footnote ⁹⁰ and its Article 8(j) obliges states parties to respect, maintain, and preserve this knowledge. However, the establishment of protected areas (under Article 8) has sometimes served as an instrument, intentionally or not, for the exclusion of Indigenous peoples from their traditional lands and territories.Footnote ⁹¹ The Nagoya Protocol on Access and Benefit-Sharing, developed under the CBD’s auspices, has implications for the protection of Indigenous traditional knowledge, innovations, and practices associated with genetic resources.

Further examples of international organizations affecting Indigenous peoples include the FAO, which through its Committee on Food Security develops policy recommendations and guidance on food security and nutrition;Footnote ⁹² the UN Educational, Educational and Scientific Organization (UNESCO), which engages in standard-setting activity and in so doing ‘addresses key concerns of indigenous peoples such as endangered languages, mother tongue education, education for sustainable development, indigenous knowledge in scientific and environmental decision-making, and building knowledge societies’;Footnote ⁹³ the International Maritime Organization, through which states set standards on topics, including, of particular relevance to Indigenous peoples, rules on heavy fuel oil, the avoidance of marine mammals, greenhouse gases and black carbon, underwater noise, sewage and grey water discharge, and invasive species;Footnote ⁹⁴ and the International Seabed Association, which makes rules, regulations, and procedures relating to prospecting, exploration, and mining of mineral resources in the seabed, ocean floor, and subsoil thereof beyond the limits of national jurisdictionFootnote ⁹⁵ – rules that are likely to disproportionately affect Indigenous peoples living traditional lifestyles on coasts and islands.Footnote ⁹⁶

In addition to broad standard-setting affecting Indigenous peoples in general, international organizations may make policies that impinge on the self-determination of a specific people or peoples. One example of this are the decisions of the European Union (EU) to ratify agreements with Morocco on trade and fisheries and to implicitly accept their application to Western Sahara, which specifically affect the Sahrawi people.Footnote ⁹⁷ Another is the effect of EU legislation on Arctic Indigenous peoples’ communities.Footnote ⁹⁸ European Directive 83/129/EEC of 1982 prohibited the importation into the European Economic Community of skins and other products derived from seal pups.Footnote ⁹⁹ While the makers of the directive did not appear to expect any adverse effects on Indigenous peoples, and indeed the directive in its preamble recalled that traditionally practised hunting does not harm seal pups and is ‘a natural and legitimate occupation, conducted with due respect for the balance of nature, and part of indigenous peoples’ traditional way of life and economy’, the ban in fact triggered the collapse of the EU market for seal furs.Footnote ¹⁰⁰ In turn, this affected the Inuit economy, which depended on the cash income from the fur market. Although a later version of the directive made an exception for Inuit hunting, Canadian Inuit were still disproportionately affected, and in any case, the market had long since collapsed.Footnote ¹⁰¹ This example shows that the regulatory acts of international organizations may affect not only peoples within their member states but also peoples who are “distant strangers” or “global others” due to being located in a state or states that are not members of the organization.Footnote ¹⁰²

The other side of this coin is that – as Indigenous peoples have known as long as international organizations have existed – international organizations can be vehicles for emancipation. The same power and international public authority that means that international organizations’ activities can negatively impinge on the exercise of self-determination also means, at least in theory, that international organizations could be vehicles to hold states to account and that Indigenous peoples by becoming members of such organizations could shape and influence international governance.

1.3.1 Internal Self-Determination and Domestic Political Participation

It may be tempting to imagine that the self-determination of Indigenous peoples with respect to international organizations and groups of states can be realized simply via Indigenous peoples’ political participation on the domestic plane. One element of the internal aspect of self-determination is the right of a people to participate in the political affairs of the state in which it is located. Thus if a people is well represented in the relevant domestic government(s), such an argument would run, additional rights at the international level are not necessary. Rather, it is for the state to balance competing domestic interests. Indeed, to enable Indigenous peoples’ voice in both domestic and international fora – “two bites of the apple,”Footnote ¹⁰³ so to speak – could give them too much influence over international regulation.Footnote ¹⁰⁴

It is true that in some cases a state may be able to represent an Indigenous people at the international level so as to protect the latter’s right to self-determination – such as when the interests of the state and the people broadly overlap on a given issue and the Indigenous people have provided their free, prior, and informed consent, or where they hold a dominant, rather than marginal place in domestic society. In such situations, the Indigenous people would not require an additional voice on the global stage.

However, in most cases, participatory rights at the domestic level are not enough. Often the interests of a people do not align with those of the relevant state, meaning that the state’s position in an international forum will necessarily be at odds with the interests of the Indigenous people, even taking into account the people’s right to participate within the state.Footnote ¹⁰⁵ Of course, for any position a government takes on the international stage, there will invariably be some group of people who do not agree. It is in the nature of a diverse democracy that competing domestic interests must be balanced.Footnote ¹⁰⁶ But an Indigenous people, by virtue of its right to self-determination, is different from other domestic actors: it is not equivalent to a trade union, or an interest group, or a political party. Of course, it is not here suggested that such interest-based constituencies should not have a voice. The point is that the right to self-determination distinguishes Indigenous peoples from the (valid) reasons to participate possessed by other domestic constituencies.Footnote ¹⁰⁷ To deny them a right to participate at the international level would be to, by default, crush their interests under the weight of majoritarian concerns.

Second, in many states, it is the executive branch of government, rather than the legislature, which determines foreign policy and represents a state in international organizations. Although the legislature may have input on decisions of considerable domestic importance, forms of internal self-determination that provide for participation in the electoral process or for a level of autonomous self-government will not provide for the accountability to peoples of the state’s delegates who will take the political decisions in intergovernmental fora.Footnote ¹⁰⁸ Although this executive-led approach could conceivably have advantages, including that executives are in principle able to protect minority interests since they are not bound to make majoritarian decisions,Footnote ¹⁰⁹ in practice there are risks associated with the isolation of the conduct of international relations from accountability to minority groups.

Third, in practice, even in a democratic state, a people may not in fact be able to exercise its right to internal self-determination in the first place. And not all states are democratic. In these cases, internal political participation cannot assist a people to exercise voice in international organizations that affect them.

Fourth, some peoples exist across state boundaries. For instance, the Sámi extend across parts of Norway, Sweden, Finland, and Russia, and the territory of the Inuit encompasses part of Russia, the United States, Canada, and Denmark-Greenland.Footnote ¹¹⁰ In cases like these, it is unlikely that any one state can effectively represent the interests of the transnational Indigenous people at the international level. The Indigenous people may not be able to exercise its right to internal self-determination within all of the relevant states, and it is even less likely that the interests of the people and all of the relevant states will coincide.Footnote ¹¹¹

Relatedly, different Indigenous peoples located in different states often share common interests. In this situation, a domestic balancing of interests within each state will tend to mean that the shared interest is systematically obscured from view at the international level.

Sixth, international organizations themselves delegate authority to organs, such as executive boards or secretariats, in which not all member states are included, so that even if a state is a member of an international organization, it does not necessarily have a voice in all activities carried out within that organization. While such a delegation of powers can be practical,Footnote ¹¹² it means that these organs, which ‘act on behalf of the international entity, and are not to be equated with the (collectivity of) states’,Footnote ¹¹³ are less accountable to states and by extension those within them. Secretariats, generally speaking, are capable of exercising considerable bureaucratic power independently of their member states, for instance, by steering or manipulating the decision-making of states through the management and organization of information.Footnote ¹¹⁴ If a secretariat’s activities affect an Indigenous people, a state may not necessarily be able to effectively represent that people, even if their positions align. A secretariat should, in theory, be accountable to member states, but in practice this may not happen.Footnote ¹¹⁵

Similarly, boards can exercise executive functions, and even independent governing and legislative functions within an institution.Footnote ¹¹⁶ The activities of executive boards, such as those in charge of allocating financing, can impact on strangers to the organization.Footnote ¹¹⁷ In addition, while the boards of some organizations are constituted of the representatives of several member states, other boards, such as the European Commission and the Executive Council of the African Union, hold responsibility for specific policy areas;Footnote ¹¹⁸ still others, such as the Executive Board of UNESCO, sit as individual experts rather than state representatives.Footnote ¹¹⁹ For an Indigenous people affected by the activities of a board to have a voice only within its own state is manifestly inadequate.

For all these reasons, the so-called internal self-determination in the sense of the participation of Indigenous peoples in domestic public affairs is not an adequate remedy to the problem of the dominance of Indigenous peoples by international organizations.

1.3.1 Civil Society Participation in Intergovernmental Fora

Is civil society participation a potential remedy?Footnote ¹²⁰ Since the 1990s, civil society participation in international organizations has proliferated.Footnote ¹²¹ The UN Economic and Social Council (ECOSOC) has provided for consultative status since its inception,Footnote ¹²² and in the late twentieth century, the number of NGOs taking up that status vastly increased.Footnote ¹²³ NGOs have played influential roles in a number of international law-making processes.Footnote ¹²⁴ The importance of public participation in, inter alia, decision-making relating to the environment has been progressively recognized.Footnote ¹²⁵ A considerable bulk of literature advances both intrinsic and instrumental justifications for NGO participation in global governance: civil society participation is said to combat the democratic deficit, improve international organizations’ legitimacy,Footnote ¹²⁶ provide unique technical and practical expertise and information not otherwise available, increase the variety of political options, improve the quality of outcomes, and build domestic public support for such policies.Footnote ¹²⁷ Legally, it has been proposed that participation in international law-making is an individual human right, derived from Article 25 of the International Covenant on Civil and Political Rights – the right ‘to take part in the conduct of public affairs, directly or through freely chosen representatives’ – and that this right should in practice be exercised through NGO participation.Footnote ¹²⁸ One could argue that NGO participation, then, solves the problem outlined above: Indigenous peoples may engage through NGOs, within existing NGO participation mechanisms, to have their voices heard at the intergovernmental level.

I suggest otherwise. Although NGO participation founded on an individual human right to participate in international organizations and other intergovernmental fora is certainly valuable as well as legally justifiable for the reasons referred to above, it is not sufficient to remedy the problem of the domination of peoples by international organizations and groups of states, nor to enable peoples the full exercise of self-determination. Beyond the obvious point that NGOs, unlike peoples, do not have the right to self-determination, this is so for two reasons, one theoretical and one practical: systems of participation founded solely on individual human rights tend to result in the disregard of (marginalized) groups, and in practice, Indigenous peoples’ organizations and representative institutions are not necessarily compatible with international organization mechanisms for the accreditation of civil society, as Indigenous advocates have stressed. Let us expand on each of these in turn.

The first objection can be understood by reference to (liberal) political theory. In domestic societies, it has long been recognized that formally democratic arrangements tend to undermine the interests of non-dominant societal groups.Footnote ¹²⁹ Minority groups that have distinct interests from, but are numerically outweighed by, the rest of the population are persistently outvoted and hence under-represented. They are ‘in a very real sense political captives of the majority’, who may monopolize political power with barely more than half of the votes.Footnote ¹³⁰ Where structural inequalities exist, ‘formally democratic procedures are likely to reinforce them’.Footnote ¹³¹ While scholars initially conceived of this problem as relating to so-called classical ethnic, religious, and national minorities,Footnote ¹³² it is equally applicable to peoples such as Indigenous peoples. In many states, Indigenous peoples constitute a numerical minority or are otherwise a non-dominant societal group. In other words, individual civil and political rights do not suffice to protect the interests of Indigenous peoples, nor those of other marginalized groups. To correct for this problem, many states have instituted minority rights and Indigenous peoples’ rights in national and international law,Footnote ¹³³ including minority rights and Indigenous peoples’ rights to participation in domestic public affairs, as well as mechanisms such as weighted voting,Footnote ¹³⁴ political and associational institutions designed specifically to increase the representation of minorities or Indigenous peoples,Footnote ¹³⁵ seats in parliaments designated for members of minorities or peoples,Footnote ¹³⁶ and other types of ‘political consociationalism’.Footnote ¹³⁷ In this way, the universal, individual human right to take part in the conduct of public affairs,Footnote ¹³⁸ which on its own would tend to reinforce structural inequalities, is supplemented by group rights.

Returning to the international realm, an analogous argument can be made. An individual human right to participation in international organizations, on its own, tends to reproduce existing structural global inequalities. Such inequalities in access and participation are well documented. Individuals and groups who are already marginalized globally find themselves disregarded in the intergovernmental sphere.Footnote ¹³⁹ This is observable, for example, in relation to civil society observer participation in international organizations, where many more NGOs from the Global North participate than NGOs from the Global South.Footnote ¹⁴⁰ An individual right to participation in IOs, exercisable through NGO participation, must be supplemented by an equivalent right of peoples – just as individual political participation rights on the domestic plane need to be complemented by minority rights to political participation and the so-called internal aspects of self-determination of peoples.Footnote ¹⁴¹ The argument here is not that participation is unimportant or undesirable in itself. Rather it is that, in a system characterized by NGO participation and lacking recognition of the procedural rights of groups, the voices and interests of peoples who occupy marginalized positions in the global order, including Indigenous peoples, tend to get lost.

At a more practical level, there is a mismatch between the structure and organization of NGOs and that of Indigenous peoples, which limits the extent to which Indigenous peoples are able to fit within existing procedures for the accreditation of NGOs to participate in international organizations. Indigenous peoples’ organizations may have been constitutionally, legally, or politically recognized by the relevant state.Footnote ¹⁴² Many Indigenous peoples’ organizations exercise self-governance functions over peoples and territories; hence they are loath to identify themselves as “non-governmental” organizations in order to seek accreditation.Footnote ¹⁴³ Moreover, taking the criteria for consultative status with the ECOSOC as an example, NGOs are required to have an established headquarters with an executive officer and provide a copy of its constitution, charter, or statutes, as well as a certificate of registration, and a financial statement.Footnote ¹⁴⁴ An NGO must also have ‘recognized standing’.Footnote ¹⁴⁵ In addition, NGOs in consultative status with ECOSOC must be broadly representative of major segments of society in a large number of countries in different regions of the world.Footnote ¹⁴⁶ By contrast, many Indigenous peoples’ organizations are not recognized by the state in question. They may not have a headquarters, nor an “executive officer,” and may function on the basis of oral traditions rather than written documentation; moreover, they rarely represent a major segment of society.Footnote ¹⁴⁷ While there are limited exceptions,Footnote ¹⁴⁸ in general these accreditation requirements limit civil society participation from being a remedy to the relationship of domination.

Might NGOs that fit the accreditation requirements – regardless of whether or not they are Indigenous peoples’ representative institutionsFootnote ¹⁴⁹ – be able to effectively represent the voices of peoples regardless? Scholars have documented how “affected persons’ organizations” and NGOs may fruitfully form alliances, whereby an NGO provides its expertise and organizational, operational, and financial support to an affected persons’ organization that may be less experienced and resourced, while centering the concerns of the affected group.Footnote ¹⁵⁰ Hence one can imagine that in individual cases an Indigenous people might partner with an NGO to, for instance, send its representatives to international meetings using the NGO’s existing accreditation, funding, and advocacy support networks. However, this cannot be viewed as a general solution.