Indigenous Peoples' Right To Self-Determination AND Development Policy

INDIGENOUS PEOPLES’ RIGHT TO SELF–DETERMINATION
AND
DEVELOPMENT POLICY
FRANCESCA PANZIRONI
Thesis submitted to fulfil the requirements for the award of

Doctor of Philosophy
Faculty of Law
University of Sydney
2006
To my mum and daddy
for giving me life and freedom
Table of contents
Acknowledgments……………………………………………………………………………….i
Synopsis ……………………………………………………………………………………….ii
List of figures……………………………………………………………………...…………..iv
List of abbreviations…………………………………………………………………………...v
Introduction…………………………………………………………………………………...1
Part 1
Indigenous peoples’ quest for self–determination
Chapter 1: Indigenous peoples in international law: a historical overview……………..11
1.1 The natural law framework……………………………………………………………….15

1.2 The emergence of the state–centred system and the ‘law of nations’…………………….23
1.3 The positivistic construct of international law……………………………………………29
1.4 The early 20th century: from positivism to pragmatism…………………………………..35
1.5 The United Nations system and indigenous peoples……………………………………..44
Chapter 2: Indigenous peoples’ right to self–determination...…………………………...48
2.1 Indigenous rights and the international human rights system…………………………….48

2.1.1 International Labour Organization’s Conventions on indigenous peoples…………50
2.1.2 The United Nations Declaration on the Rights of Indigenous Peoples……………..53
2.1.3 The Draft American Declaration on the Rights of Indigenous Peoples…………….65
2.2 The principle of self–determination...…………………………………………………….72
2.3 Indigenous peoples’ right to self–determination………………………………………….82
Chapter 3: Indigenous peoples’ claims to self–determination and the
international human rights implementation system……………………...…103
3.1 The United Nations system…………………………………………………………...…104

3.1.1 The United Nations treaty–based human rights system and indigenous
claims to self–determination...…………………………………………………….104
(i) The Human Rights Committee…………………………………………....106
(ii) The Committee on the Elimination of Racial Discrimination………….. ..116
(iii) The Committee on Economic, Social and Cultural Rights………………..123
3.1.2 The United Nations Charter–based human rights implementation system...……..132
3.2 Regional human rights implementation systems and indigenous peoples’ claims
to self–determination…………………………………………………………………….139
3.3 Conclusion………………………………………………………………………………149
Part 2
The capability approach and indigenous peoples’ right to self–determination
Chapter 4: The capability approach……………………………………………………...160
4.1 General overview………………………………………………………………………..160

4.2 Basic concepts…………………………………………………………………………...166
4.2.1 Freedom…..……………………………………………………………………..166
4.2.2 Functionings and Capabilities…………………………………………………...171
4.2.3 Information pluralism: well–being freedom, agency freedom,
well–being achievement, and agency achievement……...……………………...175
4.3 Current debate: strengths, limits and criticisms…………………………………………179
Chapter 5: The normative level. The indigenous capability rights–based
normative system……………………………………………………………...185
5.1 The ‘goal rights system’ and the ‘indigenous goal rights system’……….……………...186
5.2 Indigenous rights within the ‘indigenous goal rights system’:
the significance of freedom in the integrated process of self–determination……….…...190
5.3 Indigenous rights as ‘capability rights’: from the ‘indigenous goal rights system’
to the ‘indigenous capability rights system’………………………………………..…...196
5.4 The role of institutions and the enjoyment of the right to self–determination…………..204
Chapter 6: The practical level. A methodological approach to development policies

for indigenous peoples………………………………………………………..210
6.1 The space of evaluation: agency freedom and agency achievement…………………….211

6.2 The policy process: indigenous valued choices and agency…………………………….217
6.3 Criteria to operationalise the collective and individual right to self–determination
through development policies…………………………………………………………...223
6.3.1 Acknowledgment and integration of indigenous knowledge systems
within the design, implementation and evaluation of development policies……225
6.3.2 Recognition and adoption of the principle of ‘free, prior and informed
consent’………………………………………………………………………….230
6.4 Conclusion……………………………………………………………………………...240
Part 3
The indigenous capability right to health
Chapter 7: Development and the health challenge for indigenous peoples…………….243
7.1 The world community’s development agenda and the rights of indigenous peoples…...246
7.2 The health challenge of the world’s indigenous peoples………………………………..253
7.3 The health status of Aboriginal and Torres Strait Islander peoples in Australia………..257
Chapter 8: The health challenge for indigenous people of Australia…………………...262
8.1 Australia’s health policy to address Aboriginal and Torres Strait Islander
peoples’ health disadvantage……………………………………………………………262
8.2 The Human Rights Equal Opportunity Commission’s response to Australian
governments’ health policy for Indigenous Australians…………………………………277
8.3 The ‘indigenous capability rights system’ and Aboriginal and Torres Strait
Islander health policy…………………………………………………………………....288
Chapter 9: The indigenous capability right to health: towards the acknowledgment

of Aboriginal traditional medicine…………………………………………...302
9.1 The sinking into oblivion of Aboriginal traditional medicine and traditional healers…..302
9.2 The indigenous capability right to health………………………………………………..322
9.3 Spirituality and rationality: understanding the ‘cultural divide’………………………..332
9.4 Conclusion………………………………………………………………………………340
Conclusions…………………………………………………………………………………343
Bibliography………………………………………………………………………………..355
Acknowledgments
This work would not have been possible without the generous contribution and academic
input of Prof. Chris Cunneen and Prof. Enrica Chiappero–Martinetti. All my gratitude to Chris
Cunneen for his support and guidance throughout the entire research project, and for his
precious friendship over these years. Special thanks to Enrica Chiappero–Martinetti who
introduced me to Sen’s capability approach and strongly supported my ideas. I am sincerely
grateful to them for having encouraged me to carry out this project.
I would like to express my gratitude to all my friends who have accompanied me during this
journey. They are all too numerous to mention, but I would like to particularly thank John and
Beth Norris, Bruce Webb and Jeffrey Middleton, Sotiri and Iolanda Sotiriou, Silvia Gasparini,
Ana Murphy, Cleonie Quayle, Deborah Phillips, Kate Munro, Marco Frapparelli, Claudio and
Blanca Paroli, Nicoletta and Maurizio, Viriginia Watson, and my lovely Luna and Venere.
Finally, I would like to express my heartfelt and deepest love to my family: my mum and dad,
my sister Elisabetta and my brother Alberto – for all their love, support, and encouragement
over these years. To them, I am truly grateful for being always with me in my happy and
difficult times.
To my family, with all my love.
i
Synopsis
Indigenous Peoples’ Right to Self–Determination and Development Policy
This thesis analyses the concept of indigenous peoples’ right to self–determination within
the international human rights system and explores viable avenues for the fulfilment of
indigenous claims to self–determination through the design, implementation and evaluation of
development policies.
The thesis argues that development policy plays a crucial role in determining the level of
enjoyment of self–determination for indigenous peoples. Development policy can offer an
avenue to bypass nation states’ political unwillingness to recognize and promote indigenous
peoples’ right to self–determination, when adequate principles and criteria are embedded in
the whole policy process.
The theoretical foundations of the thesis are drawn from two different areas of
scholarship: indigenous human rights discourse and development economics. The indigenous
human rights discourse provides the articulation of the debate concerning the concept of
indigenous self–determination, whereas development economics is the field within which
Amartya Sen’s capability approach is adopted as a theoretical framework of thought to
explore the interface between indigenous rights and development policy. Foundational
concepts of the capability approach will be adopted to construct a normative system and a
practical methodological approach to interpret and implement indigenous peoples’ right to
self–determination.
ii
In brief, the thesis brings together two bodies of knowledge and amalgamates foundational
theoretical underpinnings of both to construct a normative and practical framework. At the
normative level, the thesis offers a conceptual apparatus that allows us to identify an
indigenous capability rights–based normative framework that encapsulates the essence of the
principle of indigenous self–determination. At the practical level, the normative framework
enables a methodological approach to indigenous development policies that serves as a
vehicle for the fulfilment of indigenous aspirations for self–determination.
This thesis analyses Australia’s health policy for Aboriginal and Torres Strait Islander
peoples as an example to explore the application of the proposed normative and practical
framework. The assessment of Australia’s health policy for Indigenous Australians against the
proposed normative framework and methodological approach to development policy, allows
us to identify a significant vacuum: the omission of Aboriginal traditional medicine in
national health policy frameworks and, as a result, the devaluing and relative demise of
Aboriginal traditional healing practices and traditional healers.
iii
List of figures
Figure 4.1
A stylised non–dynamic representation of a person’s capability set and her social
and personal context.………………..………………………………………………………….…….174
Figure 5.1
The indigenous capability rights system..………………………………………………………….....198
Figure 5.2
The enjoyment of indigenous peoples’ right to self–determination through
the lens of the capability framework….……………………………………………………………...208
Figure 6.1
The policy process……………..……………………………………………………………………..222
Figure 7.1
Health in the Millennium Development Goals…………………………………………………….....254
Figure 9.1
Framework outlining ‘traditional’ Aboriginal health beliefs………………………………………....313
Figure 9.2
Model of Aboriginal behavioral patterns of seeking medical assistance………………………..……315
iv
List of abbreviations
ABS Australian Bureau of Statistics

ACC Aboriginal Coordinating Council
AHMAC Aboriginal Health Ministers’ Advisory Committee
AIDA Australian Indigenous Doctors Association
AIHW Australian Institute of Health and Welfare
AMA Australia Medical Association
CBD Convention on Biological Diversity
CERD Committee on the Elimination of Racial Discrimination
CHR Commission on Human Rights
CIS Commonwealth of Independent States
COAG Council of Australian Governments
ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms
ECOSOC Economic and Social Council
ESC Economic, Social and Cultural Rights Committee
FAO Food and Agriculture Organization of the United Nations
FCNM Framework Convention for the Protection of National Minorities
GA General Assembly
HRC Human Rights Committee
HREOC Human Rights and Equal Opportunity Commission
IACHR Inter–American Commission on Human Rights
IADB Inter–American Development Bank
ICCPR Covenant on Civil and Political Rights
ICCT Indigenous Communities Coordination Taskforce
ICEARD International Covenant on the Elimination of All Forms of Racial Discrimination
ICESCR International Covenant on Economic, Social and Cultural Rights
IFAD International Fund for Agricultural Development
ICJ International Court of Justice
IFC International Finance Corporation
IITC International Indian Treaty Council
ILO International Labour Organization
IMF International Monetary Fund
IITC International Indian Treaty Council
v
MDGs Millennium Development Goals
NAHSWP National Aboriginal Health Strategy Working Party
NATSIHC National Aboriginal and Torres Strait Islander Health Council
NGOs Non-governmental organizations
OAS Organization of American States
PRSPs Poverty Reduction Strategy Papers
SC Security Council
SCRGSP Steering Committee for the Review of Government Service Provision
UDHR Universal Declaration of Human Rights
UN United Nations
UNCTAD UN Conference on Trade and Development
UNDAF Common Country Assessment and United Nations Development Assistance
Framework
UNDP United Nations Development Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNFPA United Nations Population Fund
UNHCHR Office of the United Nations High Commissioner for Human Rights
UNICEF United Nations Children’s Fund
UNIFEM United Nations Development Fund for Women
UNPFII United Nations Permanent Forum on Indigenous Issues
US United States
WB World Bank
WG Working Group
WGIP Working Group on Indigenous Populations
WHO World Health Organization
WIPO World Intellectual Property Organization
vi
Introduction
‘What is self–determination?’ asked the young Arakmbut man.

‘Why do you ask?’ I said.
‘I have heard the word used by indigenous leaders in the town and have read it.
My father and the old men do not know what it is and so I am asking you’.
‘Self–determination is about the right of indigenous peoples
to control their lives without unwanted outside interference’
‘Oh, so that’s what it is’ 1
The question posed by the young Arakmbut man continues to be of primary
significance. Indigenous peoples, 2 currently estimated at over 370 million living in 70
different countries, represent about 5% of the world population and over 15% of the
poor. 3 Indigenous peoples’ quest for self–determination represents the core precept in
indigenous human rights discourse and, at the same time, a thorny issue for the whole
international community which has to deal with the tension between indigenous claims to
self–determination and its application under international law.
The principle of self–determination and the right of indigenous peoples to self–
determination have been extensively discussed in scholarly literature within the legal and
political arena. 4 This thesis argues that indigenous peoples’ claims to self–determination
1
Andrew Gray, Indigenous Rights and Development: Self–determination in an Amazonian Community
(Providence; Oxford: Berghahn Books, 1997) 1.
2
There is not one internationally agreed definition of indigenous peoples. However, the “Cobo–definition”
(UN Doc. E/CN.4/Sub.2/1986/872) as well as the ILO Convention on Indigenous and Tribal Peoples, 1989
N° 169 (art.1.1) provide a working definition which highlights the following characteristics: a) self–
identification as indigenous; b) historical continuity with pre–colonial and/or pre–settler societies; c) strong
link to territories; d) distinct social, economic or political systems; e) distinct language, culture and beliefs;
f) form non–dominant sectors of society; g) resolve to maintain and reproduce their ancestral environments
and distinctive communities. See also, B Kingsbury, ‘ “Indigenous peoples” as an International Legal
Concept’ in R H Barnes, A Gray and B Kingsbury (eds), Indigenous Peoples of Asia (Ann Arbor, Mich.:
Association for Asian Studies, 1995).
3
World Bank, Implementation of Operational Directive 4.20 on Indigenous peoples: An Independent Desk
Review, Report N. 25332, 10 January 2003, Operations Evaluation Department, Country Evaluation and
Regional Relations (OEDCR).
4
A detailed discussion about the principle of self–determination and indigenous peoples’ claims to self–
determination will be presented in Part 1 of this thesis.
1
extend beyond the legal and political domains within which they have been traditionally
discussed, interpreted and implemented.
This thesis analyses the concept of indigenous peoples’ right to self–determination
from an alternative perspective. This study situates indigenous self–determination at the
interface between international human rights law and development policy processes. The
theoretical foundations of this thesis are drawn from two different areas of scholarship:
indigenous human rights discourse and development economics. The indigenous human
rights discourse informs the debate concerning the concept of indigenous self–
determination, whereas development economics is the field within which Amartya Sen’s
capability approach is adopted as a theoretical framework of thought to construct a
normative system and a practical methodological approach to interpret and implement
indigenous peoples’ right to self–determination.
In other words, this thesis brings together two bodies of knowledge and amalgamates
the foundational theoretical underpinnings of both to construct a normative and practical
framework with which to interpret and implement the indigenous right to self–
determination in the contemporary system.
The central argument of this thesis is that development policy plays a crucial role in
determining the level of enjoyment of self–determination for indigenous peoples. It is
maintained that development policy can offer an avenue to bypass nation states’ political
unwillingness to recognize and promote indigenous peoples’ right to self–determination,
when adequate principles and criteria are embedded in the whole policy process.
This argument is articulated through an original approach with a twofold line of
investigation: a study of the concept of indigenous self–determination within the
2
international human rights system and the exploration of viable avenues for the fulfilment
of indigenous claims to self–determination through the design, implementation and
evaluation of development policies.
This approach requires the development and integration of three main ‘building
blocks’ which are deemed to constitute the nomenclature of this thesis: an enquiry into
the concept of indigenous self–determination within the international human rights
system; the articulation of an adequate normative framework which encapsulates the
essence of the principle of indigenous self–determination; and the elaboration of a
methodological approach to development policies which adopts the normative framework
as its fundamental underpinning.
These three main ‘building blocks’ of the thesis will be comprehensively articulated
in the first and second part of the thesis. In particular, the first part of the thesis will
explore the concept of indigenous self–determination within the international human
rights system, whereas the second part of the thesis will discuss the construction of an
indigenous rights–based normative framework as well as a methodological approach to
development policies embedded with the principle of indigenous self–determination.
The enquiry into the concept of indigenous self–determination within the
international human rights system requires us to tackle some fundamental issues.
First of all, there is a need to historically situate indigenous peoples within the
international system. To this end, the first chapter of the thesis provides an historical
overview which allows us to gain a thorough understanding of the contemporary regime
of international law as it relates to indigenous peoples.
3
The historical overview delineates the key phases through which the status and rights
of indigenous peoples have developed within the international system. It will be
demonstrated how the emergence of international norms relating to indigenous peoples is
linked to processes which go beyond the international legal arena strictu sensu. The
creation and replication of these processes within the international system will be
considered as a fundamental element to justify the need to investigate the interface
between indigenous rights and development policy. This historical account provides the
backbone in support of the main argument of the thesis, that there exists a realistic
potential for development policies to be a powerful means to facilitate the
implementation of indigenous peoples’ right to self–determination.
The historical overview constitutes an indispensable background to gauge the
contemporary regime of indigenous claims under international law. It shows how the
second half of the twentieth–century marks a groundbreaking phase for the advancement
of indigenous peoples’ claims within the international legal system. The creation of the
United Nations system and the emergence of international human rights law inaugurate a
significant era for the status and claims of indigenous peoples within the international
system. Significant developments have indeed occurred at the institutional, normative and
procedural level.
At the institutional level, the increasing participation of indigenous peoples in the
international arena has contributed to the establishment of specific bodies dealing with
indigenous issues within the UN system. The standard–setting and consciousness–raising
processes carried out within these and other bodies, have facilitated the emergence of a
corpus of legal precepts specific to indigenous peoples.
4
The second chapter discusses the emerging body of normative precepts concerning
indigenous peoples developed within the international human rights framework. It will be
shown how the contemporary regime of indigenous claims is characterised by the
centrality of indigenous peoples’ quest for self–determination. Indigenous peoples’ right
to self–determination constitutes indeed the core precept within the indigenous rights
discourse. As such, a detailed discussion of the principle of self–determination, as it has
been developed and implemented under international law, is presented in order to
appreciate the content and implications of the recognition of the right to self–
determination for indigenous peoples. The normative analysis of indigenous claims to
self–determination within the international human rights framework will be followed by a
scrutiny of how and to what extent existing international human rights implementation
mechanisms have addressed indigenous claims to self–determination.
The third chapter will investigate whether the international human rights
implementation machinery, established for the protection of international human rights
standards of universal applicability, can be considered an effective procedural scaffold to
implement and monitor indigenous peoples’ claims to self–determination.
It is maintained that the adaptation of international human rights implementation
procedures to address indigenous claims, present substantive and procedural limits which
prevent the international human rights implementation system from effectively
addressing indigenous claims and advancing indigenous peoples’ right to self–
determination.
Upon due consideration of these limitations, it will be argued that the international
human rights system cannot be considered as the sole arena in which indigenous claims
5
can be addressed. The international human rights monitoring/implementation system
functions as an indispensable ‘remedial machinery’ which is, however, not sufficiently
capable to holistically implement indigenous peoples’ self–determination in its
multidimensionality.
This thesis suggests that the international legal domain can be complemented with a
normative and procedural framework specific to indigenous rights, in which a human
rights–based approach is intermingled with development policy processes. It is argued
that development policy processes play a fundamental role in determining the level of
enjoyment of self–determination for indigenous peoples. Development policy can offer
an effective avenue to overcome the statist–centred imprint of the human rights
implementation system and bypass states’ political unwillingness to recognise and
promote indigenous peoples’ right to self–determination.
The normative and procedural frameworks proposed in this thesis, promote an agent–
driven implementation process in which the individual and collective holders of the right
to self–determination are empowered and actively engaged in the fulfilment of their
aspirations to self–determination. These normative and procedural frameworks are
deemed to provide the theoretical underpinnings for the elaboration of adequate
development policies aimed at fulfilling indigenous peoples’ right to self–determination.
These normative and procedural frameworks will be consistently developed in the
second part of the thesis. The normative framework will be identified as the ‘indigenous
capability rights system’, whereas the procedural framework will be articulated as a
methodological approach to development policies.
6
The construction of the indigenous capability rights–based normative framework and
the methodological approach to indigenous development policies will be undertaken by
adopting Amartya Sen’s capability approach. Sen’s capability approach will indeed be
adopted as a theoretical framework of thought to explore the interface between
indigenous rights and development policy.
The adoption of Sen’s capability approach is justified on the ground that it provides
the opportunity to re–think development policies in a way that is philosophically,
politically and practically more cognisant with indigenous demands for self–
determination. It is argued that the capability approach offers foundational conceptual
categories which respond to indigenous aspirations to self–determination, whereas
traditional development theories have lacked this responsiveness. These foundational
concepts include a freedom–centred understanding of development and peoples’ well–
being, a focus on peoples’ valued choices and the expansion of these choices, the
complex and multidimensional understanding of peoples’ well–being, among others.
Accordingly, these foundational concepts of the capability approach will be discussed
in the context of the ongoing debate on the capability approach. These core concepts will
be adopted and originally applied to articulate an ‘indigenous capability rights system’
imbued with the principle of indigenous self–determination, and a methodological
approach to development policies aimed at fulfilling the indigenous right to self–
determination.
Finally, the third part of the thesis will explore the application of the proposed
normative and practical frameworks in relation to Australia’s health policy for Aboriginal
and Torres Strait Islander peoples. The aim of the third part of the thesis is to demonstrate
7
that the adoption of the proposed methodological approach to development policy would
enhance the capability for indigenous individuals and communities to enjoy the right to
The Australian health policy framework is questioned as to its capacity to
theoretically conceive and practically implement a deep, comprehensive and self–
determined conception of Aboriginal and Torres Strait Islander peoples’ health. The
assessment of Australia’s health policy for Indigenous Australians against the proposed
normative framework and methodological approach to development policies, allows us to
identify three main key points.
First of all, it is argued that current Australian health policy frameworks fail to
recognise and instil the most important principle in indigenous discourse: the principle of
self–determination. Second, the proposed approach enables us to identify a significant
vacuum in national health policy frameworks: the omission of Aboriginal traditional
medicine and the sinking into oblivion of Aboriginal traditional healing practices and
traditional healers. Finally, it contributes to an in–depth understanding of the ‘cultural
divide’ which is often perceived as the major obstacle underlying the relationships
between indigenous and non–indigenous peoples. It will be argued that the fundamental
tension which seems to underpin indigenous/non–indigenous peoples’ relations lies at the
ontological level.
The application of the capability approach to indigenous peoples’ right to self–
determination appears to be an interesting and challenging conceptual experiment. It is
hoped that this work will produce fruitful insights to further the reach of application of
8
the capability approach and advance the fulfilment of indigenous peoples’ right to self–
determination.
9
PART 1
Indigenous peoples’ quest for self–determination
‘when I think of self–determination I think…of hunting, fishing, and trapping, I think

of the land, of the water, the trees, and the animals. I think of the land we have lost. I
think of all of the land stolen from our people. I think of hunger and people
destroying the land. I think of the dispossession of our peoples of their land’
Ted Moses
10
Chapter 1
Indigenous peoples in international law: a historical overview
This chapter provides a historical overview of the fundamental stages through
which the status and rights of indigenous peoples have developed within the
international system. The aim of this chapter is twofold: to provide an indispensable
historical background to understand the contemporary regime of international law as
it relates to indigenous peoples; and to identify within this historical account those
significant elements which justify the need to explore the interface between
indigenous rights and development policy.
It will be shown that the development of international norms concerning
indigenous peoples has been influenced by colonial processes and the creation and
persistence of certain structures which have had, and continue to have, an enormous
impact on the status and claims of indigenous peoples within the international system.
This thesis suggests that the creation and replication of those structures within the
international system, continue to operate today at the interface between indigenous
rights discourse and development processes. Accordingly, the analysis proposed in
the following historical account provides a fundamental background to support the
argument of this thesis, that there is a potential for development policies to be an
effective vehicle for the fulfillment of indigenous peoples’ right to self–
determination.
11
The historical overview demonstrates that the legal discourse and practice
concerning the status and rights of indigenous peoples under international law, are of
fundamental importance not only in the context of indigenous issues. The
development of international norms dealing with indigenous peoples has significantly
influenced cornerstone concepts on which the structure of the international legal
system has been constructed.
The origins of international law, indeed, stem from the encounter between
European powers and a non–European world, from the European–led attempt to craft
a system that could deal with the colonial encounter. As a result, it is necessary to
gain a thorough understanding of the colonial encounter and the ensuing process of
colonialism in order to come to terms with the fundamental principles according to
which the contemporary international legal system deals with indigenous peoples and
their claims.
To this end, this thesis distances itself from the traditional approach to
international law, which is constructed upon the ultimate question of how order is
created among sovereign states. According to this approach, international legal
doctrine and institutions are perceived as the product of the continuous search for
order among sovereign powers. The process of colonization is seen as the
encroachment of a fully articulated Eurocentric international legal system upon non–
European territories. 1 As a result, the colonial encounter is perceived as the uneven
confrontation between sovereign states and a non–European world missing, or only
1
See, eg, Mohammed Bedjaoui, International Law: Achievement and Prospects (Boston: Martinus
Nijhoff, 1991) 7: ‘The New World was to be Europeanized and evangelized, which meant that the
system of European international law did not change fundamentally as a result of its geographic
extension to continents other than Europe’.
12
partially holding, sovereign attributes. According to this conventional historical
perspective the European doctrine of sovereignty was progressively applied to the
peripheral colonial territories.2
The thesis embraces an alternative approach 3 which challenges such a perspective
on the ground that it fails to take into consideration both the historical dimension of
sovereignty, and the fundamental role that colonialism has played in the development
of international law. It is indeed maintained that the colonial encounter shaped the
underlying principles of international law, such as the doctrine of sovereignty, which
was not extended, as it developed in Europe, to the colonies, but instead it emerged
out of the colonial encounter. 4
This alternative approach claims that colonialism has played a central role in the
development of international law as it has moulded fundamental structures of the
international legal order. Many legal doctrines were created in the attempt to establish
an international legal system able to explain the relation between European and non–
European polities in the colonial encounter. 5
2
See, eg, Nathaniel Berman, ‘In the Wake of Empire’ (1999) 14 American University International
Law Review 1521.
3
Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, UK;
New York: Cambridge University Press, 2004). The relation between colonialism and international
law is thoroughly examined through a compelling historical overview spanning from the origin of
international legal thought in the sixteenth century to the present. Anghie argues that colonialism has
been central to the development of international law and not, as conventional histories hold, a
peripheral episode overcome by the decolonization process. Fundamental to this approach have been
the groundbreaking contributions of post–colonial scholars, such as Edward Said, Orientalism (New
York: Pantheon Books, 1978); Edward Said, Culture and Imperialism (New York: Knopf, 1993);
Homi Bhabba, The Location of Culture (London: Routledge, 1994); Gayatri C Spivak, A Critique of
Postcolonial Reason (Cambridge, MA.: Harvard University Press, 1999), among others.
4
Anghie, above n 3, 6–7. See also, Antony Anghie, ‘The Heart of My Home: Colonialism,
Environmental Damage, and the Nauru Case’ (1993) 34 Harvard International Law Journal 445.
5
Anghie, above n 3, 3.
13
This approach is based on three fundamental notions: first, international law arose
to regulate relations between civilizations and peoples, not relations between states;
second, colonialism was justified by the ‘civilizing mission’ that European powers
launched in order to rescue the uncivilized, backward, undeveloped non–European
populations; third, colonialism has not been marginal, nor was it an unfortunate
episode that has been overcome by the decolonization process and the constitution of
former colonies into sovereign and independent states. 6
This approach informs the following historical overview which is structured in
five major developments in legal thought and practice, spanning from the first
European encounters with indigenous peoples to the establishment of the
contemporary international system. Five phases can be distinguished:
(i) the natural law framework;
(ii) the emergence of the state–centred system and the ‘law of nations’;
(iii) the positivistic construct of international law;
(iv) the early 20th century: from positivism to pragmatism; and
(v) the United Nations system and indigenous peoples.
6
Ibid.
14
1.1 The natural law framework
The European encroachment on the Western Hemisphere constitutes the historical
context within which early international norms and jurisprudence concerning
indigenous peoples originated.
The encounter with the indigenous peoples of the ‘new world’ prompted
European theorists to investigate the relationships between European powers and
non–European populations. Renaissance European theorists like Bartolomé de las
Casas 7 and Francisco de Vitoria 8 began to question the legality and morality of
European claims to the newly discovered lands. While Bartolomé de las Casas
focused on denouncing the atrocities committed by the Spaniards on the natives,
Vitoria’s thinking shaped the contours of western legal thought and the early
European jurisprudence dealing with indigenous peoples.
Vitoria’s creation of a new system of international law based upon natural law,
emerged out of his inquiry into the legal status of the Indians of the newly discovered
lands. This explains why Vitoria’s perspective and concepts about Spanish–Indian
relations are fundamental to understanding the conceptual structures that characterize
7
Bartolomé de las Casas (1474–1566), a Dominican cleric who lived as a missionary among the
Indians, strenuously defended native peoples against the violent Spanish colonization. In his Histories
of the Indies, he attacks the harsh treatment of Indians and particularly the encomienda system that
conferred Spanish colonizers tracts of land and forced labour by Indians living on them. For a detailed
account of Bartolomé de las Casas’ views of Spanish colonization and the encomienda system, see
Lewis Hanke, The Spanish Struggle for Justice in the Conquest for America (Philadelphia:
Pennsylvania U.P., 1959); Leslie C Green and Olive Dickason, The Law of Nations and the New World
(Edmonton: University of Alberta Press, 1989).
8
Francisco de Vitoria (1486–1547), professor of theology at the University of Salamanca, set out the
legal parameters according to which the relations between Europeans and non–Europeans were to be
regulated. He is considered one of the first founding fathers of modern international law: see, Arthur
Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, rev ed, 1954); Harold
Damerow, A Critical Analysis of the Foundations of International Law (Ph.D. Thesis, Rutgers
University, 1978).
15
the international regime on indigenous peoples as well as the origins of international
law.
There is no doubt that colonialism is the central issue in Victoria’s writings.
Considered as one of the founding texts of international law, his two lectures De Indis
Noviter Inventis and De Jure Bellis Hispanorum in Barbaros 9 are fundamentally
concerned with the colonial relationship between the Indians and the Spanish.
Contrary to traditional approaches that interpret Vitoria’s works as applying
existing legal doctrines developed in Europe to establish the legal status of the
Indians, 10 Vitoria’s jurisprudence only partially relies on traditional doctrines of
international law.
The encounter with the Indians was novel and the legal issues that evolved from it
were unique. The sixteenth–century Spanish jurist does not deal with the Spanish–
Indian relations according to the classical problem that confronts the discipline of
international law, which is establishing order among sovereign entities. Vitoria rather
focuses on a prior set of issues, such as who can be considered as sovereign; what are
the rights and duties of the Spanish and the Indians; and what criteria are to be
applied to determine it.
In dealing with these issues, Vitoria created a new system of international law
based upon a notion of natural law, which inherited from medieval scholasticism and
9
These two lectures are collected in one volume: Francisco de Vitoria, De Indis et de Ivre Belli
Relectiones (first published 1532, Ernest Nys ed, John Pawley Bate trans, Washington, D.C.: Carnegie
Institution of Washington, 1917).
10
See, eg, Pieter Hendrik Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into the
Foundations of International Law (Leiden: Sijthoff, 1964).
16
ecclesiastical humanism. 11 Vitoria elaborated a universally binding system of law by
departing from the traditional framework that had been developed and applied by the
Church to regulate relations between Christians and Saracens. Vitoria refused to
justify Spanish title on the Indies by adopting the underlying principles of medieval
jurisprudence: the primacy of divine law over human and natural law 12 and Pope’s
universal jurisdiction. 13
Vitoria proposes a secular version of international law by replacing the universal
system of divine law articulated by the Pope with a universal system of natural law 14
governed by secular sovereigns.
The creation of a universal system of natural law is directly connected to the
problem of addressing the legal status and rights of indigenous peoples and the need
to create a common legal framework applicable to both Indians and Spaniards. The
construction of an overarching secular system of law and the determination of
Indians’ status are articulated through the discussion of different and interrelated
issues.
11
See, Green and Dickason, above n 7, 163–173; Nussbaum, above n 8, 38–39. In Medieval
scholasticism, natural law is interpreted as the rational, although imperfect, human expression of the
timeless law of God. The philosophy of Tomas Aquinas emerged within the scholastic thinking, which
combined the Aristotelian view of natural law as intrinsic in the inborn rationalism of human nature
with the divine law of Christianity.
12
See, Alfred P Rubin, ‘International Law in the Age of Columbus’ (1992) XXXIX Netherlands
International Law Review 5, 11–14.
13
Pope Alexander VI’s Papal Bull, which divided the world into Portuguese and Spanish spheres,
exemplifies Pope’s universal authority. European sovereigns relied upon Pope’s authority to legitimize
their encroachments over heathen lands by virtue of his divine mission to spread Christianity. See,
Anthony Pagden, Lords of All the World, Ideologies of Empire in Spain, Britain and France c. 1500–
c.1800 (New Haven: Yale University Press, 1995).
14
Natural law is seen as a ‘suprasovereign normative order’ independent and superior to any other
temporal authority (such as monarchy, state or nation) as well as to positive law. It applied to the
whole sections of humanity and human relations: see, James S Anaya, Indigenous Peoples in
International Law (Oxford: Oxford University Press,1996) 17.
17
In the first place, Vitoria assesses whether the Indians are to be considered
holders of prior rights to property and ownership. For this purpose, Vitoria
reformulates the relation between divine, human and natural law. Vitoria declares the
inapplicability of divine law to questions of property and ownership and posits them
in the realm of secular legal systems – whether natural or human law. As a result,
Indians cannot be denied their rights by virtue of their status as unbelievers, sinners,
or heretics:
Unbelief does not destroy either natural law or human law; but
ownership and dominion are based either on natural law or human law;
therefore they are not destroyed by want of faith. 15
Accordingly, Indians were recognized as having original rights and dominion
over their lands while the Pope’s universal authority was severely undermined. 16
In the second place, Vitoria discusses the fundamental issue of Indian personality.
A principle of human rationality dominates the description of Indians’ personality:
‘the true state of the case is that they are not of unsound mind, but have, according to
their kind, the use of reason’. 17
The characterization of the natives as human and rational is fundamental for the
elaboration of a universal system of law. Considering that ‘[w]hat natural reason has
established among all nations is called jus gentium’, 18 Vitoria conceives a natural law
system of jus gentium of universal applicability. Both Indians and Spaniards are
bound by the jus gentium because of their rationality. Consequently, natural law
15
De Vitoria, De Indis, above n 9, 123.
16
Ibid 125, note x: ‘From all this the conclusion follows that the barbarians in question cannot be
barred from being true owners, alike in public and private law, by reason of the sin of unbelief or any
other mortal sin, nor does such sin entitle Christians to seize their goods and land’.
17
De Vitoria, De Indis, above n 9, 127.
18
Ibid 151.
18
comes to replace divine law as the source of international law regulating the relations
between the Spanish and the Indians.
The normative framework founded on the universal applicability of jus gentium
only seemingly places the Spaniards and the Indians on an equal level. The Indian
personality is characterized by a fundamental incongruity: the ontologically
‘universal’ coexists with the historically and socially ‘local’. Indians are part of the
universal sphere like all other human beings by virtue of their use of reason, but they
differ from the Spaniards because of their cultural and social practices. Indians’
customs are considered at odds with Spanish practices, which have a universal
applicability. A cultural and social gap is created between the Indians and the
Spaniards, a gap that can be eliminated with the adoption or imposition of Spanish
practices on Indians since they have the potential by virtue of their capacity of reason.
Therefore, while recognizing inherent rights to native peoples by virtue of their
fundamental human rationality and rebuffing Spanish title by papal grant or by
discovery, Vitoria elaborates the principle of ‘just’ war that would legitimise Spanish
authority over Indian lands. War is the means through which the Indians are
converted into Spaniards and their lands into Spanish territories; it is through war that
the Indians can achieve their full human potential.
Accordingly, native peoples could loose their rights as a consequence of a ‘just’
war waged against them: title by conquest was therefore legitimised. The imposition
of Spanish authority on the Indians is endorsed upon the cultural differences between
the European and non–European worlds. The normative dichotomy applicable to
European encounters with non–European peoples is indeed based on both a moral
19
standard of common rationality as well as a Eurocentric biased perception of native
peoples. 19
The ‘justness’ of a war is indeed determined according to European criteria of
civilization, a ‘Eurocentrically and Christianocentrically understood consensus of the
whole world in harmony with the West’s vision of reason and truth’. 20
Cultural difference is the fundamental problem that Vitoria faces in dealing with
European–non European relations. Vitoria accurately scrutinises the social and
cultural customs, rituals, and ways of life of the Spanish and the Indians to conclude
that these societies constitute two different cultural systems. Once the difference is
postulated in terms of cultural and social practices, Vitoria attempts to bridge such
culturally defined difference by creating his system of jus gentium. The universal law
of jus gentium is deemed to apply also to the Indians who can comprehend and be
bound by it by virtue of their capacity of reasoning. However, the cultural difference
– customs, rituals, practices – that distinguishes the Indians from the Spaniards is
understood as Indians’ non compliance with universal standards, which is indeed
Spanish cultural identity. Culture difference therefore justifies the imposition of
sanctions, such as waging ‘just’ wars, by the sovereign Spanish upon the non–
sovereign Indians. Spanish cultural and social practices are idealized and
universalized as to become universally binding. Accordingly, it is suggested that the
doctrine of sovereignty – the complexity of rules that determines what entities are
19
This normative construct was put forward also by other European theorists, such as Francisco Suarez
(1548–1617), Domingo de Soto (1494–1560), Alberico Gentilis (1552–1608), and Balthasar Ayala
(1548–1584).
20
Robert A Williams, The American Indian in Western Legal Thought: The Discourses of Conquest
(New York: Oxford University Press, 1990) 107; see also, Robert A Williams, ‘The Medieval and
Renaissance Origins of the Status of the American Indian in Western Legal Thought’ (1983) 57
Southern California Law Review 1.
20
sovereign, their prerogatives, and limitations – acquired its character from Vitoria’s
efforts to address the colonial encounter in terms of the cultural difference between
the European and non–European societies. 21
The cultural divide is at the heart of the development of international legal
structures. The dichotomy between a civilised and uncivilised world crystallised so
that legal doctrines have been articulated in order to civilise the ‘uncivilised’. It is
argued that at the core of the development of many international doctrines is a
‘dynamic of difference’, that is ‘the endless process of creating a gap between two
cultures, demarcating one as ‘universal’ and civilized and the other as ‘particular’ and
uncivilized, and seeking to bridge the gap by developing techniques to normalize the
aberrant society’. 22
Vitoria’s principles at the core of the colonial encounter are not so much the
question of order among sovereigns, but rather the ‘civilising mission’, and the
related issue of ‘culture difference’. The ‘civilising mission’ was the imperial project
that ‘justified colonialism as a means of redeeming the backward, aberrant, violent,
oppressed, undeveloped people of the non–European world by incorporating them
into the universal civilization of Europe’.23 In the context of this project and the
ensuing international system of law, the idea of ‘culture difference’ played a crucial
role. The idea that fundamental cultural differences existed between European and
non–European societies justified the conquest of those backward societies as well as
the means that European powers adopted to subjugate them.
21
Anghie, above n 3, 15–31.
22
Ibid 4.
23
Ibid 3.
21
The early principles developed within the naturalist framework influenced future
official behaviour patterns of European countries in dealing with non–European
populations, the legal status of indigenous peoples within the ‘law of nations’ and
later political thinkers. 24 Whereas the recognition of native peoples’ rights to land and
independent existence resulted in the treaty–making practice between some European
countries and certain indigenous peoples, the theory of ‘just war’ legitimised
colonization processes and the dispossession of native peoples’ land. 25
24
Hugo Grotius, in his treatise On the Law of War and Peace (1625) – even though not addressing in a
specific manner indigenous peoples’ rights – recognised the capacity to enter into treaty relations as
stemming from the natural rights of all peoples. Furthermore, Grotius endorsed a secularised version of
the theory of ‘just war’.
25
For a detailed account of treaty–making patterns carried out by European powers with indigenous
peoples: see, Felix S Cohen, Handbook of Federal Indian Law (Charlottesville, Va.; Michie: Bobbs–
Merrill, rev ed, 1982); C H Alexandrowicz, An Introduction to the History of the Law of the Nations in
the East Indies (Oxford: Clarendon Press, 1967); Malcolm Shaw, Title to Territory in Africa:
International Legal Issues (Oxford: Clarendon Press, 1986).
22
1.2 The emergence of the state–centred system and the ‘law of nations’
The Treaty of Westphalia in 1648 inaugurated the emergence of modern
international law. The Treaty sanctioned a state–centred international system in
which the hegemony of independent states was recognised by virtue of territorial
control, and such hegemony has shaped all areas of international law since. 26
The Westphalian era was the period of Thomas Hobbes, Christian Wolff, and
Samuel Pufendorf 27 who significantly contributed to the evolution in natural law
thinking. The naturalist frame evolved from a superior and universal normative order
applying across the whole humanity into a dualist system: the natural rights of
individuals and the natural rights of states. 28 The Leviathan epitomised Hobbes’
theory of a dichotomized humanity composed of individuals and states, which are
both natural rights holders. Pufendorf and Wolff shared Hobbes’ dichotomy and
started moving towards the development of a body of law dealing solely with states,
which would consolidate as the ‘law of nations’. 29
Emmerich de Vattel’s treatise The Law of Nations, or The Principles of Natural
Law (1758) marked the complete elaboration of the Westphalian–derived concept of
the ‘law of nations’, defined as ‘the science of the rights which exist between Nations
or States, and of the obligations corresponding to these rights’. 30
26
Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist
Analysis (Manchester: Manchester University Press, 2000) 23–25.
27
Thomas Hobbes (1588–1679), Samuel Pufendorf (1632–1694), Christian Wolff (1679–1754).
28
Anaya, above n 14, 20.
29
For a comprehensive account of the historical evolution of the ‘law of nations’: see, Nussbaum;
Damerow, above n 8.
30
Emmerich de Vattel, The Law of Nations, or The Principles of Natural Law (first published 1758;
Classics of International Law Series, 1916) 3.
23
Vattel’s normative construct embraced the universal applicability of natural law,
but had a different significance when referring to states and to individuals. 31 The
recognition of rights to the individual and sovereign–like rights to the state32 posed
the theoretical premise for the supremacy of nation–states based upon the doctrine of
state sovereignty. Sovereignty – with its corollaries of exclusive jurisdiction,
territorial integrity, and non–intervention in domestic affairs – would develop as a
fundamental principle of international law. 33
Vattel’s individual–state dichotomy has significantly influenced western legal
discourse. This is particularly true in the context of the treatment of indigenous
peoples under international law. The theory and jurisprudence related to the status of
indigenous peoples were to be defined according to the principles governing the ‘law
of nations’. Therefore, by virtue of the individual–state construction, the composite
array of intermediate human groupings acknowledged within the early naturalist
framework, was reduced to the two categories of individual and state.
31
Ibid preface (5a). De Vattel clearly states: ‘the Law of Nations is in its origin merely the Law of
Nature applied to Nations. Now the just and reasonable application of a rule requires that the
application be made in a manner suited to the nature of the subject; but we must not conclude that the
Law of Nations is every where and at all points the same as natural law, except for a difference of
subjects, so that no other change need be made than to substitute Nations for individuals. A civil
society, or a State, is a very different subject from an individual person, and therefore, by virtue of the
natural law, very different obligations and rights belong to it in most cases. The same general rule,
when applied to two different subjects, cannot result in similar principles, nor can a particular rule,
however just for one subject, be applicable to a second of a totally different nature. Hence, there are
many cases in which the natural law does not regulate the relations of States as it would those of
individuals. We must know how to apply it conformably to its subjects; and the art of so applying it,
with a precision founded upon right reason, constitutes the Law of Nations as a distinct science’.
32
Ibid 6. Vattel states that ‘Nations [are] free and independent of each other, in the same manner as
men are naturally free…[and accordingly] each Nation should be left in the peaceable enjoyment of
that liberty which she inherits from nature’.
33
See, Ian Brownlie, Principles of Public International Law (Oxford: Clarendon Press, 6th ed, 2003);
Francis S Ruddy, International Law in the Enlightenment: The Background of Emmerich de Vattel’s
“Le Droit des Gens” (Dobbs Ferry, N.Y.: Oceana Publications, 1975); James Leslie Brierly, The Law
of Nations: An Introduction to the International Law of Peace (Oxford: Clarendon Press, 6th ed, 1963).
24
As a result, indigenous peoples would have been recognised as independent
communities, to enjoy rights and duties under the ‘law of nations’, only if qualifying
as nation–state. The chance to be included in the system of states would have been
slight, since indigenous communities had to satisfy the requirements of statehood
based on European forms of political and social organizations. These constituted a
political and legal order substantially different from pre–contact native political and
social structures. The European model was characterized by exclusive dominion over
the territory with a hierarchical and centralized authority, whereas non–European
communities were largely structured according to kinship or tribal relations, with
decentralized authorities and a shared control over territories. 34 The alternative option
to the recognition as distinct communities would have been to be acknowledged
exclusively as individuals.
Vattel’s theory significantly influenced the early jurisprudence concerning the
status and rights of indigenous peoples under the ‘law of nations’. In particular, the
ambiguity that permeates the criteria according to which states maintain their
independence affected early United States Supreme Court’s landmark decisions 35 on
the status of Native Americans. In Vattel’s view, even though a state arranges to be
under the protection of another political authority, it does not lose its sovereignty and
independence if it maintains its self–government powers. However, it is also asserted
34
Anaya, above n 14, 22. See also, Duane Champagne, Social Order and Political Change:
Constitutional Governments among the Cherokee, the Choctaw, the Chickasaw, and the Creek
(Stanford, Cal.: Stanford University Press, 1992).
35
These U.S. Supreme Court decision are also known as Chief Justice John Marshall’s trilogy. They
are: Johnson v. M’ Intosh 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5
Pet.) 1 (1831); Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832).
25
that when ‘a people…has passed under the rule of another, [it] is no longer a State,
and does not come directly under the Law of Nations’. 36
In a similar vein, Justice Marshall’s trilogy 37 mirrors this ambivalence in
addressing the status and rights of indigenous peoples. Early nineteenth–century
jurisprudence dealing with questions about Native Americans’ status and rights were
indeed articulated in accordance with Vattel’s theory of international law.
In Johnson v. M’Intosh 38 indigenous peoples are denied the status of nations or
states as well as the right of group autonomy and the right to their lands.
Characterizing native people as ‘fierce savages, whose occupation was war, and
whose subsistence was drawn chiefly from the forest’,39 Marshall justified United
States’ title to Indian land by discovery:
However extravagant the pretension of converting the discovery of an

inhabited country into conquest may appear; if the principle has been
asserted in the first instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the great mass of the
community originates in it, it becomes the law of the land, and cannot
be questioned. 40
Marshall’s jurisprudence, encompassing natural law and the law of nations, 41
revealed tensions and ambiguity. In Cherokee Nation v. Georgia 42 Indian tribes are
36
De Vattel , above n 30, 12.
37
Johnson v. M’ Intosh 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)
1 (1831); Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832).
38
21 U.S. (8 Wheat.) 543 (1823).
39
21 U.S. at 590. Marshall seems to share de Vattel’s preference for sedentary societies, holding that
cultivating the soil gave a greater right to land than hunting and gathering. Resembling the Locke’s
natural law duty to cultivate land, Vattel stated that ‘[e]very Nation is…bound by the natural law to
cultivate the land which has fallen to its share…Those who sill pursue this idle mode of life…[of
searching] to live upon their flocks and the fruits of the chase…may not complain if other more
industrious Nations, too confined at home, should come and occupy part of their lands’. Above n17 at
37-38.
40
21 U.S. at 591.
41
See, Robert K Faulkner, The Jurisprudence of John Marshall (Princeton: Princeton University Press,
1968).
26
recognized as ‘domestic dependent nations’, 43 that is, political entities whose status is
accepted within the law of nations, but they do not qualify as foreign states under
Article III of the U.S. Constitution. Indian tribes enjoyed the right to consent to the
protection of other sovereigns – a prerogative of nationhood under the law of nations
– but in their relation to the United States they were regarded as ‘ward to his
guardian’. 44
The status of Indian tribes as nations within U.S. borders was reiterated in
Worcester v. Georgia 45 . As subjects within the law of nations, Indian tribes were
recognized ‘original natural rights’ to their ancestral lands. However, they could be
divested of their rights – as any other sovereign state – by voluntary cession or actual
conquest. The acquisition of title by discovery alone was therefore excluded, while
the US protectorate over Indian nations was determined by treaty–making
processes. 46 The thorough discussion of the discovery doctrine in Worcester,
redefined the terms under which European encroachment upon indigenous peoples’
lands were to be regulated. It was held that the principle of discovery granted the
right of acquiring lands from the natives to the first European power claiming
authority over those lands, and the obligation upon Indian tribes not to confer rights
to other powers. Through the discovery principle, Marshall distinguished and
subordinated positive customary law regulating relations among states to the natural
rights of native people. States are still considered as one ‘subset of humanity’: as such
42
30 U.S. (5 Pet.) 1 (1831).
43
30 U.S. at 17.
44
30 U.S. at 17.
45
Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832).
46
Worcester v. Georgia 31 U.S. (6 Pet.) 541-559.
27
their discovery agreements based upon consent do not interfere with the inherent
natural rights of the Indians. 47
It is important to highlight, however, that the recognition of the Cherokee as
subject of international law was determined by their particular form of political and
social organization that partly resembled European political bodies. Most Indian
tribes, though, were still considered as ‘an unsettled horde of wandering savages not
yet formed into civil society’. 48 In other words, the predominant inclination of
eighteen–century political theory and jurisprudence was to deny native peoples the
status of subjects of international law unless they matched European criteria of
nationhood:
The legal idea of the state necessarily implies that of the habitual
obedience of its members to those persons in whom superiority is
vested, and a fixed abode, and defines territory belonging to the people
by whom it is occupied. 49
This inclination became imperative in the late 19th and early 20th century, when
positivism superseded the natural law framework. The positivist strain inaugurated
the era in which ‘the law of nations, or international law, would become a
legitimizing force for colonization and empire rather than a liberating one for
indigenous peoples’. 50
47
48
Henry Wheaton, Elements of International Law (Boston: Little, Brown and Co., 8th ed, 1866) 26.
49
Ibid.
50
28
1.3 The positivist construct of international law
The positivist approach to international law marks the decline of the status and
inherent rights recognised to indigenous peoples by natural or divine law. The major
development in the positivist scheme is the rejection of the Vattelian perspective of
the law of the nations as encompassing natural law and universally applying to all
political entities. As a result, the positivist construct sees international law as the ‘law
between states and not above states, finding its theoretical basis in their consent’. 51
International law becomes the exclusive realm of states, which are acknowledged
as the only subjects of international law. International legal norms are deemed to
regulate exclusively the rights and duties of states. In this way, sovereign states are at
the same time law–makers, rights–holders, and duty–bearers of international norms.
The legal doctrine and jurisprudence developed in line with the positivist fabric of
international law excludes indigenous peoples from the realm of the subjects of
international law.
The exclusion of indigenous peoples from among the subjects of international law
is grounded on positivist reasoning. Influential late nineteenth–century international
jurists, including John Westlake, 52 James Lorimer, 53 William E. Hall, 54 Thomas
Lawrence, 55 and twentieth–century jurists like Lassa Oppenheim 56 and M. F.
51
Ibid 26.
52
John Westlake, Chapters on the Principles of International Law (Cambridge: Cambridge University
Press, 1894).
53
James Lorimer, The Institutes of the Law of Nations: A Treatise of the Jural Relations of Separate
Political Communities (Edinburgh: Blackwood & Sons, 1883).
54
William E Hall, A Treatise on International Law (first published 1880; Oxford: Clarendon Press, 2nd
ed, 1884; 8th ed, 1924).
55
Thomas Lawrence, The Principles of International Law (Boston: D.C. Health, 1895).
29
Lindley, 57 took distance from naturalism to reconstitute the entire system of
international law on positivism. Whereas within the naturalist framework sovereign
states were bound by the principles of natural law, positivism is based on the notion
of sovereign states as the highest authority and principal actors of international law. 58
Sovereign states are bound only by the rules which regulate relationships among them
that they had agreed upon either explicitly or implicitly. 59 Positivist jurisprudence is
therefore constructed upon the primacy of sovereign states and on the notion that
states are bound only to what they have consented.
The historical context within which positivism developed, particularly in the latter
half of the nineteenth–century, sees an intensification of the expansion of European
colonial empires. Positivist jurists were thus confronted with the task of accounting
for the expansion of Europe and articulate the legal basis on which the colonial
encounter was to be jurisprudentially explained. The methods and techniques
developed by positivist jurists ignored the naturalist frame that had regulated
preceding centuries of contact between European and non–European peoples. The
naturalist international system of law upheld that a universal international law arising
from human reason applied to all peoples, whether Europeans or non–Europeans. By
56
Lassa Oppenheim, International Law: A Treatise (first published 1905; London and New York:
Longmans, 3rd ed, 1920).
57
M F Lindley, The Acquisition and Government of Backward Territory in International Law
(London: Longmans, Green & Co., 1926). Early twentieth–century international jurists like
Oppenheim and Lindley, adopted and elaborated the nineteenth–century positivist framework.
58
Positivism can be considered as an elaboration of the framework articulated by early jurists like
Francisco de Vitoria. He distinguished between ‘natural law’ and ‘human law’, the former being a set
of transcendental principles identifies trough the use of reason, the latter being elaborated by secular
political authorities.
59
See, C H Alexandrowicz, ‘Doctrinal Aspects of the Universality of the Law of Nations’ (1961)
British Yearbook of International Law 506.
30
contrast, positivist international law discriminated between civilised and uncivilised
states and applied merely to civilised sovereign states.
A ‘dynamic of difference’ animated the positivist jurisprudence dealing with the
colonial confrontation within the international legal system: positivist jurists
postulated a gap in terms of cultural difference between the civilised European and
uncivilised non–European worlds. 60
The differentiation between civilized and uncivilized ‘was a fundamental tenet of
positivist epistemology and thus profoundly shaped the concepts constituting the
positivist framework’. 61 Even though naturalist jurists like Vitoria acknowledged
cultural differences, it was maintained that all societies were bound by a universal
natural law. By contrast, in the positivist frame of thought the cultural gap could not
be overcome through universal natural law, but only with the imposition of European
international law over the uncivilized non–European societies:
Is there a uniform law of nations? There certainly is not the same one
for all the nations and states of the world. The public law, with slight
exceptions, has always been, and still is, limited to the civilized and
Christian people of Europe or to those of European origins. 62
Once the uncivilized world was put outside the realm of the international legal
system, positivist concepts and methodologies were elaborated to bridge the gap and
allow non–European entities to enter the sphere of international law. Accordingly, a
‘racialised scientific lexicon of positivism’ guided the assimilation process through
which non–European peoples were to be brought within the realm of international
60
Anghie, above n 3, 36–40. This argument reiterates the significance that the colonial confrontation
has for understanding the nature of nineteenth–century international law.
61
Ibid 56.
62
Wheaton, above n 48, 15.
31
law. 63 The test of ‘civilization’, advanced by Westlake to determine whether people
qualified to be part of the international system of states, exemplifies such a positivist
project. It is not surprising that to qualify as ‘civilised’ required possessing a
European–like form of government and a sedentary lifestyle.64
Ideas of culture became crucial for the same doctrine of sovereignty, which in
turn was identified with a certain set of cultural practices to the exclusion of others.
The categorization into civilized and uncivilized entities was intimately linked to the
identification of the ‘sovereign’ and the definition of ‘sovereignty’. In other words,
cultural difference had to be translated into legal difference. Positivist jurisprudence
had to explain, consistently and coherently, why barbarian nations, ‘a wandering tribe
with no fixed territory to call its own’, a ‘race of savages’ and a ‘band of pirates’
could not qualify as sovereign. 65
Territorial control is identified as the fundamental criterion according to which an
entity could be recognized as sovereign. The failure to exercise control over territory
would prevent any entity from being considered as sovereign:
International law regards states as political units possessed of

proprietary rights over definite portions of the earth’s surface. So
entirely is its conception of a state bound up with the notion of territorial
possession that it would be impossible for a nomadic tribe, even if
highly organized and civilized, to come under its provisions. 66
In cases where the requirement of control over territory was met, such as some
Asian and African states, positivist jurists resort to the concept of society. The
international legal status was therefore determined by cultural requirements, which
63
Ibid 66.
64
Westlake, above n 52.
65
Lawrence, above n 55, 58.
66
Ibid 136.
32
would allow those entities to be part of the international society, or the ‘family of
nations’. In the positivist reasoning, sovereignty and society represented the two tests
and, more importantly, regardless of their formal sovereign status, the decisive issue
was whether an entity could be considered as a member of the civilized international
society. For instance, the primacy of cultural difference in identifying international
legal personality is exemplified in the assessment of indigenous tribes:
Yet none of these communities would be subject to International Law,

because they would want various characteristics, which, though not
essential to sovereignty, are essential to the membership of the family of
nations. 67
Notwithstanding the centrality that the doctrine of sovereignty holds within the
positivist frame, the essential foundation of positivist jurisprudence is the concept of
society with its European–like features. Thus, non–European entities are denied
sovereign status because they are excluded from the civilized family of nations. The
European society provided the model to which all non–European societies, whether
relatively advanced or completely backwards, 68 had to emulate in order to progress.
Furthermore, the concept of society was adopted as the fundamental reasoning to
deny any previous sovereign status acknowledged to non–European states. Once the
non–European world was expelled from the realm of legality on the basis of the
civilized–uncivilized dichotomy, positivists elaborated different doctrines and
67
Ibid 58.
68
Positivist jurists articulated several classifications among non–European societies, such as between
Asian states who were considered to a certain extent civilized but ‘different’, and ‘tribal peoples’ who
were identifies as being entirely backwards: see, Westlake, above n 52, 102, 142–155.
33
techniques by which the uncivilized societies were to be readmitted to the realm of
international society and international legal system. 69
69
It is explained that four methods of assimilation were identified: treaty–making, colonization,
compliance with standard of civilization, and protectorate: see, Anghie, above n 3, 52–66. As for
colonization, the issue of native personality played a significant role in determining whether
colonization has properly occurred and how sovereignty was acquired over non–European peoples.
Discovery, occupation, conquest, and cession were among the traditional doctrines adopted. For a
comprehensive and detailed account of these doctrines: see, Hall, above n 54; Oppenheim, above n 56;
In particular on conquest: see, Sharon Korman, The Right of Conquest: The Acquisition of Territory by
Force in International Law and Practice (New York: Oxford University Press, 1996).
34
1.4 The early 20th century: from positivism to pragmatism
The jurisprudence of ‘personality’, which deals with the question of defining the
proper subject of international law, continued to be a central concern for early
twentieth–century positivist jurists. 70
The positivist construction of international law during the early part of the
twentieth–century continued to undermine the legal status of indigenous peoples
within the international legal system. This period was indeed characterized by the
positivist denial of indigenous peoples as subjects of the international system.
Proponents of international law continued to maintain that not only did indigenous
peoples lack international legal personality, they also had no status or rights under
international law. Their exclusion from the international arena was grounded upon
Eurocentric notions of the law of nations. 71 Indeed, the positivist doctrine of effective
occupation of territory and the theory of recognition of statehood significantly
affected the legal status and rights of native peoples under international law.
Indigenous peoples were excluded because they were not recognized by the ‘family
of nations’. 72
70
See, Oppenheim, above n 56.
71
See especially, Hall, above n 54, 47: ‘It is scarcely necessary to point out that as international law is
a product of the special civilization of modern Europe, and forms a highly artificial system of which
the principles cannot be supposed to be understood or recognized by countries differently civilized,
such states only can be presumed to be subject to it as are inheritors of that civilization’.
72
Oppenheim, above n 56, 134–135: ‘As the basis of the Law of Nations is the common consent of the
civilized States, statehood alone does not imply membership of the Family of Nations…Through
recognition only and exclusively a State becomes an International Person and a subject of International
Law’.
35
International tribunal decisions during the 1920s and 1930s testify to this
development. In Cayuga Indians (Great Britain) v. United States, 73 it is ruled that a
‘tribe is not a legal unit of international law’. 74 In the dispute over the Island of
Palmas between Netherlands and United States, the decision favoured the
Netherlands because of its effective occupation and proved authority on the island.
Furthermore, the validity of treaties was dismantled as judicial reasoning pointed
out that ‘contracts between a State…and native princes of chiefs of peoples not
recognized as members of the community of nations…are not, in the international
law sense, treaties, or convention capable of creating rights and obligations’. 75
The ruling on the legal status of Eastern Greenland by the Permanent Court of
International Justice 76 is another clear example of the way in which the positivist
construct of international legal norms was operazionalised. The competitive claims
asserted over Inuit’s territory by Norway and Denmark were resolved with the
acknowledgment of the actual and prior establishment of sovereignty by the two
European states; Inuit’s presence and their claims were utterly ignored by the Court.
The myth of terra nullius gave the green light to the family of nations to construct
an international legal discourse that would guide and legitimise the process of
European colonization. Considering native lands as legally unoccupied – terra nullius
– allowed the wiping out of any indigenous sovereign status and rights under
international law. Discovery was then sufficient to legitimise colonial claims on
73
Cayuga Indians (Great Britain) v. United States, VI R. Int’l. Arb. Awards 173 (1926).
74
Cayuga Indians (Great Britain) v. United States, VI R. Int’l. Arb. Awards 173 (1926) 127.
75
Island of Palmas (U.S. v. Neth.), II R. Int’l. Arb. Awards 831 (1928) 858.
76
Legal Status of Eastern Greenland (Den. V. Nor.), 1933 P.C.I.J. (ser.A/B) No. 53.
36
native territories and to avoid any native assertion over the same lands. 77 Colonialism
patterns were therefore legitimised at the expense of indigenous peoples’ sovereign
rights to distinct identity, land, and self–government.
The ‘dynamic of difference’ through which positivism articulated an international
legal system divided into European civilized and non–European uncivilized peoples,
assumed a different colour with the creation of the League of Nations. The emergence
of international institutions in the form of the League of Nations in 1919, 78 and the
introduction of the Mandate System 79 determined a fundamental shift in the
perception of native peoples within the international legal system.
The positivist regime of the nineteenth–early twentieth centuries is replaced by
the new pragmatist regime on which the Mandate System is constructed. Pragmatism
furthered a new theory of international law based on ‘the social psychology, the
economics, the sociology as well as the law and politics of today’. 80 In other words,
positivism is criticized and rejected because of its formalism, that is, the autonomy
and independence of law from ethics and sociology. By contrast, international law is
77
See, eg, Oppenheim, above n 56; Westlake, above n 52.
78
The creation of an international institution like the League of Nations marks a monumental change
in international law. In an international system dominated by sovereign states as the only actors of
international law up to the beginning of the twentieth–century, the League of Nations emerges as a
new actor recognized under international law.
79
‘[T]he Mandate System was an extraordinary innovation in the field of international law; it furthered
the cause of international justice in extremely significant ways’: Anghie, above n 3, 191. The Mandate
System inaugurated a diametrically opposite approach to the colonial problem. Whereas positivist
international law promoted the exclusion of non–European peoples from the family of nations, the
Mandate System promoted self–government and tried to integrate to a certain extent previously
colonized peoples into the international system as sovereign states. An extensive literature has been
developed about the Mandate System. See, eg, Quincy Wright, Mandates Under the League of Nations
(Chicago: University of Chicago Press, 1930); Norman Bentwich, The Mandates System (London:
Longmans, Green, 1930); Duncan H Hall, Mandates, Dependencies and Trusteeship (Washington
D.C.: Carnegie Endowment for International Peace, 1948).
80
Roscoe Pound, ‘Philosophical Theory and International Law’ (1923) 1 Biblioteca Visseriana
Dissertationum Ius Internationale Illustrantium 71, 76.
37
to be based on the social sciences – political science, international relations and
sociology. International law needs to be forged by social development and mirror the
realities revealed by the social sciences in order to further social goals. 81
The science of economic development acquires fundamental significance for
twentieth–century international law. International law indeed starts to discard issues
of racial superiority 82 and adopt a new set of concepts perceived as neutral and
universal since they are based on the science of economics. 83
Accordingly, the ‘dynamic of difference’ articulated in terms of the distinction
between the ‘civilized’ and the ‘uncivilized’, is transformed into the distinction
between the ‘backward’ and ‘advanced’. The concept of ‘backwardness’ indicates
primarily lack of economic progress, followed by lack of self–determination and
Europeanization. 84
The racial and cultural concepts that explained the ‘dynamic of difference’
between European and non–European societies are replaced with economic
categories. Twentieth–century international law and institutions shifted from a race–
based discourse to an economics–based discourse. In so doing, the ‘civilizing
mission’ based on racial categories is rejected as unacceptable and unscientific. By
contrast, the neutral and scientific discourse of economics justifies the civilizing
81
This approach to international law was mostly furthered by American scholars who required a
sociological jurisprudence not only in the domestic sphere but also in the international arena. See,
Samuel J Astorino, ‘The Impact of Sociological Jurisprudence on International Law in the Inter–War
Period: the American Experience’ (1996) 34 Duquesne Law Review 277.
82
See generally, Karl Peters, New Light of Dark Africa (London: War, Lock & Co., 1890).
83
Anghie, above n 3, 189.
84
Wright, above n 79, 584.
38
mission of international institutions aiming at transforming and improving the welfare
of economically deprived peoples. 85
Economic development significantly influenced policy–making and policy
choices of the League of Nations. In particular, the concept of labour played in the
mandate system the same role that the ‘universal human being’ did in Vitoria’s
naturalist framework. 86 The discipline of economics was thus perceived as
universally valid since it incarnated the processes through which native peoples could
be civilized. 87
It is suggested that the contemporary discipline of development originated with
the Mandate System in many respects, and that contemporary international law and
institutions still bear the legacy of the Mandate System at the theoretical and practical
level. 88
The Mandate System created a novel system of control and management which
relied upon a new and more sophisticated model of legitimation, that is the concept of
‘science’. It has been argued that ‘the new ‘science of colonial administration’ that
the mandates brought into being is, in its most important elements, the new ‘science
85
Ibid 193. The main goals of the Mandate System were indeed to prevent the exploitation of native
peoples and to promote their well–being and development. On these provisions: see, Hersch
Lauterpacht, ‘The Mandate Under International Law in the Covenant of the League of Nations’ in
Hersch Lauterpacht and Elihu Lauterpacht (eds), International Law (Cambridge: Cambridge
University Press, IV vols, 1970) III, 29–84.
86
‘The law of labour is a law of nature, which no one should be allowed to evade. And if this is true of
organised and highly developed societies, the same must be admitted for peoples on the road to
civilization and for countries which are on the threshold of development’: Permanent Mandates
Commission, Seventh Session, at 201.
87
Anghie, above n 3, 252–254.
88
Ibid 118–119.
39
of development’ which provides the legitimating foundation of contemporary
development institutions such as the [World] Bank’. 89
The Mandate System was established as a central institution which had the central
authority to gather massive amounts of information from the peripheries; to examine
this information through the universal discipline of economics; and to construct an
‘ostensibly universal science’. 90 The universal science of economic development
would allow to evaluate and establish the modalities through which all societies could
reach economic development. This new legitimation was the foundation of the new
system of control and management carried out through the Mandate System.
According to this system, the transformation of colonial lands was no longer
pursued by colonial powers through the advancement of their own interests, but
rather by a ‘disinterested’ and ‘neutral’ central institution that would acquire the
native knowledge and practice to elaborate scientific–based policies to guarantee the
development of the indigenous peoples. 91 It is claimed that these elements, which
emerged for the first time in the Mandate System, are core aspects of the
contemporary science of development. 92 In particular, it is emphasised that the
89
Ibid 264.
90
Ibid.
91
Ibid.
92
Ibid 265–267. It is argued, for example, that ‘the current [World] Bank concern to promote ‘good
governance’ and ‘democratization’ resembles in important respects the Mandate preoccupation with
promoting ‘self–government’; in each case, these projects of creating government are secondary to
economic considerations, in that they seek to further economic policies which are in the interests of the
metropolitan powers’. See also, James T Gathii, ‘Good Governance as a Counter Insurgency Agenda
to Oppositional and Transformative Social Projects in International Law’ (1999) 5 Buffalo Human
Rights Law Review 107; James T Gathii, ‘Retelling Good Governance Narratives on Africa’s
Economic and Political Predicaments: Continuities and Discontinuities in Legal Outcomes Between
Markets and States’ (2000) 45 Villanova Law Review 971.
40
production of knowledge has become central in international institutions’ endeavours
towards developing countries. 93
The point that needs to be emphasised is that the ‘dynamic of difference’
(articulated in the nineteenth-century in terms of race) which is reproduced in the
constitution of the Mandate System, is found on the concept of ‘developed’ versus
‘underdeveloped’. It is argued that the dynamic of developed versus undeveloped
peoples has been inherited in the contemporary international system, and continues to
give impetus for international law and international institutions to alleviate poverty
and bring about development.
Within such a context, this thesis explores the contemporary world’s development
agenda in relation to indigenous peoples. In particular, the assertion according to
which the reproduction of colonial relations and systems of control have been resisted
by the people to whom they are applied, finds a good example in the relations
between indigenous peoples and international institutions. It will be shown how
indigenous peoples are actively trying to resist a development agenda which does not
benefit them, and which is often considered extraneous and detrimental to their
aspirations.
Moreover, the analysis of the intersection between indigenous rights and
development processes proposed in this thesis, will reveal the fundamental
importance of theoretically and practically applying the principle of indigenous self–
determination in development policies for indigenous peoples. It will be
demonstrated that the integration of the principle of indigenous self–determination
93
See, eg, International Bank for Reconstruction and Development (World Bank), World Development
Report, 1998/1999: Knowledge for Development (New York: Oxford University Press, 1998).
41
into development policies would potentially serve as a vehicle to put an end to the
‘civilizing mission’ which has underlined international law and to minimize the
‘dynamic of difference’ reproduced in today’s international system.
To conclude the discussion on the early 20th century period, it is important to
underline that the creation of the League of Nations marked another fundamental
development for indigenous peoples. The newly formed international institution
became the first international forum to which indigenous peoples tried to appeal to
raise awareness of their existence and to assert their inherent rights. 94
During the period of the League of Nations, at least four attempts 95 were made by
indigenous leaders to appeal before the international community through the League
of Nations. 96 Those cases testify the reaction of native peoples who tried to resist the
imposition of an international legal system that denied them any international legal
personality or right to access international tribunals. However, there was no response
by the League of Nations, no redress occurred as there were no provisions on
minority rights in the Covenant of the League of Nations. 97
It is in the second half of the twentieth–century that indigenous peoples began to
increasingly assert their existence and voice their claims within the international legal
94
Les Malezer, ‘Permanent Forum on Indigenous Issues: ‘Welcome to the Family of the UN’’ in
Joshua Castellino and Niamh Walsh (eds) International Law and Indigenous Peoples (Leiden, The
Netherlands: Martinus Nijhoff, 2005) 67, 73.
95
For a detailed account of these cases: see, ibid 69–73.
96
See, eg, Douglas Sanders, ‘The Legacy of Deskaheh: Indigenous Peoples as International Actors’ in
Cynthia Price Cohen (ed), Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational
Publishers, 1998) 73–74. Sanders reports, among others, the case of the Iroquois leader Deskaheh who
tried to obtain recognition of the Confederacy of Six Nations in Ontario as a State under international
law (1923–1924).
97
It seems that New Zealand and Australia demanded to not include minority rights in the Convention
in order to elude any international scrutiny of their handling of Maori and Aborigines. See, Warwick A
McKean, Equality and Discrimination under International Law (Oxford: Clarendon Press; New York:
Oxford University Press, 1983).
42
system. The creation of the United Nation system and the emergence of international
human rights law inaugurated a new era for indigenous peoples and international
relations.
43
1.5 The United Nations system and indigenous peoples
The legal status of indigenous peoples in the last half of the 20th century is
affected by significant events: the emergence of the United Nations system, the
elaboration of an international human rights framework, the decolonization process,
and the emergence of non–state actors in the international arena.
The creation of a new world system under the auspices of the United Nations,
inaugurated a new era for the advancement of indigenous peoples within the
international system. The UN Charter constructs an international system regulated
substantively by statist precepts, such as the ‘sovereign equality’ and ‘territorial
integrity’ of member States, as well as the principle of non–intervention into
sovereign states’ domestic affairs. 98
The novelty is that non–statist principles are also introduced among the main
purposes of the organization: promotion of ‘equal rights and self–determination of
peoples’; 99 ‘respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion’; 100 and ‘conditions of economic and
social progress and development’. 101 Those non–statist principles open up the
development of an international human rights system, which expands the competency
of international law over spheres previously considered the prerogative of sovereign
states.
98
UN Charter, art. 2, paras. 1,4,7.
99
UN Charter, art. 1, para. 2.
100
UN Charter, art. 1, para. 3.
101
UN Charter, art. 55.
44
It can be argued that the inception of the international human rights system has
tempered, to a certain extent, the positivist construct of international law.
International human rights law can be seen as a return to ‘the classical–era [of]
naturalism, in which law was determined on the basis of the visions of what ought to
be, rather than simply on the basis of what is, and which contextualized the state as an
instrument of humankind rather than its master’. 102
International human rights law can be considered one of the most important and
revolutionary developments of international law and international relations during the
UN period. The international normative order enlarges its scope from mere
assessment of state conduct vis–à–vis other sovereign states, to the regulation of
states’ behaviours within their own territories. Human rights law goes beyond states’
national boundaries as international human rights standards apply universally to the
entire spectrum of humanity.
A significant implication of this normative order is the emergence of non–state
actors in the international arena. International law is perceived to increasingly address
and to be moulded by non–state entities. As Anaya notes, ‘[i]ndividuals, international
organizations, transnational corporations, labour unions, and other non–governmental
organizations participate in procedures that shape the normative content of
international law’. 103 Accordingly, humanistic precepts and moral objectives inform
multilateral deliberative processes carried out both by states and non–state actors who
102
103
Ibid.
45
are allowed, in different levels and forms, to participate in the shaping of the
international normative system. 104
Indigenous peoples, as a specific segment of the global civil society, have been
part of this process, especially over the last two decades. Indigenous peoples have
gradually acquired visibility within the United Nations system at three different
levels: institutional, normative, and procedural.
At the institutional level, indigenous peoples have been increasingly participating
as a category of non–state actors, in the international arena at several different
international fora. 105 More importantly, since the 1980s they have begun to actively
participate in standard–setting and consciousness–raising processes in the context of
different UN bodies. The Sub–Commission’s Working Group on Indigenous
Populations, 106 the Human Rights Commission’s open–ended inter–sessional
Working Group for the elaboration of the UN Draft Declaration on the Rights of
Indigenous Peoples, 107 the Special Rapporteur on the situation of human rights and
fundamental freedoms of indigenous people, 108 and the latest Permanent Forum on
104
Although UN membership is limited to states, the UN Charter sets out significant levels and forms
of non-state participation in the organization’s deliberative processes. It indeed allows non-
governmental organizations to affiliate with the UN Economical and Social Council, the parent body
of the United Nations’ human rights and social policy organs (Art.56).
105
See, eg, UN Conference on Environment and Development, Rio de Janeiro 1992, which adopted
Agenda 21 whose chapter 26 grants a central place to indigenous populations who need to be included
in an environmental agenda; World Conference on Human Rights, Vienna, 1993, which adopted the
Vienna Declaration and Programme of Action whose paragraph 20 (Part 1) is dedicated to indigenous
peoples. Its recommendations have been fundamental for the creation of the UN Permanent forum on
Indigenous Issues, among others.
106
UN ESCOR Res. 1982/34 (1982).
107
UN Doc. E/CN4/Sub2/1994/2/Add.1 (1994).
108
Human Rights Commission Res. 2001/57, UN Doc. E/CN.4/DEC/2001/571 (24 April 2001).
46
Indigenous Issues, 109 are the main institutional mechanisms specific to indigenous
peoples created within the UN system.
At the normative level, an emerging body of normative precepts specific to
indigenous peoples has been developed within the international human rights
framework. The second chapter of the thesis will analyse the emerging corpus of
legal precepts concerning indigenous peoples. The right to self–determination will be
the focus of this discussion, as it constitutes the core precept in the indigenous rights
discourse.
At the procedural level, the emergence of legal norms concerning indigenous
peoples within the international human rights framework requires us to investigate
whether and to what extent the procedural mechanisms established under the
international human rights monitoring system have dealt with indigenous claims. In
particular, the third chapter will explore how indigenous claims to self–determination
have been addressed by existing international human rights implementation
mechanisms, and to what extent they have been effective.
109
UN ESCOR Res. 2000/22.
47
Chapter 2
Indigenous peoples’ right to self–determination
2.1 Indigenous rights and the international human rights system
It has been argued that an emerging body of normative precepts specific to
indigenous peoples has been developed within the international human rights
framework. This chapter will explore how indigenous peoples have articulated their
demands, what the rights are that they are claiming, and how the international legal
system is incorporating these demands into international human rights instruments. In
particular, the analysis of the normative content of indigenous claims will focus on
indigenous peoples’ right to self–determination. It will be shown how the right to
self–determination lies at the heart of the emerging normative system of indigenous
rights.
Universal and regional instruments relating to indigenous peoples’ rights have
been adopted, or are presently under examination before different international
instances. These instruments include: the International Labour Organization (ILO)
Convention N°107 Concerning the Protection and Integration of Indigenous and other
Tribal and Semi–Tribal Populations in Independent Countries, 1 and the ILO
1
Convention N°107 Concerning the Protection and Integration of Indigenous and other Tribal and
Semi–Tribal Population in Independent Countries, International Labour Conference, 40th sess, 16 June
1957, entered into force 2 June 1959 [hereinafter ILO Convention 107].
48
Convention N°169 on Indigenous and Tribal Peoples; 2 the Draft American
Declaration on the Rights of Indigenous Peoples; 3 and the United Nations
Declaration on the Rights of Indigenous Peoples. 4 It will be argued that all these
instruments contribute, to a varying extent, to the emergence of indigenous rights as a
sui generis legal genre.
2
Convention N°169 on Indigenous and Tribal Peoples, International Labour Conference, 76th sess, 72
ILO Official Bull. 59, 7 June1989, entered into force on 5 September 1991 [hereinafter ILO
Convention 169].
3
Draft American Declaration of the Rights of Indigenous Peoples, Working Group to Prepare the
Draft American Declaration on the Rights of Indigenous Peoples, Record of the Current Status of the
Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI;
GT/DADIN/doc.283/07 corr. 1, 26 January 2007.
4
United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Council Resolution,
UN Doc. A/HRC/1/L.10 (30 June 2006).
49
2.1.1 International Labour Organization’s Conventions on indigenous
peoples
ILO Conventions 107 and 169 represent a notable contribution for the elaboration
of a body of substantive norms relating to indigenous peoples and indigenous claims.
The International Labour Organization (ILO) 5 has been at the forefront in bringing
indigenous peoples’ issues to the attention of the international community. 6 Both
Conventions are indeed unique within international treaty law: they constitute the
only international instruments on indigenous rights binding on ratifying state parties.
ILO Convention 169 revises Convention 107, so that Convention 107, which is
still binding on those state parties who have not yet ratified Convention 169, is
currently closed to ratifications. 7 Convention 169 marks a significant shift in ILO’ s
approach to indigenous and tribal peoples. 8 It abandons the integrationist and
patronizing attitude embedded in Convention 107, to embrace an approach towards
5
The International Labour Organization (ILO) is one of the twelve specialized agencies of the UN,
pursuant to articles 57 and 63 of the UN Charter.
6
Indigenous peoples’ issues have been a central concern for the ILO since the 1920s when studies on
the labour conditions of indigenous and tribal workers, as well as forced labour of ‘native populations
in colonies’ were initiated. These studies constituted the basis for the adoption of several Conventions,
such as the Forced labour Convention N°29, 1930; the Recruiting of Indigenous Workers Convention,
N°50, 1936; the Contracts of Employment (Indigenous Workers) Conventions, N°64, 1939. For a
detailed list of recommendations, conventions, special technical meetings concerning indigenous
peoples undertaken by the ILO, see the Martinez–Cobo Report, UN Doc. E/CN.4/Sub.2/1982/2/Add.1,
16 May 1982, paras 31–134.
7
See, Manuela Tomei and Lee Swepston, Indigenous and Tribal Peoples: A Guide to Convention
N°169 (Geneva: International Labour Office and International Centre for Human Rights and
Democratic Development, 1996).
8
Lee Swepston, ‘A New Step in the International Law on Indigenous and Tribal Peoples: ILO
Convention N°169 of 1989’ 15(3) 1990 Oklahoma City University Law Review 677; International
Labour Organization, ILO Convention on Indigenous and Tribal Peoples, 189 (N°169): A Manual;
Project to Promote ILO Policy on Indigenous and Tribal Peoples (Geneva: International Labour
Organization, 2003).
50
indigenous and tribal peoples founded on respect for their existence, ways of life,
identity, traditions and customs. ILO Convention 169 covers a wide range of subjects,
including provisions on health, education, traditional occupations, social security.
Particularly and more importantly, it recognizes the rights to traditionally owned or
occupied land and also, for the first time in international law, to the natural resources
connected to these lands; it promotes the highest degree of self–government and
autonomy possible within nation states and it establishes obligation by states parties
to ‘consult the peoples concerned, through appropriate procedures and in particular
through their representative institutions, whenever consideration is being given to
legislative or administrative measures which may affect them directly’.9 Furthermore,
indigenous and tribal peoples ‘shall have the right to decide their own priorities for
the process of development…to exercise control…and participate in the formulation,
implementation and evaluation of plans and programmes for national and regional
development which may affect them directly’.10
Convention 169 has attracted criticism, including: the lack of direct and ongoing
participation by indigenous peoples’ representatives in the standard–setting process;11
the concession of too much autonomy to a specific group within national boundaries;
not granting indigenous and tribal peoples full decision–making power; the omission
of any reference to indigenous peoples’ right to self–determination. 12
9
ILO Convention 169, art. 6(1).
10
ILO Convention 169, art. 7(1).
11
See, D Sambo, ‘Indigenous Peoples and International Standard–setting Processes: Are State
Governments Listening?’ (1993) 3(1) Transnational Law and Contemporary Problems 13.
12
See, eg, Gudmundur Alfredsson, ‘Autonomy and Indigenous Peoples’ in Markku Suksi (ed),
Autonomy: Applications and Implications (The Hague: Kluwer Law International, 1998) 125.
51
Even though Convention 169 is implemented within the competence of the ILO,
its normative prescriptions are connected to the overarching human rights framework,
and its influence has extended beyond the actual number of ratifications. The
Convention has stimulated debate and studies on the situation and discrimination
suffered by indigenous peoples in countries which had been denying their existence,
such as Cambodia, Laos, Thailand, the Central African Republic, and Vietnam. 13 It
has also provided an important source to help define indigenous rights within national
jurisdictions. 14 As for the implementation mechanisms set out within the ILO, it will
be shown in the next chapter how the ILO monitoring mechanisms and its technical
assistance programs have been significant in addressing indigenous issues and in
stimulating awareness in several countries.
13
Lee Swepston, ‘Indigenous Peoples in International Law and Organizations’ in Joshua Castellino
and Niamh Walsh (eds), International Law and Indigenous Peoples (Leiden, The Netherlands:
Martinus Nijhoff, 2005) 53, 57–58; International Labour Organization, ILO Convention on Indigenous
and Tribal Peoples, 189 (N°169): A Manual, above n 8.
14
In Colombia, for instance, several court decisions have directly relied on Convention 169 to decide
on indigenous issues and indigenous rights.
52
2.1.2 The United Nations Declaration on the Rights of Indigenous
Peoples
The United Nations Declaration on the Rights of Indigenous Peoples is the most
comprehensive universal statement of the aspirations and rights of world’s indigenous
peoples ever developed.
The UN Working Group on Indigenous Populations, in accordance with the
mandate given to it by the UN Economic and Social Council, 15 began to exercise its
standard–setting function by working on a draft text about the rights of indigenous
peoples. 16 In 1993, the WGPI concluded its decennial drafting process by adopting a
final text 17 which was forwarded to the Sub–Commission on Prevention of
Discrimination and Protection of Minorities (now the Sub–Commission on the
Promotion and Protection of Human Rights). The Sub–Commission rapidly adopted
the text of the Draft Declaration in 1994, 18 and forwarded it to the UN Commission
on Human Rights for approval. An open–ended inter–sessional working group was
established in 1995 by the Commission on Human Rights 19 to elaborate the text of
the UN Declaration for final adoption by the General Assembly. 20 The most recent
15
ECOSOC Resolution 1982/34, 7 May 1982.
16
Working Group on Indigenous Populations, 4th sess, UN Doc. E/CN.4/Sub.2/1985/22, Annex II
(1985) [hereinafter WGIP). See also, Sarah Pritchard, ‘Working Group on Indigenous Populations:
Mandate, Standard–setting Activities and Future Perspectives’ in Sarah Pritchard (ed), Indigenous
Peoples, the United Nations and Human Rights (London: Zed Books, 1998).
17
UN Draft Declaration on the Rights of Indigenous Peoples, UN Working Group on Indigenous
Populations, UN Doc. E/CN.4/Sub.2/1993/29, Annex I (1993).
18
Sub–Commission on Prevention of Discrimination and Protection of Minorities, Res. 1994/45, 26
August 1994, UN Doc. E/CN.4/Sub.2/1994/56 (1994).
19
Commission on Human Rights, Res. 1995/32 of 3 March 1995, 51st sess, [111–113], ECOSOC
Official Records 1995, Supplement No. 4.
20
The UN Draft Declaration was expected to be adopted by the end of the First International Decade
of the World’s Indigenous Peoples (1995–2004). The International Decade of the World’s Indigenous
Peoples (1995–2004) was proclaimed by the UN General Assembly by Resolution 48/163 of 21
53
development in the standard–setting process has been the adoption of the United
Nations Declaration on the Rights of Indigenous Peoples 21 by the newly created UN
Human Rights Council. 22 The Human Rights Council adopted the UN Declaration as
proposed by the Chairperson–Rapporteur of the Working Group of the Commission
on Human Rights 23 established in accordance with paragraph 5 of the General
Assembly resolution 49/214 (23 December 1994).
The UN Declaration is to become, if approved, an internationally recognized legal
non–binding instrument setting the minimum standards for the survival, dignity and
well–being of the world’s indigenous peoples. The UN Declaration does not simply
make a replica of international human standards established in the Universal
Declaration of Human Rights and in major human rights Covenants. The UN
Declaration reaffirms universal and fundamental human rights; it accurately specifies
their normative content as they apply to indigenous peoples, and it spells out
fundamental collective and individual rights specific to indigenous peoples.
The UN Declaration consists of a preamble and 46 articles which cover a wide
range of human rights and fundamental freedoms related to indigenous peoples.
December 1993. see also United Nations General Assembly Resolution 50/157, 21 December 1995,
Annex: Programme of activities for the International Decade of the Worlds Indigenous People.
21
United Nations Declaration on the Rights of Indigenous Peoples, Human Rights Council Resolution,
UN Doc. A/HRC/1/L.10 (30 June 2006) [hereinafter the UN Declaration].
22
GA Res. 60/251, UN GAOR, 60th sess, UN Doc. A/Res/60/251 (2006). The result of the vote was as
follows: In favour (30): Azerbaijan, Brazil, Cameroon, China, Cuba, Czech Republic, Ecuador,
Finland, France, Germany, Guatemala, India, Indonesia, Japan, Malaysia, Mauritius, Mexico,
Netherlands, Pakistan, Peru, Poland, Republic of Korea, Romania, Saudi Arabia, South Africa, Sri
Lanka, Switzerland, United Kingdom of Great Britain and Northern Ireland, Uruguay, Zambia.
Against (2): Canada, Russian Federation. Abstentions (12): Algeria, Argentina, Bahrain, Bangladesh,
Ghana, Jordan, Morocco, Nigeria, Philippines, Senegal, Tunisia, Ukraine. Absent (3): Djibouti, Gabon,
Mali.
23
Report of the Working Group established in accordance with Commission on Human Rights
Resolution 1995/32 of 3 March 1995 on its eleventh session, UN Doc. E/CN.4/2006/79, Annex I.
54
The preamble is ‘beautifully drafted [and] contains many of the sentiments and
values that mankind hold highest’. 24 The preamble affirms general and fundamental
principles infused throughout all the Declaration’s provisions. The principle of
equality is clearly acknowledged: ‘indigenous peoples are equal to all other peoples’.
Cultural diversity is advocated to replace any principle of racial superiority or
evolutionary theories: indigenous peoples ‘contribute to the diversity and richness of
civilizations and cultures’ and any doctrine or policy inspired to concepts of racial
superiority are ‘scientifically false, legally invalid, morally condemnable and socially
unjust’.
The content of the text is rich and articulate. The UN Declaration covers a wide
range of rights and freedoms of indigenous peoples, which can be summarized as
follows: freedom from discrimination, rights to self–determination, equality,
participation in the life of the State, and nationality; 25 cultural integrity, identity,
threats to the survival of indigenous peoples as distinct peoples; 26 the spiritual,
linguistic and cultural identity of indigenous peoples; 27 education, information and
labour rights; 28 participatory rights, development, rights and needs of the youth,
elderly, women and children, health and other economic and social rights;29 land and
resource rights; 30 the exercise of self–government and indigenous institutions; 31
measures to give effective implementation to the UN Declaration, limitations to the
24
Intervention of the representative of the Grand Council of the Crees of Quebec, Commission
Drafting Group, 25 October 1996.
25
UN Declaration, arts. 1–6.
26
27
28
29
30
31
55
exercise of indigenous rights according to international human rights obligations, and
general concluding provisions. 32
It is important to highlight that indigenous peoples and indigenous claims are
within the fabric of international law and international human rights law. Indigenous
peoples are, first of all, beneficiaries of the fundamental rights and freedoms
recognized in the UN Charter, the Universal Declaration of Human Rights (UDHR),
and international human rights law. 33 It is evident that – if and when the UN
Declaration is approved by the UN General Assembly – the legal precepts embedded
in the text will become part of international human rights law.
It can be argued that the UN Declaration represents a landmark human rights
instrument within the fabric of international human rights law, in at least two
respects. First, it is the first international instrument which has developed through a
standard–setting process with the broadest participation of civil society within the UN
system. Indigenous representatives, NGOs with or without consultative status to the
UN Economic and Social Council (ECOSOC), scholars, experts, governments’
representatives, international institutions and agencies have all been intensely
participating in the long standard–setting process.
Second, and more important, the UN Declaration stands out within the corpus of
international human rights instruments as it recognizes and establishes collective
rights to an unprecedented degree in human rights law.
The predominant affirmation of indigenous claims in terms of collective rights is
connected to the assertion of indigenous peoples as a collective subject. The right–
32
33
UN Declaration, art.1.
56
holder of the UN Declaration’s provisions is indeed primarily identified as a
collective subject: ‘indigenous peoples have the right…’, 34 ‘indigenous peoples have
the collective right…’, 35 or ‘indigenous peoples shall not be…’ 36 The predominant
collective subject is in some provisions accompanied by the individual subject:
‘indigenous peoples have the collective and individual right…’, 37 or differently
phrased as ‘indigenous peoples and individuals have the right…’; 38 whereas only one
provision is articulated exclusively in terms of individual rights. 39
The assertion of indigenous peoples as a collective subject stands at the core of
the UN Declaration. Ambiguities, however, are deemed to arise if one considers that
indigenous peoples, the UN Declaration’s collective right–holder, are concurrently
the right–holder of the international legal prescriptions under the UN Charter, the
UDHR and international human rights law. 40 As a result, indigenous peoples locate
themselves within the fabric of international law and human rights law, but at the
same time, they push forward the boundaries of legal interpretation of human rights
standards. The UN Charter loosely refers to peoples’ rights, whereas they are
completely absent in the UDHR and included, to a very limited extent, in human
rights instruments generally. By contrast, the UN Declaration clearly states that
indigenous peoples are the right–holders of the entitlements set out in its text.
34
See, eg, UN Declaration, arts. 1, 5, 32, 34.
35
UN Declaration, art. 7.
36
37
38
UN Declaration, arts. 2, 8, 9.
39
40
57
Indigenous rights are indeed expressed and understood primarily as collective
rights. 41
The deliberate and strong–minded choice to acknowledge the collective nature of
indigenous rights is significant within the corpus of international human rights law.
The individualistic approach to human rights standards has been dominating human
rights discourse since the inception of earliest international human rights
documents. 42 The international legal system has traditionally prioritised the rights of
the individual 43 so that indigenous peoples’ claims challenge the historically
individual nature of western human rights discourse.
The presence of collective and individual rights in the UN Declaration poses
significant issues: the prior question of the acceptability of collective rights within
international human rights law, and the relationship between collective and individual
rights. These issues have given rise to heated debates in scholarly literature, in the
discussions of the Commission of Human Rights’ Working Group on the Draft
Declaration, and continue to attract particular attention because of their impact on
international legal norms and human rights discourse.
The UN Declaration constitutes the first emerging legal instrument where the
coexistence of these two categories of rights are clearly acknowledged; an instrument
which challenges conservative views on collective rights and where the complexity of
41
As an indigenous representative from the Grand Council of the Crees of Quebec stated: ‘Indigenous
peoples need the recognition and protection of their collective rights. When human rights are attacked,
when racial discrimination is practiced, it is directed against groups. Individuals suffer the pain, that is
true. But they suffer because they are perceived by their attackers as members of a group’, Intervention
of 25 October 1996.
42
The first human rights instruments are also referred to as the Bill of Rights: the Universal
Declaration of Human Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights.
43
Richard A Falk, Human Rights Horizons (New York: Routledge, 2000) 127.
58
balancing individual and collective rights courageously stands at the core of the UN
Declaration.
Concerns about the need to ensure a balance between individual rights and
collective rights have been central in many debates at the WGIP and the Human
Rights Commission’s Working Group. A number of governments have expressed
concerns about ‘a possible imbalance between individual and collective rights’ 44 and
the potential encroachment on individual rights: ‘human rights by nature were
individual…collective rights might be exercised in a manner that would be
detrimental to the enjoyment of individual rights’. 45
In particular, debates focused on the limits that need to be put on indigenous self–
government to protect the human rights of individual members. A related suggestion
by the Canadian government delegation was accepted and introduced in article 44,
which states that ‘[a]ll the rights and freedoms recognized herein are equally
guaranteed to male and female indigenous individuals’. Furthermore, article 34 has
been welcomed by several governments 46 as it prescribes a specific guarantee for
individual rights:
Indigenous peoples have the right to promote, develop and maintain their
institutional structures and their distinctive customs, spirituality, traditions,
procedures, practices and, in the cases where they exist, juridical systems or
customs, in accordance with international human rights standards.
44
Intervention of the representative of Netherlands, UN Doc. E/CN.4/1997/102, para. 109. See also,
Douglas Sanders, ‘The Legacy of Deskaheh: Indigenous Peoples as International Actors’ in Cynthia
Price Cohen (ed), The Human Rights of Indigenous Peoples (Ardsley, N.Y.: Transnational Publishers,
1998) 73, 85; Sarah Pritchard, ‘Working Group on Indigenous Populations: Mandate, Standard–setting
Activities and Future Perspectives’ in Sarah Pritchard (ed), Indigenous Peoples, the United Nations
and Human Rights (London: Zed Books, 1998).
45
Intervention of the representative of Argentina, UN Doc. E/CN.4/1999/82, para. 49; see also, Report
of the 2nd session of the Commission Drafting Group, UN Doc. E/CN.4/1997/102, paras. 103–129.
46
See, for instance, the statements of the representative of France, Sweden, Canada and Brazil, UN
Doc. E/CN.4/1997/102, paras. 225, 228, 231, 233, respectively.
59
Some indigenous representatives have opposed this article on the ground that it
limits the exercise of the right to self–determination in a discriminatory way,
considering that no other peoples have been subjected to the same limitations. 47 On
the other side, the wording of article 34 has been considered limited, if the aim is to
ensure the respect of individual human rights among collective rights, as it should be
applied to all rights contained in the UN Declaration. 48 It is also suggested that
indigenous peoples could borrow the language that international bodies have used to
strike the balance between the priorities of the collective and the individual:
necessity, proportionality, equity and balance of rights. 49 The suggestion should be
investigated, as it is not specified how these principles would apply in indigenous
contexts.
At the procedural level the UN Declaration has had a significant impact on states–
indigenous relations. It has allowed, for the first time in UN history, continuous and
direct dialogue between government delegations and the beneficiaries of the UN
Declaration’s provisions. As the High Commissioner for Human Rights noted, ‘the
working group represented an unusual standard–setting activity by which
governmental delegations had an opportunity to talk directly with the beneficiaries of
the UN Declaration; it represented the acknowledgment of a new generation of
rights’. 50
47
UN Doc. E/CN.4/1997/102, para. 224.
48
Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University
Press, 2002) 381.
49
Ibid.
50
UN Doc. E/CN.4/Sub2/1998/106, para. 39.
60
Further, the positivist approach to international regulation has been challenged by
a more flexible and informal approach carried out by indigenous delegations. The
role of compulsive codifiers played by states, which have approached the document
as a statute prescribing precise rights and duties for all parties involved, has clashed
with indigenous peoples’ attitudes in considering the UN Declaration as ‘an
international declaration of constitutive principles, and not a convention specifying
binding entitlements and obligations’. 51
The WGIP and the WG on the Draft Declaration changed the UN positivist rules
related to who could speak, present and participate at their meetings, with the final
result being to give voice to indigenous representatives, simplify processes and
enable a form of supervised negotiation between indigenous peoples and states. 52
It is interesting to note that states, while showing willingness to extend access and
participation of indigenous peoples on an exceptional basis, refrain from
institutionalizing these ‘concessions’. These innovations are seen as ‘concessions’
only because the international society is conceived of as nothing more than the
interstate system. If the international society is conceived of ‘as inclusive of, but
51
Maivân Lâm, At the Edge of the State: Indigenous Peoples and Self–Determination (New York:
Transnational Publishers Inc., 2000) 177.
52
The representation of indigenous participants at the United Nations, for instance, has represented a
problematic issue when related to the formally designated and identifiable delegates of states.
Indigenous communities’ modes of representation have very little to do with the ballot box, the
dominant trope of liberal democracies. Informal processes are crucial in indigenous designation of
representatives for two reasons: ‘first, encourage ongoing discussion and consensus rather than an
abrupt act of decision-making; and, second, retain tactical flexibility for the community by not, for
example, formally and prematurely committing it to a particular position or spokesperson, but instead
reserving for it the option of signaling post-hoc approval or disapproval of a particular act of
representation’: Ibid 46. However, the informality and fluidity that characterizes indigenous
representatives, as opposed to the formal delegation of authority is questioned also as to its capacity to
represent their communities at home and give voice to their claims.
61
increasingly larger than, the interstate system, then the innovations made were not
concessions at all, but necessary and healthy adaptations’. 53
At the normative level, it can be argued that the UN Declaration is imbued with
the fundamental principle of self–determination. Indigenous peoples’ right to self–
determination represents the cornerstone of the UN Declaration and all indigenous
rights embedded in it. The adoption and pervasiveness of the principle of self–
determination in the UN Declaration gives rise to challenging issues under
international law at the conceptual, normative, and procedural level. Indigenous
peoples’ aspiration to self–determination involves different interrelated issues that
necessitate a separate discussion to be provided in the following sections.
What is important to consider here is that despite the difficulties relating to
states’ recalcitrancy to endorse and acknowledge indigenous peoples’ right to self–
determination, indigenous peoples have always strongly upheld the recognition of the
right to self–determination as fundamentally entrenched in any declaration of
indigenous rights.
The UN Declaration is considered to ‘stand[s] in its own right as an authoritative
statement of norms concerning indigenous peoples on the basis of generally
applicable human rights principles; and it is also a manifestation of the movement in
a corresponding consensual nexus of opinion on the subject among relevant actors’. 54
Although some indigenous representatives express their discontent with the final
outcome as not going far enough, while some government representatives believe that
53
Lâm, above n 51, 174.
54
James S Anaya, Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996)
53.
62
it goes too far, the UN Declaration is considered to represent a widening common
ground among indigenous peoples and governments experts in relation to indigenous
peoples’ rights. 55
The UN Declaration is indeed seen as a compromise between indigenous
participants’ demands and indigenous aspirations. Kenneth Deer, a Mohawk who has
been long active at the WGIP, describes the UN Declaration as follows:
The Draft Declaration still belongs to the United Nations and not to
indigenous peoples. The draft Declaration has its flaws and weaknesses; it is
not perfect. It also holds some dangers. However, I believe it is the best we
could have done within the parameters and the restrictions we had to work
with. 56
Notwithstanding its shortcomings, the UN Declaration remains a groundbreaking
and remarkable tribute to a new generation of international consensus on indigenous
peoples’ rights both at the international and regional institutional level.57
The adoption of the UN Declaration by the General Assembly will indicate the
commitment of the international community to recognize and protect the individual
and collective rights of indigenous peoples. Even though the final Declaration will
not be legally binding on States, it will carry considerable moral force.
It can be argued that, besides the deriving legal obligations, the significance of the
UN Declaration lies in the awareness–raising process it has been carrying out over
decades of discussions, debates and controversies. The observance of the rights of
55
Ibid 52–53.
56
Kenneth Deer, ‘Autochtones et Quebecois: La Rencontre des Nationalismes’ in Pierre Trudel (ed),
The UN Draft Declaration on the Rights of Indigenous Peoples (Montreal: Recherches Amerindiennes
au Quebec, 1995) 19, 22.
57
For a detailed discussion of measures adopted and international and regional institutions concerning
indigenous peoples: see, Russel Lawrence Barsh, ‘Indigenous Peoples in the 1990s: from Objects to
Subject of International Law?’ (1994) 7(33) Harvard Human Rights Journal 43.
63
indigenous peoples, and in general of all peoples, ultimately depends upon changes in
community attitudes, tolerance and better understanding of the issues and concepts
underlying human rights standards. It is therefore important that indigenous peoples
continue to participate in the drafting process to ensure that the final text will
truthfully mirror their visions, aspirations and human rights on an individual and
collective level. The discussion of concepts in the UN Declaration over the coming
years will continue to raise awareness within the international community,
international institutions and civil society about the plight and aspirations of
indigenous peoples in today’s world.
64
2.1.3 The Draft American Declaration on the Rights of Indigenous
Peoples 58
The Draft American Declaration on the Rights of Indigenous Peoples’ represents
a regional effort to articulate a comprehensive statement of the rights of the
indigenous peoples of the American continent. Articulated within the Organization of
American States (OAS), the Draft American Declaration was first approved in 1995
by the Inter–American Commission on Human Rights as the ‘Draft of the Inter–
American Declaration on the Rights of Indigenous Peoples’. 59 It was revised to a
‘Proposed American Declaration on the Rights of Indigenous Peoples’ and approved
in 1997 by the IACHR, 60 then submitted to the OAS General Assembly.
The revision and discussion process within the OAS institutions was
characterized, in its earlier stages, by a limited participation of indigenous peoples.
The General Assembly would request the Permanent Council to examine the text and
governments to submit observations. It was only in 1999 that a wider participation of
indigenous representatives was allowed, when the Committee on Juridical and
Political Affairs accepted their participation in the meeting of government experts.
This decision, even though indigenous participation was limited to part of that
meeting, marked an innovative practice within the OAS context. Since 1999, the
Working Group to Prepare the Draft American Declaration on the Rights of
58
It is also referred to as the OAS Draft Declaration.
59
OEA/Ser/L/V/II.90, Doc. 9 rev.1, 21 September 1995.
60
Approved by the Inter–American Commission on Human Rights on February 26, 1997, at its 1333rd
session, 95th regular session.
65
Indigenous Peoples, set up by the OAS General Assembly in 1999, 61 has been
characterized by an increasing participation of indigenous peoples in its revision and
drafting process. 62 Specific mechanisms 63 have indeed been established ‘to ensure
continued transparency and effective participation by representatives of indigenous
peoples during the negotiations in the quest for points of consensus’. 64
At present, the Draft American Declaration is under discussion by the Working
Group to Prepare the Draft American Declaration on the Rights of Indigenous
Peoples. 65 The latest version of the OAS Draft Declaration 66 appears more limited in
scope compared to the UN Declaration and is adapted to regional circumstances. The
limited ambitions of the Draft American Declaration are seen as a drawback, but also
as a potential strength. 67
As for the right–holders of the OAS Draft Declaration, it can be argued that even
though there is not the explicit reference to the individual and collective dimension of
61
AG/Res. 1610 (XXIX-0/99), 7 June 1999. The Working Group is a subsidiary body of the
Committee on Juridical and Political Affairs of the Permanent Council of the Organization of
American States.
62
AG/Res. 1610 (XXIX-0/99), paras. 3, 4, 7 June 1999. Advisory services are indeed provided by the
Inter–American Indian Institute.
63
Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples,
Report of the Chair on the Seventh Meeting of Negotiations in the Quest for Points of Consensus,
OEA/Ser.K/XVI; GT/DADIN/doc.258/06, 25 March 2006, para.3.
64
Report of the Chair on the Seventh Meeting of Negotiations in the Quest for Points of Consensus,
OEA/Ser.K/XVI; GT/DADIN/doc.258/06, 25 March 2006, para.1.
65
Seventh Meeting of Negotiations in the Quest for Points of Consensus, Record of the Current Status of
the Draft American Declaration on the Rights of Indigenous
Peoples,OEA/Ser.K/XVI;GT/DADIN/doc.260/06, 25 March 2006; Working Group to Prepare the
Draft American Declaration on the Rights of Indigenous Peoples, Eight Meeting of Negotiations in the
Quest for Points of Consensus, Record of the Current Status of the Draft American Declaration on the
Rights of Indigenous Peoples, OEA/Ser.K/XVI; GT/DADIN/doc.281/07, 23 January 2007.
66
Ninth Meeting of Negotiations in the Quest for Points of Consensus, Record of the Current Status of
the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI;
67
Thornberry, above n 48.
66
the rights set out in the UN Declaration, indigenous peoples are referred to as the
collective subject of the rights claimed in the Draft American Declaration. 68 The use
of the term ‘indigenous peoples’ has been repeatedly debated in the Working Group’s
meetings. For instance, indigenous representatives have argued at this regard that:
they were neither ethnic minorities not racial minorities nor

populations…They defined themselves as peoples, or collectives,
autonomous entities, with age–old languages, whose organization, shaped
by lands, waters, forests, and other natural resources, afforded them a
special world view and a unique social structure. 69
The current version of the Draft American Declaration 70 broadly refers to
‘indigenous peoples’ as its right–holders. Some examples of those provisions include:
the recognition of collective rights; 71 special guarantees against racism and racial
discrimination; 72 the right to have juridical personality recognized within domestic
systems; 73 protection against genocide; 74 and the right to belong to indigenous
peoples. 75
At the normative level, it is important to highlight the move from the
integrationist approach adopted in the earlier stages of the OAS Draft Declaration’ s
68
OAS Draft Declaration, art. 1. The definition of the beneficiaries of the American Declaration set
out in art.1 (2) is an adaptation of the formula of ILO Convention 169, as it focuses on self–
identification, their distinctiveness in their social, cultural and economic conditions, as well as the
maintenance of specific customs and traditions.
69
Report of the Chair of the Working Group, OEA/Ser.K/XVI; GT/DAdin/doc.5/99, 1 December 1999,
para. 4.
70
71
OAS Draft Declaration, art. VI.
72
OAS Draft Declaration, art. XI.
73
OAS Draft Declaration, art. IX.
74
OAS Draft Declaration, art. X bis.
75
OAS Draft Declaration, art. VIII.
67
revision process 76 towards the recognition of indigenous peoples’ right to self–
determination. 77 Emphasis was indeed placed on cultural integrity as opposed to self–
determination which has always been the core principle within the UN Declaration.
This inclusive perspective called on indigenous peoples to strengthen ‘the institutions
of the state and in establishing national unity based on democratic principles’. 78 The
current version of the OAS Draft Declaration departs from such integrationist
approach by calling on states to ‘recognize and respect the multiethnic and
multicultural [and multilingual] character of their societies’ 79 and by rejecting any
attempt at assimilation. 80
The inclusion of the right to self–determination 81 represents one of the major
advancement in the revision process. Article III of the current OAS Draft Declaration
states that,
Within the States, the right to self–determination of the indigenous peoples

is recognized, pursuant to which they can define their forms of organization
and promote their economic, social, and cultural development. 82
76
See, eg, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous
Peoples, Proposed American Declaration on the Rights of Indigenous Populations, OEA/Ser.K/XVI;
GT/DADIN/doc.1/99, 12 November 1999.
77
78
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.1/99, preamble, para. 1.
79
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr. 1, art. II.
80
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr. 1, art. X.
81
Indigenous peoples have repeatedly proposed the inclusion and recognition of the right to self–
determination during the revision process, see, eg, Working Group to Prepare the Draft American
Declaration on the Rights of Indigenous Peoples, Report of the Chair of the Working Group,
OEA/Ser.K/XVI; GT/DAdin/doc.5/99, 1 December 1999, paras.14-15.
82
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. III. For a broad
overview of the proposed language for this article, including the proposal by the indigenous caucus
see, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples,
Ninth Meeting of Negotiations in the Quest for Points of Consensus, New Compendium Proposals for
68
Article III clearly situates indigenous peoples’ right of self–determination within
the boundaries of nation states. Specific provisions are set out to prevent any threat to
the primacy of states’ sovereignty:
Nothing in this Declaration shall be constructed so as to authorize or foster

any action aimed at breaking up or diminishing, fully or in part, the
territorial integrity, sovereignty and political independence of the states, or
other principles contained in the charter of the Organization of American
States. 83
It can be argued that the current Draft American Declaration shows indigenous
peoples’ effort to substantiate the recognition of their right of self–determination
through provisions, such as the ‘right to autonomy or [and] self–government’; 84 the
‘right to maintain and develop their own decision–making institutions…[and] the
right to participate fully and effectively without discrimination in decision–making at
all levels…’; 85 the recognition of indigenous law and legal systems, 86 as well as their
traditional institutions and practices. 87
In particular, article XX lists the domains where indigenous peoples’ autonomy or
[and] self–government can be exercised. These include, inter alia, ‘culture, language,
spirituality, education, [information, means of communications], health, housing,
employment, social well-being, maintenance [of economic security], [of jurisdictional
functions in matters of territory], family relations, economic activities, administration
the Phase of Review of the Draft American Declaration on the Rights of Indigenous Peoples,
GT/DADIN/doc.276/06 rev.4.
83
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. IV.
84
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XX (1).
85
86
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXI.
87
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXII.
69
of land and resources, environment and [entry of non-members]; [and to determine
with States the ways and means of financing {the exercise of these rights} these
autonomous functions]’. 88
It can be argued that these provisions are strengthened by the recognition and
inclusion of the principle of ‘free, prior and informed consent’ in the OAS Draft
Declaration. The principle of ‘free, prior and informed consent’ permeates the Draft
American Declaration that qualifies it as an indispensable element for the real
enjoyment of various fundamental rights: the right to indigenous spirituality; 89 the
right to health; 90 the right to protection of a healthy environment;91 the right to
indigenous legal and organizational systems; 92 the right not to be forcibly transferred
and relocated; 93 the right to protection of cultural heritage and intellectual property; 94
the right to development; 95 the right to peace, security and protection in the event of
armed conflict. 96
The incorporation of the principle of ‘free, prior and informed consent’ within
international legal standards on the rights of indigenous peoples is very significant. In
the second and third part of this thesis, it will be shown the principle of ‘free, prior
and informed consent’ constitutes a fundamental criterion for the implementation of
indigenous peoples’ right of self–determination through development policies.
88
89
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XV.
90
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XVII.
91
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XVIII.
92
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXII.
93
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXV.
94
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXVIII.
95
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXIX.
96
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXX.
70
The Draft American Declaration concludes with general provisions about states’
duty to ‘ensure the full enjoyment of the civil, political, economic, social, cultural,
and [spiritual] rights…’ 97 and ‘promote…the adoption of the legislative and other
measures that may be necessary to give effect to the rights included in this
Declaration’; 98 indigenous peoples’ right to ‘effective and appropriate remedies,
including prompt judicial remedies, for the reparation of all violations of their
collective and individual rights’. 99 It is finally set out, like in the UN Declaration, 100
that the rights contained in the Draft American Declaration constitute ‘the minimum
standards for the survival, dignity and well–being of the indigenous peoples of the
Americas’. 101
97
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXXI (1).
98
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXXI (2).
99
OAS Draft Declaration, OEA/Ser.K/XVI; GT/DADIN/doc.283/07 corr.1, art. XXXIII.
100
101
OAS Draft Declaration, art. XXXIX.
71
2.2 The principle of self–determination
The principle of self–determination is the keystone among indigenous claims. The
UN Declaration openly states the right of indigenous peoples to self–determination as
the foundation of all indigenous claims:
Indigenous peoples have the right to self–determination. By virtue of that

right they freely determine their political status and freely pursue their
economic, social and cultural development. 102
The clause on self–determination has been also the most controversial issue
during the drafting process. It is pointed out indeed that the ‘[i]nternational legal
recognition of the right of indigenous peoples to self–determination as distinct
peoples has been the most strident and persistent demand voiced before the
WGIP’. 103
The right to self–determination, claimed as early as 1983 in a document submitted
by the International Indian Treaty Council (IITC) as one of the rights to be
recognized by the WGIP, 104 has been repeatedly demanded since the early stages of
the WGPI’ s drafting process. In 1984, the World Council of Indigenous Peoples 105
102
103
Robert A Williams, ‘Encounters on the Frontiers of International Human Rights Law: Redefining
the Terms of Indigenous Peoples’ Survival in the World’ (1990) 4 Duke Law Journal 663.
104
See, Julian Burger, Report from the Frontier: the State of the World’s Indigenous Peoples (London:
Zed Books, 1987) 56, in which it is reported that the IITC declared: ‘Indigenous nations and peoples
who so desire should be granted the full rights and obligations of external self–
determination…Indigenous nations and peoples who wish to limit themselves to the exercise of
internal self–determination only should be granted the freedom to do so’.
105
The World Council of Indigenous Peoples submitted its own provision of self–determination: ‘All
indigenous peoples have the right to self–determination. By virtue of this right they may freely
determine their political status and freely pursue their economic, social, religious and cultural
development’: ibid 270. This provision reproduces (except for the words ‘may’, ‘indigenous’ and
‘religious’) the standard UN formulation of the right of self–determination first expressed in the 1960
General Assembly’s Declaration on the Granting of Independence to Colonial Countries and Peoples;
72
and some indigenous groups, 106 jointly submitted a statement pinpointing their
conception of indigenous peoples’ right of self–determination to the WGIP:
All Indigenous nations and peoples have the right to self–determination, by

virtue of which they have the right to whatever degree of autonomy or self–
government they choose. This includes the right to freely determine their
political status, freely pursue their own economic, social, religious and
cultural development, and determine their own membership and/or
citizenship, without external interference. No State shall assert any
jurisdiction over an indigenous nation or people, or its territory, except in
accordance with the freely expressed wishes of the nation or people
concerned…Indigenous nations and peoples are subjects of international
law. Treaties and other agreements freely made with indigenous nations or
peoples shall be recognized and applied in the same manner and according
to the same international laws and principles as treaties and agreements
entered into with other States…Indigenous nations and peoples may engage
in self–defense against State actions in conflict with their right to self–
determination. 107
While this statement was submitted at a time when both the WGIP and
indigenous organizations were still casting about for a legal and political language by
which to formulate their positions, it ‘captured a key creative moment in the history
of international society, a moment when a group of new actors on the international
scene were grasping to restructure, with the aid of international law, their relations
with their encompassing states’, towards a ‘new form of association of peoples with
states’. 108
The adoption of the right of self–determination has being strenuously defended by
indigenous peoples in international fora against strong critiques of its appropriation.
Some have indeed argued that the universal wording (‘all peoples’ have the right to
in the 1966 International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights.
106
Indian Law Resource Center, National Aboriginal and Islander Legal Service, National Indian
Youth Council, Inuit Circumpolar Conference, Four Directions Council.
107
Burger, above n 104, 271.
108
73
self–determination) should not be literally interpreted,109 while others have claimed
self–determination as a dead end for indigenous aspirations and that indigenous
peoples should abandon self–determination claims on the ground that their survival
and flourishing can be promoted through individual human rights. According to this
position, individual human rights are considered to be more appropriate to the
contemporaneous human rights framework and less likely to cause governments’
apprehension. 110
Despite these various opinions, indigenous peoples have tirelessly expressed their
demands in terms of self–determination. The right of self–determination continues to
be the most important as well as the most controversial precept within the context of
international law and indigenous rights. It can be argued that conceptual, normative
and procedural difficulties arise when a general principle of international law such as
the principle of self–determination, is embraced by a section of states’ populations,
namely indigenous peoples.
Indigenous understanding of and aspirations to self–determination intermingle
with the political and legal dimensions of the principle of self–determination as it has
historically developed in international law. The notion of self–determination, indeed,
has evolved over time from a political postulate to an international legal standard of
fundamental importance within the realm of international law. 111
109
A Linklater, Men and Citizens in the Theory of International Relations (London: Macmillan, 1990).
110
See, eg, J J Corntassel and T H Primeau, ‘Indigenous “Sovereignty and International Law: Revised
Strategy for Pursuing “Self–determination”’ (1995) 17 Human Rights Quarterly 343.
111
See, Antonio Cassese, Self–Determination of Peoples (Cambridge: Cambridge University Press,
1995).
74
Emerging in the second half of the eighteenth century, the concept of self–
determination was significantly influenced by the political and philosophical ideas
underlying the American and French Revolutions. 112 Natural law theory justified the
rejection of the ‘Divine Right of Kings’ 113 to sanction the will of people as the source
of any legitimate governmental power. 114
It is only in the aftermath of World War 1 that the principle of self–determination
acquires an international dimension. The Wilsonian and Leninist versions of self–
determination 115 dominated the international political scene: self–determination was
proclaimed as the key principle in international relations. Notwithstanding its
significance, the principle of self–determination did not become part of the body of
international legal norms, or a right under international customary law, in fact, self–
112
Ibid. See also, D Raič, Statehood and the Law of Self–Determination (The Hague: Kluwer Law
International, 2002) 171–176; Patrick Thornberry, ‘Self–determination, Minorities, Human Rights: A
Review of International Instruments’ (1989) 38 International & Comparative Law Quarterly 867, 869;
Nathaniel Berman, ‘Sovereignty in Abeyance: Self–Determination and International Law’ (1988) 7
Wisconsin International Law Journal 51, 59; C Buchheit, C, Secession: The Legitimacy of Self–
Determination (New Haven: Yale University Press, 1978) 3; A Cobban, The Nation State and National
Self–Determination , (London: Collins, 1969) 39.
113
According to Jefferson: “[e]very man, and everybody of men on earth, possesses the right of self–
government. They receive it with their being from the hand of nature”. Opinion on Residence Bill, 15
July 1790, quoted in: J E Falkowski, Secessionary Self–Determination: A Jeffersonian Perspective
(1991) 9 B. Univ. IJL 209, 213.
114
See, Cassese, above n 111, 11: ‘the American Declaration of Independence (1776) and the French
Revolution (1789) marked the demise of the notion that individuals and peoples, as subjects of the
King, were objects to be transferred, alienated, ceded, or protected in accordance with the interests of
the monarch’.
115
Vladimir Ilyich Lenin’s conception of self–determination was based on socialist political
philosophy according to which self–determination was a means to realize the dream of worldwide
socialism. Accordingly, emphasis was placed on the external dimension of self–determination, which
is the right of oppressed nations to political separation or secession. On the other hand, US President
Woodrow Wilson conceived self–determination primarily in its internal dimension, as a concept
tantamount to democracy. The Wilsonian notion stemmed from Western democratic theory: ‘it was the
logical corollary of popular sovereignty; it was synonymous with the principle that governments must
be based on the consent of governed’: Cassese, above n 111, 19.
75
determination remained an international political postulate. 116 The inconsistent
application of the principle by the Peace Conference 117 (the uneven criteria to which
the redrawing of the map of post–war Europe was inspired) 118 as well as the juridical
interpretation released over some cases, 119 confirmed the exclusively political
dimension of the principle.
The shift from a political postulate to an international legal norm occurred with
the establishment of the United Nations system in 1945. The UN Charter enunciates
in article 1(2) and 55 the principle of self–determination as one of the fundamental
pillars upon which the newly formed international order would rest. 120 The UN
116
In the same manner, from this period until World War II, the ‘entitlement’ to be self–determined
was ethically rather than territorially or legally defined by the Peace Conference. The suitable subjects
believed to be entitled to self–determination were then politically conscious ethnic groups (referred to
as ‘nations’ if already independent, or ‘nationalities’ whose common identity was put primarily in
terms of their language or culture). Therefore, the term ‘national self–determination’ often used to
define self–determination in this period refers to the influence the theory of nationalism had on the
interpretation of self–determination: see, Raič, above n 112, 193.
117
Ibid 190. Raič points out that ‘…despite Wilson’s sincere motives and ideas, self–determination
was applied in an arbitrary manner by the Allied Powers. Political, strategic and economic interests
and arguments often prevailed over self–determination. Communities which had been loyal to the
Allied Powers…were permitted to form their own States, while other claims were ignored…’
118
‘In cases of territorial readjustment which involved complex issues of nationalities (or other
factors), the concept of self–determination was sometimes reflected in the use of plebiscites to
determine the wishes of the population. But in this context…, self–determination was inconsistently
applied, which is evidenced by a number of cases…’: ibid. This ‘double standard’ policy can be also
witnessed in the no application of the concept of self–determination to the territories of the Allied
Powers since only the defeated states were considered to have subjugated their populations.
119
In the Aaland Islands case, the International Committee of Jurists appointed by the Council of the
League of Nations to determine whether the inhabitants of the Aaland Islands, under international law,
were free to secede from Finland, affirms that the concept of self–determination could not be
considered an international legal norm. In particular, it noted that even if the principle was an integral
part of ‘modern political thought’, it was not mentioned in the Covenant of the League of Nations and
its recognition ‘in a certain number of international treaties [could] not be considered as sufficient to
put it upon the same footing as a positive rule of the Law of Nations’. For more details see, ‘Report of
the International Committee of Jurists Entrusted by the Council of the League of Nations with the Task
of Giving an Advisory Opinion upon the Legal Aspects of the Aaland Islands Question’, Official
Journal of the League of Nations, Special Supplement N 3, October 1930, 5.
120
Article 1(2) provides that one of the purposes of the United Nations is ‘to develop friendly relations
among nations based on respect for the principle of equal rights and self–determination of peoples, and
to take other appropriate measure to strengthen universal peace’; Article 55 states that ‘[w]ith a view to
the creation of conditions of stability and well–being which are necessary for peaceful and friendly
relations among nations based on respect for the principle of equal rights and self–determination of
76
Charter, however, neither defines the content of self–determination, nor specifies the
‘subjects’ entitled to it. ‘Peoples’ are loosely referred to as the holders of the right to
self–determination with no further specification.
As a result, different opinions have been flourishing as to the proper content of
and the ‘holders’ of self–determination under international law. As for the content, it
has been argued that ‘Article 1(2) merely laid down one of the many lofty goals of
the Organization’ and that ‘self–determination, conceived of as a postulate deeply
rooted in the concept of the equal rights of peoples…, was considered to be a means
of furthering the development of friendly relations among States: it would foster
universal peace’. 121 In a similar vein, the International Court of Justice (ICJ) stated
that the principle of self–determination stated in the UN Charter sets out a very
general and overarching standard of behaviour for international relations, which is
basically the ‘need to pay regard to the freely expressed will of peoples’. 122
The precept of self–determination, although defined in a quite weak and loose
form in the UN Charter, would experience an unprecedented evolution over the years
from a legal principle intended to guide the UN to a precept directly binding on
states. 123
In the decades following the adoption of the UN Charter, the emphasis on the
interpretation of the principle of self–determination shifted from a goal to be pursued
for peaceful relations to a postulate of anti–colonialism. Decolonization came at the
peoples, the United Nations shall promote: […] (c) universal respect for, and observance of, human
rights and fundamental freedoms…’.
121
Cassese, above n 111, 43.
122
Western Sahara case, ICJ Reports 1975, 33 (paras 58 and 59).
123
Cassese, above n 111, 43.
77
forefront of the international political agenda in the era after World War II.
Consequently, the principle embodied in Article 1(2) of the UN Charter was
perceived as a legal entitlement to decolonization, whereas Chapter XI (“Declaration
Regarding Non–Self–Governing Territories’) and Chapter XII (‘International
Trusteeship System’) – where the principle is not explicitly mentioned but implied in
the provisions – constituted the background for the evolution of the political precept
of self–determination into a positive legal right in the field of decolonization. 124
Consequently, the international legal regulation between the early 1950s and late
1960s focused primarily on colonial peoples as the holders of self–determination. The
acquisition of external self–determination dominated the development of
international customary law 125 dealing with colonial peoples. This cluster of
international norms not only identified colonial peoples as the holders of self–
determination, but also specified the objectives (independent statehood, integration,
association with another state) and the techniques to be used (plebiscites or
referendum). 126
On the contrary, according to Cassese, customary norms dealing with internal
self–determination, only defined the subjects entitled to self–determination, which is
124
Ibid 44–47; Raič, above n 112, 199–225.
125
The bulk of international legal standards moulded by member states’ pronouncements at the
national and international level (eg, declarations of government representatives in national parliaments,
pronouncements in relation to UN resolutions), states actual behaviour, and the ruling of international
courts [Namibia, ICJ. Reports (1971), 31; Western Sahara, ICJ, Reports (1975), 32] – what constitute
the ‘bulk of usus and opinion juris in the matter’: Cassese, above n 111, 70.
126
The general consent among states about the idea that non–self–governing territories should have the
opportunities to freely choose their international status was reflected in three resolutions adopted by
the UN General Assembly: GA Resolution 1514(XV), 14 December 1960 (Declaration Granting
Independence to Colonial Countries and Peoples); GA Resolution 1541(XV), 15 December 1960; GA
Resolution 2625(XXV), 24 October 1970 (Declaration on Friendly Relations).
78
peoples under foreign military occupation 127 and racial groups, 128 with no reference
to possible procedures or methods of acquisitions.
The international treaty law–making process in the early UN period is instead
characterized by a broader interpretation of the principle of self–determination. States
began to embark upon treaty–making primarily to turn general principles laid down in
the UN Charter into legally binding treaty provisions, and adopted in 1996 two major
international human rights treaties: the International Covenant on Civil and Political
Rights 129 and the International Covenant on Economic, Social and Cultural Rights. 130
These landmark Covenants, adopted to set out in legally binding terms the human
rights proclaimed in the 1948 Universal Declaration of Human Rights, 131 embody a
notion of self–determination which goes beyond the widespread understanding
among world community as an anti–colonial principle 132 . The common article 1 of
the Covenants reads as follows:
All peoples have the right of self–determination. By virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.
All peoples may, for their own ends, freely dispose of their natural wealth
and resources without prejudice to any obligations arising out of
international economic cooperation, based upon the principle of mutual
127
UN Declaration on Friendly Relations of 1970 in which ‘subjection of peoples to alien subjugation,
domination and exploitation’ is considered to give rise to the right of self–determination. For a detailed
account of issues related to such definition and its implications: see, Cassese, above n 111, 90–99.
128
According to Cassese’s analysis on states’ practice and UN practice on customary rules on internal
self–determination, ‘the right of internal self–determination embodied in the 1970 Declaration is a
right conferred only on racial or religious groups living in a sovereign state which are denied access to
the political decision–making process; linguistic or national groups do not have a concomitant right’:
ibid 114.
129
999 UNTS 171.
130
993 UNTS 3.
131
GA Res. 217 A (III), 10 December 1948.
132
For a comprehensive analysis of the drafting process of art.1 on self–determination: see, Cassese
above n 111, 47–66.
79
benefit, and international law. In no case may a people be deprived of its
own means of subsistence.
The States Parties to the present Covenant, including those having

responsibilities for the administration of Non–Self–Governing and Trust
Territories, shall promote the realization of the right of self–determination,
and shall respect that right, in conformity with the provisions of the Charter
of the United Nations.
In an attempt to contrast the anti–colonial momentum supported by socialist and
developing countries, western states succeeded in adopting two key principles to
interpret self–determination: first, self–determination should not be confined to
colonial countries but should be a universal doctrine; secondly, self–determination
should concern the internal structure of states since governments’ authority is to be
based on democratic consent.
The Covenants constitute a significant development as to the content of self–
determination. First of all, external self–determination was articulated in a way to
include not only the right to achieve independent statehood – as in the traditional
approach – but also the obligation on member states to refrain from interfering with
the independence of other states and from occupying a foreign territory. Second, the
Covenants proclaimed for the first time the right of the whole population of a state
party to freely choose its rulers (internal self–determination). In addition, self–
determination acquired an ‘economic dimension’ as including the right to control
natural resources. 133
The Covenants bring the principle of self–determination within the international
human rights framework; the precept of self–determination is integrated in the fabric
133
Ibid 65–66.
80
of human right norms as an overarching right, a ‘meta–language’ which holistically
amalgamates human rights principles. 134
134
Patrick Thornberry, ‘The Democratic or Internal Aspects of Self–Determination with Some
Remarks on Federalism’ in Christian Tomuschat (ed), Modern Law of Self–determination (Dordrecht:
Martinus Nijhoff Publishers, 1993) 101–138.
81
2.3 Indigenous peoples’ right to self–determination
The UN Declaration boldly asserts indigenous peoples’ right to self–
determination, faithfully wording the clause like article 1 of the ICCPR and ICESCR
Covenants:
Indigenous peoples have the right of self–determination. By virtue of that

right they freely determine their political status and freely pursue their
economic, social and cultural development. 135
The claim of indigenous peoples to be entitled to the right of self–determination
recognized to ‘all peoples’ in the UN Charter and in the Covenants, has been the most
controversial issue in the UN Declaration drafting process and, in general, in the
realm of international law.
The friction between states’ recalcitrance to recognize self–determination for
indigenous peoples and indigenous aspirations to be endowed with such a right arises
from a fundamental clash between a positivist statist–centred approach and a
peoples–centred approach to self–determination.
Whereas indigenous peoples have invoked the right to self–determination in terms
of their ‘desire to continue as distinct communities free from oppression…in virtually
all instances denying aspirations to independence’, 136 governments have continued to
frame it according to a positivist approach to international system. This contrast is
exemplified in an indigenous declaration about self–determination in the context of
ILO Convention 169. The declaration has been articulated to argue against the
135
136
82
safeguard provision in Convention 169, which is so phrased to separate the term
‘peoples’ from mainstream legal interpretations: ‘[t]he use of the term “peoples” in
this Convention shall not be construed as having any implications as regards the
rights which may attach to the term under international law’. 137
The indigenous statements clearly point out that ‘we define our rights in terms of
self–determination. We are not looking to dismember your states and you know it.
But we do insist on the right to control our territories, our resources, the organization
of our societies, our own decision–making institutions, and the maintenance of our
own cultures and ways of life’. 138
The consistent resistance from the part of states can be explained by states’
shifted ‘locus of the term self–determination from peoples to territories, and
thereafter inevitably states’. 139
The positivist individual/states dichotomy and the historical legacy of recognising
the right to self–determination to certain categories of peoples, is central in the
controversial acceptance of indigenous peoples’ right to self–determination and their
inclusion in the realm of the subjects of international law. As Lâm argues,‘[t]he
struggle over the clause is a struggle over the continuing validity of positivism in the
international legal order’. 140 The emergence of indigenous peoples as a new locus of
subjectivity in international law is the most challenging issue in the international legal
discourse since ‘the jurisprudential starting–point of the rights of peoples is a direct
137
ILO Convention 169, art.1(3).
138
Statement by the National Coalition of Aboriginal Organizations, Australia, during the 75th session
of the International Labour Conference, 13 June 1988, at 2.
139
140
Ibid 172.
83
assault upon positivist and new–positivist views of international law as dependent
upon states practice and acknowledgement’. 141
The recently approved text of the UN Declaration provides for a safeguard norm
which limits the exercise of indigenous peoples’ right to self–determination as
follows:
Indigenous peoples, in exercising their right to self–determination, have the

right to autonomy or self–government in matters relating to their internal
and local affairs, as well as ways and means for financing their autonomous
functions’. 142
As the debate about the admissibility and legitimacy of the right to self–
determination of indigenous peoples continues to characterize the process towards the
final adoption of the UN Declaration by the General Assembly, significant
contributions can help disentangle the main issues involved in the legal interpretation
of the indigenous right to self–determination under international law. Benedict
Kingsbury, for instance, proposes a relational approach to self–determination which
aims to reconstruct the norm within the realm of international law and facilitate an
agreement on the political–legal formulation of the indigenous right to self–
determination. 143 The shift ‘from an end–state approach to a relational approach to
self–determination’ 144 is suggested as a pathway to overcome the impasse on the
acceptance of the international precept for indigenous peoples.
141
Richard A Falk, ‘The Rights of Peoples (in Particular Indigenous Peoples)’ in James Crawford (ed),
The Rights of Peoples (Oxford: Clarendon Press, 1988) 19.
142
143
Benedict Kingsbury, ‘Reconstructing Self–determination: a Relational Approach’ in Pekka Aikio
and Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–determination
(Åbo, Finland: Institute for Human Rights Åbo Akademi University, 2000) 19.
144
Ibid 22.
84
The decolonization model – the realization of an ‘end–state’ in the form of
independence or occasionally some other political arrangements – was the referent
adopted by the international indigenous movement in its formative period to define
self–determination as a legal concept. 145 Even though part of the international
indigenous movement has been reluctant to move away from the end–state model, 146
Kingsbury argues that ‘[w]hile the international indigenous movement may well
adhere to this theoretical position, it is not viable as an express formulation for a UN
Declaration on the Rights of Indigenous Peoples to be adopted by states, nor does it
embody the current preoccupations of most internationally active indigenous
peoples’. 147
It is indeed suggested to disengage from the ‘end–state independence–oriented
focus’ and embrace a relational approach to self–determination. The ‘end–state–
independence–oriented’ focus, borrowed from the European decolonization model,
has diverted the attention from the development of legal principles which would
regulate enduring relations between indigenous peoples and states. 148
145
See, eg, Douglas Sanders, The Formation of the World Council of Indigenous Peoples
(Copenhagen: International Work Group for Indigenous Affairs, 1977).
146
See, for instance, some indigenous representatives’ statements: Michael Dodson, ‘Towards the
Exercise of Indigenous Rights: Policy, Power and Self–Determination’ (1994) 35(4) Race & Class 65,
74: ‘Finally, even where a state meets the obligations required under the declaration [on Friendly
Relations], there will be some indigenous peoples whose right to self–determination will never be
satisfied until they have a free and independent state of their own. And it would be a violation of those
peoples’ right to self–determination for anyone else to say that this is not an acceptable way for them
to exercise that right’; see also, Baguio Declaration, adopted at Baguio City, Philippines, 18–21 April
1999: ‘…although autonomy and self–government may be a way through which many indigenous
peoples which to exercise their right of self–determination…these are not the only ways by which
indigenous peoples may exercise this right…they have the right to establish their own government and
determine its relations to other political communities’.
147
Kingsbury, above n 143, 26.
148
See also, F Kirgis, ‘The Degrees of Self–Determination in the United Nations Era’ (1994) 88
American Journal of International Law 304.
85
By contrast, a relational approach would enable one to focus on the relations
between states and indigenous peoples, and to reconstruct the terms and dynamics of
their relational interactions. It is argued that the UN Declaration, within the realm of
contemporary legal instruments, is considered to include elements relevant to a
relational reconstruction of the right of self–determination. The UN Declaration
provisions capture important issues which have the potential to reconstruct
indigenous self–determination in relational terms. However, it is maintained that the
UN Declaration does not sufficiently address these issues in their relational aspects.
To illustrate, article 33 establishes that ‘[i]ndigenous peoples have the right to
promote, develop and maintain their institutional structures and their distinctive
customs, spirituality, traditions, procedures, practices and, in the cases where they
exist, juridical systems or customs, in accordance with international human rights
standards’. This provision, however, does not address the relationship between state
institutions and indigenous institutional structures and practices, neither is the role of
state institutions (particularly courts and administrative agencies) articulated in
relation to the required domestic incorporation of the UN Declaration’s indigenous
rights so that indigenous peoples can practically benefit from those rights.
The right to self–determination is not stated in relational terms, even though the
shaping of relationships with states has been one of the most important aspirations of
the indigenous peoples’ movement. Quite surprisingly, it is stated that ‘[t]he dynamic
of the UN process has been rather the opposite, treating self–determination as an end–
86
state issue, and separating the debate on self–determination from the structuring of
relationships’. 149
The only element connected to self–determination is the provision concerning
‘autonomy or self–government’ as the possible modalities for indigenous peoples to
exercise the right of self–determination:
Indigenous peoples, in exercising their right to self–determination, have the

right to autonomy or self–government in matters relating to their internal
and local affairs, as well as ways and means for financing their autonomous
functions’. 150
Notwithstanding the variety of autonomous regimes that indigenous peoples can
operate, mostly depending on geographical and demographic settings, autonomy is
primarily understood as a relationship. Relations between the state, its institutions and
indigenous autonomous entities are at the core of the majority of indigenous peoples’
autonomous regimes. Accordingly, a governance framework is required to establish
the terms and the legal procedures according to which the relationships between
states and indigenous autonomous entities would be regulated. 151
The fundamental principle underpinning the UN Declaration is that indigenous
peoples have the right to maintain and strengthen their distinct characteristics and
legal systems, while retaining the right to participate fully in the life of the state.152 It
is pointed out that the terms of the relationships giving effect to these provisions are
not established. It is maintained that considering self–determination in relational
149
Kingsbury, above n 143, 29.
150
151
Kingsbury, above n 143, 27–29.
152
UN Declaration, arts. 4,8,12–14,19–21,23.
87
terms would facilitate, at least partially, the achievement of a global agreement on
political and legal formulations of indigenous peoples’ right to self–determination. 153
Kingsbury’s relational approach offers interesting insights which demand further
investigation on what kind of modalities might be adopted to realize in practice the
right to self–determination. This thesis argues that the suggested relational approach
to the implementation of indigenous peoples’ right to self–determination is
fundamental to gain a deep understanding of the implementation of indigenous self–
determination. A relational–driven approach underlies the study undertaken in the
second part of the thesis where the potential enjoyment of self–determination through
the adoption of an adequate normative and practical approach to development
policies is explored.
The indigenous capability rights–based normative framework and the
methodological approach developed in the second part of the thesis are constructed
upon a human rights–based approach. In this regard, James Anaya provides a
fundamental contribution for the understanding of indigenous peoples’ right to self–
determination from a human rights perspective.154
The principle of self–determination is embedded within the human rights
framework of contemporary international law. It is indeed argued that the right to
self–determination ‘entails a universe of human rights precepts extending from core
153
154
James S Anaya, ‘A Contemporary Definition of the International Norm of Self–Determination’
(1993) 3(1) Transnational Law & Contemporary Problems 131; James S Anaya, Indigenous Peoples
in International Law (Oxford: Oxford University Press, 1st ed, 1996, 2nd ed, 2004); James S Anaya,
‘Self–Determination as a Collective Human Right under Contemporary International Law’ in Pekka
Aikio and Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–
determination (Åbo, Finland: Institute for Human Rights Åbo Akademi University, 2000) 3; James S
Anaya, ‘International Human Rights and Indigenous Peoples: the Move towards the Multicultural
State’ (2004) 21(1) Arizona Journal of International & Comparative Law 13.
88
values of freedom and equality and applying in favour of human beings in relation to
the institutions of government under which they live’.155
Anaya critically takes distance from the traditional categorization of self–
determination into the external–internal dichotomy. Even though this dichotomy
continues to inform the legal and political discourse of the principle of self–
determination, as well as the norms crystallized in international law, 156 the terms
‘internal’ and ‘external’ do not appear as qualifiers of self–determination in any
international law instrument. 157
Anaya, instead, distinguishes between substantive self–determination and
remedial self–determination. It is suggested that whereas substantive self–
determination is constituted of the two normative strains of constitutive and ongoing
self–determination, remedial self–determination refers to the prescriptions necessary
to implement the norm or to remedy violations of the norm. The external/internal
155
Anaya, Self–Determination as a Collective Human Right under Contemporary International Law,
above n 154, 9.
156
For instance, the anti–colonialist movement at the Bandung Conference in 1955, determined the
articulation of customary rules on self–determination in terms of its external dimension, that is the
determination of the international status of a territory and a people, as opposed to internal self–
determination which refers to the relationship between the government of a state and the people of that
state.
157
This distinction appeared for the first time in the Report on the First Part of the Seventh Session of
the General Assembly (Dutch Ministry of Foreign Affairs Publication N° 32, The Hague, 1953), which
was written by the Dutch representative in the Third Committee, Beaufort. See also, P J Kuyper and P
J G Kapteyn, ‘A Colonial Power as Champion of Self–determination: Netherlands State practice in the
Period 1945–1975’ in H F van Panhuys et al (eds), International Law in the Netherlands (Alphen aan
den Rijn: Sijthoff & Noordhoff; Dobbs Ferry, NY: Oceana Publications, 1980) vol. 3, 149, 184. Even
if the terms external and internal self–determination are used to describe two different dimensions of
the norm, some international lawyers see no utility and even disutility, in the term ‘internal self–
determination’: see, eg, Christian Tomuschat, Modern Law of Self–Determination (Dordrecht:
Martinus Nijhoff Publishers, 1993).
89
dichotomy is therefore replaced by the distinction into a constitutive aspect and an
ongoing aspect of substantive self–determination. 158
Constitutive self–determination ‘requires that the governing institutional order be
substantially the creation of processes guided by the will of the people, or peoples,
governed’. 159 The collective will of the peoples therefore is the necessary
requirement for the creation and change of a political order. This aspect reflects the
common provision in the international human rights Covenants and other instruments
according to which peoples ‘freely determine their political status’ 160 by virtue of the
right of self–determination.
Ongoing self–determination, instead, ‘requires that the governing institutional
order, independently of the processes leading to its creation or alteration, be one
under which people may live and develop freely on a continuos basis’. 161 The
ongoing aspect of self–determination encapsulates the notion expressed in the
common provision to the international covenants and other instruments, according to
which peoples are to ‘freely pursue their economic, social and cultural
development’. 162 It follows that the governing institutional order is required to enable
individuals and groups to make meaningful choices about their life on a continuous
basis.
158
Anaya, A Contemporary Definition of the International Norm of Self–Determination, above n 154,
131–164; Anaya, Indigenous Peoples in International Law, above n 154, 75–125; Anaya, Self–
Determination as a Collective Human Right under Contemporary International Law, above n 154, 9–
10.
159
Ibid.
160
ICCPR, Article 1(1); ICESCR, Article 1(1).
161
Anaya, A Contemporary Definition of the International Norm of Self–Determination, above n 154,
131–164; Anaya, Indigenous Peoples in International Law, above n 154, 75–125; Anaya, Self–
Determination as a Collective Human Right under Contemporary International Law, above n 154, 9–
10.
162
ICCPR Article 1(1); ICESCR Article 1(1).
90
It is maintained that to equate self–determination with a right to independent
statehood is misguided ‘not only because it obscures the human rights character of
the self–determination norm, but also because it fails to distinguish the substance of
the norm from the context–specific remedial entitlements that may follow violations
of the norm’. 163 Wedding self–determination with the decolonization regime is
misleading and mistaken because the measures undertaken to dismantle the
colonization regimes did not embody the substance of self–determination. Instead,
they represented the mechanism adopted by the international community for a sui
generis deviation from its implementation. 164
In the context of indigenous peoples, it is pointed out that even though indigenous
populations are considered beneficiaries of the right of self–determination in its
remedial aspect, since they have suffered violations of substantive self–determination
(such as populations subject to colonial or apartheid regimes), the remedial regime
does not aim at the formation of new states. In a world of complex interdependencies
and multifaceted cultural patterns, secession, separation and independent statehood
are considered as an unworkable solution. In fact, the efforts to remedy indigenous
peoples’ violations that have being developed in the international arena tend to be
‘context specific arrangements to ensure the survival of these peoples’ own
historically rooted cultures and institutions within the framework of the states in
which they live’. 165 This process is also supported by Erica–Irene Daes, former
Chairperson–Rapporteur of the UN Working Group on Indigenous Populations, who
163
above n 154, 12.
164
Ibid 12–14.
165
Ibid 13.
91
describes it as ‘a kind of state–building, through which indigenous peoples are able to
join with all the other peoples that make up the state on mutually–agreed upon and
just terms, after many years of isolation and exclusion’. 166
In Anaya’s view, self–determination, in its constitutive and ongoing dimension, is
understood as ‘a right that benefits all segments of humanity, by virtue of their
humanity’. 167 The fact that all peoples are entitled to self–determination denotes the
collective character of the norm and affirms the value of community bonds. However,
this does not mean that all peoples are entitled to change the status quo of political
and legal systems.
Remedial self–determination, the legal entitlement to change the status quo, is
acknowledged only in those groups who have suffered a violation of the precept to
remedy violations from the norm. And the remedy, most importantly, has to be
determined through a ‘case–by–case approach’ in order to properly address the
numerous groups who call for the right to self–determination. 168
The most important difference is that substantive self–determination – the
universe of values that constitute the norm – applies universally, while the remedial
prescriptions are context–related. Remedial measures vary according to the
circumstances characterizing the deviation from the enjoyment of the right to self–
determination.
166
Erica–Irene Daes, ‘Some Considerations on the Rights of Indigenous Peoples to Self–
Determination’ (1993) 3(1) Transnational Law & Contemporary Problems 1, 9.
167
above n 154, 17.
168
Ibid 18.
92
In summary, indigenous peoples’ right to self–determination is perceived as a
collective human right to which indigenous populations are entitled in its substantive
and remedial aspect. The entitlement of indigenous peoples to self–determination is
grounded on a broader and more flexible view of the term ‘peoples’ and on the
interpretation of self–determination as a fundamental human right:
The term ‘people’ should be understood in a flexible manner, as

encompassing all relevant spheres of community and identity…Second, like
all human rights, self–determination derives from common conceptions
about the essential nature of human beings, and it accordingly applies
universally and equally to all segments of humanity. Third, as a human
right, self–determination cannot be viewed in isolation from other human
rights norms, but rather must be reconciled with and understood as part of
the broader universe of values and prescriptions that constitute the modern
human rights regime. 169
A human rights–based approach to indigenous self–determination is also
defended by John Henriksen who points out that ‘indigenous peoples consider the
right of self–determination as a collective human right which is a fundamental
condition for the enjoyment of all other human rights of indigenous peoples, be they
civil, political, economic, social or cultural’. 170
Furthermore, the enjoyment of self–determination by indigenous peoples is
closely related to the notion of human security. Indigenous peoples’ human security
is indeed perceived as encompassing physical, spiritual, health, religious, cultural,
economic, environmental, social and political aspects, as well as the subjective
feeling of security – what is referred to as the relative aspects of human security. The
right of self–determination is conceived of as including all these interdependent
169
Ibid 5–6.
170
John B Henriksen, ‘The Right of Self–Determination: Indigenous Peoples versus States’ in Pekka
Aikio and Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–
determination (Åbo, Finland: Institute for Human Rights Åbo Akademi University, 2000) 131, 135.
93
aspects. As a result, indigenous peoples’ enjoyment of self–determination cannot be
thought of without assuring the recognition and implementation of all elements that
make up their human security. 171
The overarching nature of the right to self–determination is also stressed by Ted
Moses who acknowledges that ‘the very survival of indigenous peoples depends
directly on respect for the rights contained in that concept’. 172 Accordingly, self–
determination is conceived of as a ‘prerequisite’ for the enjoyment of all other human
rights and freedoms. This conceptualization of indigenous self–determination follows
the findings of an important UN study, in which it is stated that ‘human rights and
fundamental freedoms can only exist truly and fully when self–determination also
exists. Such is the fundamental importance of self–determination as a human right
and a prerequisite for the enjoyment of all the other rights and freedoms’. 173
It can be argued that important insights can also be drawn from a
conceptualization of self–determination as a ‘process’. According to this perspective,
‘the process of achieving self–determination is endless’. 174 In a world where social
and economic conditions, as well as cultures and aspirations are ever–changing,
peoples ‘must continually renegotiate the terms of their relationships’ in order to live
171
Ibid 138–139.
172
Ted Moses, ‘The Right of Self–Determination and Its Significance to the Survival of Indigenous
Peoples’ in Pekka Aikio and Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples
to Self–determination (Åbo, Finland: Institute for Human Rights Åbo Akademi University, 2000) 155,
155.
173
Gross H Espiell, The Right to Self–determination: Implementation of United Nations Resolutions
(New York: United Nations, 1980) 10.
174
Erica–Irene Daes, ‘The Spirit and Letter of the Right to Self–Determination’ in Pekka Aikio and
Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–determination (Åbo,
Finland: Institute for Human Rights Åbo Akademi University, 2000) 67, 79.
94
together in peace. 175 This view is shared by others, such as Henriksen who
emphasizes that from an indigenous perspective, ‘the right to self–determination
should be regarded as a ‘process right’ rather than the right to a predefined
outcome’. 176
Freedom, integrity and respect are the most frequent words used by indigenous
peoples to translate self–determination. Thus ‘self–determination means the freedom
for indigenous peoples to live well, to live according to their own values and beliefs,
and to be respected by their non–indigenous neighbors’. 177 In light of her long
experience as Chairperson of the WGIP, Daes emphasizes that ‘the underlying goal
of self–determination for most indigenous peoples, has not been the acquisition of
institutional power. Rather, the goal has been to achieve the freedom to live well and
humanely – and to determine what it means to live humanely. No government has
ground for fearing that’. 178
For the purposes of this analysis, it is important to bear in mind what Daes refers
to as the ‘true test of self–determination’. It is suggested that ‘the true test of self–
determination is not whether indigenous peoples have their own institutions,
legislative authorities, laws police or judges…’, but ‘whether indigenous peoples
themselves actually feel that they have choices about their way of life’. 179
This perspective suggests a subjective approach to the fulfillment of self–
determination for indigenous peoples. The enjoyment of self–determination cannot
175
Ibid.
176
Henriksen, above n 170, 139.
177
Daes, above n 174, 79.
178
Ibid 80.
179
Ibid 80–83.
95
only be determined through, or implied from, the existence of self–governing or
autonomous administrative institutions. The spirit of self–determination is achieving
indigenous peoples’ real goals, rather than merely creating the appearance of
indigenous self–government of local administration. It is pointed out that ‘the amount
of power and money transferred to indigenous institutions is not a measure of self–
determination. The indigenous peoples must feel secure in their right to make choices
for themselves – to live well and humanely in their own ways’. 180
A related characteristic which has been emphasized in the literature, is that the
right of self–determination ‘pertains not only to political status, but equally to
economic, social and cultural development….[i]t is a complex of closely woven and
inextricably related rights which are interdependent, where no one aspect is
paramount over any other’. 181
Also Cassese, in the context of the ICCPR and ICESCR, refers to the different
dimensions of self–determination – the political, economic, social and cultural –
when pointing out that ‘each of these forms of self–determination refers to a different
set of provisions’. 182
The thesis maintains that it is fundamental to consider the principle of self–
determination as a concept of sweeping scope, which encompasses all aspects of
peoples’ human development. This assertion is grounded on the crucial connection
180
Ibid 80.
181
R McCorquodale, ‘Human Rights and Self–determination’ in M Sellers (ed), The New World
Order, Sovereignty, Human Rights, and the Self–determination of Peoples (Oxford: Berg, 1996) 8, 9.
182
Antonio Cassese, ‘The Self–Determination of Peoples’ in L Henkin (ed), The International Bill of
Rights: The Covenant on Civil and Political Rights (New York: Columbia University Press, 1981) 92,
98.
96
which the Declaration on the Right to Development 183 establishes between the right
to self–determination and the right to development. It is stated that ‘[t]he human right
to development…implies the full realization of the right of peoples to self–
determination’. 184 The right to development is indeed defined as ‘an inalienable
human right by virtue of which every human person and all peoples are entitled to
participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully
realized’. 185
The interdependence of the right to self–determination with other rights can be
grasped when one considers the wording of common Article 1 of the ICCPR and
ICESCR, where it is stated that ‘by virtue of that right…’. This wording suggests that
other rights flow from the right of self–determination, which constitute its content
and an integral part of this fundamental right and its architecture. Similarly, Cassese
argues that ‘[I]nternal self–determination is best explained as a manifestation of the
totality of rights embodied in the Covenant [on Civil and Political Rights]’. 186
The same line of argument is claimed by Ted Moses who suggests that,
considering that all human rights and fundamental freedoms are ‘universal,
indivisible, interdependent and interrelated’, 187 these rights ‘may not be stripped
183
Declaration on the Right to Development, GA Res 41/128, Annex, 41 UN GAOR, Supp N° 53, UN
Doc. A/41/53 (1986).
184
Declaration on the Right to Development, art. 1(2).
185
Declaration on the Right to Development, art. 1(1).
186
Antonio Cassese, Self-determination of Peoples, above n 111, 53.
187
Vienna Declaration and Programme of Action, adopted 25 June 1993 by the United Nations World
Conference on Human Rights, UN doc. A/CONF.157/23; reprinted in 32 I.L.M. 1661 (1993), Part I,
para. 5: ‘All human rights are universal, indivisible interdependent and interrelated. The international
community must treat human rights globally in a fair and equal manner, on the same footing, and with
the same emphasis. While the significance of national and regional particularities and various
97
away or otherwise removed from the right to self–determination’. 188 In particular, it
is indicated that for indigenous peoples the right to use and benefit from natural
resources lies at the core of the overarching right to self–determination. 189
This right, enshrined in article 1(2) of both Covenants, 190 as well as in article 25
of the ICESCR and article 47 of the ICCPR, 191 is considered to embody the source of
subsistence and life itself. No exception is allowed, no people can be denied their
own means of subsistence. This prohibition has particular significance for indigenous
peoples. It is clearly stated that,
We have the right to benefit from the resources of the land as an expression
of our right of self–determination. We may not be denied a means of
subsistence; moreover, we may not be denied our own means of subsistence.
We have the right to use our lands and waters to live by our own means as
we always have, and by whatever means we deem necessary to address
contemporary challenges. Self–determination protects our right to subsist,
and it protects as well our right to subsist based on our own values and
perspectives. In view of the profound relationship we have with our lands,
resources and environment, subsistence for indigenous peoples has vital
economic, social, cultural, spiritual and political dimensions’. 192
It is indeed emphasized that the most evident violation of indigenous peoples’
right to self–determination has been ‘the denial of our own means of subsistence by
those who came to live in our land’. 193
historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless
of their political, economic and cultural systems, to promote and protect all human rights and
fundamental freedoms’.
188
Moses, above n 172, 158.
189
Ibid 160–161.
190
Art. 1(2) states that ‘All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic co-operation,
based upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence’.
191
ICESCR, art. 25 and ICCPR, art. 47: ‘Nothing in the present Covenant shall be interpreted as
impairing the inherent right of all peoples to enjoy and utilize fully and freely their natural resources’.
192
193
Ibid 162.
98
In other words, self–determination cannot be reduced only to its political aspects,
such as the right to vote, right to self–government, or the right to belong to political
parties:
We cannot give up our own right to our own means of subsistence or to the
necessities of life itself. As human rights, these rights are inalienable. In
particular, our right of self–determination contains the essentials for life –
the resources of the earth and the freedom to continue to develop and
interact as societies and peoples. 194
It is evident the centrality and fundamental significance that the right to self–
determination has within the indigenous rights discourse. The urgency for indigenous
peoples to recognize the right to self–determination has been repeatedly and
forcefully voiced, especially during the drafting process of the UN Declaration on the
Rights of Indigenous Peoples: ‘self–determination is the critical and essential element
of the Draft Universal Declaration on the Rights of Indigenous Peoples. Discussion
on the right of self–determination has been and still is the sine qua non of our
participation in the drafting process. The right of self–determination must therefore
be explicitly stated in the declaration.’ 195
Indigenous peoples’ quest for self–determination though, has been clashing with
governments’ scepticism, fear and uncertainty to endow indigenous peoples with the
right to self–determination. It has been outlined that a ‘vicious circle’ has
characterized the impasse on the recognition of self–determination for indigenous
peoples: the impossibility of grasping the concrete implications of indigenous
194
195
Position of the Indigenous Delegates on Self–determination at the 1993 session of the Working
Group on Indigenous Populations, quoted in Sarah Pritchard, ‘Working Group on Indigenous
Populations: Mandate, Standard–setting Activities and Future Perspectives’ in Sarah Pritchard (ed),
Indigenous Peoples, the United Nations and Human Rights (London: Zed Books, 1998) 40.
99
peoples’ right to self–determination without further work of a technical nature as well
as the difficulty of alleviating states’ fears without a better understanding of the
meaning of self–determination in actual practice. 196
It is argued that a deeper mutual understanding of the fears and aspirations of
indigenous peoples and governments is required in order to resolve unnecessary
conflicts. In particular, it is reiterated that the ‘nation–state concept’ is not necessarily
the natural way of implementing or exercising the right of self–determination for the
vast majority of the world’s peoples. In this context, the international community,
particularly the United Nations system, is deemed to play a significant role in
facilitating a progressive and forward–looking discourse on the conceptualization and
implementation of indigenous peoples’ right to self–determination. 197
The analysis of the right to self–determination proposed in this thesis, the
articulation of a normative ‘indigenous capability–rights system’ and a
methodological approach to implement the ‘integrated process of self–determination’
through development policies, responds to the need to find a pathway of mutual
understanding and real implementation of indigenous self–determination.
To this end, it is necessary to have a comprehensive understanding of the
indigenous right to self–determination in its fundamental elements within the current
human rights framework. It has been argued that the right to self–determination can
be distinguished between its ‘substantive’ and ‘remedial’ aspect. 198 Whereas
‘substantive’ self–determination refers to the universe of values which form the
196
Daes, above n 174, 79.
197
Henriksen, above n 170, 141.
198
Anaya, above n 154, 12–15.
100
essence of the norm, ‘remedial’ self–determination refers to the prescriptions which
may be laid down to remedy a violation of the norm. 199
The analysis presented in this chapter has basically investigated the substantive
aspect of indigenous peoples’ right to self–determination. The essence of self–
determination has been identified as the universe of indigenous peoples’ values which
are deemed to be incorporated in the emerging legal precepts voiced within the
current human rights framework. It has also been maintained that while ‘substantive’
self–determination applies universally, ‘remedial’ self–determination comprises
context–related remedial prescriptions which only apply to peoples who have
suffered violations of substantive self–determination.
It is thus necessary to scrutinize the ‘remedial’ aspect of indigenous peoples’ self–
determination. In other words, there is a need to investigate how the international
human rights implementation machinery has been dealing with indigenous claims to
self–determination. Accordingly, the next chapter will explore whether and to what
extent the ‘remedial machinery’, set out for the protection of international human
rights standards, can be considered an adequate and effective system for the
advancement of indigenous peoples’ right to self–determination.
This analysis will attempt to identify the structural, procedural and substantive
limits which hamper the human rights system to effectively address indigenous
claims. It will be argued that the international human rights system cannot be
considered the exclusive domain in which indigenous claims can be addressed. The
international legal arena can be complemented with a normative and procedural
199
Ibid.
101
framework specific to indigenous rights in which a human rights–based approach is
blended with development policy processes.
102
Chapter 3
Indigenous peoples’ claims to self–determination and

the international human rights implementation system
Even though the indigenous peoples’ right to self–determination has not yet
become an internationally recognized legal standard, claims related to alleged
violations of self–determination have been brought before different international
bodies. International and regional human rights implementation mechanisms devised
to monitor general human rights standards, have been used to tackle indigenous
demands to self–determination and recommend measures of redress.
It is maintained that the adaptation of human rights standards to address
indigenous claims plays a fundamental role in legal theory and judicial practice. 1 In
this chapter, it will be discussed to what extent the adaptation of universal human
rights standards to indigenous claims is adequate to address their claims, and whether
the international implementation machinery constitutes an effective procedural
scaffold to implement and monitor the realization of indigenous peoples’ right to
self–determination. International human rights mechanisms and procedures relevant
to indigenous peoples’ claims to self–determination will be reviewed at the
international and regional level.
1
Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’
Claims in International and Comparative Law’ in Philip Alston (ed), Peoples’ Rights (Oxford: Oxford
University Press, 2001) 78.
103
3.1 The United Nations system
3.1.1 The United Nations treaty–based human rights system and

indigenous claims to self–determination
The UN treaty–based monitoring system consists of seven international human
rights treaties. 2 Each Convention establishes a specific Committee to supervise state
parties’ compliance with treaties provisions. The mechanisms through which the
Committees function include: the reporting–monitoring procedure; the complaint
procedure; the state–to–state reporting; the enquiries procedures.
Indigenous individuals and groups have brought their claims before some of the
human rights Committees. The UN treaty–based implementation mechanisms which
have been of most relevance to indigenous peoples’ claims to self–determination are
those connected to the International Covenant on Civil and Political Rights, 3 the
International Covenant on the Elimination of All Forms of Racial Discrimination, 4
and, to a lesser degree, the Covenant on Economic, Social and Cultural Rights.
Among the case law on indigenous allegations, the focus will be on indigenous
claims to the right to self–determination and the way in which the treaty–based
2
International Covenant on Civil and Political Rights (I°–II° Optional Protocols), 1966; International
Convention on Economic, Social and Cultural Rights, 1966; International Convention on the
Elimination of All Forms of Racial Discrimination, 1965; Convention on the Elimination of All Forms
of Discrimination Against Women (I°–II° Optional Protocols), 1979; Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; Convention on the Rights of the
Child, 1989; Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families, 1990.
3
International Covenant on Civil and Political Rights, GA Res 2200 (XXI), 999 U.N.T.S. 171, Dec.
16, 1966 (entered into force 23 March 1976).
4
International Convention on the Elimination of All Forms of Racial Discrimination, GA Res 2106A
(XX), 660 U.N.T.S. 195, 21 December 1965 (entered into force 4 January 1969).
104
implementation system has been dealing with these claims. The analysis of the modus
operandi aims at identifying foundational, structural or procedural limits to the real
enjoyment of self–determination.
105
(i) The Human Rights Committee
The practice of the Human Rights Committee (HRC) – the body established under
the International Covenant on Civil and Political Rights 5 to monitor its
implementation – provides important insights into the evolving interpretation of
indigenous peoples’ right to self–determination under the ICCPR.
General comments, 6 views of states’ reports, 7 and cases decided pursuant to the
individual communication procedure under the First Optional Protocol, 8 are the
instruments through which legal standards set in the ICCPR are monitored.
The Human Rights Committee’s case law shows a creative approach to the
interpretation of the Covenant’s provisions as they relate to indigenous claims, and in
particular of the right to self–determination. The Human Rights Committee’s
interpretation of ICCPR article 1 provides a key contribution to determine the
parameters of the right to self–determination as referred to indigenous peoples. 9
5
United Nations Treaty Series, vol 999, 171.
6
General Comments address specific articles of the Covenant or general issues concerning its
implementation. The Human Rights Committee has developed this practice. General Comments mirror
the HRC’s experience and provide a precious body of material for the interpretation of the Covenant.
7
Pursuant to article 40, States parties are required to submit periodic reports to the Human Rights
Committee on measures they have adopted to give effect to the rights recognised in the Covenant and
on progress made in the enjoyment of those rights. The periodicity for submission of reports, other
than initial reports, is five years. UN Doc. CCCPR/C/19/Rev 1.
8
The First Optional Protocol to the ICCPR was adopted on the 19 of December 1966, entered into
force on 23 March 1976. States which become party to the Protocol recognises the competence of the
Committee to receive and consider communications from individuals claiming to be victims of any of
the rights set out in the Covenant. Individuals may submit a communication to the Committee once ‘all
available domestic remedies’ have been exhausted (art.2).
9
Patrick Thornberry, Indigenous Peoples and Human Rights (Manchester: Manchester University
Press, 2002) 124.
106
The article does not specify who are the ‘peoples’ entitled to the right to self–
determination, nor does it include a reference to indigenous peoples as beneficiaries
of the provision.
It will be explored how the Committee has responded to indigenous claims to
self–determination, to alleged violations of self–determination, and how the Human
Rights Committee (the Committee) has considered the conduct of states in relation to
the recognition and promotion of indigenous self–determination within their
boundaries.
The lack of a definition of ‘peoples’ in the ICCPR has not led the Human Rights
Committee to give canonical declarations as to which ‘peoples’ are contemplated by
article 1 of the ICCPR. The issue of whether only the entire population of a state
party can be considered as ‘peoples’, or whether distinct peoples coexist within
states’ boundaries, has been left open to different interpretations.
In this regard, it is important to consider the Human Rights Committee’s
comment on the right to self–determination, as it is stated in article 1 of the ICCPR
and the ICESCR:
The right of self–determination is of particular importance because its

realization is an essential condition for the effective guarantee and
observance of individual human rights and for the promotion and
strengthening of those rights. It is for that reason that States set forth the
right of self–determination in a provision of positive law in both
Covenants and placed this provision as article 1 apart from and before
all of the other rights in the two Covenants. 10
A fundamental assumption is implied. Article 1 does not create or establish the
right of self–determination, rather it confirms that the right exists and it is possessed
10
Human Rights Committee, General Comment 12(21) on Article 1, UN Doc. A/39/40, para 1, 142–
143.
107
by all peoples. As a result, the right to self–determination is deemed to apply ‘to all
peoples in all territories, not just colonial territories, and to all peoples within a
state’. 11
As for indigenous peoples, the current approach by the Human Rights Committee
is to qualify as ‘peoples’ certain indigenous communities within the boundaries of
some states parties, pursuant of article 1 to the ICCPR. 12
This approach has been first adopted in response to the Canadian report, 13 which
prompted the Committee to deliver its concluding observations 14 on the status of
aboriginal peoples in Canada. In line with the recommendations of the Royal
Commission on Aboriginal Peoples (according to which aboriginal self–government
would fail without larger portions of land and resources), and the landmark decision
in the Quebec Secession case of the Supreme Court of Canada, 15 the Committee
stated that ‘the right to self–determination requires, inter alia, that all peoples must be
able to freely dispose of their natural wealth and resources and that they may not be
deprived of their own means of subsistence’. 16 Furthermore, the Committee
11
R McCorquodale, ‘Human Rights and Self–determination’ in M Sellers (ed), The New World Order:
Sovereignty, Human Rights, and the Self–Determination of Peoples (Oxford: Berg, 1996) 9.
12
Martin Scheinin, ‘Indigenous Peoples’ Rights under the International Covenant on Civil and
Political Rights’ in Joshua Castellino and Niamh Walsh (eds) International Law and Indigenous
Peoples (Leiden, The Netherlands: Martinus Nijhoff, 2005) 3, 4, 9-15.
13
Fourth Periodic Report of Canada, UN Doc. CCPR/C/103/Add.5. The reporting–monitoring
procedure, set out in article 40 of the ICCPR, requires states parties to submit periodic reports on the
implementation of treaty provisions to the corresponding Committee which will then review states’
report and make no legally binding observations.
14
Concluding Observations on Canada, UN Doc. CCPR/C/79/Add.105 (1999).
15
In the Quebec Secession Case decided in 1998, the Supreme Court of Canada declared that: ‘[i]t is
clear that ‘a people’ may include only a portion of the population of an existing state. The right to self–
determination has developed largely as a human right, and is generally used in documents that
simultaneously contain references to ‘nation’ and ‘state’. The juxtaposition of these terms is indicative
that the reference to ‘people’ does not necessarily mean the entirety of a state’s population’. Reference
re: Secession of Quebec, [1998] 2 S.C.R. 217, para. 8.
16
Concluding Observations on Canada, UN Doc. CCPR/C79/Add.105, para. 2 (1999).
108
recommended that ‘the practice of extinguishing inherent aboriginal rights be
abandoned as incompatible with Article 1 of the Covenant’. 17
This audacious pronouncement opened up the admissibility of different ‘peoples’
within a country as beneficiaries of the right to self–determination. The Committee
has indeed revealed a consistent approach in acknowledging some indigenous groups
as ‘peoples’ in other states parties’ reports. 18
The recognition of some indigenous groups as holders of the right to self–
determination under article 1 of the ICCPR is far from being comprehensive.
Limitations can be particularly detected in cases brought to the Human Rights
Committee under the individual complaint procedure established in the First Optional
Protocol. The practice of the Committee shows a strict interpretation of the ‘victim
requirement’ provided in article 1 of the Protocol, according to which the Committee
may consider ‘communications from individuals subject to its jurisdiction who claim
to be victims of a violation by that State Party of any of the rights set forth in the
Covenant’.
The right to self–determination is strictly interpreted by the Committee as a
collective right pertaining to ‘all peoples’. The Committee observed that its
jurisdiction, in accordance with the Protocol, ‘cannot be invoked by an individual
when the alleged violation concerns a collective right…the author, as an individual,
could not claim under the Optional Protocol to be a victim of a violation of the right
17
Concluding Observations on Canada, UN Doc. CCPR/C79/Add.105, para. 8.
18
See, eg, Concluding Observations on Mexico, UN Doc. CCPR/C/79/ADD.109, para.19 (in the
Fourth Periodic Report of Mexico, UN Doc. CCPR/c/123/Add.1, the government of Mexico refers to
the right of ‘communities’ to self–determination which is echoed by the Human Rights Committee in
its concluding observations); Concluding Observations on Norway, UN Doc. CCPR/C/79/Add.112
(1999); Concluding Observations on Australia, UN Doc. CCPR/CO/69/AUS (2000); Concluding
Observations on Sweden, UN Doc. CCPR/CO/74/SWE (2002).
109
to self–determination enshrined in Article 1 of the Covenant, which deals with rights
19
conferred upon peoples, as such’. As a result, individuals cannot lodge claims as
victims of a violation of the right to self–determination under article 1 of the ICCPR.
The Committee’s practice to refuse allegations by individuals as victims of
breaches of group rights implies that violations of people’s rights can not be
translated into violations of individuals’ rights, and that groups and individuals
belong to distinct and separate spheres. This proposition is contested on the ground
that if self–determination and other human rights are in a relation of ‘interdependence
and reciprocity’, 20 a breach of the collective right will have implications for the
individuals and vice versa. It is also suggested that violations of collective rights may
be dealt with by specific procedures or with mechanisms complementary to those set
out for individual rights, or even defer them to political processes. 21
Therefore, the complaint procedure presents a procedural hindrance to the
protection of indigenous self–determination: the Optional Protocol cannot extend to
article 1 because individuals cannot claim collective rights. The procedural hindrance
is in turn connected to the substantive and problematic issue of the relation between
collective and individual rights.
19
See, Bernard Ominayak, Chief of the Lubicon Lake Bank v. Canada (Communication 167/1984),
Views adopted 26 March 1990, Report of the Human Rights Committee, GAOR, 38th sess, Suppl No.
40, UN Doc A/38/40, 1–30.
20
General Comment 12, para. 1. The Committee asserted the interdependence between the right to
self–determination and other rights in considering the Third Periodic Report of Peru
(CCPR/C/83/Add.1 and HRI/CORE/Add.43/Rev.1): ‘The Committee considers that, in conformity
with international law, Article 1 of the Covenant does not authorize the State to adopt a new
constitution that may be incompatible with its other obligations under the Covenant’ – A/52/40, para.
153.
21
Thornberry, above n 13, 129.
110
Notwithstanding the restraints that such an interpretation puts on individual
claims under article 1, the Committee has advanced in a conspicuous case law 22 the
interdependence between the right to self–determination and other human rights. In
Apirana Mahuika et al. v. New Zealand, for instance, the Committee noted that ‘the
provisions of article 1 may be relevant in the interpretation of other rights protected
by the Covenant, in particular article 27’. 23
The interpretative effect of the right to self–determination is particularly
important for indigenous claims, especially the interdependent relation between
article 1 and article 27, which provides that
In those States in which ethnic, religious or linguistic minorities exist,

persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own
culture, to profess and practise their own religion, or to use their own
language.
The Lubicon Lake Band case, 24 exemplifies the interdependence of the right of
self–determination with article 27. The Committee stated that ‘[a]lthough initially
22
Ivan Kitok v. Sweden (Communication No. 197/1985), Views adopted 27 July 1988, Report of the
Human Rights Committee, GAOR, 43rd Sess, Suppl No.40 (A/43/40), 221–230, para. 6.3; Apirana
Mohuika et al. v. New Zealand (Communication No. 547/1993), View adopted 27 October 2000,
Report of the Human Rights Committee, Vol. II, UN Doc. A/56/40 (Vol. II), 11–29; J.G.A. Diergaardt
et al. v. Namibia (Communication No 760/1997), Views adopted 25 July 2000, Report of the Human
Rights Committee, Vol. II, GAOR, 55th Sess, Suppl No 40 (A/55/40), 140–160, para. 10.3:
‘Furthermore, the provisions of article 1 may be relevant in the interpretation of other rights protected
by the Covenant, in particular articles 25, 26 and 27’; Marie–Hélène Gillot et al. v. France
(Communication No. 932/2000), Views adopted 15 July 2002, Report of the Human Rights
Committee, Vol. II, GAOR, 57th Sess, Suppl. No. 40 (A/57/40), 270–293.
23
Apirana Mahuika et al. v. New Zealand Communication No. 547/1993), Views adopted 27 October
2000, Report of the Human Rights Committee, Vol. II, UN Doc. A/56740 (Vol.II),11–29, para. 9.2.
24
Bernard Ominayak, Chief of the Lubicon Lake Bank v Canada (Communication 167/1984), Views
adopted 26 March 1990, Report of the Human Rights Committee, GAOR, 38th Sess, Suppl. No. 40
(A/38/40), 1–30.
111
couched in terms of alleged breaches of the provisions of article 1 of the Covenant,
there is no doubt that many of the claims presented raise issues under article 27’.25
The interdependence between self–determination and article 27 was realized by
connecting the resource dimension of the right to self–determination 26 to the right of
minorities ‘to enjoy their own culture’ established in article 27. The communication
claimed the violation of the Lubicon Lake Band’s right to dispose of its natural
resources and deprivation of its means of subsistence through governmental
expropriation of Band’s territory to the benefit of private corporate interests. 27 The
Committee – having declined the case under article 1 – found a breach of article 27: 28
the rights protected by article 27, include the right of persons, in

community with others, to engage in economic and social activities
which are part of the culture of the community to which they belong. 29
The resource dimension of the right to self–determination is therefore embedded
into the notion of ‘culture’. In its General Comment N° 23, the Committee states that:
With regard to the exercise of the cultural rights protected under article
27, Committee observes that culture manifests itself in many forms,
including a particular way of life associated with the use of land and
resources, especially in the case of indigenous peoples. That right may
25
Report of the Human Rights Committee, GAOR, 38th Sess, Suppl. No. 40 (A/38/40), para 32.2.
26
‘All peoples may, for their own ends, freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic cooperation, based upon the
principle of mutual benefit, and international law. In no case may a people be deprived of its own
means of subsistence’ art.1(2).
27
Communication No 167/1984, Human Rights Committee, Report of the Human Rights Committee,
UN Doc. A/45/40, vol II, para. 2.3.
28
This case is exemplificative since the factual background concerned the competing use of resources
and land in territories traditionally used by the Lubicon Band for hunting and fishing. The Committee
recognized that the failure to assure the band a land base to which it had a strong claim, as well as the
external exploitation of gas, oil and timber have depleted and destroyed their resource basis.
29
Communication No 167/1984, Human Rights Committee, Report of the Human Rights Committee,
UN Doc. A/45/40 (1990), para. 32.2.
112
include such traditional activities as fishing or hunting and the right to
live in reserves protected by law. 30
The interpretation of ‘culture’, as comprising traditional forms of indigenous
economic life, appears in other cases 31 where the Committee has affirmed two
important general principles. First, protection under article 27 refers to traditional
means of livelihood as well as their adjustment to modern times; 32 second,
meaningful consultation (or participation) of the group 33 and sustainability of the
indigenous or minority economy 34 are the criteria to be adopted to determine the
denial of the right to enjoy one’s own culture according to article 27.
The intermingling between self–determination and indigenous peoples’ culture is
fundamental for an in–depth understanding of the meaning and exercise of
indigenous peoples’ right to self–determination. It will be argued that the real
enjoyment of indigenous peoples’ self–determination is connected to the capacity of
30
Human Rights Committee General Comment No. 23 (50), reproduced in UN Doc.
HRI/GEN/1/Rev.5 (1994), para. 7.
31
Ivan Kitok v. Sweden (Communication No. 197/1985), Views adopted 27 July 1988, Report of the
Human Rights Committee, GAOR, 43rd Sess, Suppl. No. 40 (A/43/40), at 221–230 (reindeer herding is
considered an important element of Sami culture). Ilmari Länsman et al. v. Finland (Länsman No. 1)
(Communication 511/1992), Views adopted 26 October 1994, Report of the Human Rights
Committee, Vol. II, GAOR, 50th Sess, Suppl. No. 40 (A/50/40), at 66-76; Jouni E. Länsman et al. v.
Finland (‘Länsman No. 2’) (Communication 671/1995), Views adopted 30 October 1996, Report of
the Human Rights Committee, Vol. II, UN Doc. A/56/40 (Vol. II), 191–204; Apirana Mahuika et al. v.
New Zealand (Communication No. 547/1993), Views adopted 27 October 2000, Report of the Human
Rights Committee, Vol. II, UN Doc. A/56/40 (Vol. II), 11–29.
32
Ilmari Länsman et al. v. Finland (Länsman No. 1) (Communication 511/1992), Views adopted 26
October 1994, Report of the Human Rights Committee, Vol. II, GAOR, 50th Sess, Suppl. No. 40
(A/50/40), para. 9.3: ‘The right to enjoy one’s culture cannot be determined in abstracto but has to be
placed in context. In this connection, the Committee observes that Article 27 does not only protect
traditional means of livelihood of national minorities, as indicated in the State party’s submission.
Therefore, that the authors may have adapted their methods of reindeer herding over the years and
practice it with the help of modern technology does not prevent them from invoking Article 27 of the
Covenant’.
33
Report of the Human Rights Committee, Vol. II, GAOR, 50th Sess, Suppl. No. 40 (A/50/40), para.
9.6.
34
Report of the Human Rights Committee, Vol. II, GAOR, 50th Sess, Suppl. No. 40 (A/50/40), para.
9.8.
113
the international system to transform the ‘cultural divide’ between non–indigenous
and indigenous peoples into a ‘cultural interface’.
The Human Rights Committee’s pronouncements show that most indigenous
claims to self–determination are articulated in terms of lack of, denial of or
deprivation of a range of other rights, such as the rights to natural resources, land,
means of subsistence, or cultural practice.
The overarching and multidimensionality of the right to self–determination can be
grasped from the wording of article 1 of ICCPR, which pinpoints the fundamental
dimensions of the concept of self–determination. The political dimension 35 and the
resource dimension are clearly stated in the first paragraph, when recognizing
peoples’ right ‘to freely determine their political status and freely pursue their
economic, social and cultural development’. 36 Whilst paragraph 2 expands on the
resource dimension when affirming the right of people to ‘freely dispose of the
natural wealth and resources’ and prohibiting to deprive people of their means of
subsistence, paragraph 3 sets out the so called solidarity dimension, 37 that is the
collective duty of states parties to support self–determination beyond their territorial
boundaries. 38
35
It is worth specifying that the political dimension includes an external element – sovereignty – and
an internal element – governance. Both are deemed to be linked to article 25, which requires
democratic governance. Ibid.
36
Martin Scheinin, ‘Indigenous Peoples’ Rights under the International Covenant on Civil and
Political Rights’ in Joshua Castellino and Niamh Walsh (eds) International Law and Indigenous
Peoples (Leiden, The Netherlands: Martinus Nijhoff, 2005) 3, 9.
37
Ibid 10.
38
The HRC has relied on this provision in the reporting procedure under article 40, about measures to
be adopted by states parties to uphold self–determination of the Palestinian people and in South Africa:
see, Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl,
Germany; Arlington, Va., US: N.P. Engel, 1993) 23.
114
Accordingly, the operationalization of indigenous self–determination must take
into account the multidimensionality and context–related determination of specific
social, economic, political, health practices.
The Human Rights Committee’s case law demonstrated that the ICCPR does not
position indigenous peoples as a distinct category between minorities and groups, nor
does it recognize them as ‘peoples’. The Human Rights Committee does not grant
indigenous peoples the right to self–determination, 39 however it has paved the way
for indigenous peoples as beneficiaries of the right to self–determination.
39
115
(ii) The Committee on the Elimination of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial
Discrimination 40 (ICEARD) has provided the framework within which the
Committee on the Elimination of Racial Discrimination (CERD or the Committee)
has articulated the relation between the elimination of racial discrimination and the
recognition of indigenous rights. Among CERD’s case law, two General
Recommendations have relevance for indigenous peoples: General Recommendation
XXI on self–determination 41 and General Recommendation XXIII on indigenous
peoples. 42
General Recommendation XXI establishes CERD’s competence to examine
issues of self–determination, although the Convention does not include the right to
self–determination within the Committee’s jurisdiction. General Recommendation
XXI, which draws on several international instruments, 43 sets out the interpretative
parameters of the right to self–determination and how it relates to the whole
Convention. Three interesting elements can be detected in the recommendation.
The first element is the distinction between internal and external self–
determination. Whereas internal self–determination is defined as the right of peoples
to pursue their development without external interference, external self–
40
GA Res 2106(XX), 660 UNTS, 195, adopted on 21st December 1965, entered into force on 4th
January 1969 [hereinafter ICEARD or the Convention].
41
CERD, General Recommendation XXI: Right to Self–Determination, UN Doc. CERD/48/
Misc.7/Rev.3 (1996).
42
CERD, General Recommendation XXIII Concerning Indigenous Peoples, UN Doc.
CERD/C/51/Misc.13/Rev.4 (1997).
43
Declaration on Friendly Relations, GA Res. 2625 (XXV), UN GAOR, UN Doc. A/Res/2625 (XXV)
(1970); Declaration on the Rights of Persons Belonging to Minorities, GA Res 47/135, UN GAOR,
UN Doc. A/Res/ 47/135 (1992).
116
determination refers to the right of peoples to determine their political status and their
right to a place within the international community.
The second aspect is the special attention given to ‘the rights of persons
belonging to ethnic groups, particularly their right to lead lives of dignity, to preserve
their culture, to share equitably in the fruits of national growth and to play their part
in the government of the country of which they are citizens’. 44 This statement holds
particular relevance for indigenous peoples who are deemed to fall into the category
of ‘ethnic groups’.
The third element refers to the denial of a right to secession, unless free
agreement among all parties involved is reached. It is indeed stated that ‘international
law has not recognized a general right of peoples to unilaterally declare secession
from a State’. 45
General Recommendation XXI is considered to be relevant for CERD’s
interpretation of indigenous claims to self–determination. It is argued that the
suggested connection between the internal aspect of self–determination and other
norms of the Covenant, has a significative potential to address indigenous peoples’
claims to self–determination. Further, the statement on secession does not impact
negatively on indigenous claims to self–determination because most indigenous
groups do not see secession as an aspirational or stated right. 46
44
Misc.7/Rev.3 (1996).
45
Misc.7/Rev.3 (1996).
46
Patrick Thornberry, ‘The Convention on the Elimination of Racial Discrimination, Indigenous
Peoples and Caste/Descent–Based Discrimination’ in Joshua Castellino and Niamh Walsh (eds)
International Law and Indigenous Peoples (Leiden, The Netherlands: Martinus Nijhoff, 2005) 17, 32.
117
On the other hand, General Recommendation XXIII is a response to CERD’s
growing concern with indigenous peoples’ issues within the parameters of the
Convention. The parameters outlined in the recommendation guide CERD’s
deliberations on states’ reports concerning issues of discrimination involving
indigenous peoples.
It is maintained that this Recommendation can have an indirect impact on the
advancement of the indigenous right to self–determination, if indigenous peoples’
right to preserve their own culture and identity is considered as an intrinsic element of
CERD has recognized the ongoing threat posed by the actions undertaken by
states and commercial enterprises against the preservation of indigenous identity and
culture. Loss of land and resources are only an example of different forms of
discrimination experienced by indigenous peoples. Accordingly, the Committee has
called on governments to ‘recognize and respect indigenous culture, history, language
and way of life as an enrichment of the State’s cultural identity and…to promote its
preservation’. 47 Recommendation XXIII reinforces this position by urging states to
47
See, eg, Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 49th Sess,
Supp. N° 18, UN Doc. A/49/18 (1994) (considering the legal regime applicable to Saami land and
hunting rights in Sweden; commenting on indigenous land rights in Australia); Report of the
Committee on the Elimination of Racial Discrimination, UN GAOR, 48th Sess, Supp N° 18, UN Doc.
A/48/18 (1993) (assessing Ecuador’s policies on indigenous languages, lands and benefits from natural
resources exploitation, participation in government decision making); Report of the Committee on the
Elimination of Racial Discrimination, UN GAOR, 47th Sess, Supp N° 18, UN Doc. A/47/18 (1992)
(commenting on several countries’ reports dealing with indigenous issues, such as Bangladesh, Costa
Rica, Colombia and Chile).
118
provide for ‘a sustainable economic and social development compatible with
[indigenous peoples’] cultural characteristics’. 48
The intention of CERD to support indigenous rights through Recommendation
XIII, seems even more evident when the Committee states that ‘no decisions directly
relating to [indigenous] rights and interests are taken without their informed consent’.
It is argued that the Committee’s requirement of indigenous peoples’ consent to
measures impacting on their rights, is the most powerful contribution to the
recognition and realization of indigenous self–determination.
The principle of ‘free, prior and informed consent’ is considered fundamental for
the exercise of the indigenous peoples’ right to self–determination. This thesis argues
indeed, that the recognition and inclusion of the principle of ‘free, prior and informed
consent’ is one of the core criteria that should be adopted in development policies for
indigenous peoples. It will be demonstrated how indigenous peoples’ enjoyment of
self–determination cannot be thought of without the full consultation, participation
and informed consent of affected indigenous peoples, either individually or
collectively.
The ‘consensus formula’ proposed by CERD, however, is very contentious. It
has triggered heated debates as to the danger of providing indigenous communities
with a right to veto: ‘there were many…cases where a small community could hinder
the taking of decisions that would be of benefit to all citizens. The Committee should
be careful not to innovate’. 49 In response to this critique, it was pointed out that ‘[i]n
48
CERD, General Recommendation XXIII Concerning Indigenous Peoples, UN Doc.
CERD/C/51/Misc.13/Rev.4 (1997).
49
CERD member Diaconu, CERD/C/SR.1235, para. 69.
119
the recommendation there needed to be a distinction between two situations: one
concerning all the citizens of a country and another concerning indigenous persons
directly. In the latter case, they should have the right of veto and the text, as drafted,
dealt adequately with the issue’. 50 In this regard, it has been argued that states’
complaints are likely, when CERD grants indigenous peoples a veto power on states’
fundamental deliberations. 51
It is interesting to note that the Committee’ Recommendation XIII is deemed to
be more powerful than article 7 of ILO Convention 169. This article, as regards the
veto issue, is interpreted as requiring ‘that there be actual consultation in which these
peoples have a right to express their point of view and a right to influence the
decision. This means that governments have to supply the enabling environment and
conditions to permit indigenous and tribal peoples to make a meaningful
contribution’. 52 Even though this statement places significant constraints on measures
or actions affecting indigenous groups, CERD’s proposition is far stronger and
compelling:
The Committee especially calls upon States parties to recognize and

protect the rights of indigenous peoples to own, develop, control and use
their communal lands, territories and resources and, where they have
been deprived of their lands and territories traditionally owned or
otherwise inhabited or used without their free and informed consent, to
take steps to return these lands and territories. Only where this is for
factual reasons not possible, [should] the right to restitution…be
substituted by the right to just, fair and prompt compensation. Such
50
CERD member Aboul–Nasr, CERD/C/SR.1235, para. 72.
51
CERD member Aboul–Nasr, CERD/C/SR.1235, para. 78.
52
Manuela Tomei and Lee Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No.
169 (Geneva: International Labour Office, 1996) 9.
120
compensation should as far as possible take the form of lands and
territories. 53
It is also important to highlight that the Committee frames the consensus formula
into a collective dimension of indigenous rights. CERD calls on states to recognise
and protect ‘the rights of indigenous peoples’ and to ensure that ‘indigenous
communities can exercise their rights’. 54
Upon due consideration of these viewpoints, it can be argued that CERD’s
understanding and interpretation of the situation of indigenous peoples have the
potential to contribute positively to the advancement and respect of indigenous rights
and self–determination. It has been shown that different forms of discrimination
suffered by indigenous peoples are significantly connected to issues of self–
determination and development. The requirement of indigenous peoples’ ‘free, prior
and informed consent’ and the need for a sustainable development which is
compatible with indigenous peoples’ cultures, demonstrate a strong interlace between
indigenous aspirations to self–determination and the role that development policies
play in indigenous peoples’ lives.
The interface between indigenous peoples’ right to self–determination and
development policies represents the core of the analysis undertaken in this work. The
second and third part of the thesis will discuss significant issues involved in the
articulation of a normative framework and a methodological approach to
53
Misc.7/Rev.3 (1996), para. 5.
54
Thornberry, above n 46, 33–34. It is also outlined that the Committee refers to ‘members of
indigenous peoples’ when dealing with equality, discrimination, and effective participation (emphasis
added).
121
development policies aiming at the fulfilment of indigenous peoples’ right to self–
determination.
122
(iii) The Committee on Economic, Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights 55 is another
important human rights instrument within the UN treaty–based system. Even though
there is no specific provision on indigenous groups or a clause on minority rights, the
Convention on Economic, Social and Cultural Rights has proved a useful instrument
for indigenous peoples. Indigenous groups, among all people to whom it applies, are
the most vulnerable to violations of economic, social and cultural rights. States’
reports regularly include the situation of indigenous peoples and the Committee on
Economic, Social and Cultural Rights (ESC Committee) refers to those circumstances
when commenting on states’ reports. 56
Treaty law provisions contain a variety of rights that are all potentially relevant to
indigenous peoples. The ESC Committee’s practice has focused on a set of rights that
have been of particular interest to indigenous groups, such as the right to self–
determination, health, culture, housing, labour, education, and anti–discrimination
provisions.
Article 1 of the ICECSR sets out the right to self–determination in identical terms
to article 1 of the ICCPR. A significant remark about the ESC Committee’s
interpretation of the right to self–determination is the emphasis on its resource
dimension and the pursuing of economic, social and cultural development. It is
55
International Convention on Economic, Social and Cultural Rights, UN GA Res 2200A (XXI)
(1966) [hereinafter ICESCR].
56
Lee Swepston, ‘Indigenous Peoples in International Law and Organizations’ in Joshua Castellino
and Niamh Walsh (eds) International Law and Indigenous Peoples (Leiden, The Netherlands:
Martinus Nijhoff, 2005) 53, 60.
123
clearly indicated that self–determination does not concern only political processes but
the right of peoples to ‘freely pursue…economic, social and cultural development’
and the prohibition to be deprived of their means of subsistence. 57 The ESC
Committee has specifically inquired on indigenous self–determination issues on
several occasions, including the right of Australia’s aboriginal peoples to self–
determination. 58
The exercise of self–determination through social, cultural and economic
development has particular significance for indigenous groups. In addressing issues
related to the promotion and protection of the rights to health, culture, education, and
housing, the ESC Committee has touched upon features which are especially peculiar
for indigenous peoples.
Land loss and subsistence aspects of self–determination are considered the main
contributions made by the ESC Committee in relation to indigenous peoples. 59 The
need to ensure adequate resources and land bases to indigenous communities, has
been advocated in different cases. According to article 11 of the ICECSR, everyone
has ‘the right to an adequate standard of living…including adequate food, clothing
and housing and to the continuous improvement of living conditions’, 60 as well as
‘the fundamental right …to be free from hunger’. 61
Commenting on the right to adequate housing, the ESC Committee identified
important links between some relevant characteristics attached to the right and
57
United Nations, Manual on Human Rights Reporting under Six Major International Human Rights
Instruments (Geneva: United Nations, 1997) 72.
58
E/C.12/AUSTRAL/1 (23 May 2000), para. 3. See also, E/C.12/Q/SUD/1 (13 December 1999), para.
10; E/C.12/Q/GEORG/1 (28 March 2000).
59
60
ICESCR, art. 11, para. 1.
61
ICESCR, art. 11, para. 2.
124
indigenous land claims. Availability of services, accessibility and habitability,
security of tenure, location, relocation, and forced eviction, have been found to be
interconnected to basic land rights and resources issues. In relation to Paraguay, for
instance, the Committee observed that ‘the main reason for hunger and malnutrition
among the indigenous population and the deprivation of their rights is linked to the
severe problem of obtaining access to traditional and ancestral lands’.62 It
consequently recommended that the government of Paraguay pays particular attention
to the land problem. 63 The ESC Committee went on to recommend the restitution of
traditional lands. 64
Critical observations were also expressed about ‘the gross disparity between
aboriginal peoples and the majority of Canadians with respect to the enjoyment of
Covenant rights’ 65 and ‘the direct connection between aboriginal marginalization and
the ongoing dispossession of aboriginal peoples from their lands’. 66 Accordingly, the
Committee recommended ‘concrete and urgent steps to restore and respect an
aboriginal land and resource base adequate to achieve a sustainable aboriginal
economy and culture’. 67
62
ESC Committee, Report of Fourteenth and Fifteenth Sessions, E/1990/5/Add.24, para. 71.
63
ESC Committee, Report of Fourteenth and Fifteenth Sessions, E/1990/5/Add.24, para. 83.
64
Report on the Twentieth and Twenty–First Sessions (observations on the Second Periodic Report of
Argentina), para. 252.
65
Report on the Eighteenth and Nineteenth Sessions of the Committee, E/1999/22; E/C.12/1998/26,
ECOSOC OR, 1999, Supplement N° 2. Third Periodic Report of Canada, E/1994/104/Add.17.
66
ECOSOC OR, 1999, Supplement N° 2. Third Periodic Report of Canada, E/1994/104/Add.17, para.
393.
67
ECOSOC OR, 1999, Supplement N° 2. Third Periodic Report of Canada, E/1994/104/Add.17, para.
418.
125
Issues of a resource base and subsistence have been clearly affirmed in other
cases. Particular concern was expressed in regard to the indigenous peoples of the
Russian Federation: 68
The Committee expresses its concern at the situation of the indigenous

peoples of the Russian Federation, many of whom live in poverty and
have inadequate access to food…The Committee is particularly
concerned for those whose food supply is based on fishing and an
adequate stock of reindeer, and who are witnessing the destruction of
their environment by widespread pollution. It is alarmed at reports that
the economic rights of indigenous peoples are violated with impunity by
oil and gas companies which sign agreements under circumstances
which are clearly illegal, and that the State party has not taken adequate
steps to protect the indigenous peoples from such exploitation. 69
In General Comment N° 12 on the Right to Adequate Food, 70 the ESC Committee
interprets article 11 in terms of availability and accessibility to food in a way that is
sustainable and without prejudging the enjoyment of other human rights. 71
Indigenous peoples are seen as among the most vulnerable groups, especially because
the ‘access to their ancestral lands may be threatened’. 72
Recognizing that threats to the food security of indigenous peoples can come
from the states or other entities not properly regulated, 73 the ESC Committee calls on
governments to play an active role in providing special programs aiming at
strengthening access to and use of resources. 74
68
Third Periodic Report, E/1994/104/Add.8, discussed at the 16th and 17th Sessions of the ESC
Committee, E/C.12/1997/10, ECOSOC OR, 1998, Supplement No. 2, paras. 87–129.
69
Third Periodic Report, E/1994/104/Add.8, discussed at the 16th and 17th Sessions of the ESC
Committee, E/C.12/1997/10, ECOSOC OR, 1998, Supplement No. 2, para. 100.
70
Report of the Twentieth and Twenty–First Sessions, E/2000/22;e/c.12/1999/11, Annex V.
71
Report of the Twentieth and Twenty–First Sessions, E/2000/22;e/c.12/1999/11, Annex V, para. 8.
72
73
74
Report of the Twentieth and Twenty–First Sessions, E/2000/22;e/c.12/1999/11, Annex V, para 15.
126
The ESC Committee’s observations on the right to health 75 have payed particular
attention to indigenous peoples and their enjoyment of an adequate standard of
health: 76
These health services should be culturally appropriate, taking into

account traditional preventive care, healing practices and medicines.
States should provide resources for indigenous peoples to design,
deliver and control such services…vital medical plants, animals and
minerals necessary to the full enjoyment of health of indigenous peoples
should…be protected. The Committee noted that, in indigenous
communities, the health of the individual is often linked to the health of
the society as a whole and has a collective dimension. In this respect,
the Committee considers that development–related activities that lead to
the displacement of indigenous peoples against their will from their
traditional territories and environment, denying them their sources of
nutrition and breaking their symbiotic relationship with their lands, has
a deleterious effect on their health. 77
It is evident that specific measures are needed in order to assure and improve
access to health services and health care. Interestingly, the ESC Committee validates
traditional healing systems, calling on States not to hinder traditional preventive
care 78 but to oppose to ‘harmful social or traditional practices’. 79
Recommendations on the fulfilment of the right to culture 80 have particular
significance in indigenous contexts. The right of everyone to ‘take part in cultural
life’ 81 has prompted the ESC Committee to require states to report on the availability
75
ICSECR, art. 12.
76
General Comment N° 14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4,
11 August 2000.
77
11 August 2000, para. 27.
78
79
80
ICESCR, art. 15.
81
ICESCR, art. 15.1(c).
127
of resources for cultural development, 82 how cultural identity is encouraged and
supported, 83 and on the promotion of ‘the cultural heritage of national ethnic groups
and minorities and of indigenous peoples’. 84
Numerous discussions have taken place in regard to the meaning of ‘culture’ as
provided in article 15. Even though the ESC Committee has not articulated a specific
Comment on this issue, practice seems to confirm a broader acceptance of the
concept of culture as a community–driven process of constant creation and
development, 85 as opposed to a ‘traits/characteristics’ approach. 86
The understanding of culture as way of life and as a process of community self–
creation has relevant impact on indigenous peoples’ individual and communal
identity. 87 Firstly, it sanctions the collective dimension of the right to culture.
Although article 15 is phrased in individualistic terms, the practice of the ESC
Committee supports the view that its provisions indicate individual as well as
collective rights. 88 During talks about article 15.1(c), which promotes authors’
82
United Nations, Manual on Human Rights Reporting, above n 57, 149–151 para. 1(a). As for
budgetary resources for indigenous culture, the ESC Committee expressed its concern for Aboriginals
and Torres Strait Islanders due to a lack of ‘sufficient opportunities fully to involve themselves in
creating awareness of their cultural heritage’: E/1004/23, para. 153.
83
Ibid para. 1(c).
84
Ibid para. 1(d).
85
See, eg, the Länsman cases before the ICCPR.
86
See, eg, E Tylor, Primitive Culture (London: Murray, 1871) vol I, 1: according to this approach,
culture can be defined as ‘[t]hat complex whole which includes knowledge, belief, art, morals, law,
custom and other capabilities and habits acquired by man as a member of society’. This approach has
been criticized for promoting a static conception of culture.
87
For further discussion about different understanding of culture, in particular the distinction between
the Western–centric ‘high’ culture, mass or globalized culture, and culture as a way of life: see, R
O’Keefe, ‘The “Right to Take Part in Cultural Life” under Article 5 of the ICESCR’, (1998) 47
International and Comparative Law Quarterly 904; A Xanthaki, ‘Indigenous Cultural Rights in
International Law’ (2000) 2(3) European Journal of Law Reform 343.
88
Report on the Seventh Session, E/1993/22; E/C.12/1999/2, paras. 202–223.
128
material and moral interests, attention was given to traditional knowledge in these
terms:
‘Cultural property’…means more than ‘intellectual property’ because

account must be taken not only of what is produced by an artist, a
scientist or a writer, but also of what is produced by a cultural
community, by the custodians of a heritage or by a people. Each
creative activity is based on a common cultural capital – this explains
why individual creativity and collective property must be protected at
the same time. This means establishing a close link between article 15,
paragraphs 1 (b) and (c), as two aspects of the protection of the right to
take part in cultural life. 89
Secondly, it favours a more comprehensive and holistic conception of culture. In
the case of Honduras, for instance, the ESC required information on the provisions
adopted ‘to protect the cultural identity of indigenous ethnic groups, and to preserve
their habitat, natural resources, languages, customs and traditions’. 90 A similar
holistic observation was made in regard to the Ainu culture, 91 where the preservation
of the ‘kastom and wantok culture’ of the indigenous population in the Solomon
Islands was acknowledged together with the important role played by the traditional
extended family system in cases of economic crises. 92
The many dimensions of the term ‘culture’ and the meanings attached to the
phrase ‘to take part in cultural life’, suggests the promotion of indigenous culture
without jeopardizing their access to the ‘outer world’ on non–discriminatory
grounds. 93
89
Meyer–Bisch, Protection of Cultural Property: An Individual and Collective Right, UN Doc.
E/C.12/2000/16, 16 October 2000, para. 6. See also, Aboriginal and Torres Strait Islander Commission
(Australia), Protecting the Rights of Aboriginal and Torres Strait Islander Traditional Knowledge,
E/C.12/2000/17, 27 October 2000.
90
E/C.12/Q/HON/1, 13 December 1999, para. 48.
91
E/C.12/Q/JAP/1, 24 May 2000, para. 45.
92
93
129
Cultural aspects are taken into consideration also in connection with the
promotion of other rights. In the General Comment on the right to adequate housing,
for instance, the ESC Committee clearly endorses ‘cultural adequacy’ as a
fundamental element of housing policy. Housing policy ‘must appropriately enable
the expression of cultural identity and diversity of housing. Activities geared towards
development or modernization in the housing sphere should ensure that the cultural
dimensions of housing are not sacrificed’. 94
The availability of bilingual teaching in the mother tongue of the students has
been advocated to make sure that ‘children belonging to linguistic, racial, religious or
other minorities, and children of indigenous people, enjoy the right to literacy and
education’. 95 The ESC Committee, commenting on languages programs in Peru,96
pointed out that ‘they help to preserve indigenous languages and to strengthen the
cultural identity of the groups speaking the languages concerned’. In the case of
Mexico, for instance, the ESC Committee expressed concerns about the difficulties
experienced by the indigenous populations in maintaining their culture and teaching
their languages; 97 whereas it lauded Finland for promoting the teaching of the Saami
and Roma languages. 98 Further, the ESC Committee clearly stated that
States have obligations to respect, protect and fulfil each of the

‘essential features’ (availability, accessibility, acceptability and
adaptability) of the right to education. By way of illustration, a State
must respect the availability of education by not closing private
94
General Comment No. 4 (1991), para. 8 (g).
95
ICESCR, art. 13.
96
Initial Report of Peru, E/1990/5/Add.29. discussed at the 16th and 17th sessions of the ESC
Committee, E/1998/22;E/C.12/1997/10, paras. 130–169.
97
Report on the Eight and Ninth Sessions, E/1995/23; E/C.12/1992/19, discussing the Second Periodic
Report of Mexico, E/1990/6/Add. 4, paras. 226–241.
98
Third Periodic Report, E/1994/104/Add. 7, discussed in paras. 296–321.
130
schools…fulfil (facilitate) the acceptability of education by taking
positive measures to ensure that education is culturally appropriate for
minorities and indigenous peoples, and of good quality for all. 99
This comment has considerable relevance for the enjoyment of indigenous
peoples’ right to education. Non–discrimination in access to education is implied in
the notions of ‘availability’ and ‘accessibility’, while the notion of ‘acceptability’
requires education be ‘relevant, culturally appropriate and of good quality’. 100
The notion of culturally appropriate education is particularly significant for
indigenous peoples: the comment mirrors an increasing acceptance of cultural
diversity in international law. 101
99
General Comment N° 13 (Article 13), Report on the Twentieth and Twenty–First Sessions,
E/2000/22; E/C.12/1999/11 Annexes IV and VI respectively, para. 50. The ESC Committee affirms
that article 13 is ‘the most wide–ranging and comprehensive article on the right to education in
international human rights law’, para. 2.
100
General Comment N° 13 (Article 13), Report on the Twentieth and Twenty–First Sessions,
E/2000/22; E/C.12/1999/11. para. 33.
101
The ESC Committee maintains the argument of culturally appropriate education based on a non–
discriminatory basis, by validating Article 2 of the UNESCO Convention against Discrimination in
Education, which admits separate systems of education under particular circumstances. Separate
education systems are not discriminatory ‘if participation in such systems…is optional and if the
education provided conforms to such standards as may be laid down by the competent authorities, in
particular for education at the same level’ (General comment N° 13, para. 33).
131
3.1.2 The United Nations Charter–based human rights implementation
system
The influence of the UN Charter–based human rights implementation system on
indigenous peoples’ claims to self–determination has not been as significant as the
pronouncements of the treaty–based human rights Committees previously discussed.
The Human Rights Commission, recently replaced by the Human Rights Council,
and its Sub–Commission on Promotion and Protection of Human Rights, represent
the main non–treaty monitoring bodies which have regularly come to incorporate
issues concerning indigenous peoples into their agenda. Dealing primarily with
general human rights issues, the Commission and the Sub–commission have
considered a more limited number of reports concerning indigenous issues, submitted
by states and NGOs in consultative status. 102
It is important to remember that the Human Rights Commission (unlike its Sub–
commission and the Working Group on Indigenous Populations which are composed
of independent human rights experts) has been mainly a political body. Its members
are government representatives so that political factors have played a crucial role in
its deliberations. It is argued that Human Rights Commission’ deliberations, even
though politically driven, have had a greater force for the promotion of indigenous
102
See, eg, Commission on Human Rights: Report on the Forty–Ninth Session, UN ESCOR, 1993,
Supp. No. 3, UN Doc. E/1993/23, E/CN.4/1993/122 (1993); Report of the Sub–Commission on
Prevention of Discrimination and Protection of Minorities on Its Fort–Fourth Session UN Doc.
E/CN.4/1993/2, E/CN.4/Sub.2/1992/58 (1992); Report of the Sub–Commission on Prevention of
Discrimination and Protection of Minorities on Its Forty–Fifth Session, UN Doc. E/CN.4/1995/2,
E/CN.4/Sub.2/1994/56 (1994); Report of the Sub–Commission on Prevention of Discrimination and
Protection of Minorities on Its Forty–Fifth Session, UN Doc. E/CN.4/1994/2, E/CN.4/Sub.2/1993/45
(1993).
132
rights since the Commission occupies a higher place in the hierarchy of the UN
system. 103
The Commission and its Sub–Commission have received and acted upon
allegations of human rights violations pursuant to Economic and Social Council
Resolution 1235 (XLII) of 1967. Resolution 1235 empowers the Commission and the
Sub–Commission to ‘examine information relevant to gross violations of human
rights and fundamental freedoms’ and ‘to make a thorough study of situations which
reveal a consistent pattern of violations of human rights’. 104 Communications of
alleged human rights breaches come from different sources. The UN Secretariat
receives information from individuals or groups and forwards it to the Commission,
whereas NGOs in consultative status at the UN can directly communicate with the
HRC and the Sub–commission through written or oral statements. In general,
responsive actions on alleged violations are rare and discretionary; also resource
constraints heavily limit their actions. 105
Notwithstanding these limitations, the Human Rights Commission and the Sub–
commission have adopted resolutions under procedure 1235 to address specific
countries in which gross and persistent violations of human rights were being carried
out. Indigenous peoples of Guatemala, for instance, have been the focus of concern
103
James S Anaya, Indigenous Peoples in International Law, (New York: Oxford University Press, 2nd
ed, 2004) 222–223.
104
ECOSOC Res1235 (XLII) (6 June 1967). For an analysis of procedures under this Resolution: see,
Nigel S Rodley, ‘United Nations Non–Treaty–Procedures for Dealing with Human Rights Violations’
in Hurst Hannum (ed), Guide to International Human Rights Practice, (Ardsley, NY: Transnational
Publishers, 3rd ed, 1999).
105
For a detailed analysis of legal and political aspects of the HRC and its sub-commission’s capacities
to act upon allegations of human rights violations see, Philip Alston, The Commission on Human
Rights’ in Philip Alston (ed), The United Nations and Human Rights: A Critical Appraisal (Oxford:
Clarendon Press, 1992).
133
for suffering gross and prolonged human rights abuses during the 1980s and 1990s.
The CHR and the Sub–commission acted upon those allegations calling on the
government of Guatemala ‘to strengthen the policies and programs relating to
[indigenous peoples’] situation…taking into account their proposals and
aspirations’. 106
The HRC and the Sub–commission have also initiated operational fact–finding
missions and advisory services in cases of alleged human rights violations not strictly
considered part of the category of ‘gross violations’. For instance, the resettlement
policy involving Hopi and Navajo families in Arizona, or the problematic situation
concerning indigenous groups in Mexico prompted the Sub–commission to authorise
investigations on these issues. The investigation on the relocation policy led the sub–
commission to condemn the forced resettlement of indigenous family and recommend
a useful solution of the controversy. 107 The enquiry on the situation of indigenous
peoples in Chiapas and other parts of the country resulted in a detailed report with
recommendations dealing with issues of land, self–government and socioeconomic
problems. 108
106
Human Rights Commission Res. 1991/51 (5 March 1991). See also, Sub–Commission on
Prevention of Discrimination and Protection of Minorities Res. 1992/18 (urging Guatemala ‘to respond
to the requests and proposals of the indigenous peoples through the adoption of practical measures to
improve their economic, social and cultural conditions’); Sub–Commission on Prevention of
Discrimination and Protection of Minorities Res. 1994/23 (urging the government of Guatemala to
‘strengthen in particular policies and programmes concerning the indigenous population’).
107
The Sub–commission appointed two sub–commission members who compiled two separate reports.
Mr Carey’ report recommended that the sub–commission should not take position on the controversy:
see, UN Doc. E/CN.4/Sub.2/1989/35 (pt.2), whereas Mrs. Daes urged a moratorium on future
relocations and recommended to use UN advisory services in order to solve the dispute: see, UN Doc.
E/CN.4/Sub.2/1989/35 (pt. 1).
108
Report submitted by Mrs. Erica–Irene Daes, Chairperson–Rapporteur of the Working Group on
Indigenous Population, on her visit to Mexico (January 28–February 14, 2000), UN Doc.
E/CN.4/Sub.2/2000/CRP.1 (2000).
134
The Human Rights Commission and the Sub–commission are also empowered to
receive from non–governmental organizations and individual ‘communications’
about ‘situations which appear to reveal a consistent pattern of gross and reliably
attested violations of human rights’. 109 Procedure 1503 establishes a machinery to
allow individuals and groups to directly call on the Human Rights Commission to
deliberate on breaches of human rights. 110 It is argued that Resolution 1503 put in
place a ‘petition–information’ system rather than a ‘petition–redress’ system like
those established in other complaint procedures. The aim of procedure 1503 is that of
using ‘complaints as…evidence which might, if accompanied by a sufficient number
of related cases, spur the United Nations into action of some kind’ 111 rather than
assessing and resolving each complaint.
Indigenous peoples have also submitted petitions to the Commission under the
Resolution 1503 procedure, so as to stimulate its scrutiny on governments’ practice.
The petition submitted by the Indian Law Resource Centre on behalf of various
Native American nations about the alleged violation by US government policies of
aboriginal property rights, resulted in the inclusion of the US in the list of states under
scrutiny by the Commission. 112
It will be interesting to see whether the current Human Rights Council will play a
major role in addressing indigenous claims, and whether the review of the procedures
109
ECOSOC Res 1503(XLVIII) (25 May 25 1970).
110
A comprehensive analysis of the 1503 procedure and its machinery can be found in Rodley, above
n 49, 64-70.
111
Philip Alston, ‘The Commission on Human Rights’ in Philip Alston (ed), The United Nations and
Human Rights: A Critical Appraisal (Oxford: Clarendon Press, 1992) 146.
112
Notwithstanding the rule of confidentiality of procedure 1503, it became known that the US
government was urged by the commission to answer the allegations submitted. The rule of
confidentiality is stated in ECOSOC Res 1503(XLVIII), para 8.
135
and mechanisms of the former Human Rights Commission will impact on the
mechanisms for indigenous complaints to the UN and, more generally on the
advancement of indigenous peoples’ claims. The new structures to be established
under the Human Rights Council include the future successor to the Working Group
on Indigenous Population (WGIP). The WGIP has been among the most important
specific procedures and mechanisms established within the UN charted–based human
rights monitoring system to deal with indigenous issues. These include the Human
Rights Commission’s open–ended inter–sessional working group for the elaboration
of the UN Declaration on the Rights of Indigenous Peoples, 113 the Permanent Forum
on Indigenous Issues, 114 and the Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people. 115
While the role and activities of the Permanent Forum on Indigenous issues will be
discussed in the third part of the thesis, with particular reference to its engagement in
the world community’s development agenda, it is important to outline the role of the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people.
In 2001, The Human Rights Commission authorised the appointment of the
special rapporteur who is vested with the authority to: a) gather, request, receive and
exchange information and communications from all relevant sources on breaches of
113
UN Doc. E/CN4/Sub2/1994/2/Add.1 (1994).
114
UN ESCOR Res 2000/22.
115
Human Rights Commission Res 2001/57, UN Doc. E/CN.4/DEC/2001/571 (24 April 2001).
136
human rights against indigenous people, their communities and organizations; and b)
formulate recommendations and proposals to prevent and remedy those violations. 116
The appointment of a special rapporteur on the situation of human rights and
fundamental freedoms of indigenous people is a response to the growing international
concern regarding the marginalization and discrimination against indigenous people
worldwide. The mandate represents a significant moment for the on–going pursuit of
indigenous peoples to safeguard their human rights and is complementary to those of
the WGIP and the Permanent Forum on Indigenous Issues and aims at strengthening
the mechanisms of protection of the human rights of indigenous peoples.
The first report presented to the Commission on Human Rights acknowledges
relentless patterns of discrimination and breaches of human rights against indigenous
peoples ‘everywhere’. The Rapporteur emphasises ‘the problem of a ‘protection gap’
between existing human rights legislation and specific situations facing indigenous
people’. 117
Fundamental themes were identified as deserving special scrutiny in his future
work, such as the impacts of development projects on indigenous communities;
indigenous cultural rights; implementation of domestic laws to protect indigenous
rights and the relation between states’ law and indigenous customary law;
discriminations against indigenous individuals; indigenous children; participation in
policy decision–making process. 118
116
Human Rights Commission, Res 2001/57, paras. 1(a), 1(b).
117
Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People, UN Doc. E/CN.4/2002/97 (2002), paras. 102, 109.
118
UN Doc. E/CN.4/2002/97 (2002), para. 103.
137
Of particular interest is the study on the impact of development projects on
indigenous communities. Information received on several cases concerning violations
of human rights experienced by indigenous peoples triggered the Rapporteur to
explore the impact of large–scale development projects. As a result, on–site visits
have been carried out in different countries, such as in the Philippines and
Guatemala. 119
In the Philippines, several breaches of human rights were identified as a result of
development projects, such as building of dams, large–scale logging concessions,
commercial plantations, and mining. The Rapporteur articulated recommendations on
actions to be taken in order to remedy those violations. 120
The role of the special rapporteur is considered of crucial importance in the
awareness–raising processes of the situation of indigenous peoples’ worldwide and
the protection of their human rights. The significance of the special rapporteur’s work
is being particularly emphasised during different sessions of the UN Permanent
Forum on Indigenous Issues. In particular, the Forum has called for the dissemination
and full implementation of the recommendations of the Special Rapporteur’ s reports
on the relationships of indigenous peoples and land rights, and on permanent
sovereignty of indigenous peoples over their natural resources. 121
119
See, Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People, Addendum: Mission to the Philippines, UN Doc.
E/CN.4/2003/90/Add.3 (2003); Rodolfo Stavenhagen, Report of the Special Rapporteur on the
Situation of Human Rights and Fundamental Freedoms of Indigenous People, Addendum: Mission to
Guatemala, UN Doc. E/CN.4/2003/90/Add.2 (2003).
120
UN Doc. E/CN.4/2003/90/Add.3 (2003), paras. 29–56, 67.
121
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 16–27 May 2005, UN
Doc. E/C.19/2005/9, para. 38.
138
3.2 Regional human rights implementation systems and indigenous peoples’
claims to self–determination
Regional human rights implementation systems have been developed in specific
regions of the world for the protection and promotion of human rights. There are
three substantial international conventions directed at the protection of human rights
in Europe, 122 Africa 123 and the Americas. 124 Each of these regional arrangements
spells out its own collection of rights and duties, establishes its own investigation and
reporting systems, as well as complaint procedures.
It is argued that both the European and African human rights instruments have
significant potential to address indigenous issues and advance mechanisms to redress
violations of indigenous peoples’ rights. Even though the European instruments, for
instance, do not set out specific rights for indigenous peoples, the individual rights
mechanisms of the ECHR and the reporting mechanism of the FCNM, have been
used by indigenous groups. 125 This section will focus exclusively on the Inter–
American system because of its more prominent relevance in addressing indigenous
claims.
The Inter–American system is a complex and evolving structure of interrelated
normative instruments and monitoring institutions within the Organization of
122
The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), adopted 4 November 1950, entered into force 3 September 1953. It is also important to
consider the Framework Convention for the Protection of National Minorities (FCNM), adopted 1
February 1998, entered into force 1 February 1998.
123
The African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21
October 1986. For a discussion about African perspectives on indigenous peoples and indigenous
rights: see, Thornberry, above n 9, 244–264.
124
American Convention on Human Rights, adopted 22 November 1969, entered into force 18 July
1978.
125
See, Thornberry, above n 9, 290–317.
139
American States (OAS). The Organization of American States is an international
regional body created at the Ninth International Conference of American States held
in Bogotá in 1948. Its normative frame and mechanisms have been playing a
significant role in the recognition and advancement of indigenous peoples. Many of
the world’s indigenous peoples are indeed within the jurisdictions of some of OAS’s
thirty–five member States. 126
The fundamental instruments of the OAS are the constitutional OAS Charter and
the American Declaration on the Rights and Duties of Man, adopted in 1948. Both
the Charter and the American Declaration do not have an indigenous imprint. The
Charter 127 of the Organization of American States does not address indigenous rights,
neither has it mentioned indigenous peoples. The promotion and protection of
indigenous culture and values can be included within the general obligation of States
to ‘consider themselves individually and jointly bound to preserve and enrich the
cultural heritage of the American peoples’.128 However, the Charter’s provisions on
integration have the potential to weaken indigenous identities and values – states
commit to foster the incorporation and participation of ‘the marginal sectors of the
population, in the economic, social, civic, cultural, and political life of the nation, in
order to achieve the full integration of the national community’. 129
126
Argentina, Belize, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Dominican
Republic, Ecuador, El Salvador, Guatemala, Guyana, Haiti, Honduras, Mexico, Nicaragua, Panama,
Paraguay, Peru, Suriname, United States of America and Venezuela.
127
The Charter of the Organization of American States entered into force in December 1951. The
initial text has been amended by the Protocol of Buenos Aires in 1977, the Protocol of Cartagena de
Indias in 1985, the Protocol of Washington in 1992 and the Protocol of Managua in 1993.
128
OAS Charter, art. 48.
129
OAS Charter, art. 45f.
140
The American Declaration sets out a wide–ranging bundle of civil and political
rights as well as economic, social and cultural rights. It is argued that the latter are
particularly significant for indigenous peoples despite the uncertainness about the
immediate or progressive nature of the corresponding States’ obligations. 130 The
normative force of the American Declaration has been enhanced by the jurisprudence
of the Inter–American Court of Human Rights and the Inter–American Commission
of Human Rights. By asserting that the Declaration ‘is the text that defined the human
rights referred to in the [OAS] Charter’, 131 the Court has paved the way to apply the
Declaration to all States, including those which have not ratified the Inter–American
Convention. This view has been endorsed by the Inter–American Commission which
has interpreted the Declaration ‘as an indirectly binding legal text’: 132 human rights
obligations of those States, therefore, stem from their membership to the
Organization of American States.
The 1948 Bogotá Conference also adopted the Inter–American Charter of Social
Guarantees which comprises a provision on indigenous peoples:
In countries where the problem of an indigenous population exists, the

necessary measures shall be adopted to give protection and assistance to
the Indians, safeguarding their life, liberty and property, preventing their
extermination, shielding them from oppression and exploitation,
protecting them from want and furnishing them an adequate education.
The State shall exercise its guardianship in order to preserve, maintain
and develop the patrimony of the Indians or their tribes; and it shall
foster the exploitation of the natural, industrial or extractive resources or
any other sources of income proceeding from or related to the aforesaid
patrimony, in order to ensure in due time the economic emancipation of
the indigenous groups. Institutions shall be created for the protection of
130
Thornberry, above n 9, 268–269.
131
Advisory Opinion No. 10 (1989), I/A Court H.R. Series A No. 10, para. 45.
132
See, D Harris, ‘Regional Protection of Human Rights: the Inter–American Achievement’ in D
Harris and S Livingtone (eds), The Inter–American System of Human Rights (Oxford: Clarendon Press,
1998) 1.
141
Indians, particularly in order to ensure respect for their lands, to legalize
their possession thereof, and to prevent encroachment upon such lands
by outsiders. 133
The provision reflects a paternalist and integrationist approach to indigenous
peoples who are, first of all, considered as a ‘problem’ to be solved. Whereas States
are called on to ‘protect’ them through a ‘guardianship’ relation, there is no mention
of indigenous entitlements to certain rights. The paternalist approach is striking in the
emancipating mission that States should carry out through the exploitation of the
natural resources in their territories.
In 1978 the American Convention on Human Rights came into force, legally
binding OAS’s member States, except the United States and Canada, to promote and
respect fundamental rights as well as upholding responsibilities towards family,
community, and mankind. The American Convention does not include a specific
reference to indigenous peoples or indigenous rights.
The lack of a specific normative human rights instrument (either treaty or
declaration) dealing with indigenous rights within the Inter–American system, apart
from the Draft American Declaration on Indigenous Rights currently under
examination, appears surprising given the large number of indigenous peoples in the
Americas.
Indigenous claims are addressed through the monitoring mechanisms and
procedures established erga omnes by the American Convention on Human Rights.
Convention rights are indeed monitored and protected by the Inter–American
133
Final Act of the Ninth International Conference, Resolution XXIX, Annals, 129.
142
Commission on Human Rights (IACHR) and the Inter–American Court of Human
Rights. 134
The Inter–American Commission has dealt with indigenous claims through its
main methods of operation: the petition or complaint procedure 135 and country
report. 136 Grave allegations of violations of human rights were lodged against
governments under the complaint procedure. Genocide, torture, murder, sale of
children, inhuman conditions of work, have been among the allegations brought
before the Inter–American Commission against Paraguay for their treatment of the
Aché Indians of Paraguay 137 case. The Commission, having its request of
information been ignored by Paraguay, presumed the validity of the alleged facts and
denounced the violation of the fundamental rights to life, protection of the family,
health and well–being, liberty and security, work and fair remuneration. 138 Despite
this denouncement and the request to Paraguay to adopt strong measures to protect
the Aché population, the Commission’s approach appeared contradictory. It asserted
that the genocide of the Aché Indians was not caused by governmental policies
which, instead, aimed to assimilate and protect them. 139 The Inter–American
Commission’s approach to indigenous claims in the early stages has been criticised
134
Inter–American Convention on Human Rights, art. 33.
135
Inter–American Convention on Human Rights, art. 44: ‘[a]ny person or group of persons, or any
non–governmental entity legally recognized in one or more member States of the Organization, may
lodge petitions with the Commission containing denunciations or complaints of violations of this
Convention by a Sate party’.
136
Inter–American Convention on Human Rights, art. 41d: The Commission is granted the authority
‘to request governments of the member States t supply it with information on the measures adopted by
them in matters of human rights’.
137
Case 1802 (Paraguay), IACHR Annual Report 1977, 30–44, 55–57.
138
Ibid 37.
139
Ibid 36.
143
for not having addressed fundamental issues such as competing land claims. 140
However, it has also been argued that the normative framework – the American
Declaration and the American Convention – within which the Inter–American
Commission acted was limited as far as indigenous issues were concerned. 141
The Inter–American Commission expanded the normative horizon in later cases,
such as in the Yanomani of Brazil. 142 In this case, violations of human rights to life,
liberty, movement, residence, and health were condemned not only by virtue of the
American Declaration, but also by virtue of a progressive interpretation of article 27

143
of the ICCPR. The Inter–American Commission interpreted the provision as an
international law group right to special protection ‘in general, for all those
characteristics necessary for the protection of their [ethnic groups including the
Yanomani] cultural identity’. 144 Accordingly, having acknowledged efforts made by
Brazil to protect the Yanomani, it recommended that the Brazilian government adopt
further adequate and strong measures and establish a Yanomani Park. 145
Individual complaints about alleged gross human rights abuses, violence,
ethnocide, forced relocation committed by the Nicaraguan government against the
140
See, Shelton H Davis, Land Rights and Indigenous Peoples: the Role of the Inter–American
Commission on Human Rights (Cultural Survival Report 29) (Cambridge, MA: Cultural Survival,
1988) 14–15, 23–24.
141
James S Anaya, Indigenous Peoples in International Law (New York: Oxford University Press,
1996) 168.
142
Case No. 7615 (Brazil), IACHR Annual Report 1984–85.
143
Article 27 of the ICCPR refers to rights of ‘persons’, not to group rights. See, Goodwin Gomez,
‘Indigenous Rights and the Case of the Yanomani Indians of Brazil’ in Cynthia Price Cohen (ed),
Human Rights of Indigenous Peoples (Ardsley, NY: Transnational Publishers, 1998) 185. See also,
Hurst Hannum, ‘The Protection of Indigenous Rights in the Inter–American System’ in D Harris and S
Livingtone (eds), The Inter–American System of Human Rights (Oxford: Clarendon Press, 1998) 168:
it is reported Anaya’s opinion according to which ‘the Commission considered the principle to be one
of customary or general international law.’
144
IACHR Annual Report, 1984–1985, 31.
145
For background information about the initiative to constitute the Yanomani Park: see, Gomez,
above n 143, 190–191.
144
indigenous peoples of the Nicaraguan Atlantic coast,146 stimulated further action. The
Inter–American Commission investigated the alleged violations and released its final
Report on the Situation of Human Rights of a Segment of the Nicaraguan Population
of Miskito Origin. 147
The Report attempts to balance the individualistic imprint of the American
Declaration and Convention with the indigenous claims to recognition of collective
rights. 148 Acknowledging petitioners’ rights according to the individualist approach
of the American Declaration and the American Convention, 149 the IACHR
emphasized that ‘for an ethnic group to be able to preserve its cultural values, it is
fundamental that its members be allowed to enjoy all of the rights set forth in the
American Convention…since this guarantees their effective functioning as a group,
which includes preservation of their own cultural identity’. 150 Further, recalling
article 27 of the ICCPR ‘which reaffirmed the need to protect ethnic groups’, 151 the
IACHR articulated a special section on ‘Special Protection of the Miskitos as an
ethnic group’. 152 However, the Inter–American Commission took a neutral position
in regards to the legitimacy of indigenous claims to ancestral lands: it recommended a
146
The indigenous peoples of the Nicaraguan Atlantic coast include the Miskito, Sumo and Rama
populations.
147
Docs. OEA/Ser.L/V/II.62, Doc.10 rev.3 (29 November 1983); OEA/Ser.LV/II.62, Doc.26 (16 May
1984).
148
The human rights violations suffered by the indigenous groups were explained as follows: ‘The
principal reason for the Indian rights crisis in Nicaragua is the antagonism created by the Sandinista
government’s policy which denies the ethnic identity of our Indian peoples. It follows that the
recognition of Indian rights to their territory and their autonomy is also denied. The government’s
policy requires assimilation of minorities to the philosophy and culture of those who control the
government in Managua, thus converting us into peasants and mestizos without definition and
aboriginal rights’: coordinator–General of Misurasata, IACHR Annual Report, above 144, 22.
149
The IACHR reaffirmed the individual rights to life, personal liberty and security, residence and
movement, property, and due process.
150
IACHR Annual Report, above n 144, 81.
151
Ibid 76.
152
Ibid 76–82.
145
fair compromise that would respect indigenous aspiration and maintain the territorial
integrity of Nicaragua. 153
The issue of territorial integrity held a significant place within IACHR debates
about indigenous claims to the right to self–determination. Despite the Miskito
clearly spelling out that ‘the autonomy or self–determination which we sought did not
mean separatism or complete independence’, discussions focused on the threat of
secession that any recognition of indigenous self–determination could pose.
Secession was then perceived as the only modus operandi of the indigenous right to
self–determination, leading the IACHR to adopt a conservative approach to
indigenous claims to self–determination. It firmly concluded that the exercise of self–
determination can never affect the territorial integrity of States154 and that
international law does not recognize any right to self–determination or autonomy to
ethnic groups. 155 The limited nature of the Declaration on Principles of International
Law, 156 one of the normative instruments on which the interpretation of the
Commission was founded, is challenged for not excluding in absolute terms the
disintegration of territorial integrity as a consequence of the exercise of self–
determination. 157 Either way, the IACHR did not consider the concept of self–
determination as expressed by the involved indigenous groups, a concept which
denied any secessionist aspiration. It called upon Nicaragua to set up an institutional
system able to promote pacific coexistence between ethnic groups and government;
153
Ibid 127.
154
The Declaration on Principles of International Law provided the normative basis to such assertion.
155
IACHR Annual Report, above n 144, 78–81.
156
Hannum, above n 143, 331.
157
146
not to impose forced assimilation; and to safeguard the cultural identity of
Nicaragua’s indigenous peoples. 158
The Inter–American Commission’s monitoring mechanisms have the potential to
facilitate the recognition of indigenous rights. The complaint procedure can operate
as a vehicle to implement norms concerning indigenous peoples not included in the
American Declaration and Convention, as the Yanomani and Miskito cases show.
Even though no formal resolutions have been released in many early indigenous
cases, 159 important issues continue to be brought up under the complaint procedure.
The friendly settlement procedure provides a further instrument through which
the Inter–American Commission can potentially impact upon the recognition of
indigenous rights. The Enxet Communities case in Paraguay, for instance, has been
referred to as ‘the first agreement in the inter–American human rights system which
restores land rights to an indigenous community’.160 The friendly settlement
facilitated by the Inter–American Commission authorized the transfer of lands to the
community concerned. 161
Further legal practice has been affected by the ongoing normative process carried
out in the UN and OSA drafts. The Inter–American Commission on Human Rights,
for instance, has promoted the juridical implementation of the indigenous agenda by
referring cases to the Inter–American Court of Human Rights and negotiating
agreements favorable to indigenous claims. The Mayagna Indian Community of
158
IACHR Annual Report, above n 144, 81–82.
159
Davis, above n 140, 8–9.
160
Erica–Irene Daes, Report of the Special Rapporteur on Indigenous Peoples and their Relationship
to Land, UN Doc. E/CN.4/Sub.2/2001/21 (2001), para. 103.
161
IACHR Annual Report 1998, ch. II, section 2D.
147
Awas Tingni v. Nicaragua 162 is only one of the cases that the IACHR has referred to
the Inter–American Court of Human Rights. Among several settlements to which the
IACHR actively participated, it is worth citing the Guatemala’s arrangement where
compensation was adjudicated not only to victims and families but also to the entire
indigenous community. 163 In another case, Paraguay granted two indigenous
communities the effective exercise of indigenous rights on ancestral lands. 164
162
The Awas Tingni is a case brought against the state of Nicaragua for approving logging activities
involving indigenous issues, such as natural resources, land control and development projects.
163
Case N° 11212 (Report 19/97, 1997). Reparations to the community were made in the form of
schools and diverse development projects.
164
Case N° 11713, friendly settlement of 25 March 1998.
148
3.3 Conclusion
The first part of the thesis has discussed the fundamental principles, structures
and mechanisms concerning indigenous peoples and their claims within the
international legal system.
The historical background discussed in the first chapter has articulated the
fundamental stages through which the status and rights of indigenous peoples have
developed within the international system. The overview has provided an
indispensable historical background to understand the contemporary regime of
international law as it relates to indigenous peoples. It has been argued that this
regime is characterized by an increasing participation of indigenous peoples in the
contemporary international arena, an emerging corpus of normative precepts specific
to indigenous peoples, and the adaptation of international human rights procedures
and mechanisms to address indigenous claims.
Indigenous claims to self–determination have been the focus of the discussion on
the ground that self–determination constitutes the core precept within the indigenous
rights discourse. The discussion on the development, interpretation and application of
the principle of self–determination under international law, has provided critical
insights about the ramifications that the adoption of self–determination – a general
principle of international law – may have when applied to indigenous peoples.
The analysis of the emerging corpus of indigenous rights raises two fundamental
issues: the admissibility and legitimacy of indigenous rights as a new legal category,
149
and the adequacy of the international human rights implementation system to address
indigenous claims to self–determination.
While opinions differ as to the admissibility of a new category of indigenous
rights and its legitimacy as a ‘new generation’ of rights, the existence or emergence
of international legal standards specific to indigenous peoples cannot be denied.
It is indeed argued that, even though international normative instruments on
indigenous rights have not been adopted yet, a corpus of customary norms on the
meaning of indigenous peoples, as well as the existence of indigenous rights, have
been crystallized within the international legal system. 165 It is maintained that a body
of customary international law on indigenous rights has developed through different
processes within the international legal system. These processes include the
interpretation of general human rights standards by authoritative bodies (such as, the
human rights treaty–based Committees, the Human Rights Commission, and various
regional human rights institutions), the debates and discussions which have been
animating the drafting process of the UN Declaration on the Rights of Indigenous
Peoples and the OAS Draft Declaration on the Rights of Indigenous Peoples, as well
as various processes within the competence of ILO Convention 169.
The development of customary norms concerning indigenous peoples has primary
significance because it indicates that there exists within the international community
a broad–shared understanding of indigenous peoples as a legal category and of the
165
James S Anaya, ‘International Human Rights and Indigenous Peoples: the Move towards the
Multicultural State’ (2004) 21 Arizona Journal of International and Comparative Law 13, 14–15. See
also, James S Anaya and Robert A Williams, Jr., ‘The Protection of Indigenous Peoples’ Rights over
Lands and Natural Resources Under the Inter–American Human Rights System (2001) 14 Harvard
Human Rights Journal 33, 53–74.
150
content of indigenous rights. Irrespective of formal consent–based legal instruments,
customary law binds the whole world community of states and institutions to conform
to a certain practice in their dealing with indigenous peoples. 166
In particular, it is suggested that the adoption of avant–garde opinions or
recommendations by international bodies can contribute to the recognition of
indigenous peoples’ right to self–determination under international human rights law,
as well as contribute to a deeper understanding of the substantive content of the norm
and the remedial measures through which it can be addressed.
In the debate about the admissibility of a new legal category, Thornberry claims
that evidence of the emergence of a new legal category specific to indigenous rights
has increasingly been given in normative contexts, legal practice and juridical
reasoning. 167 It is maintained that the UN Declaration on the Rights of Indigenous
Peoples and the OAS Draft Declaration on the Rights of Indigenous Peoples, have
started to establish the normative foundations for the existence of indigenous peoples
and indigenous rights as a distinctive legal category, despite a certain degree of
uncertainty as to definitions and boundaries. The content and the legal–political
ramifications of these drafts, highlight that the UN and OAS normative texts
significantly contribute to create a shared comprehension of the legal issues that
cannot be dealt with through adaptation of general legal categories.
166
Ibid.
167
Patrick Thornberry, ‘Self–Determination and Indigenous Peoples: Objections and Responses’ in
Pekka Aikio and Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–
determination (Åbo, Finland: Institute for Human Rights Åbo Akademi University, 2000) 39.
151
In Kingsbury’s view, ‘[i]ndigenous peoples are in the process of developing a
specific discourse from the general legal corpus’. 168 Accordingly, indigenous
peoples’ right to self–determination needs to be specifically defined according to
indigenous concerns, such as protection of lands, respect of their histories, traditions
and worldviews. It is argued that the specificity of indigenous peoples’ self–
determination requires the encapsulation of indigenous identity and serves as a
vehicle to enable indigenous peoples to live their own way:
[S]elf–determination is an aspirational concept which embraces a

widening spectrum of political possibilities, from self–management by
indigenous peoples of their own affairs to self–government by
indigenous peoples of their own communities or lands. Self–
determination is a dynamic right under the umbrella of which…peoples
will continue to seek increasing autonomy in decision–making. 169
In discussing the admissibility and legitimacy of a specific legal category of
indigenous rights, Kingsbury distinguishes and discusses five conceptual foundations
on which legal claims have been brought by indigenous peoples:
(a) human rights and non–discrimination claims;
(b) minority claims;
(c) self–determination claims;
(d) historic sovereignty claims;
(e) claims as indigenous peoples (including claims grounded on treaties or
other compacts between indigenous communities and states). 170
168
Benedict Kingsbury, ‘Reconciling Five Competing Conceptual Structures of Indigenous Peoples’
Claims in International and Comparative Law’ in Philip Alston (ed), Peoples’ Rights (New York:
Oxford University Press, 2001) 69.
169
L O’ Donoghue, Statement presented at the 1993 session of the Working Group on Indigenous
Populations.
170
152
This five–fold theoretical distinction helps locate indigenous peoples’ legal
claims within international legal norms and practice. This categorization poses some
fundamental questions. First, whether and to what extent the conceptual categories
which have been borrowed from the existing international legal framework, and not
purposely crafted for indigenous peoples’ issues, have been able to address the
unique nature of native peoples’ claims. 171 Second, whether and to what extent, these
diverse claims may constitute a comprehensive legal structure. Finally, and most
importantly, whether a new category of legal claims specific to indigenous peoples
has emerged. In other words, Kingsbury questions whether a new category of
indigenous rights demands recognition under international law.
Kingsbury claims that a thorough analysis of the legal claims brought by
indigenous peoples demonstrates that ‘a category of claims made by indigenous
peoples is emerging as a distinct conceptual structure, although it is certainly not the
case that any claim by an indigenous group or person therefore falls into this
category’. 172
In this regard, Kingsbury argues that alternative conceptual categories of
international and domestic law are necessary to adequately tackle issues, which are
specific to indigenous peoples. It is maintained that the adaptation of established
categories is inadequate to fully address those specific issues (such as issues of
171
Ibid 70. Kingsbury specifically refers to the first four categories (human rights and non–
discrimination, minority, self–determination, and historic sovereignty).
172
Ibid 106.
153
culture, distinct histories and identities), so that it is necessary to search for principles
that go beyond the individual human rights and non–discrimination framework. 173
Thus, a normative and institutional framework based on indigenous peoples and
indigenous rights as a specific legal category 174 is required in order to address the
following normative elements:
a) the legal regime for restitution of traditional lands and territories;
b) historically and culturally grounded entitlements and responsibilities with
regard to natural resources, religious sites, and spiritual or guardianship
relationships with particular land, water, and mountains;
c) entitlements and responsibilities based on treaties or other agreements to
which the indigenous people are a party;
d) certain constitutional arrangements for participation and political structures
for membership and self–government;
e) duties in relation to ancestors and future generations;
f) continuance of certain kinds of economic practices; and
g) entitlements and responsibilities in relation to traditional knowledge. 175
This thesis supports the need to elaborate a specific framework which is able to
embrace these emerging concepts peculiar to indigenous issues. The analysis of the
international human rights mechanisms discussed in this chapter, helps clarify the
173
Ibid 78.
174
See also, Benedict Kingsbury, ‘ “Indigenous peoples” as an International Legal Concept’ in R H
Barnes, A Gray and B Kingsbury (eds), Indigenous Peoples of Asia (Ann Arbor, Mich.: Association
for Asian Studies, 1995) 13.
175
Ibid 103.
154
contributions and limits of the international human rights system in addressing
indigenous claims and advancing indigenous peoples’ right to self–determination.
It can be argued that international and regional human rights implementation
procedures are significant in two respects: they facilitate a dialogue with governments
on principles and procedures that have impact on the theoretical and practical
recognition of self–determination to indigenous peoples within national boundaries;
and they contribute to the development of customary rules on indigenous rights.
The international human rights ‘remedial machinery’, however, is limited in
different respects. Limits can be detected at the substantive and procedural level. At
the substantive level, the fundamental statist–centred imprint common to the whole
human rights implementation system, hinders the advancement and fulfillment of
indigenous aspirations to self–determination. Recommendations or prescriptions
delivered through these mechanisms lack any legally binding force: reverence is paid
to states’ willingness whether to implement those measures through domestic
mechanisms or not. Statist–centred parameters, such as the positivist interpretation of
indigenous self–determination with its emphasis on territorial integrity and threat of
secession, continue to hamper the recognition of the right to self–determination for
indigenous peoples.
Juridical practices reveal states’ short–sighted positivist approach to indigenous
self–determination. The cases discussed demonstrate that the ‘state of affairs’ of the
exercise of indigenous self–determination mostly concern issues related to means of
subsistence, land, respect of identity, enjoyment of culture, and the exercise of health
practices. The enjoyment of self–determination is substantiated in the actual
155
fulfillment of rights which are embedded in the overarching right to self–
determination.
At the procedural level, the human rights monitoring/implementation system
primarily offers avenues of redress of alleged violations of human rights. This implies
that infringements of the norms have occurred. Accordingly, indigenous peoples’
right to self–determination is addressed in cases where a violation may have taken
place or is about to occur. The limit of this system is that implementation measures
which positively contribute to the real exercise of self–determination are mostly
connected to a remedy measure of the norm.
This thesis argues that international human rights mechanisms do not provide an
agent–driven approach to the fulfilment of indigenous aspirations to self–
determination. ‘Victims’ need to be defended, at times compensated, and their
situations redressed, whereas states are the duty–bearers of the prescriptions
delivered, as they are called upon to refrain from, or engage in, some kind of
redressing measure.
The operation of this system implies a passive role of the right–holders who, in
this case, are indigenous individuals and peoples who claim the right to self–
determination. The empowerment of the ‘victims’ is residual – domestic measures
have to be exhausted before lodging complaints to human rights committees – and
endorsed in a passive modality as the practical resolution is left to states’ political
willingness and modus operandi. Victims, who are also the right–holders, do not
actively take part in the implementation–remedial process; they are the passive
recipients of international and national institutional prescriptions.
156
It can be argued that the human rights monitoring/implementation system is
basically a ‘remedial machinery’. International human rights remedial mechanisms
are important, but not sufficient to holistically implement indigenous peoples’ self–
determination in its multidimensionality. There is a need for a system which
effectively promotes an agent–driven implementation process. In this context, agents
are the individual and collective holders of the right to self–determination in question.
Indigenous individuals and communities need to be actively engaged in the
implementation process, the right–holders need to be actively empowered with a
positive capability to realise their own self–determination before they become
‘victims’ of violations. In other words, there is a need for a system which promotes
an agent–driven fulfilment of indigenous self–determination.
Accordingly, this thesis argues that the international human rights system cannot
be considered the exclusive domain in which indigenous claims can be addressed. It
is maintained that development policy processes play a crucial role in determining the
level of enjoyment of self–determination for indigenous peoples. Development policy
can offer an avenue to bypass nation states’ political unwillingness to recognize and
promote indigenous peoples’ right to self–determination, when adequate principles
are embedded in the whole policy process.
The thesis proposes to extend the analysis from the international legal framework,
to development policy processes in order to construct a normative indigenous rights–
based framework and a methodological approach to development policies for
indigenous peoples imbued with the principle of self–determination. For this purpose,
Amartya Sen’s capability approach will be adopted as a theoretical framework of
thought to explore the interface between indigenous rights and development policy.
157
In the second part of the thesis, the foundational theoretical underpinnings of
these two bodies of knowledge will be amalgamated at the normative and practical
level. At the normative level, a conceptual apparatus will be articulated, which allows
us to identify an ‘indigenous capability rights–based normative framework’ that
encapsulates the essence of the principle of indigenous self–determination. At the
practical level, this normative framework enables us to construct a methodological
approach to indigenous development policies that serves as a vehicle for the
fulfilment of indigenous aspirations to self–determination.
158
Part 2
The capability approach
and
indigenous peoples’ right to self–determination
Development can be seen as a process of expanding
the real freedoms that people enjoy

Amartya Sen
159
Chapter 4
The capability approach
4.1 General overview
The capability approach is a normative framework of thought developed by the
economist and philosopher Amartya Sen. The origin of the capability approach can
be traced back to 1979, with the presentation of the seminal lecture ‘Equality of
What?’ at Stanford University. 1 On this occasion, Sen began exploring an alternative
way of evaluating inequality which would distance itself from traditional approaches
while pioneering an alternative understanding of individual well–being and social
arrangements.
The capability approach suggests an alternative evaluative system which focuses
on an informational base which goes beyond those proposed in traditional economic
analysis and practical ethics, such as welfare economics 2 and utilitarianism. 3 The
1
Amartya K Sen, ‘Equality of What?’ in S McMurrin (ed), Tanner Lectures on Human Values
(Cambridge: Cambridge University Press, 1980).
2
Des Gasper elaborates on Sen’s criticism of traditional approaches outlining that ‘in mainstream
economics, well–being or welfare is conceived as a homogeneous ‘utility’ which reflects only
consumption and that only insofar as it fulfils prior preferences. Besides that view of well–being – (A),
preference–fulfilment – another version of utilitarianism is common in every day life and philosophy:
in this view (B), welfare equals – ‘utility’ seen instead as feelings of satisfaction’: see, Des Gasper,
‘Sen’s Capability Approach and Nussbaum’s Capabilities Ethic’ (1997) 9(2) Journal of International
Development 281, 283.
3
Utilitarianism in ethics is the principle of valuing things or actions according to their contribution to
the overall good, which is seen as the sum of the individual utilities experienced by all persons in the
relevant community. This principle finds one particular expression in mainstream policy economics,
when it is operationalised in terms only of money–backed demand and market commodities. Utilitarian
ethics is, in turn, only one product of utilitarian social theory, an individualistic and rationalistic
approach to social thought, which focuses on (i) individuals, whose interactions are considered to
constitute society; and who (ii) experience utility (the physical equivalent of profits), which they (or a
benevolent state) (iii) calculate as to how to maximize. See, Des, above n 2, citing T Parson, The
Structure of Social Action (New York: Free Press, 1937).
160
informational bases which Sen indicates to be inadequate include ‘the “economic”
concentration on the primacy of income and wealth (rather than on the characteristics
of human lives and substantive freedoms); the “utilitarian” focus on mental
satisfaction (rather than on creative discontent and constructive dissatisfaction); the
“libertarian” preoccupation with procedures for liberty (with deliberate neglect of
consequences that derive from those procedures)…’ 4
Sen’s critique of those traditional approaches emphasises the need to extend the
evaluative framework in the assessment of individual well–being and social
arrangements from wealth, or income, desire fulfilment or primary goods, 5 to the
lives that people are able to lead. It is indeed argued that ‘…we generally have
excellent reasons for wanting more income or wealth. This is not because income and
wealth are desirable for their own sake, but because, typically, they are admirable
general purpose means for having more freedom to lead the kind of lives we have
reason to value’. 6
The distinction between the means and the ends of well–being, development and
justice, 7 is a key analytical factor for the articulation of a freedom–centred normative
4
Amartya K Sen, Development as Freedom (Oxford: Oxford University Press, 1999) 19.
5
John Rawls, A Theory of Justice (Cambridge: Cambridge University Press, 1971); John Rawls,
‘Social Unity and Primary Goods’ in Amartya Sen and Bernard Williams (eds), Utilitarianism and
Beyond (Cambridge: Cambridge University Press, 1982).
6
Sen, above n 4, 14.
7
The capability approach does not constitute a theory of justice. It is clearly stated that the capability
approach identifies an evaluative space which does not equal to a theory of justice. A theory of justice
requires other fundamental elements, including aggregative and distributive principles as well as
procedural factors: see, A K Sen, ‘Gender Inequality and Theories of Justice’ in Martha Nussbaum and
J Glover (eds), Women, Culture and Development: A Study of Human Capabilities (Oxford: Clarendon
Press, 1995) 268; A K Sen, ‘Elements of a Theory of Human Rights’ (2004) 32(4) Philosophy and
Public Affairs 315, 337.
161
framework which takes distance from utilitarian and resources–based approaches. 8
Income, resources or primary goods are the means – and not the ends – of people’s
well–being. Freedoms, or the valuable opportunities that people enjoy to lead the kind
of life they value, constitute the ends of people’s well–being.
The capability approach presents Aristotelian roots 9 as well as some aspects of
Adam Smith’s and Karl Marx’s works. 10 Notwithstanding those similarities, the
corpus of the capability approach in its present form, has been gradually developed
over time in a conspicuous literature 11 and furthered by a growing number of
scholars. Among them, Martha Nussbaum has adopted and elaborated a rich version
of the capability approach she describes as a ‘partial theory of justice’. 12
8
See, eg, Ronald Dworkin, ‘What is Equality? Part 2: Equality of Resources’ (1981) 10 Philosophy
and Public Affairs 283; Ronald Dworkin, Sovereign Virtue: the Theory and Practice of Equality
(Cambridge, Mass.: Cambridge University Press, 2000).
9
See, eg, Aristotles, The Nicomachean Ethics, (trans by D. Ross Oxford: Oxford University Press, rev
ed, 1980, book I, section 5) 7: ‘wealth is evidently not the food we are seeking; for it is merely useful
and for the sake of something else’.
10
See, Martha C Nussbaum, ‘Nature, Functioning and Capability: Aristotele on Political Distribution’
(1988) Oxford Studies in Ancient Philosophy, Supplementary Volume, 145–184; Martha C Nussbaum,
‘Human Functioning and Social Justice. In defence of Aristotelian Essentialism’ (1992) 20(2) Political
Theory 202; Amartya K Sen, ‘Capability and Well–Being’ in M C Nussbaum and A K Sen (eds), The
Quality of Life (Oxford: Clarendon Press, 1993); Sen, Development as Freedom, above n 4.
11
Sen, Equality of What?, above n 1; A K Sen, ‘Plural Utility’ (1980/81) 81 Proceedings of the
Aristotelian Society 193; A K Sen, ‘Well–Being, Agency and Freedom. The Dewey Lectures 1984
(1985) 82(4) The Journal of Philosophy 169; A K Sen, Commodities and Capabilities (Amsterdam:
Elsevier, 1985); A K Sen, ‘Development as Capability Expansion’ in K Griffin and J Knight (eds),
Human Development and the International Development Strategy for the 1990s (London: McMillan,
1990); A K Sen, Inequality Re–examined (Cambridge, Mass: Harvard University Press, 1992); A K
Sen, ‘Capability and Well–Being’ in Martha Nussbaum and Amartya Sen (eds), The Quality of Life
(Oxford: Clarendon Press, 1993) 30; A K Sen, ‘Well–Being, Capability and Public Policy’ (1994) 53
Giornale degli Economisti et Annali di Economia 334; A K Sen, ‘On the Foundation of Welfare
Economics: Utility, Capability and Practical Reason’ in Francesco Farina, Frank Hahn and S Vannucci
(eds), Ethics, Rationality and Economic Behaviour (Oxford: Clarendon Press, 1996); A K Sen,
‘Freedom, Capabilities and Public Action; A Response’ (1996) 12(43–4) Politeia 107; A K Sen, On
Economic Inequality (Oxford: Clarendons Press, 1997); Sen, Development as Freedom, above n 4.
12
Martha C Nussbaum, Nature, Functioning and Capability: Aristotles on Political Distribution,
above n 10; Martha C Nussbaum, Human Functioning and Social Justice. In Defence of Aristotelian
Essentialism, above n 10; Martha C Nussbaum, ‘Human Capabilities, Female Human Beings’ in
Nussbaum. C Martha and Glover, J (eds), Women, Culture and Development (Oxford: Clarendons
Press, 1995); Martha C Nussbaum, ‘Public Philosophy and International Feminism’ (1998) 108 Ethics
762; Martha C Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge:
162
The capability perspective has significantly influenced different disciplines,
including development studies, 13 political philosophy, 14 justice and social ethics, 15
and welfare economics. 16 Discussed in philosophical terms and applied in several
empirical studies, the capability approach has come to represent an alternative
Cambridge University Press, 2000); Martha C Nussbaum, ‘Capabilities and Fundamental Entitlements:
Sen and Social Justice’ (2003) 9(2/3) Feminist Economics 33; Martha C Nussbaum, ‘Beyond the
Social Contract: Capabilities and Global Justice (2004) 32(1) Oxford Development Studies 3.
13
A K Sen, ‘Development: Which Way Now?’ (1983) 93 The Economic Journal 745; A K Sen,
‘Freedom Favors Development’ (1996) 13 New Perspectives Quarterly 23; Mozaffar Qizilbash,
‘Ethical Development’ (1996) 24 World Development 1209; Shyam J Kamath, ‘Indian Development
and Poverty: Making Sense of Sen et al’ (2000) 13 Critical Review 315; Meghnad Desai, ‘Amartya
Sen’s Contribution to Development Economics’ (2001) 29 Oxford Development Studies 213; Mozaffar
Qizilbash, 2002 ‘Development, Common Foes and Shared Values’ (2002) 14 Review of Political
Economy 463; Severine Deneulin and Frances Stewart, ‘Amartya Sen’s Contribution to Development
Thinking’ (2002) 37 Studies in Comparative International Development 61; Marc Fleurbaey,
‘Development, Capabilities, and Freedom’ (2002) 37 Studies in Comparative International
Development 71; Des Gasper and Irene van Staveren, ‘Development as Freedom – and as What Else?’
(2003) 9 Feminist Economics 137; David E DeCosse, ‘Development as Freedom’ (2001) 62
Theological Studies 190.
14
Martha C Nussbaum, Nature, Function, and Capability: Aristotles on Political Distribution, above n
10; Maria Teresa Lopera Chaves and John Faber Cuervo, ‘John Stuart Mill, John Rawls y Amartya
Sen, los Tres Nombres de la Equidad’ (1997) 95 Lecturas de Economia 126; Martha C Nussbaum,
‘Aristotle, Politics, and Human Capabilities: A Response to Antony, Arneson, Charlesworth, and
Mulgan’ (2000) 111 Ethics 102; Martha C Nussbaum, ‘Beyond the Social Contract: Capabilities and
Global Justice’ (2004) 32 Oxford Development Studies 3.
15
John Kane and Amartya K Sen, ‘Justice, Impartiality, and Equality: Why the Concept of Justice
Does not Presume Equality’ (1996) 24 Political Theory 375; David A Crocker and Toby Linden,
Ethics of Consumption: the Good Life, Justice, and Global Stewardship (Lanham, MD: Rowman &
Littlefield, 1998); Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social
Justice’ (2003) 9 Feminist Economics 33; Martha C Nussbaum, ‘Beyond the Social Contract:
Capabilities and Global Justice’ (2004) 32 Oxford Development Studies 3; Fred Dallmayr,
‘Globalization and Inequality: A Plea for Global Justice’ (2002) 4 International Studies Review 137.
16
See, eg, Amartya K Sen, ‘Informational Bases of Alternative Welfare Approaches: Aggregation and
Income Distribution’ (1974) 3 Journal of Public Economics 387; Amartya K Sen, Choice, Welfare and
Measurement (Oxford: Basil Blackwell, 1982); Amartya K Sen, ‘Economics and the Family’ (1983) 1
Asian Development Review 14; Amartya Sen, ‘Carrots, Sticks and Economics: Perception Problems in
Economics’ (1983) 18 Indian Economic Review 1; Rati Ram, ‘Income, Distribution, and Welfare: An
Intercountry Comparison’ (1992) 41 Economic Development and Cultural Change 141; G A Cohen,
‘Equality of What? On Welfare, Goods and Capabilities’ in Martha Nussbaum and Amartya Sen (eds),
The Quality of Life (Oxford: Clarendon Press, 1993) 29; Amartya Sen, ‘Demography and Welfare
Economics’ (1995) 22 Empirica 1; Amartya K Sen, ‘On the Foundations of Welfare Economics:
Utility, Capability and Practical Reason’ in Francesco Farina, Frank Hahn and Stefano Vannucci (eds),
Ethics, Rationality and Economic Behaviour (Oxford: Clarendon Press, 1996) 50; P R Brahmananda,
‘Amartya Sen and the Transformation of the Agenda of Welfare Economics’ (1998) Indian Economic
Journal 46; Howard F Chang, ‘A Liberal Theory of Social Welfare: Fairness, Utility, and the Pareto
Principle’ (2000) 110 The Yale Law Journal 173.
163
evaluative framework for a variety of issues, ranging from well–being, inequality and
poverty, 17 to liberty and freedom, 18 gender bias and sexual division, 19 human
development and development policies,20 among others.
This introductory overview provides only a glimpse of the breadth of the
capability approach and its applications to different fields of study. The following
sections of this chapter will review the foundational concepts of the capability
framework and highlight the main issues of the current debate on the capability
approach. The significance of these concepts in relation to the analysis of indigenous
peoples’ self–determination will be foreshadowed. It will be shown how those
17
See eg, Sen, K A, ‘Poor, Relatively Speaking’ (1983) 35 Oxford Economic Papers; Sen, K A,
Commodities and Capabilities, above n 11; Enrica Chiappero–Martinetti, ‘A New Approach to
Evaluation of Well–being and Poverty by Fuzzy Set Theory’ (1994) 53 Giornale Degli Economisti e
Annali di Economia; Alessandro Balestrino, ‘Poverty and Functionings: Issues in Measurement and
Public Action’ (1994) 53 Giornale degli Economisti e Annali di Economia 389; Sabina Alkire,
‘Conceptions of Human Fulfilment in Poverty Reduction’ (1996) 21 Journal of the Association of
Christian Economists 33; Alessandro Balestrino, ‘Counting the Poor in a Fuzzy Way: the Head–Count
Ratio and the Monotonicity and Transfer Axioms’ (1998) 14 Notizie di Politeia 77; Meghnad Desai,
‘Poverty and Capability: towards an Empirically Implementable Measure’ in Desail Meghnad (ed),
Poverty, Famine and Economic Development (Aldershot: Edward Elgar, 1995); Anantha Duraiappah,
‘Poverty and Environmental Degradation: a Review and Analysis of the Nexus’ (1998) 26 (12) World
Development 2169. Amartya K Sen and Sudhir Anand, ‘Concepts of Human Development and
Poverty: A Multidimensional Perspective’, Background Paper for Human Development Report 1997,
1997; Diwakar Khare, and V P Tripathi. ‘Construction of a New Measure of Poverty Using Amartya
Sen General Class of Poverty Measures’ (2000) 48 Indian Economic Journal 78; Sabina Alkire,
Valuing Freedoms. Sen’s Capability Approach and Poverty Reduction (Oxford: Oxford University
Press, 2002).
18
Amartya K Sen, ‘Liberty as Control: An Appraisal’ (1982) 7 Midwest Studies in Philosophy 207; A
K Sen, ‘Liberty and Social Choice’ (1983) 80(1) The Journal of Philosophy 5; A K Sen, ‘Freedom of
Choice: Concept and Content’ (1988) 32 European Economic Review 269; A K Sen, Inequality Re–
examined, above n 11.
19
J Kynch and Amartya K Sen, ‘Indian Women: Well–Being and Survival (1983) 7 Cambridge
Journal of Economics 22; ‘Rights as Goals’ in S Guest and A Milne (eds), Equality and
Discrimination: Essays in Freedom and Justice (Stuttgart: Franz Steiner, 1985); ‘Gender and
Cooperative Conflicts’ in I Tinker (ed), Persistent Inequalities (New York: Oxford University Press,
1990), among others.
20
A K Sen, Development: Which Way Now?, above n 13; A K Sen, Resources, Values and
Development (Oxford: Blackwell, 1984); A K Sen, ‘The Standard of Living’ in A K Sen et al (eds),
The Standard of Living: the Tanner Lectures on Human Values (Cambridge: Cambridge University
Press, 1987); A K Sen, ‘The Concept of Development’ in H Chenery and T N Srinivasan (eds),
Handbook of Development Economics (Amsterdam: North–Holland, 1988), among others.
164
concepts constitute the backbone of both the indigenous normative framework
developed as the ‘indigenous capability rights system’ and the methodological
approach for development policies for indigenous peoples.
165
4.2 Basic concepts
4.2.1 Freedom
Freedom is the foundational pillar on which the capability approach is developed.
A freedom–centred perspective characterises and distinguishes the capability
framework from other evaluative approaches. In fact, a freedom–oriented approach is
deemed to provide a more adequate foundation to evaluative systems. 21 Freedom
comes to replace the foundational role that utility has had in traditional welfare
economics, 22 in the so–called ‘new welfare economics’, 23 and in some articulation of
contemporary welfare economics. 24
The understanding of the ‘opportunity aspect’ and the ‘process aspect’ of freedom
is fundamental in order to adequately grasp the complex concept of freedom. 25 While
either perspective has been alternatively adopted in political, social and philosophical
21
Sen, Equality of What?, above n 1; Sen, The Standard of Living, above n 20; A K Sen, ‘Well–
Being, Agency and Freedom. The Dewey Lectures 1984 (1985) 82(4) The Journal of Philosophy 169;
A K Sen, ‘Capability and Well–Being’ in Martha C Nussbaum and A Sen (eds), The Quality of Life
(Oxford: clarendons Press, 1993); Amartya K Sen, ‘Justice: Means versus Freedom’ (1990) 19
Philosophy and Public Affairs 111.
22
In traditional welfare economics utilities or welfares are adopted as the only variables of intrinsic
significance. See for example, some pioneering works: Francis Edgeworth, Mathematical Physics: An
Essay on the Application of Mathematics to the Moral Sciences (London: Kegan Paul, 1881); Alfred
Marshall, Principles of Economics (New York: Mcmillan, 1890); Arthur C Pigou, The Economics of
Welfare (London: Mcmillan, 1920); Frank P Ramsey, Foundations of Mathematics and Other Logical
Essays (London: Kegan Paul, 1931).
23
The ‘new welfare economics’ emerged as a dominant school which criticized the utilitarian
formulation, particularly for the difficulties in making interpersonal comparisons of utilities.
Notwithstanding this criticism, the ‘new welfare economics’ continued to pay attention only to utility
information.
24
Contemporary welfare economics is characterized by the adoption of a wide range of criteria which
go beyond the notion of economic progress to comprise notion of equity and efficiency. These
measures include ‘basic need fulfilment’, ‘levels of living’, ‘quality of life’ and of particular
importance ‘human development’ indicators. Some of these measures are still founded on utility, such
as ‘need fulfilment’ (see, Pigou, The Economics of Welfare, above n 22).
25
Amartya K Sen, Freedom and Social Choice: the Arrow Lectures, delivered at Stanford University
in 1991, published in Amartya K Sen, Rationality and Freedom (Cambridge, Mass.: Harvard
University Press, 2002) 583–658.
166
literature, 26 Sen defends the concurrent legitimacy of the ‘opportunity’ aspect as well
as the ‘process’ aspect of freedom.
The ‘opportunity aspect’ of freedom is concerned with the ‘ability to achieve’,
that is, the substantive opportunities for a person to achieve valued objectives and
goals. Thus, assessing opportunities means to focus on one’s actual ability to achieve
what one has reason to value, to focus on what the real opportunities of achievement
are for the persons involved. 27
The ‘process aspect’ of freedom concerns the freedom involved in the process
itself, for instance whether one is free to choose, and if others have hindered or
interfered with the process aspect of freedom. In other words, whereas the
‘opportunity’ aspect focuses on our ability to achieve, the ‘process’ aspect of freedom
is concerned with the processes involved, with the processes through which our
achievements are pursued. 28
It is therefore argued that the value of freedom can be justified on two grounds.
First, additional freedom enhances one’s opportunity to achieve what is valued;
second, the process through which valued objectives are pursued may be important
for the same assessment of freedom. The ‘opportunity’ and ‘process’ aspects of
freedom are distinct but also interdependent: neither can subsume the other, while
26
Some, by relating the significance of freedom to ‘flexibility’, have been concerned with the
opportunity aspect of freedom: see, eg, David Kreps, ‘A Representation Theorem for ‘Preference for
flexibility’’ (1990) 47 Econometrica 565; David Kreps, Notes on the Theory of Choice (Boulder,
Colo.: Westview Press, 1988). Similarly, economists have mostly focused on opportunities when they
have considered freedoms: see, eg, Milton Friedman and Rose Friedman, Free to Choose: a Personal
Statement (London: Secker & Warburg, 1980). Others have instead focused on the process aspect, such
as those who have concentrated on the rightness of libertarian procedures: see, eg, Robert Nozick,
‘Distributive Justice’ (1973) 3 Philosophy and Public Affairs 45; Robert Nozick, Anarchy, State and
Utopia (New York: Basic Books, 1974).
27
Sen, Rationality and Freedom, above n 25, 9–13, 585–587.
28
Ibid.
167
overlaps may occur between the two aspects. 29 The ‘process’ aspect has an important
impact on the ‘opportunity’ aspect when, for instance, one values free choice or a fair
process in achieving one’s own goals – e.g., wanting to win a competition fairly,
rather than winning regardless of the modalities through which the successful
outcome came about. This example illustrates a case in which the procedure of free
decision is a fundamental requirement for freedom itself, despite the person’s
successful outcome in achieving what he or she values. 30
The ‘opportunity’ and ‘process’ aspects of freedom are of primary significance
for the normative interpretation of the indigenous right to self–determination and for
the articulation of a methodological approach to development policies aimed at the
real fulfilment of indigenous peoples’ aspirations to self–determination. The
construction of an ‘indigenous capability rights system’ as a normative framework
within which development policies for indigenous peoples should be framed, adopts
the freedom–centred understanding of well–being and development processes
promoted in the capability approach. Development is indeed conceptualized as ‘a
process of expanding the real freedoms that people enjoy’. 31 The enhancement of
freedoms is thus understood both as the primary end and the principal means of
development. Accordingly, freedoms play respectively a twofold role: a ‘constitutive
role’ and ‘instrumental role’. 32
29
Ibid.
30
Ibid 585–586.
31
Sen, Development as Freedom, above n 4, 8, 14–15. Sen clearly explains that ‘development has to
be more concerned with enhancing the lives we lead and the freedoms we enjoy. Expanding the
freedoms that we have reason to value not only makes our lives richer and more unfettered, but also
allows us to be fuller social persons, exercising our own volitions and interacting with and influencing
the world in which we live’.
32
Ibid 36.
168
The constitutive role of freedom refers to the ‘intrinsic importance of human
freedom as the preeminent objective of development’.33 In such a constitutive aspect,
development involves the enlargement of substantive freedoms of individuals by
virtue of their crucial importance in enriching human life. 34
The instrumental role of freedom 35 refers to the way in which different freedoms
contribute to the enhancement of human freedom in general36 and how freedoms
interrelate with one another, so that one kind of freedom can help promote the
expansion of other kinds of freedoms. 37
The instrumental role of freedoms and their interconnectedness has a significant
bearing on the process of development. The expansion of people’s substantive
freedoms to lead the lives they have reason to value, has to be conceived of as an
‘integrated process’ in which freedoms connect with one another. 38
The ‘integrated process’ through which freedoms impact on each other while
promoting the overall freedom people enjoy in achieving what they value, will be
adopted to comprehend how the freedoms underlying indigenous rights interact in a
whole and interconnected system, that is the ‘indigenous capability rights system’.
The adoption of these concepts will be properly discussed in the following
chapters. The interpretation of the whole integrated system of indigenous rights
33
Ibid 37.
34
Substantive freedoms include ‘elementary capabilities like being able to avoid such deprivations as
starvation, under–nourishment, escapable morbidity and premature mortality, as well as the freedoms
that are associated with being literate and numerate, enjoying political participation and uncensored
speech and so on’: Ibid 36.
35
Sen identifies five types of instrumental freedoms: political freedoms, economic facilities, social
opportunities, transparency guarantees and protective security. For a detailed description of those
instrumental freedoms: see, ibid 38–42.
36
Sen, Development as Freedom, above n 4, 37.
37
Ibid.
38
Ibid 8, 10.
169
through the lens of these conceptual categories requires introducing the following
core concepts: functionings, capabilities, and information pluralism.
170
4.2.2 Functionings and Capabilities
The expansion of people’s freedom to enjoy ‘valuable beings and doings’ 39 is the
foundational concept within the capability framework of thought. What is meant by
‘valuable beings and doings’? Two concepts are developed in order to
comprehensively capture their meaning within the capability perspective:
functionings and capabilities.
Functionings and capabilities stand at the heart of the conceptual apparatus of the
capability approach. They are constitutive conceptual categories which are
interrelated and complementary, yet clearly distinct:
A functioning is an achievement, whereas a capability is the ability to

achieve. Functionings are, in a sense, more directly related to living
conditions, since they are different aspects of living conditions. Capabilities,
in contrast, are notions of freedom, in the positive sense: what real
opportunities you have regarding the life you may lead. 40
Functionings are indeed regarded as ‘the various things a person may value doing
or being’. 41 This generous definition understands ‘beings and doings’ as ranging from
elementary functionings to complex activities or personal states of being: being
nourished, being in good health, being free from avoidable disease, as well as being
happy, being self–confident, being able to take part in the life of the community,
achieving self–respect, or appearing in public without shame. 42 Therefore, achieved
functionings are those particular functionings that one has successfully realized:
39
Ibid 75; Sen, Inequality Re–examined, above n 11, 39; Sen, Development as Capability Expansion,
above n 11.
40
Sen, The Standard of Living, above n 20.
41
42
Sen, Inequality Re–examined, above n 11, 39; Sen, Capability and Well–Being, above n 11, 36–37;
171
living is indeed understood as a set of interrelated achieved functionings which are
constitutive of a person’s being. 43
Capabilities, 44 on the other hand, refer to ‘the various combinations of
functionings (beings and doings) that the person can achieve. Capability is, thus, a set
of vectors of functionings, reflecting the person’s freedom to lead one type of life or
another…to choose from possible living’. 45
The concept of capability serves to incorporate freedoms within the normative
framework: ‘[w]hile the combination of a person’s functionings reflects her actual
achievements, the capability set represents the freedom to achieve: the alternative
functioning combinations from which this person can choose’. 46
Functionings and capabilities are both considered to be valid informational bases
for evaluative purposes. The choice to focus on the level of achieved functionings or
on capabilities will depend upon the type of evaluative analysis that one intends to
pursue. 47
The important point is that the distinction between capabilities, functionings, and
means to achieve in the capability approach has a significant bearing for evaluation
43
Sen, Inequality Re–examined, above n 11, 39; Sen, Development as Freedom, above n 4, 73.
44
The terms capabilities, capability and capability set are used interchangeably. Robeyns clearly
provides some useful terminological remarks as to clarify the use of these terms. It is explained that in
Sen’s first writings, the term ‘capability’ is synonymous with a ‘capability set’ which consists of a
combination of potential or achievable functionings. As a result, one’s capability is equivalent of one’s
opportunity set. The use of ‘capabilities’ is widespread in the work of many scholars, including
Martha Nussbaum, as well as in Sen’s most recent writings where the terms ‘capability’, ‘capability
set’ and ‘capabilities’ are used interchangeably. See, Ingrid Robeyns, ‘The Capability Approach: a
Theoretical Survey’ (2005) 6(1) Journal of Human Development 93, 100–101.
45
Sen, Inequality Re–examined, above n 11, 40.
46
47
For instance, it is argued that in cases of severe material and bodily deprivation in very poor
contexts, it seems sensible to focus on the level of achieved functionings instead of capabilities: see,
Robeyns, above n 44, 101.
172
processes. Means to achieve, or ‘capability inputs’, include goods and services 48
whose characteristics enable some sort of functioning. The bicycle, for instance,
allows one to be able to move faster than walking; in other words, as Robeyns
exemplifies, the bicycle enables the functioning of mobility. 49
The capability to achieve specific functionings is influenced by several factors
which are defined as conversion factors. These conversion factors consist of
personal, social and environmental conversion factors. Personal conversion factors
include for example physical conditions, sex, and intelligence; social conversion
factors may consist of societal hierarchies, power relations, public policies, and
various forms of discrimination. Environmental conversion factors comprise
geographical location, climate, and so on.
The important point is that the capability approach does not disregard resources,
commodities or other means. However, their importance and availability is
acknowledged not because they are considered as the ends of well–being or
development, but because they are regarded as ‘instruments for the enhancement of
human freedom…rather than valuable in themselves’. 50 Policy analyses and other
evaluative exercises need to go beyond the evaluation of what one owns or uses,
because this kind of information does not reveal whether and what functionings one
achieves.
48
Good and services are not deemed to be exclusively exchangeable for income or money. This view
would restrict the analysis to market–based economies.
49
Robeyns, The Capability Approach: a Theoretical Survey, above n 44, 98–99.
50
Jean Drèze and Amartya K Sen, India: Development and Participation (Oxford: Oxford University
Press, 2002) 3.
173
As a result, capabilities (freedom to achieve) and functionings (the actual ‘being
and doings’ realized) represents the primary spaces of evaluation for individual and
collective advantage, while special consideration has to be given to personal, social
and environmental factors as well as to the whole social and institutional context for
their significant influence on people’s capability sets and decision-making processes.
Figure 4.1 illustrates the core constitutive concepts discussed and their
interconnections. 51
Figure 4.1 A stylised non-dynamic representation of a person’s capability set and her social and
personal context.
Social context Preference formation

Personal history
Social institutions mechanisms and psychology
Social and legal norms Social influences on
Other peoples’ behaviour decision-making
And characteristics
Environmental factors
(and many, many more)
Non market Capability

Production Set
Market Achieved
production Goods Individual Capabilities Functionings
Net income and conversion (opportunity Choices
Transfers services factors set achievable
in kind Functionings)
Source: Robeyns, The Capability Approach: A Theoretical Survey, 2005, 98.
51
Robeyns, The Capability Approach: A Theoretical Survey, above n 44, 98–100.
174
4.2.3 Information pluralism: well–being freedom, agency freedom, well–
being achievement, and agency achievement
The capability framework can be conceived of as an ‘information–pluralist
approach’ 52 since it focuses on the admissibility and use of different types of
information in evaluations. The capability approach is indeed founded on a
methodological rejection of informational monism to moral analysis – considered as a
‘crude prejudice’ 53 – as the only acceptable approach.
A pluralist–information based approach is advocated as a response to the
inadequate ‘informational parsimony of utilitarianism’. 54 Sen criticizes the
informational foundation on which utilitarianism is based, arguing that the
widespread acceptance of utilitarianism can be explained by what Scanlon has called
‘philosophical utilitarianism’. This is defined as ‘a particular philosophical thesis
about the subject matter of morality, namely the thesis that the only fundamental
moral facts are facts about individual well–being’. 55
Conversely, Sen argues about the inadequacy of considering individual well–
being as the only informational base to moral evaluations: ‘the question is not
whether well–being is an intrinsically important variable for moral analysis, but
52
Sen, Well–Being, Agency and Freedom: the Dewey Lectures, above n 21, 205.
53
Ibid 186.
54
Ibid 175. It is explained that utilitarian consequentialism, for instance, requires ‘a set of
informational constraints in the form of invariance restrictions linked to specific information types’.
Sen provides as example ‘act utilitarianism’. It can be factored into: (1) act consequentialism (the
goodness of an act is given by the goodness of its consequent states of affairs), (2) welfarism (the
goodness of a state of affairs is given by the goodness of the utility information regarding that state),
and (3) sum ranking (the goodness of utility information is given by the sum total of the utilities in
question). See also, A K Sen, , ‘Utilitarianism and Welfarism’ (1979) 76(9) Journal of Philosophy 463.
55
Thomas Scanlon, ‘Contractualism and Utilitarianism’ in Amartya Sen and Bernard Williams (eds),
Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982) 108.
175
whether it is uniquely so’. 56 The intrinsic importance of well–being should not entail
the exclusion of other aspects of human nature. In fact, although well–being and its
maximization are fundamentally important in people’s life, it is suggested that
‘[t]here are goals other than well–being, and values other than goals’. 57
Accordingly, acknowledging that the moral foundation of well–being is
‘informationally extremely restrictive’, 58 Sen embraces and elaborates the primacy
role that the concept of ‘agency’ plays in Rawls’ ‘Kantian constructivism’. According
to this perspective, persons are seen as ‘having the moral power to have a conception
of the good’. 59
Well–being and agency are therefore equally included within the capability
framework as they constitute two different, yet related aspects of a person. 60 The
well–being aspect refers to personal well–being related to one’s own life, whether
defined in elementary ways (‘doings and beings’ related to activities or states of
existence, like being well–nourished, being free from malaria, eating, seeing) or more
complex ways (not being ashamed, or self–esteem). 61 The agency aspect refers to a
person’s conception of the ‘good’ in terms of the totality of goals one has reasons to
adopt, whether or not they include the advancement of personal well–being. 62
56
Sen, Well–Being, Agency and Freedom: the Dewey Lectures, above n 21, 186.
57
Ibid.
58
Ibid.
59
For a detailed account: see, John Rawls, ‘Kantian Constructivism in Moral Theory’ (1980) 77(9)
Journal of Philosophy 515.
60
Sen, Well–Being, Agency and Freedom: the Dewey Lectures, above n 21, 169, 186; Sen, Capability
and Well–Being, above n 21, 35.
61
Ibid 197.
62
Ibid 190; Sen, Inequality Re–examined, above n 11, 56–57.
176
The well–being aspect and agency aspect of individuals define two distinct spaces
of evaluation which present an internal plurality. 63 Well–being and agency can indeed
be seen in terms of freedom or in terms of achievement. In other words, the
evaluation of individual advantage can be realized in at least four spaces: well–being
freedom, well–being achievement, agency achievement, and agency freedom. 64
Well–being freedom refers to the freedom to achieve valuable ‘beings and doings’
(functionings) which are constitutive of one’s own well–being, whereas well–being
achievement refers to the actual bundle of achieved functionings constitutive of
personal well–being. Whereas well–being freedom is determined in the space of
capabilities – as it relates to ‘a person’s capability to have various functioning vectors
and to enjoy the corresponding well-being achievements’ 65 – well–being achievement
is determined in the space of functionings, as achievement is reflected by actual
functionings. 66
Agency freedom identifies a broader evaluative space than well–being freedom as
it mirrors a more comprehensive concept of freedom. Evaluations in the space of
agency freedom need to consider ‘what the person is free to do and achieve in pursuit
of whatever goals or values he or she regards as important’. 67
Consequently, agency achievement entails a broader evaluative exercise than
well–being achievement, as it includes one’s success in achieving one’s own overall
goals. The space of functionings may be rather restrictive since a person’s goals can
63
Sen, Well–Being, Agency and Freedom: the Dewey Lectures, above n 21, 169,186.
64
Sen, Capability and Well–Being, above n 21, 35, 49.
65
Sen, Well–Being, Agency and Freedom: the Dewey Lectures, above n 21, 203; Sen, Inequality Re–
examined, above n 11, 83.
66
Sen, Inequality Re–examined, above n 11, 83.
67
Sen, Well–being, Agency and Freedom: the Dewey Lectures, above n 21, 203.
177
include objectives that go beyond the person’s state of being. If a person, for
example, values the independence or prosperity of her own country, the evaluation of
state of affairs should be pursued in light of these goals, and not only in relation to the
extent to which these achievements would contribute to the person’s own well–
being. 68
These four spaces of evaluation will be considered as part of a methodological
approach to development policies for indigenous peoples. It will be discussed how
those spaces, despite being separate and distinct, interdependently relate to each
other, giving rise to different movements in different directions. Upon due
consideration of their significance for the whole policy process, it will be argued that
agency freedom and agency achievement should be adopted as the fundamental
reference spaces respectively for the design and evaluation of self–determined
development policies for indigenous peoples.
68
Sen, Inequality Re– examined, above n 11, 56.
178
4.3 Current debate: strengths, limits and criticism
A heated debate has arisen about the capability approach which involves several
theoretical and practical issues. This thesis provides a contribution to this debate as it
aims at adopting foundational concepts of the capability approach to interpret the
collective and individual right of indigenous peoples to self–determination. It is
therefore important to briefly outline the main issues which are discussed among
capability theorists and practitioners.
Part of the debate focuses on key characteristics of the capability framework
which are either supported or criticized. 69 The complexity, vagueness and
incompleteness of the capability framework are among the main attributes which
have been praised or alternatively criticized. While some scholars consider the
complexity, 70 vagueness, 71 and incompleteness 72 as major strengths of the capability
69
Criticisms can be found, among others, in: C R Beitz, ‘Amartya Sen’s Resources, Values and
Development’ (1986) 2 Economics and Philosophy 52; Kaushik Basu, ‘Achievement, Capabilities, and
the Concept of Well–Being’ (1987) 4 Social Choice and Welfare 69; Norman Daniels, ‘Equality of
What: Welfare, Resources or Capabilities?’ (1990) 50 Philosophy of Phenomenological Research 273;
David Crocker, ‘Functioning and Capability: the Foundations of Sen’s and Nussbaum’s Development
Ethic (1992) 20(4) Political Theory 584; Martha C Nussbaum, ‘Non–Relative Virtues: an Aristotelian
Approach’ in Nussbaum, C M and Sen, K A (eds), The Quality of Life, above n 11; Martha Nussbaum,
Women and Human Development, above n 12; Mozaffar Qizilbash, ‘Capabilities, Well–Being and
Human Development: a Survey’ (1996) 33(2) Journal of Development Studies 143; M Qizilbash,
‘Ethical Development’ (1996) 24(7) World Development 1209; M Qizilbash, ‘The Concept of Well–
Being’ (1998) 14 Economics and Philosophy 51; Robert Sugden, ‘Welfare, Resources, and
Capabilities: a Review of Inequality Re–examined by Amartya Sen’ (1993) 31 Journal of Economic
Literature 1947; Frances Stewart, ‘Basic Needs, Capabilities, and Human Development’ in Avner
Offer (ed), In Pursuit of the Quality of Life (Oxford: Oxford University Press, 1996).
70
Enrica Chiappero–Martinetti, ‘Complexity and Vagueness in the Capability Approach: Strengths or
Weaknesses?’, Paper presented at the 3rd Conference on the Capability Approach, Pavia, 3 September
2003); Enrica Chiappero–Martinetti, ‘A New Approach to Evaluation of Well–being and Poverty by
Fuzzy Set Theory, in (1994) 7/9 Giornale degli Economisti e Annali di Economia 367; Sara Lelli,
‘Factor Analysis vs. Fuzzy Sets Theory: Assessing the Influence of Different Techniques on Sen’s
Functioning Approach’, Working Paper Series 121, Public Economics, Center for Economic Studies,
Leuven, Belgium, 2001); D Clark and M Qizilbash, ‘Core Poverty and Extreme Vulnerability in South
Africa’, Discussion Paper N. 2002, The Economics Research Centre, School of Economic and Social
179
approach and have elaborated alternatives to incorporate these features, others
interpret those attributes as serious weaknesses which impinge upon the possibility to
operationalise the capability approach. 73
The operationalization of the capability approach remains one of the thorniest
issues to be debated; operational concerns cover indeed a wide range of measurement
issues and diverse empirical questions. 74 In this regard, it is important to highlight
that criticisms regarding the possibility to implement the capability approach at the
operational level,75 need to take into account that the capability approach has never
been proposed as fully operational or as an exact formula. 76 On the other hand,
Studies, University of East Anglia, 2002); M Baliamoune–Lutz, ‘On the measurement of human well-
being: fuzzy set theory and Sen’s capability approach’ (Research Paper n. 2004/16, WIDER, Helsinki,
Finland, 2004); Enrica Chiappero-Martinetti, ‘A Multidimensional Assessment of Well-being Based
on Sen’s Functioning Approach, (2000) 2 Rivista Internazionale di Scienze Sociali 207; F
Bourguignon and S R Chakravarty, ‘The measurement of multidimensional poverty’ (2003) 1 Journal
of Economic Inequality 25.
71
Mozaffar Qizilbash ‘Vagueness and the Measurement of poverty’ (Discussion Paper N. 2000-3, The
Economics Research Centre, School of Economic and Social Studies, University of East Anglia, 2000)
Mozaffar Qizilbash ‘Vague Language and Precise Measurement: the Case of Poverty’ (2003) 10(1)
Journal of Economic Methodology 41.
72
Alkire, Valuing Freedoms, above n 17, 9–11; Sen clearly states that the capability approach is
intentionally incomplete: see, Sen, Inequality Re–examined, above n 11, 49; Sen, ‘Economic
Methodology: Heterogeneity and Relevance’ (1989) 56(2) Social Research 299; Sen, Development as
Freedom, above n 4, 253–254.
73
See, eg, Robert Sugden, ‘Welfare, Resources, and Capabilities: a Review of Inequality Re–examined
by Amartya Sen’ (1993) 31 Journal of Economic Literature 1947; T N Srinivasan, ‘Human
Development: a New Paradigm or Reinvention of the Wheel?’ (1994) 84 American Economic Review
238; J Roemer, Theories of Distributive Justice (Cambridge: Harvard University Press, 1996).
74
See, eg, Andrea Brandolini and Giovanni D’Alessio, Measuring Well–being in the Functioning
Space (Rome: Banca D’Italia, 1998); Ingrid Robeyns, ‘An Unworkable Idea or a Promising
Alternative? Sen’s Capability Approach Re–examined’, Center for Economic Studies Discussion
Paper 00.30, Katholleke Universiteit, Leuven, 2000; Ruhi Saith, ‘Capabilities: the Concept and its
Operationalization’, Queen Elizabeth House Working Paper 66:32, 2001; Sabina Alkire, Valuing
Freedom; Sen’s Capability Approach and Poverty Reduction (Oxford: Oxford University Press, 2002);
Sakiko Fukuda–Parr, ‘The Human Development Paradigm: Operationalizing Sen’s Ideas on
Capabilities’ (2003) 9(2/3) Feminist Economics 301; W Kuklys and Ingrid Robeyns, ‘Sen’s Capability
Approach to Welfare Economics’ (Cambridge Working Paper in Economics 0415, Cambridge
University, Cambridge, 2004).
75
Sugden, Welfare, Resources, and Capabilities: a Review of Inequality Re–examined by Amartya Sen,
above n 73.
76
Sen, Gender Inequality and Theories of Justice, above n 21, 268: Sen clearly states that the
capability approach is far from being a complete theory of justice.
180
several empirical studies in line with the capability perspective have been realized so
as to prove the possibility to implement the capability framework. 77 Among those
empirical works, it is imperative to mention the application of core concepts of the
capability approach in the Human Development Reports for poverty analyses and
development policies. 78 The concept of human development and the articulation of
human development indexes, 79 provide a clear example of the distinctiveness of the
capability approach when applied for empirical purposes. 80
Theoretical issues include the question of whether or not there should be a list of
fundamental capabilities. More specifically, questions have arisen as to which
capabilities are to be considered relevant, who is entitled to determine them, and
under which procedures and circumstances. 81 The issue of the admissibility of a list
77
Jean Drèze and Amartya Sen, Hunger and Public Action (Oxford: Clarendon Press, 1989); Jean
Drèze and Amartya Sen, India: Economic Development and Social Opportunity (Delhi: Oxford
University Press, 1995); Jean Drèze and Amartya Sen, Indian Development: Selected Regional
Perspectives (New York: Oxford University Press, 1997). See all previous literature cited in footnotes,
among others.
78
United Nations Development Program, Human Development Report (New York: United Nations
Development Program, 1990–2006).
79
S Anand and Amartya Sen, ‘Human Development Index: Methodology & Measurement’,
Occasional Paper 12, Human Development Report Office (New York: UNDP, 1993); S Anand and
Amartya Sen, ‘Sustainable Human Development: Concepts and Priorities’, Occasional Paper 8,
Human Development Report Office (New York: UNDP, 1994); S Anand and Amartya Sen, ‘Gender
Inequality in Human Development: Theories and Measurement’, Background Paper for the Human
Development Report 1995, Human Development Report Office (New York: UNDP, 1995); S Anand
and Amartya Sen, ‘Concepts of Human Development and Poverty: a Multidimensional perspective’,
Background Paper for the Human Development Report 1997, Human Development Report Office
(New York: UNDP, 1997); S Anand and Amartya Sen, ‘Human Development and Economic
Sustainability’ (2000) 28(12) World Development 2029, among others.
80
Sakiko Fukuda–Parr and Shiva Kumar, Readings in Human Development (Delhi: Oxford University
Press, 2003); Sakiko Fukuda–Parr, ‘The Human Development Paradigm: Operationalizing Sen’s Ideas
on Capabilities’ (2003) 9(2/3) Feminist Economics 301.
81
See, Robeyns, The Capability Approach: a Theoretical Survey, above n 51, 105–107.
181
of relevant capabilities finds Amartya Sen and Martha Nussbaum 82 in two
diametrically opposite positions.
Sen’s position on this matter is clearly against any final and predetermined list of
capabilities, since the selection of capabilities as well as the weighting of those
capabilities relative to each other, are inescapably the result of value–judgment
processes. The determination of relevant capabilities cannot be anything other than
context–related, as the bundle of relevant capabilities will depend upon the purposes
of the evaluative exercise at hand. 83
In responding to criticisms for not having committed himself to a particular list of
capabilities, 84 Sen argues that the crucial issue is not the listing of core capabilities,
but rather the sanctioning of a predetermined list of capabilities. It is maintained that
the key role in the identification of the relevant capabilities is played by the
democratic process. Public discussion 85 and reasoning 86 are the primary elements
through which it is possible to articulate different lists of capabilities for different
purposes. 87 This argument has led different scholars 88 to investigate the procedures
and principles through which the selection of capabilities may come about,
82
For a discussion of Sen’s capability approach and Nussbaum’s version see, Crocker, A D
‘Functioning and Capabilities: The Foundations of Sen's and Nussbaum's Development Ethic, Part 2’
in Nussbaum, C M and Glover, J (eds), Women, Culture, and Development (Oxford: Clarendon Press,
1995).
83
Sen, Inequality Re–examined, above n 11, 42–46; Sen, Development as Freedom, above n 4, 76–85.
84
Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003)
9(2/3) Feminist Economics 33.
85
For a detailed account of the importance and role of public debate see, Amartya K Sen, The
Argumentative Indian (London: Penguin Books, 2005); Sen, Development as Freedom, above n 4.
86
See, Sen, Rationality and Freedom, above n 27.
87
Amartya Sen, ‘Capabilities, Lists, and Public Reasons: Continuing the Conversation’ (2004) 10(3)
Feminist Economics 77.
88
See, eg, Alkire, Valuing Freedoms: Sen’s Capability Approach and Poverty Reduction, above n 17;
Ingrid Robeyns, ‘Sen’s Capability Approach and Gender Inequality: Selecting Relevant Capabilities’
(2003) 9(2/3) Feminist Economics 61.
182
considering that it may be difficult to ensure the democratic participation of all
parties involved.
Nussbaum, on the other hand, proposes a specific list of central human
capabilities which provides ‘the underpinnings of basic political principles that can be
embodied in constitutional guarantees’.89 The list identifies those basic human
capabilities that are deemed to be of fundamental importance in any human life.
The list of ‘central human capabilities’ is deemed to play a significant role in a
pluralistic society since it is conceived of as a set of goals – a subset of social goals –
and as a system of side-constraints that urge to be secured no matter what else is
pursued. 90 While these central capabilities are considered instrumentally and
intrinsically valuable, they do not constitute a complete theory of justice: they
provide the basis for determining a minimum threshold level that social and political
institutions are called to promote. 91
This thesis suggests a ‘middle-way’ position between Sen’s context–related
approach and Nussbaum’s perspective on central human capabilities of universal
applicability. In the next chapter, it will be shown how the articulation of the
‘indigenous capability rights system’ may provide a sui generis ‘list’ which
comprises the bundle of indigenous rights included in the UN Declaration on the
Rights of Indigenous Peoples. It will be argued that the legal precepts emerging in the
89
Martha C Nussbaum, Women and Human Development, above n 12, 74; Martha C Nussbaum,
Capabilities as Fundamental Entitlements: Sen and Social Justice, above n 15, 40. The list of ‘central
human capabilities’ consists of the following ten categories: life; bodily health; bodily integrity;
senses, imagination and thought; emotions; practical reason; affiliation; other species; play; and
control over one’s environment. The list is considered to include highly general capabilities and open
to revision.
90
Martha C Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review 273, 299–
300.
91
Nussbaum, Women and Human Development, above n 12, 75.
183
UN Declaration on the Rights of Indigenous Peoples indicate core values of ‘partially
universal’ applicability. Those international standards, in fact, do apply globally to a
specific segment of the world’s population, that is, indigenous peoples. However, this
thesis argues that a context–related process of implementation is required to
operationalise the all–encompassing normative system of indigenous rights proposed
in this work. The methodological approach to development policies for indigenous
peoples will be constructed on principles and criteria which require a context–related
analysis of the situation and issues that the policy aims to address. Indigenous
individual and collective choices and decision–making processes are among the
fundamental elements that need to be taken into consideration and included in the
whole policy process.
184
Chapter 5
The normative level. The indigenous capability rights–based

normative system
This chapter will discuss the fundamental conceptual categories developed in
Sen’s capability approach and applied to construct the indigenous capability
rights–based normative framework. There are four main concepts:
a) the conceptualization of the ‘goal rights system’ and the construction
of an ‘indigenous goal rights system’;
b) indigenous rights within the ‘indigenous goal rights system’: the
significance of freedom in the integrated process of self–determination;
c) indigenous rights as capability rights: from the ‘indigenous goal rights
system’ to the ‘ indigenous capability rights system’;
d) the role of institutions and the enjoyment of the right of self–
determination.
185
5.1 The ‘goal rights system’ and the ‘indigenous goal rights system’
The ‘goal rights system’ represents the conceptual pillar upon which the
indigenous rights–based normative system is developed. The ‘goal rights system’
is an alternative theory of human rights which is constructed upon a critical
scrutiny of the welfarist consequentialism approach – which includes inter alia
utilitarianism – and the constraint–based deontology. 1 These traditional theories
of human rights present different inadequacies whose common limitation is ‘the
denial that realization and failure of rights should enter into the evaluation of
states of affairs themselves and could be used for consequential analysis of
actions’. 2
Welfarist consequentialism defends an instrumental conceptualization of
rights. Rights are not intrinsically valuable: any right–based rule, institution, or
convention is considered useful for the achievement of other goals. Utilitarian
ethical evaluation can be considered an example of this instrumental approach.
Indeed, the goodness of a state of affairs is evaluated simply by the sum of
personal utilities in that state. 3
1
Amartya K Sen, ‘Rights and Agency’ (1982) 11(1) Philosophy and Public Affairs 3; Amartya K
Sen, Resources, Values and Development (Oxford: Blackwell, 1984); Amartya K Sen, ‘Rights as
Goals’ in S Guest and A Milne (eds), Equality and Discrimination: Essays in Freedom and Justice
(Stuttgart: Franz Steiner, 1985); Amartya K Sen, ‘The Moral Standing of the Market’ (1985) 2
Social Philosophy and Policy 1; Amartya K Sen, Rationality and Freedom (Cambridge, MA;
London, England: Harvard University Press, 2002); Amartya K Sen, ‘Elements of a Theory of
Human Rights’ (2004) 32(4) Philosophy and Public Affairs 315.
2
Sen, Rights and Agency, above n 1, 6: Sen underlines the pitfalls of both approaches for a moral
theory claiming that ‘the welfarist instrumentalist [views] rights in terms of their consequences for
right–independent goals and the constraint–based deontologist [reflects] rights without
consequential justification as constraints on actions’.
3
Ibid 4–5. For a detailed analysis and critique of welfarism: see, Amartya K Sen, ‘Utilitarianism
and Welfarism’ (1979) 76(9) The Journal of Philosophy 463.
186
The constraint–based deontological approach interprets rights as constraints
on actions, which must not be violated despite the fact that a violation would
bring about a better state of affairs. Rights are deemed to have an intrinsic value
and to affect directly the evaluation of actions: ‘[r]ights do not determine a social
ordering instead set the constraints within which a social choice is to be made, by
excluding certain alternatives, fixing others, and so on’. 4
The alternative system proposed is an ‘integrated’ approach which rejects
utility–based ethics, while adopting the ‘consequence sensitivity’ of utilitarianism
in ethical reasoning. 5 Sen articulates a system that demands the ethical
recognition of human rights, a moral theory which recognizes the fundamental
significance of rights and freedoms. This moral theory demands the incorporation
of rights in the evaluation of state of affairs and it also takes into account the
influence that these rights have on the choice of actions through the evaluation of
the consequent states of affairs. 6 The ‘goal rights system’ is indeed defined as ‘[a]
moral system in which fulfilment and non–realization of rights are included
among the goals, incorporated in the evaluation of states of affairs, and then
applied to the choice of actions through consequential links’. 7
Two concepts embedded in this moral system are particularly significant.
First, the goal–included view of rights does not rule out the instrumental relevance
of rights. The ‘goal rights system’ allows the incorporation of right–based
4
Robert Nozick, Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974) 166; see also,
Samuel Scheffler, The Rejection of Consequentialism: a Philosophical Investigation of the
Considerations Underlying Rival Moral Conceptions (Oxford: Clarendon Press; New York:
Oxford University Press, rev ed, 1994), in regards to the conceptualization of rights as side–
constraints.
5
Sen, Rationality and Freedom, above n 1.
6
Sen, Rights and Agency, above n 1, 15–39.
7
Ibid 15.
187
considerations in the goals themselves as well as the adoption of instrumental
considerations. 8 The fulfilment of instrumental rights (which can be either rights
or non-rights goals) may help promote the goals that a society values; whereas the
fulfilment of certain rights are justified on deontological grounds without any
reference to the consequences that would follow should they be respected. The
fulfilment of rights, whether intrinsically or instrumentally worthwhile, is
conceived of as central within the social and political structure of a society and as
being among the goals the society is to pursue. 9
Second, goal rights systems are considered to ‘form a wide class, rather than
represent some unique moral position’. 10 Variations may relate to the set of rights
to be included and the form they may take; whether and what non-right values can
be accepted; what weights are to be applied; and how choice of actions are related
to the evaluation of outcomes. 11
The potential diversity of goal rights systems admits some flexibility as to the
conceptualization of different goal rights systems. Thus, I have explored the
possibility of identifying a goal rights system specific to a segment of civil
society, namely indigenous peoples. The conceptualization of an ‘indigenous goal
8
Ibid 16.
9
This approach frees the system of rights from the limits of constraint–based obligations.
According to this view rights are formulated in ‘negative’ form as they are concerned with one’s
freedom to exercise them without interference by others. These ‘negative rights’ bind others
negatively (no interference), while they do not impose any obligation in promoting others’
enjoyment of rights. It is evident that this approach, by defining obligation exclusively in terms of
constraints, rules out a rights–based approach towards positive freedoms. On the contrary, in the
goal rights system due weight is given to negative freedoms as well as to positive freedoms. See,
Nozick, Anarchy, State, and Utopia, above n 4; Isaiah Berlin, ‘Two Concepts of Liberty’ in his
Four Essays on Liberty (London; New York: Oxford U.P., 1969), discussing the classic distinction
between ‘positive’ and ‘negative’ freedoms.
10
Sen, Rights and Agency, above n 1, 15.
11
Ibid.
188
rights system’ is the fundamental pillar on which the normative framework to
interpret indigenous peoples’ right to self–determination is articulated.
The formulation of the ‘indigenous goal rights system’ poses some
fundamental issues: (a) what rights are to be included; (b) what form those rights
assume; (c) what kind of obligations and/or duties they generate; and (d) who are
the duty–bearers of such obligations.
These issues will be tackled in the following sections.
189
5.2 Indigenous rights within the ‘indigenous goal rights system’: the
significance of freedom in the integrated process of self–determination
The conceptualization of an ‘indigenous goal rights system’ requires the
identification of rights that are to be included in this system. It is argued here that
international human rights law is the domain where the bundle of rights which
constitute the ‘indigenous goal rights system’ can be determined.
The international human rights system provides the framework within which
indigenous peoples have been articulating their claims and aspirations. It has
already been discussed that a corpus of international legal standards concerning
indigenous peoples and their rights has developed under international human
rights law. The UN Declaration on the Rights of Indigenous Peoples, in particular,
represents a landmark human rights instrument within the fabric of international
human rights law. It is indeed the fundamental and most comprehensive document
of indigenous rights, which is to become an internationally recognized legal
instrument setting the minimum standards for the survival, dignity and well–being
of the world’s indigenous peoples.
The totality of indigenous peoples’ individual and collective rights set out in
the UN Declaration is deemed to constitute the ‘indigenous goal rights system’.
Those indigenous rights form a whole and unique system whose strength and
inner coherence lies in the integrated process through which all indigenous rights
interdependently connect and impact on each other. At the centre of the
‘indigenous goal rights system’ lies the right to self–determination, which is, as it
has been discussed, the fundamental precept in indigenous rights discourse.
190
The normative value of the ‘indigenous goals rights system’ can be adequately
appreciated if a freedom–centred perspective is applied to it. It has been explained
how Sen’s capability approach is primarily a freedom infused approach. Freedoms
refer to the human condition as freedoms constitute the ‘primary descriptive
characteristics of the conditions of persons’. 12 Accordingly, the ‘process of
expanding the real freedoms that people enjoy’ 13 represents the central focus of
the capability approach. Moreover, the enhancement of freedoms is understood
both as the primary end and the principal means of development. 14 According to
this distinction, freedoms play respectively a twofold role: a ‘constitutive role’
and an ‘instrumental role’. 15
The constitutive role of freedom refers to the ‘intrinsic importance of human
freedom as the pre–eminent objective of development’. 16 In such a constitutive
aspect, development involves the enlargement of substantive freedoms of
individuals by virtue of their crucial importance in enriching human life. 17
The intrinsic importance of freedom, however, has to be distinguished from
the effectiveness of freedom as a means. It is indeed argued that ‘[t]he
instrumental role of freedom concerns the way different kinds of rights,
opportunities, and entitlements contribute to the expansion of human freedom in
general, and thus to promoting development’. 18 In addition, the expansion of
12
Sen, Elements of a Theory of Human Rights, above n 1, 328.
13
14
Ibid.
15
Ibid.
16
Ibid 37.
17
Substantive freedoms are exemplified as including ‘elementary capabilities like being able to
avoid such deprivations as starvation, undernourishment, escapable morbidity and premature
mortality, as well as the freedoms that are associated with being literate and numerate, enjoying
political participation and uncensored speech and so on’: Ibid 36.
18
Ibid 37.
191
substantive freedoms is conceived of as an ‘integrated process’ in which freedoms
‘connect with one another’. 19
The distinction between instrumental and intrinsic freedoms, as well as the
integrated process through which freedoms interact, provide insights for an
understanding of the content of the indigenous right to self–determination in the
contemporary political and legal discourse. The tension between ‘primary end’
and ‘principal means’, and ‘constitutive role’ and ‘instrumental role’ of freedoms,
may be applied to the understanding of the right of indigenous peoples to self–
determination.
Article 3 of the UN Declaration states that
Indigenous peoples have the right of self–determination. By virtue of

that right they freely determine their political status and freely pursue
their economic, social and cultural development.
This article spells out the terms under which the principle of self–
determination is to be recognized for indigenous peoples. The reading of this
article through the conceptual apparatus of the capability framework not only
suggests a freedom–centred perspective underlying the concept of indigenous
self–determination, but it also indicates the right of self–determination as having a
twofold nature.
This dual nature can be grasped from the wording of article 3. The first
sentence is straightforward in its recognition of the right of indigenous peoples to
self–determination, as a fundamental right intrinsically valuable in itself. The
19
Ibid 8.
192
article continues by defining the right as a conditio for the free determination and
enjoyment of political, civil, cultural and economic rights.
The right to self–determination is indeed conceived of as playing a
constitutive as well as an instrumental role within the ‘indigenous goal rights
system’. It is configured as being intrinsically as well as instrumentally valuable
for the enjoyment of political, civil, cultural and economic rights. 20
The intrinsic value of the right of self–determination has been broadly
expressed in indigenous scholarly literature. The inherent value of self–
determination is expressed as the substantive ‘freedom for indigenous peoples to
live well, to live according to their own values and beliefs, and…to determine
what it means to live humanely.’ 21 The essence of indigenous peoples’ right of
self–determination is indeed articulated primarily in terms of freedom to choose
and determine one’s own life at the political, economic, cultural and social level.
‘The true test of self–determination’, it is suggested, ‘is whether indigenous
peoples themselves actually feel that they have choices about their way of life’.22
20
This line of argument echoes the constitutive and ongoing aspects in which the principle of self–
determination is recognized under international law in major international human rights
Covenants. A brilliant analysis of the right to self–determination for indigenous peoples is
proposed in: James S Anaya, Indigenous Peoples in International Law (Oxford: Oxford University
Press, 1996) 80–85. It is argued that the right to self–determination can be seen as comprising a
‘constitutive aspect’ as well as an ‘ongoing aspect’. The ‘constitutive aspect’, expressed in the
provision that entitles peoples to ‘freely determine their political status’, imposes requirements of
participation and consent in the procedures leading to inception or change of the political order
under which peoples live. The ‘ongoing aspect’ articulated in the principle that people are entitled
to ‘freely pursue their economic, social and cultural development’, requires a governing
institutional order under which individuals and groups are able to make substantial choices
concerning all spheres of life on a continuous basis. It is maintained, however, that the right of
self–determination when applied to indigenous peoples is loaded with specific significance. The
intertwining of the ‘constitutive’ and ‘ongoing’ aspects, even though echoing the same substantive
aspects recognized to the right of self–determination as such, are deemed to be insufficient to fully
define the content of the same right recognized to indigenous peoples.
21
Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–Determination
(Åbo, Finland: Institute for Human Rights, Åbo Akademi University, 2000) 67, 79–80.
22
Ibid 80–83.
193
It has been discussed in the previous chapter the crucial importance and intrinsic
value that the ability to make valuable choices has in the capability approach.
The instrumental value of the right to self–determination has also been
acknowledged by different scholars. According to Henriksen, ‘indigenous peoples
consider the right of self–determination as a collective human right which is a
fundamental condition for the enjoyment of all other human rights of indigenous
peoples, be they civil, political, economic, social or cultural’. 23 In addition, Moses
argues that ‘the very survival of indigenous peoples depends directly on respect
for the rights contained in that concept’. 24 It is therefore evident how the right to
self–determination is conceived of as a ‘prerequisite’ for the enjoyment of all
other human rights and freedoms. This conception follows the findings of a
United Nations’ study in which it is stated that ‘human rights and fundamental
freedoms can only exist truly and fully when self–determination also exists. Such
is the fundamental importance of self–determination as a human right and a
prerequisite for the enjoyment of all the other rights and freedoms’. 25 The
conceptualization of the right of self–determination needs to encapsulate
indigenous identity and serve as a vehicle to enable them to live according to their
own way.
23
John B Henriksen, ‘The Right of Self–Determination: Indigenous Peoples versus States’ in
Aikio, Pekka and Scheinin, Martin (eds), Operationalizing the Right of Indigenous Peoples to
Self–Determination, (Åbo, Finland: Institute for Human Rights, Åbo Akademi University, 2000)
135.
24
Ted Moses, ‘The Right of Self–Determination and Its Significance to the Survival of Indigenous
Peoples’ in Pekka Aikio and Martin Scheinin (eds), Operationalizing the Right of Indigenous
Peoples to Self–Determination (Åbo, Finland: Institute for Human Rights, Åbo Akademi
University, 2000) 155.
25
Espiell, H Gross, The Right to Self–determination: Implementation of United Nations
Resolutions (New York: United Nations, 1980) 10.
194
Upon due consideration of these perspectives, the indigenous right of self–
determination can be envisaged as the substantive and overall freedom to choose
the life indigenous peoples, individually or collectively, have reason to value.
Being also a prerequisite for the fulfilment of all other human rights, the
enjoyment of self–determination can be perceived as an integrated process in
which all indigenous rights, considered as interdependent freedoms, interconnect
and impact on each other. Thus, the ‘indigenous goal rights system’ is a whole
integrated system where the right to self–determination lies at the centre of a
coherent system of reciprocal interrelations among all other indigenous rights.
Considering that ‘the importance of human rights relates to the significance of
the freedoms that form the subject matter of these rights’,26 the indigenous right to
self–determination and its ancillary rights are primarily understood in terms of
freedoms. As a result, if development is the ‘process of expanding the real
freedoms that people enjoy’, 27 development policies for indigenous peoples
should aim at enlarging the real freedoms underlying all indigenous rights
encompassed into the ‘indigenous goal rights system’. Therefore, the ‘indigenous
goal rights system’ constitute the core element for development policy making.
In order to better translate the enlargement of indigenous freedoms into
practical policy measures, a capability–based perspective can be applied to
indigenous rights. In the following sections it will be discussed how the
conceptual passage to a capability–based form of indigenous rights has significant
implications on the design, implementation and evaluation of development
policies.
26
27
195
5.3 Indigenous rights as ‘capability rights’: from the ‘indigenous goal rights
system’ to the ‘indigenous capability rights system’
If the capability perspective is applied to indigenous rights, the ‘indigenous
goal rights system’ assumes the form of a peculiar ‘indigenous capability rights
system’. The conceptualization of ‘capability rights’ is realized by conceiving
goal rights primarily as a relation between the right–holder and some ‘capability’
to which he or she is entitled to, instead of a relation between two parties. 28
What does it really mean to apply a capability perspective to indigenous
rights? First of all, conceiving indigenous rights in terms of capability rights
means to focus on the ‘opportunity’ aspect 29 of the freedoms underlying those
indigenous rights. It means to see indigenous rights primarily in terms of
‘capability to function’, 30 the ‘opportunity to achieve valuable combinations of
human functionings’. 31 The focus on what a person is able to do or to be, suggests
a practice–dependent conception of freedom, since a person’s freedom is assessed
by the extent to which he or she is able to choose valuable alternative
combinations of functionings. Securing negative freedom – the removal of
28
Sen, Rights and Agency, above n 1, 16. The conceptual relation between rights and capabilities
has been extensively scrutinized in Sen’s and Nussbaum’s writings: see, Amartya K Sen, ‘Rights
and Capabilities’ in A K Sen, Resources, Values and Development (Oxford: Basil Blackwell,
1984); A K Sen, Commodities and Capabilities (Amsterdam: Elsevier, 1985); A K Sen, Rights and
Agency; A K Sen, Rationality and Freedom; A K Sen, Elements of a Theory of Human Rights,
above n 1; Martha C Nussbaum, ‘Capabilities and Human Rights’ (1997) 66 Fordham Law Review
273; Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’
(2003) 9 (2/3) Feminist Economics 33. One of the advantages of this approach is that the
distinction between rights that relate to ‘negative freedoms’ and rights that refer to positive
freedoms’ evanesces.
29
For a detailed account of the distinction between the ‘opportunity’ and ‘process’ aspect of
freedoms: see, Sen, Rationality and Freedom, above n 1; Sen, Elements of a Theory of Human
Rights, above n 1.
30
See, Sen, above n 1; Nussbaum, above n 28.
31
196
external hindrances to doing what a person values – is only one aspect of human
freedom. To have the capability to do x means to be free from external obstacle in
achieving x, but also to have the material and institutional resources to achieve x,
that is, to have the ‘effective power to achieve chosen results’. 32
The characterization of indigenous rights as ‘capabilities to function’ leads to
seeing the ‘indigenous capability rights system’ as the overall set of capabilities
that indigenous peoples should enjoy in order to be fully self–determined agents.
It means focusing on the space of substantive freedoms or real opportunities that
indigenous peoples, individually and collectively, should enjoy to lead the kind of
life they value and to accomplish what they value. 33
Figure 5.1 schematically depicts the ‘indigenous capability rights system’
whose core is the integrated process of self–determination. 34
32
Sen, Rights as Goals, above n 1, 208.
33
Sen, Development as Freedom, above n 13; A K Sen, Inequality Re–examined (Cambridge:
Mass.: Cambridge University Press, 1992).
34
Figure 5.1 includes only a set of the indigenous rights stated in the UN Declaration on the Rights
of Indigenous Peoples. The relations between those rights as depicted in the diagram are
exemplificative of the broader interrelated impacts that all indigenous rights have on each other.
197
Figure 5.1 The indigenous capability rights system.
198
Questions may arise as to whether the ‘indigenous capability rights system’
constitutes a ‘list’ of central basic capabilities for indigenous peoples. In the debate
about the admissibility of a ‘list’ of capabilities and how it may be defined, 35 the
‘indigenous capability rights system’ may constitute a ‘middle–way’ position. It has
been discussed how Nussbaum’s list of ‘central human capabilities’ identifies those
basic human capabilities that are deemed to be of fundamental importance in any
human life: the list indeed provides the ‘basic social minimum in the area of the
central capabilities [that] should be secured to all citizens’. 36 Nussbaum’s account
focuses on how a list of basic human rights should function in a pluralistic society. It
is argued that the list of ‘central human capabilities’ provides a moral basis of central
constitutional guarantees. The list provides the basis for determining a minimum
threshold level that social and political institutions are required to guarantee. 37
The position of this thesis is that the bundle of capability rights embedded in the
‘indigenous capability rights system’ may be considered as a sui generis ‘list’. This
‘list’ does not present attributes of generality and universality, as it takes into account
the specificity of indigenous peoples as a peculiar segment of civil society, defining
accurately the collective and individual dimension of their rights. The legal precepts
emerging in the UN Declaration indicate core values of universal applicability to
indigenous peoples, but a context–related process of implementation is required to
operationalise this system.
35
It has been discussed in the previous chapter how Nussbaum’s list of ‘central human capabilities’
differs from Sen’s context–related understanding of capabilities.
36
Martha C Nussbaum, Women and Human Development. The Capability Approach (Cambridge:
Cambridge University Press, 2000) 75.
37
Ibid 75; Nussbaum, Capabilities and Human Rights, above n 28, 299–300.
199
The selection and admissibility of the indigenous rights set out in the UN
Declaration as a consistent system – or ‘list’ – of ‘capability rights’, is mainly
grounded on the fact that those rights constitute an internationally accepted normative
framework to protect and promote indigenous rights worldwide. The process through
which the UN Declaration has been articulated and adopted can be considered as a
unique ‘democratic process’ carried out in the international arena with the
participation of the would–be duty–bearers and right–holders of the international
standards included in the UN Declaration.
Indigenous rights have been developed and agreed upon within the UN system
through processes and procedures which have allowed the broadest participation of
civil society ever experienced previously within the UN system. The ‘list’ of
indigenous rights included in the UN Declaration is the result of an ongoing public
discussion and engagement by all parties involved. States, indigenous and non–
indigenous non–governmental organizations, indigenous peoples’ representatives and
organizations, have all participated in the drafting process for over two decades. The
process through which those indigenous rights have been elaborated, legitimizes their
inclusion among the goal rights that a society – internationally and nationally –
should focus on for the protection and promotion of indigenous peoples’ rights
worldwide.
The universal breadth of indigenous rights, however, does not translate into a
uniform application of those rights. In other words, the ‘indigenous capability rights
system’ cannot be understood in absolute terms. A context–related approach must
guide the operationalization of the capability rights embedded in the system. At least
200
a twofold weighting process is required: a) weighting between different indigenous
rights; b) weighting between indigenous rights and non–indigenous rights.
It is evident that a context–related approach requires two main elements: a
thorough analysis of the specific political, social and economic context in which
indigenous policies will be operating; and the adoption of participatory approaches 38
which allow us to carry out adequate ‘weighting processes’ and minimize potential
frictions or conflicts. 39 The engagement and participation of local communities or
individuals concerned in decision–making, implementation and evaluation policy
processes is essential to broaden peoples’ freedoms to be or to do what they value.
The conceptualization of a rights–based normative framework specific to a
section of civil society – indigenous peoples – whose constituting rights are
interpreted in terms of ‘capabilities to function’, affects the way in which policy goals
are to be made and how the evaluation of state of affairs is to be pursued. It is clear
38
Participatory approaches to development have gained increasing popularity in development
discourse and among development agencies. A rich literature has emerged: see, eg, Lawrence Salmen,
Listen to the People (New York: Oxford University Press, 1987); Deepa Narayan and Katrinka Ebbe,
‘Design of Social Funds: Participations, Demand Orientation and Local Organizational Capacity’,
World Bank Discussion Paper No 375 (Washington, D.C.: the World Bank, 1997); Lawrence Salmen,
‘Partecipatory Poverty Assessment: Incorporating Poor People’s Perspectives into Poverty Assessment
Work’, Social Development Paper No 11 (Washington D.C.L World Bank, 1998); James Blackburn
and Jeremy Holland, Who Changes? Institutionalizing Participation in Development (London:
Intermediate Technology Publications, 1998); Norman Uphoff, ‘Learning about and for Participation:
from Theoretical and Empirical Studies to Practical Experience, and Back to Theory’ (1998) 19(3)
Canadian Journal of Development Studies 439; Harry Blair, ‘Participation and Accountability at the
Periphery: Democratic Local Governance in Six Countries (2000) 28(1) World Development 21; Bill
Cooke and Uma Kothari, Participation: the New Tyranny? (London; New York: Zed Books, 2001);
Deepa Narayan et al, Voices of the Poor: Can Anyone Hear Us? (New York: Oxford University Press
for the World Bank, 2000); Deepa Narayan et al, Voices of the Poor: Crying Out for Change (New
York: Oxford University Press for the World Bank, 2000); Deepa Narayan and Patti Petesh, Voices of
the Poor: From Many Lands (New York: Oxford University Press for the World Bank, 2002); Sabina
Alkire, Valuing Freedoms; Sen’s Capability Approach and Poverty Reduction (Oxford: Oxford
University Press, 2002), among others.
39
The significance of participatory methods will be discussed in the next chapter within the context of
the principle of ‘free, prior and informed consent’.
201
that a focus on the set of peoples’ real opportunities is in line with the rejection of
theories of formal equality which have been proposed as the political objective to
deal with and address indigenous issues. 40 The theoretical sphere of rights’
entitlements is superseded by a more practical approach based on the set of real
opportunities available to indigenous people in their specific socio-economic and
political context. This claim is also emphasized in Nussbaum’s writings. The
emphasis on central human capabilities and governments’ responsibility to provide
adequate measures to put people in a position of ‘capability to function’, restates the
inadequacy – as a political goal – to exclusively pursue formal equality of
individuals’ entitlements.
The enjoyment of indigenous rights can be made possible only if effective policy
measures are put in place to make indigenous peoples, individually or collectively,
truly capable of exercising their rights. This proposition leads one to tackle the other
two issues which are indispensable in comprehending the implications deriving by
endorsing a capability–based approach to indigenous rights: (c) what kind of
obligations/duties or processes they generate, and (d) who are the duties–bearers of
such obligations or the key players of these processes. It has been argued that the
formulation of an ‘indigenous goal rights system’ poses four fundamental issues: (a)
what rights are to be included, (b) what form those rights assume, (c) what kind of
obligations and/or duties they generate, and (d) who are the duties–bearers. Whereas
the two previous sections have addressed (a) what rights are to be included, and (b)
40
See, Larissa Behrendt, Achieving Social Justice; Indigenous Rights and Australia’s Future (Sydney:
Federation Press, 2003).
202
what form those rights assume, issue (c) and (d) will be addressed in the discussion of
the role that institutions play in the overall policy process.
203
5.4 The role of institutions and the enjoyment of the right to self–determination
The understanding of indigenous rights in terms of ‘capability rights’ could
mistakenly lead to an underestimation of the role that institutions play in achieving
the real fulfilment of indigenous rights entitlements. It has been discussed how
‘capability rights’ entail a relation between the right–holder and a ‘capability’ to
which the right–holder is entitled. As a result, the distinction between ‘positive
freedoms’ and ‘negative freedoms’ blurs with the two–parties relation which
underlies such a distinction. It may therefore seem that institutions, usually playing a
key role as duties–bearers of rights entitlements, tend to lose their significance.
On the contrary, institutions maintain a central significance as they play a
fundamental role in the enhancement of human capabilities:
Individuals live and operate in a world of institutions. Our opportunities and

prospects depend crucially on what institutions exist and how they function.
Not only do institutions contribute to our freedoms, their roles can be
sensibly evaluated in the light of their contributions to our freedom. 41
Institutions 42 significantly influence whether and the extent to which peoples
strive in their lives. The institutional domain is characterized by the coexistence of a
41
42
Institutions are understood in their broadest sense: see, Deepa Narayan et al, Voices of the Poor: Can
Anyone Hear Us?, above n 38, 8: ‘Institutions comprise a wide variety of formal and informal
relationships that enhance societal productivity by making people’s interactions and cooperation more
predictable and effective…institutions can be understood as complexes of norms and behaviours that
persist over time by serving some socially valued purposes [and] providing shared understanding of
the cultural meaning of activities’ (citing, Norman Uphoff, Local Institutional Development: an
Analytical Sourcebook with Cases (West Hartford, Conn.: Kumarian Press, 1986); William J
Chambliss, Power, Politics, and Crime (Boulder, Colo.: Westview Press, 1999).
204
diverse range of indigenous and non–indigenous institutions, including state and civil
society institutions, 43 and international inter–governmental institutions. 44
Institutions play a crucial role as the apparatus in which decision–making powers
reside, as well as primary vehicle for development policy initiatives. Accordingly,
indigenous peoples’ chance to gain a satisfactory level of self–determined well–being
is inextricably linked with the structures and processes put in place by a wide range
of international, national and local institutions. Their importance can be seen in four
ways. First, they determine the set of indigenous rights in the form of formal
entitlements, by setting the legal and political context within which indigenous
peoples are embedded. Second, they determine the set of real opportunities available
through policy initiatives and policy measures. Third, institutions are the expression
of peoples’ choices. 45 Finally, institutions determine the allocation of resources, that
are the means necessary to carry out policy initiatives and policy measures in
indigenous affairs.
In brief, institutions exercise a continuous influence on the processes through
which the enjoyment of self–determination is deemed to be brought about. Through
social, political and economic apparatuses (such as health care systems, education)
43
State and civil society institutions are the two main categories of institutions articulated and analysed
in Narayan et al, Voices of the Poor: Can Anyone Hear Us?, above n 38, 8–13, 82–173. It is argued
that state institutions comprise national, regional and local governments, the judiciary, the police, as
well as health clinics, schools, extension workers, traditional authority, among others. Civil society
institutions include non–governmental organizations, religious and ethnic associations, trade unions,
caste associations, community–based organizations, neighbourhoods, kinship networks, traditional
leaders, sacred sites, etc…
44
Examples of these institutions include the World Bank (WB), the International Monetary Fund
(IMF), the Inter–American Development Bank, UN development agencies, such as UNDP and others.
45
See, eg, Tim Rowse, Indigenous Futures; Choice and Development for Aboriginal and Islander
Australia (Sydney: University of New South Wales Press, 2002).
205
institutions play a vital part of the process through which ‘means to achieve’ are
transformed into available opportunities, and thereby into the achievement of
different levels of quality of life. It is indeed upheld that ‘institutions affect people’s
opportunities by establishing and maintaining their access to social, material, and
natural resources. They also reinforce capacities for collective action and self–help,
while their absence can contribute to immobilization and inertia’. 46
The expansion of people’s capabilities to lead the kind of lives they value is in
fact interpreted in a ‘two–way relationship’. It is argued that ‘capabilities can be
enhanced by public policy, but also that the direction of public policy can be
influenced by the effective use of participatory capabilities by the public’. 47
It follows that the enjoyment of the indigenous right to self–determination can be
understood as a process where different factors interrelate in a complicated web of
relations: institutions, means to achieve (such as, resources allocated), exogenous and
endogenous factors (social, personal, environmental), opportunities available as well
as individual and collective choices. Those factors interrelate with each other in a
web of interactions that heavily influence the final outcome, which is the level of
quality of life.
The argument is that if the assessment of indigenous peoples’ quality of life is
carried out according to appropriate principles and criteria, the level of indigenous
peoples’ quality of life may be assumed as the closest proxy to the level of the
enjoyment of the right to self–determination. As a result, the level of achievement in
46
Narayan et al, Voices of the Poor: Can Anyone Hear Us?, above n 38, 9.
47
206
different areas of development – such as health, education, and economic
development – can indicate the extent to which indigenous peoples’ aspirations to
self-determination are fulfilled in those particular areas.
Figure 5.2 describes the process through which one can conceptualize the
enjoyment of indigenous peoples’ right to self–determination through the lens of the
capability framework. The enjoyment of self–determination is imbued within the
process of development as it is conceptualized according to the capability conceptual
framework. The main determinants of the process are represented and their
interrelations enlightened. In particular, it is important to note the centrality that the
‘indigenous capability rights system’ occupies, lying at the intersection between
‘institutions’ and ‘policy’.
Figure 5.2 attempts to underline how the effectiveness of institutions in the
implementation of indigenous rights is inextricably linked to the design,
implementation and evaluation of adequate policies which must be imbued with the
principle of self–determination.
207
Figure 5.2 The enjoyment of indigenous peoples’ right to self–determination through the lens of the
capability framework.
208
Accordingly, this thesis argues that development policies towards indigenous
peoples may play a key role for the effective realization of indigenous self–
determination. For this reason, it is imperative to adopt a methodological approach to
policies which facilitates the enhancement of indigenous peoples’ freedoms which
underlie the ‘indigenous capability rights system’ and the integrated process of
indigenous self–determination.
The next chapter will discuss the articulation of a methodological approach to
development policies which attempts to be responsive to these issues, in particular to
the quest of self–determination voiced by the world’s indigenous peoples.
209
Chapter 6
The practical level. A methodological approach to development

policies for indigenous peoples
The normative framework discussed in the previous chapter functions as the
theoretical underpinning for the elaboration of a methodological approach to
development policies which actualize the integrated process of indigenous self–
determination. The ‘indigenous capability rights system’ represents the core
normative frame on which this methodological approach rests.
The approach suggested may be considered as a guide for the engineering of
development policies which aim at fulfilling the indigenous right of self–
determination and adequately augment indigenous peoples’ freedoms embedded
in the ‘indigenous capability rights system’.
This thesis argues that the construction of an adequate approach for the
design, implementation and evaluation of indigenous self–determined
development policies, requires addressing three main issues:
a) the most appropriate space of evaluation for the assessment of
indigenous individual and collective advantage;
b) the value and role of indigenous choices within the policy process;
c) what criteria are to be incorporated in order to operationalise the
collective and individual right to self–determination through
210
6.1 The space of evaluation: agency freedom and agency achievement
It has been argued that the level of indigenous peoples’ quality of life can be
considered as a proxy for the level of the enjoyment of the right to self–
determination, only if the level of the quality of life is assessed against appropriate
principles and criteria. In view of that, development policies for indigenous
peoples are to be tailored according to criteria and principles which are able to
reflect and operationalise the right to self–determination.
It has been discussed how the ‘indigenous capability rights system’ is the set
of actual capabilities that should be available to indigenous peoples, that is, the
actual freedoms they should enjoy to lead a life founded on self–determination.
The enlargement of the overall freedom to choose a self–determining course of
life is considered to be the main goal of indigenous development policies.
This proposition triggers a fundamental inquiry: how do we assess whether
and the extent to which indigenous peoples enjoy the actual freedoms to make
valuable choices and achieve the actual ‘functionings’ incorporated within the
system of indigenous capability rights?
First of all, we need to determine the most appropriate space for evaluation.
To this purpose, the principle of information pluralism 1 adopted in the capability
approach, is embraced as a foundational concept for the evaluation of indigenous
peoples’ state of affairs. As a result, the evaluation of indigenous individual
advantage and collective arrangements can be carried out in the four spaces
1
It has been discussed in the previous chapter how the capability approach is founded on a
methodological rejection of informational monism to moral analysis as the only acceptable
approach. The capability perspective is as an ‘information–pluralist approach’ since it focuses on
the admissibility and use of different types of information in moral evaluation: see, Amartya K
Sen, ‘Well–being, Agency and Freedom: the Dewey Lectures 1984’ (1985) 82(4) The Journal of
Philosophy 169, 186–205.
211
identified within the capability framework: ‘well–being achievement’; ‘well–
being freedom’; ‘agency achievement’; and ‘agency freedom’. 2
It is important to remember that ‘well–being’ and ‘agency’ constitute two
different, yet related aspects of a person. 3 Whereas the well–being aspect refers to
personal well–being related to one’s own life, 4 the agency aspect refers to a
person’s conception of the good in terms of the totality of goals one has reason to
pursue, whether or not they include the advancement of personal well–being. 5 It
is important to consider the moral significance of the agency role in people’s
personal life since it goes beyond consideration of personal well–being, whose
moral foundation is deemed to be ‘informationally extremely restrictive’. 6
In turn, ‘well–being’ and ‘agency’ can be seen in terms of either achievement
or freedom. ‘Well–being achievement’ refers to the ‘wellness of the person’s state
of being’ 7 and it is determined in the space of achieved functionings, the actual
beings and doings one accomplishes. 8 By contrast, ‘well–being freedom’ is
determined in the space of capabilities, since it relates to ‘a person’s capability to
2
Ibid; Amartya K Sen, ‘Capability and Well–Being’ in Nussbaum, C Martha and Sen, Amartya K
(eds), The Quality of Life (Oxford: Clarendon Press, 1993) 30, 49.
3
Sen, Well–being, Agency and Freedom, above n 1, 169, 186; Sen, Capability and Well–Being,
above n 2, 35. It is important to specify that even though these concepts have been articulated in
the capability approach in individualistic terms, this does not prevent the capability framework
from being applied to collective entities. It will be demonstrated the efficacy of the capability
framework to address the collective and individual right of indigenous peoples to self–
determination.
4
Doings and beings related to activities like eating, seeing or reading, or states of existence like
being well–nourished, not being ashamed, being free from malaria: see, Sen, Well–being, Agency
and Freedom, above n 1, 197.
5
Ibid 190; A K Sen, Inequality Re–examined (Cambridge, Mass.: Harvard University Press, 1992)
56–57.
6
Sen, Well–being, Agency and Freedom, above n 1, 186.
7
Sen, Capability and Well–Being, above n 2, 36.
8
A person’s ‘well–being achievement’ may also be seen as a functionings vector: see, A K Sen,
Development as Freedom (Oxford: Oxford University Press, 1999) 75.
212
have various functioning vectors and to enjoy the corresponding well–being
achievements’. 9
‘Agency freedom’, instead, involves a broader concept of freedom, as it
implies ‘what the person is free to do and achieve in pursuit of whatever goals or
values he or she regards as important’. 10 As a result, ‘agency achievement’
includes one’s success in achieving one’s own overall goals. This is clearly a
broader exercise since the space of functionings may turn out to be rather
restrictive since a person’s goals can include objectives that go beyond the
person’s state of being. 11
Upon due consideration of these different spaces of evaluation, ‘agency
freedom’ and ‘agency achievement’ are respectively considered the most
appropriate evaluative spaces for the design and evaluation of freedom–centred
development policies tailored to fulfill indigenous peoples’ aspirations to self–
determination.
This proposition rests on two grounds. First, the concept of agency is more
comprehensive than that of ‘well–being’ as it allows us to better comprehend the
complexity of indigenous peoples’ individual and collective choices as well as the
multifaceted impact that those choices have on the whole policy process and on
policy outcomes. It will be illustrated how the adoption of the concept of agency
in policy evaluations enables us to incorporate goals or obligations other than
personal well–being. The inclusion of these goals or obligations will be of crucial
9
Sen, Well–being, Agency and Freedom, above n 1, 203; Sen, Inequality Re–examined, above n 5,
83.
10
Sen, Well–being, Agency and Freedom, above n 1, 203.
11
For instance, if a person values the independence or prosperity of his own country, ‘her agency
achievement would involve evaluation of states of affairs in the light of those objects, and not
merely in the light of the extent to which those achievements would contribute to her own well–
being’: Sen, Inequality Re–examined, above 5, 56.
213
significance for the understanding of the multidimensionality of indigenous
capability rights.
Second, focusing on agency requires an acknowledgement of the relationship
between the agency and the well–being aspects of people, both in the space of
‘freedom’ and in that of achievement, as well as the impact that such a
relationship has on the whole policy process.
It has been previously pointed out that the relationship between the agency
and well–being aspects of people relates to the fact that agency and well–being,
although different aspects of a person, are not unrelated: they are as separate and
distinct as interdependent. In other words, the interrelations and connections
between well–being and agency do not make them congruent, or isomorphic in
the sense of generating the same orderings. 12 On the contrary, it is possible to
identify several and dissimilar interconnections. For example, because a person
may value things different from personal well–being, the agency aspect can
orientate a person’s choices towards a different direction than personal well–
being. On the other hand, the achievement of well–being may be one of the
agent’s goals, or it can be the case that the pursuit of non–well–being goals may
bring about dissatisfaction and thus a decrease in well–being. Another case to
consider is that more freedom (either to have well–being or to achieve one’s
agency goals) may lead a person to achieve more in terms of either well–being or
agency success. However, it may happen that while freedom increases,
achievement decreases, and vice versa. 13
The distinction between the well–being and agency aspects of a person also
explains the possibility of an opposite movement in well–being and freedom.
12
Ibid; Sen, Well–being, Agency and Freedom, above n 1.
13
Ibid 190.
214
Freedom – both well–being freedom and agency freedom – and well–being do not
always move in the same direction. An enhancement of agency freedom may lead
to a reduction of well–being freedom, and correspondingly to a decline in well–
being achievement. 14 It may happen that an increase in well–being freedom, when
accompanied by other changes that shift one’s choices towards pursuing other
non–well–being objectives, corresponds to a decline in well–being achievement.
This is the case when the change that causes an increase of well–being freedom
can also allow a person to pursue other non–well–being goals more forcefully,
possibly leading to a deterioration in the level of well–being one chooses to
achieve. 15 This case will be discussed in more detail in the third part of the thesis,
with specific reference to a childbirth and maternal health policy carried out in
Australia for Aboriginal and Torres Strait Islander peoples.
The acknowledgment of the interplay between agency and well–being – in
their freedom and achievement dimensions – can shed light on adequate methods
that can be adopted for policy design and policy evaluation strategies. On the one
hand, the different movements in well–being and agency freedom allow us to gain
a deeper insight into individual and collective decision–making processes as the
entire array of choices is taken into consideration. On the other hand, the different
movements in well–being and agency achievement allow us to undertake a
realistic assessment of policy outcomes.
14
For instance, if a person, whose goal is preventing a crime, happens to be on that crime scene,
her agency freedom is increased (she can do something to stop the crime to occur) but her well–
being achievement and freedom can decline. The person may get wounded (decline in her own
well–being) or the absence of an escape from the scene may lead to a diminished ability to pursue
personal well–being (well–being freedom) vis–à–vis the increased ability to stop the crime
(agency freedom).
15
Sen, Well–Being, Agency and Freedom, above n 1; Sen, Inequality Re–examined, above n 5.
215
The selection of ‘agency freedom’ and ‘agency achievement’ as the most
appropriate spaces of evaluation, constitutes the first step towards the construction
of a methodological approach to self–determined development policies for
indigenous peoples. In the next section, I will discuss the significance that
indigenous individual and collective choices hold within the whole policy process.
In particular, it will be stressed how and the extent to which those valued choices
impact upon the design, implementation, evaluation of policies, and most
importantly, on policy outcomes.
216
6.2 The policy process: indigenous valued choices and agency
Indigenous peoples make choices, individually or collectively, and their
choices impact ultimately on policy outcomes. As Tim Rowse points out,
It is not necessary to suppose that Indigenous Australians are simply

driven by the inexorable logic of ‘modernity’…or by the noble
imperatives of ‘tradition’. Indigenous Australians, like other human
beings, make choices, and their agency must be taken into account by
any policies that are intended to effect changes in the ways they live. 16
Indigenous peoples’ choices are a fundamental ingredient for a
methodological approach to self–determined development policies. We have seen
that the integrated process of self–determination lies at the core of the normative
system of indigenous capability rights. The centrality that the right to self–
determination has is strictly linked to the freedom of choices that indigenous
peoples enjoy. As such, the implementation of the integrated process of self–
determination through policy processes poses a fundamental issue: ‘what kinds of
subjects of choice are [indigenous peoples] supposed to be ?’ 17
It has been argued that ‘the ‘self’ in ‘self–determination’ [has] three levels of
existence: the individual/person/citizen, the family/household and the organized
communal agency’. 18 These three sources of decision–making – the individual,
familial and collective – play a fundamental role in determining the final
outcomes of development processes. 19
16
Tim Rowse, Indigenous Futures; Choice and Development for Aboriginal and Islander
Australia (Sydney: University of New South Wales Press, 2002) 5.
17
Ibid. In this work the question is specifically referred to Indigenous Australians.
18
Ibid 19. In this thesis I have reduced the three ‘subjects of choice’ to two categories: the
‘individual’ and the ‘collective’, which is clearly a simplification. The ‘individual’ comprises the
‘individual/person/citizen’ and the ‘collective’ incorporates the ‘family/household’ and the
‘organized communal agency’.
19
Rowse exemplifies this point arguing that ‘the outcomes of programs to increase indigenous
training, employment and income are affected by choices that indigenous people make. Indigenous
choice is not the whole story, but it is of some significance’: ibid 10.
217
Straddling the indigenous and non–indigenous realm, indigenous peoples –
both collectively and individually – are continually engaged in value judgment
and decision–making processes resulting in diversified bundle of choices. As a
result, a methodological approach to indigenous policy–making cannot be thought
of without incorporating such processes and evaluating the implications on policy
outcomes. The inclusion of indigenous individual and collective choices within
the policy process enables a clearer understanding of the dynamics underlying the
whole policy process.
Figure 6.1 describes the policy process as a continuous flux which stems from
‘institutions’ which are the main players in policy decision–making. The policy is
thus articulated into the three main stages of policy design, policy
implementation, and policy evaluation. The policy outcomes assessed in the
evaluation stage will therefore inform the key players in policy decision making –
‘institutions’ – in the design of successive policies.
Individual and collective choices are embedded in the policy process at the
implementation stage. Choices are defined as ‘functional’ or ‘dysfunctional’ in
relation to the impact that they have on policy outcomes. ‘Functional’ and
‘dysfunctional’ choices are behaviors, attitudes, actions, or states of being which
impact upon policy results respectively in a positive or negative manner. 20 The
key issue is that the impact on policy outcomes is not as straightforward as it may
seem. In fact, ‘functional’ and ‘dysfunctional’ choices can have dissimilar impacts
on the well–being and agency aspect of people. The real challenge for policy
makers is thus to explore what ‘dysfunctional’ choices are really telling us in
terms of policy failures or policy success.
20
It is implied that individual and collective choices are, in turn, influenced by policies measures.
The matter of concern is to unravel the value of indigenous choice within development policies.
218
This intricacy requires us to adopt agency achievement as the space of
evaluation as to consent to observe both the achievement in the well–being and
agency aspects of people. The evaluation stage must therefore include ‘well–
being achievement’ and ‘agency achievement’ as spaces of evaluation. A realistic
policy evaluation strategy needs to take into consideration movements in the
space of ‘well–being achievement’ as well as that of ‘agency achievement’, and
explore different impacts that an increase or decrease in ‘agency achievement’ can
have on ‘well–being achievement’ and vice versa.
Accordingly, policy outcomes should be benchmarked against indicators of
‘well–being achievement’ and ‘agency achievement’. Focusing only on the level
of ‘well-being achievement’ is a partial evaluative exercise; it leaves out the
impact that individual and collective choices have on other aspects of people’s
lives, all those aspects different from personal well–being. ‘Agency achievement’,
being a broader ‘space’ for evaluation which includes ‘well–being achievement’,
should be adopted as benchmark for evaluation of development policy for
indigenous peoples.
This evaluative exercise would provide a better comprehension of policy
results and a solid basis for development strategies in indigenous contexts. It
would emphasize the value and impact that value–judgments and decision-making
processes have within the policy process. Policy assessments that are blind to
value–judgment processes are inadequate to inform policy–makers in the design
of adequate policy for indigenous peoples. It can be seen that if policy outcomes
do not coincide with what indigenous peoples value, individually or collectivity,
policies are destined to fail or to reach a limited level of compliance. ‘Institutions’
engaged in development policies for indigenous peoples should explore policy
219
alternatives which promote an increased level of ‘well–being achievement’
together with an increased level of ‘agency–achievement’.
If the adoption of ‘agency achievement’ in policy evaluation strategies helps
the valuation and assessment of the different impacts that people’s choices can
have on policy outcomes, the adoption of ‘agency freedom’ helps understanding,
and to a certain extent explains, the origins and motivations behind ‘functional’
and ‘dysfunctional’ choices. Because individual and collective agents may value
goals other than personal well–being, policy–decision making strategies need to
refer to a space which is conceptually able to encompass those diverse factors.
‘Agency freedom’ provides a conceptually broader space within which it is
possible to include the overall set of valuable capabilities related to personal well–
being, as well as the set of non–personal well–being factors (such as obligations,
duties). Adopting agency freedom in the design of policies may contribute to
achieving the main goal of indigenous development policies: the enlargement of
the overall freedom to choose a course of life built on the exercise of self–
determination.
In summary, ‘agency freedom’ and ‘agency achievement’ broaden the
boundaries of the spectrum of policy options for the design, implementation and
evaluation of adequate self–determined development policies. ‘Agency freedom’
and ‘agency achievement’ facilitate the inclusion of indigenous valued choices
within the whole policy process as to allow a deeper comprehension of their
underlying dynamics and impacts on policy outcomes. They are indeed
conceptualized as the most relevant reference spaces within which we can assess
whether, and the extent to which, indigenous peoples – individually or
220
collectively – enjoy the actual freedoms to make valued choices and achieve the
actual functionings to lead a ‘self–determined’ life.
This line of argumentation will be adopted to explore Australia’s health policy
frameworks for Aboriginal and Torres Strait Islander peoples. It will be
demonstrated how the adoption of these concepts would provide policy makers
with an adequate tool to incorporate the principle of indigenous self–
determination in health policy for Indigenous Australians. In particular, the
example of childbirth and maternal health policy discussed in chapter 8, will
illustrate the significance of adequately understand the meaning and ramifications
of the so–called ‘functional’ and dysfunctional’ choices, and the related
importance of assessing peoples’ choices against agency achievement and agency
freedom.
221
Figure 6.1 The policy process.
222
6.3 Criteria to operationalise the collective and individual right to self–
determination through development policies
This thesis suggests that two criteria need to be adopted in order to facilitate
the operationalization of the collective and individual right to self–determination
through development policies:
a) the acknowledgment and integration of indigenous knowledge systems
within the design, implementation and evaluation of development
policies in order to facilitate the expansion of the ‘opportunity aspect’
of freedoms in relation to indigenous rights;
b) the recognition and adoption of the principle of ‘free, prior and
informed consent’ in order to enhance the ‘process aspect’ of freedoms
underlying indigenous rights.
It can be argued that the recognition and integration of indigenous knowledge
systems and the adoption of the principle of ‘free, prior and informed consent’ in
development policies constitute fundamental elements for the implementation of a
freedom-oriented understanding of self–determined development policies.
It will be demonstrated in the following sections how the application of these
two criteria may contribute to the enhancement of the ‘opportunity aspect’ of
freedoms as well as the ‘process aspect’ 21 of the freedoms embedded within
indigenous capability rights. The expansion of these freedoms will therefore
impact upon the fulfillment of the indigenous right to self–determination, and in
turn the enjoyment of self–determination will enhance the different indigenous
21
See chapter 4. For a detailed account of the distinction between the ‘opportunity’ and ‘process’
aspect of freedoms: see, Sen, Rationality and Freedom; Sen, Elements of a Theory of Human
Rights, above n 1.
223
rights. It is argued that the whole and integrated process of indigenous self–
determination should always be considered as the core theoretical underpinning of
224
6.3.1 Acknowledgment and integration of indigenous knowledge systems
within the design, implementation and evaluation of development policies
The acknowledgment and integration of indigenous knowledge systems or
indigenous knowledge 22 within the design, implementation and evaluation of
development policies is considered a fundamental criterion for the fulfillment of
indigenous peoples’ right of self–determination through development policies.
It has been argued that conceiving indigenous rights in terms of ‘capability
rights’ entails focusing on the ‘opportunity’ aspect of the freedoms underlying
those indigenous rights. In other words, it sees indigenous rights primarily in
terms of ‘capability to function’, 23 that is in terms of the ‘opportunity to achieve
valuable combinations of human functionings’. 24 It has also been discussed that
the ‘opportunity’ aspect, according to Sen’s capability framework, is one of the
two fundamental aspects 25 which characterize freedom.
Accordingly, the focus on what a person is able to do or to be suggests a
practice–dependent conception of freedom, since a person’s freedom is assessed
by the extent to which he or she is able to choose valuable alternative
combinations of functionings. The act of choice and the spectrum of valued
choices are therefore considered fundamental within the whole policy process.
22
Indigenous knowledge or indigenous knowledge systems are considered to be included within
the more general term ‘traditional knowledge’, which refers to the ‘knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles’ as well as
‘indigenous and traditional technologies’ (Convention on Biological Diversity, Articles 8(j) and
18.4).
23
See discussion in chapter 5.
24
25
See discussion in chapter 4. It has been highlighted that the ‘opportunity’ aspect of freedom
focuses on people’s ability to achieve, while the ‘process’ aspect of freedom is concerned with the
processes involved, that is the processes through which people’s achievements are pursued.
225
In the methodological approach described in the previous sections, indigenous
individual and collective valuable choices are included within the policy process.
The inclusion of individual and collective decision–making processes has shown
the complexity of the dynamics which may underline these processes and the
different impacts that the deriving choices can have on policy outcomes.
It is suggested that the inclusion of indigenous knowledge systems within the
policy process operates at two levels in facilitating the fulfillment of indigenous
peoples’ right of self–determination through development policies: a) it allows
policy makers to gain a deeper understanding of both the dynamics which
underpin decision–making processes and the motivations behind the individual or
collective acts of choice; b) it contributes to the enhancement of indigenous
peoples’ ‘opportunities’ or ‘capabilities’ to achieve valuable combinations of
human functionings. The inclusion of potential ‘beings and doings’ which derive
from indigenous knowledge systems makes possible the expansion of the actual
freedoms to make the most valued choices and achieve the actual functionings to
lead a life built on the exercise of self–determination.
The significance of indigenous knowledge has gained increasing attention
over the last years. 26 In particular, the UN Permanent Forum on Indigenous Issues
26
It is worth mentioning the setting of an Indigenous Knowledge System which provides easy
access to information about indigenous knowledge that is relevant for sustainable development:
see, UN Conference on Trade and Development (UNCTAD), Expert Meeting on Systems and
National Experiences for Protecting Traditional Knowledge, Innovations and Practices, Geneva
30 Oct–1 Nov 2000 (TD/B/COM.1/EM.13/3). See also, Micah L Rosenblum, Lyle Jaffe and
Joseph C Scheerens, ‘Setting up Farmers’ Research Agendas in Lesotho’ (2001) 9(1) Indigenous
Knowledge and Development Monitor 3; Renee E Bartolo and Greg J E Hill, ‘Remote Sensing and
GIS Technologies as a Decision–making Tool for Indigenous Land Management. A Case Study
from Northern Australia’ (2001) 9(2) Indigenous Knowledge and Development Monitor 8; Penny
R Andresen, ‘Experiences in Nigeria and the USA; Gender and Indigenous Knowledge’ (2001)
9(1) Indigenous Knowledge and Development Monitor 16; ‘The Relationship Between the TRIPS
Agreement and the Convention on Biological Diversity and the Protection of Traditional
Knowledge’, Communiqué submitted by Brazil on behalf of the delegations of Brazil, China,
Cuba, Dominican Republic, Ecuador, India, Pakistan, Thailand, Venezuela, Zambia and
Zimbabwe, at the International Seminar on Systems for the Protection and Commercialization of
226
(PFII) has considered the preservation, promotion and protection of indigenous
traditional knowledge as a major issue of concern since its first session in 2002. In
its fifth session the UN Permanent Forum has endorsed the recommendations 27 of
the Report of the International Technical Workshop on Indigenous Traditional
Knowledge 28 convened in Panama City in September 2005, pursuant to the
Permanent Forum’s recommendation at its fourth session. The significance of
indigenous knowledge systems is indeed repeatedly emphasized: 29
Indigenous traditional knowledge not only sustains indigenous and local

communities in their daily lives, but is also a key element of their
identity and self–determination. Such knowledge of indigenous
communities, which reflects their holistic worldviews, also contributes
to the world’s cultural and biological diversity and is a source of cultural
and economic wealth for the communities and for humanity as a
whole. 30
This thesis urges a serious revaluation of indigenous knowledge systems and
their inclusion in development policies. This position is justified on the following
line of reasoning.
It is argued that the contemporary world’s system continues to be
characterized by a ‘dynamic of difference’ which reproduces a particular kind of
Traditional Knowledge, organized by the Government of India and UNCTAD, New Delhi, 3–5
April 2002, (IP/C/W/356); Nicolas Gorjestani, Validation of Indigenous Knowledge, presentation
delivered by the Chief Knowledge and Learning Officer of Africa Region–World Bank at the
International Workshop on Methodologies for the validation of Indigenous Knowledge, Benoni,
South Africa, 9–11 February 2005. This workshop brought together scientists, traditional healers
and policy-makers to discuss how to jointly approach validation of Indigenous knowledge, with
specific focus on traditional medicine; Secretariat of the Convention on Biological Diversity, ‘The
Convention on Biological Diversity and Traditional Knowledge’, Paper delivered at the
International Workshop on Traditional Knowledge, Panama City, 21–23 September 2005; Report
of the International Technical Workshop on Indigenous Traditional Knowledge, presented to the
fifth session of the UN Permanent Forum on Indigenous Issues, 15–26 May 2006, UN Doc
E/C.19/2006/2.
27
UN Permanent Forum on Indigenous Issues, Report on the Fifth Session, 15–26 May 2006, UN
Doc E/C.19/2006/11, para. 34.
28
Report of the International Technical Workshop on Indigenous Traditional Knowledge,
presented to the fifth session of the UN Permanent Forum on Indigenous Issues, 15–26 May 2006,
UN Doc E/C.19/2006/2.
29
Doc E/C.19/2006/11, paras. 32,33,34,35,37.
30
Ibid para. 33.
227
colonial relationship among different peoples. It is maintained that this particular
type of colonialism is reproduced through the devaluation and rejection of
knowledge systems, such as indigenous knowledge systems, which differ from
those of the dominant sections of the world’s population.
It has been argued that colonialism has from the beginning transformed the
plurality of knowledge systems into a hierarchy of knowledge systems. In other
words, ‘…the horizontal ordering of diverse but equally valid systems was
converted into a vertical ordering of unequal systems, and the epistemological
foundations of Western knowledge were imposed on non–western knowledge
systems with the result that the latter were invalidated’. 31 As a result, indigenous
knowledge systems were defined as inferior and unscientific compared to the
western systems of knowledge which were therefore accepted as the only
scientific and valid systems. 32
The thesis argues that this hierarchy of knowledge systems and, as I like to
call it – colonialism of the mind – is still present in different contexts, such as at
the interface between the indigenous and non–indigenous population of Australia.
The analysis carried out in the third part of the thesis on Australia’s health policy
for Aboriginal and Torres Strait islander peoples will demonstrate the persistence
of this kind of ‘colonialism of the mind’ in the tension between the predominance
of the scientific-based medical system and the rejection or omission of Aboriginal
traditional medicine and traditional healers.
Development policies are considered one of the major techniques through
which the gap between developed and underdeveloped or developing peoples is to
31
Vandana Shiva, ‘Cultural Diversity and the Politics of Knowledge’ in George Sefa Dei, Budd L
Hall and Dorothy G Rosenberg (eds), Indigenous Knowledges in Global Contexts; Multiple
Reading of Our World (Toronto: University of Toronto Press, 2000) vii.
32
Ibid.
228
be closed. As a result, this thesis argues that it is imperative to acknowledge and
include indigenous knowledge systems within development policies in order to
close the gap created by a ‘dynamic of difference’ which reproduces colonial
attitudes.
The decolonization of mind is therefore urged to truthfully abandon colonial
processes, and stop the deleterious consequences that the devaluation of
indigenous knowledge system is producing on indigenous communities. It will be
shown how the exclusion of Aboriginal and Torres Strait Islander peoples’
traditional healing system from Australia’s health policy frameworks is negatively
impacting on the health status of Indigenous Australians.
229
6.3.2 Recognition and adoption of the principle of ‘free, prior, and
informed consent’
The principle of ‘free, prior and informed consent’ constitutes a cornerstone
principle for the protection and fulfilment of indigenous rights. The building of
the consensus on ‘free, prior and informed consent’ among indigenous peoples
has been crucial in the standard–setting process leading to the adoption of the
legal standards within the UN Declaration on the Rights of Indigenous Peoples.
The principle has been endorsed by the Human Rights Council through the
adoption of article 19 of the UN Declaration, which provides that
States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in order
to obtain their free, prior and informed consent before adopting and
implementing legislative or administrative measures that may affect
them.
This article primarily regulates the application of the principle of ‘free, prior
and informed consent’ within the context of states’ domestic jurisdictions for
cases where ‘legislative or administrative measures’ may impact upon indigenous
peoples. The significance of the principle of ‘free, prior and informed consent’,
however, extends beyond national boundaries, as it is deemed to constitute a
fundamental element for the implementation of development policies by
intergovernmental institutions, UN agencies and funds, international development
agencies, and international financial institutions, that take into consideration and
respect indigenous rights. 33
33
Report of the International Expert Group Meeting on the Millennium Development Goals,
Indigenous Participation and Good Governance, presented to the fifth session of the UN
Permanent Forum on Indigenous Issues, New York, 15–26 May 2006, UN Doc E/C.19/2006/7,
paras 17,29,43,49, and 61 in which it is recommended that ‘In order to gain acceptance and
legitimacy such processes [of dialogue and discussion directly with the communities concerned]
230
The UN Permanent Forum on Indigenous Issues has been advocating the
recognition and implementation of ‘free, prior and informed consent’ since its first
session, perceiving this principle as a major methodological challenge. 34 In 2004,
the Economic and Social Council, following the recommendation of the UN
Permanent Forum at its third session, set out in its decision 2004/287 of 24 July
2004, a three–day international workshop on methodologies regarding free, prior
and informed consent in relation to indigenous peoples.
The International Workshop on Methodologies regarding Free, Prior and
Informed Consent and Indigenous Peoples 35 was held in January 2005 and
should: involve the range of development partners on the ground; have the support of the
Government; adhere to cultural imperatives for procedure; employ participatory methodologies
and new technology; acknowledge the importance of women’s participation; be conducted in
indigenous languages; and be in accordance with indigenous notions of time and space. The
principle of free, prior and informed consent is also essential for indigenous peoples’
participation’; Indian Law Research Center and VIVAT International, Report on the Millennium
Development Goals and Indigenous Peoples: Redefining the Goals, submitted to the Fifth Session
of the UN Permanent Forum on Indigenous Issues, New York, 15–26 May 2006, UN Doc
E/C.19/2006/5/Add.1, paras. 7,13; Statement of the Forest Peoples Programme, Foundation for
Aboriginal and Islander Research Action Aboriginal Corporation, Na Koa Ikaika o Ka Lahui
Hawaii, Saami Council and Tebtebba Foundation, submitted to the Fifth Session of the UN
Permanent Forum on Indigenous Issues, New York, 15–26 May 2006, UN Doc E/C.19/2006/5,
paras 8,9;
34
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 15-26 May 2005,
UN Doc E/C.19/2005/, paras. 21,25,69,137. In para. 69 the UN Permanent Forum recommends
‘that Member States, the intergovernmental system, international financial institutions and the
private sector respect and adhere to the principle of free, prior and informed consent in all matters
affecting indigenous peoples’; UN Permanent Forum on Indigenous Issues, Report on the Fifth
Session, 15–26 May 2006, UN Doc E/C.19/2006/11, paras. 11,35,36,88. In particular, para. 11
states that: ‘The Permanent Forum reaffirms and reiterates that self-determination, free, prior and
informed consent and accountability form the basis of, and prerequisite for, any relationship that
can be called a true partnership for development, and urges all States, indigenous peoples, United
Nations bodies, international development agencies, corporations and the private sector, as well as
civil society, to uphold these vital principles’;
35
International Workshop on Methodologies regarding Free, Prior and Informed Consent, and
Indigenous Peoples, New York, 17–19 January 2005. The workshop was attended by several
experts and observers from the UN system and other intergovernmental organizations, such as
Division for the Advancement of Women of the United Nations Secretariat, Department of
Political Affairs of the United Nations Secretariat, Department of Public Information of the United
Nations Secretariat, Department of Economic and Social Affairs of the United Nations Secretariat,
European Community, Food and Agriculture Organization of the United Nations (FAO), Inter-
American Development Bank (IADB), International Fund for Agricultural Development (IFAD),
International Labour Organization (ILO), Office of the United Nations High Commissioner for
Human Rights, secretariat of the Convention on Biological Diversity, Secretariat of the United
Nations Forum on Forests, United Nations Development Program (UNDP), United Nations
Educational, Scientific and Cultural Organization (UNESCO), United Nations Children’s Fund
231
reported its findings and recommendations to the fifth session of the UN
Permanent Forum. 36 The Report provides a shared understanding of the principle
of ‘free, prior and informed consent’, 37 discusses the policy frameworks relevant
to the principle at the inter-agency level – such as the Common Country
Assessment and United Nations Development Assistance Framework (UNDAF),
the Poverty Reduction Strategy Papers (PRSPs) and the Millennium Development
Goals (MDGs) 38 – analyses the methodologies for the application of the
principle, 39 draws lessons 40 and identifies challenges in the application of the
principle. 41
The Report provides a detailed account of the meaning of the principle of
‘free, prior and informed consent’. It is important to dwell on the major features
which have been identified in the shared understanding of the principle among the
participants. 42
Free is understood as implying ‘no coercion, intimidation or manipulation’.
Prior indicates that ‘consent has been sought sufficiently in advance of any
authorization or commencement of activities and that respect is shown for time
requirements of indigenous consultation/consensus processes’. 43 The term
informed requires that the information provided need to include the following
elements:
(UNICEF), United Nations Development Fund for Women (UNIFEM), United Nations Working
Group on Indigenous Populations (WGIP), World Health Organization (WHO), World Intellectual
Property Organization (WIPO) and World Bank (WB).
36
Report of the International Workshop on Methodologies regarding Free, Prior and Informed
Consent and Indigenous Peoples, UN Doc E/C.19/2005/3.
37
UN Doc E/C.19/2005/3, paras. 46–50.
38
UN Doc E/C.19/2005/3, paras. 23–29.
39
UN Doc E/C.19/2005/3, paras. 42,48,68.
40
UN Doc E/C.19/2005/3, paras. 34–39.
41
UN Doc E/C.19/2005/3, paras. 20,42.
42
UN Doc E/C.19/2005/3, paras. 46.
43
UN Doc E/C.19/2005/3, paras. 46.
232
a) the nature, size, pace, reversibility and scope of any proposed
project or activity;
b) the reason(s) for or purpose(s) of the project and/or activity;
c) the duration of the above;
d) the locality of areas that will be affected;
e) a preliminary assessment of the likely economic, social, cultural

and environmental impact, including potential risks and fair and
equitable benefit–sharing in a context that respects the precautionary
principle;
f) personnel likely to be involved in the execution of the proposed

project (including indigenous peoples, private sector staff, research
institutions, government employees and others);
g) procedures that the project may entail. 44
In describing the meaning of consent, the Report identifies ‘consultation’ and
‘participation’ as fundamental elements for a consent–focused process. ‘Mutual
respect’, ‘good faith’, ‘full and equitable participation’ are required in the
consultation process. Moreover, participation of indigenous peoples should
include freely chosen representatives as well as customary or other institutions.
Importantly, it is specified that the consultation and participation process should
include the ‘option of withholding consent’. 45
It is also specified that the process of ‘free, prior and informed consent’ should
be undertaken in a timely fashion, considering indigenous peoples’ modes of
decision–making process; that representative institutions authorized to express
consent on behalf of the indigenous peoples affected need to be clearly identified;
that the information should be understandable and accessible to the people
involved.
Finally, mechanisms and procedures are required to verify that a true and fair
consent process has been carried out. Monitoring mechanisms and procedures of
44
UN Doc E/C.19/2005/3, para. 46.
45
UN Doc E/C.19/2005/3, para. 46.
233
redress are also deemed necessary to ensure that the ‘equal opportunity’ of all
parties involved has been respected, and that consent would be withdrawn in case
the core elements of ‘free, prior and informed consent’ have not be respected. 46
It can be argued that the principle of free, prior and informed consent has a
particular relevance in the context of the analysis of the indigenous right to self–
determination and its fulfilment through development policies.
It has been discussed in chapter 4 how the ‘opportunity’ aspect and the
‘process’ aspect of freedom are considered as equally essential within the
capability framework. While the ‘opportunity’ aspect of freedom focuses on
people’s ability to achieve, the ‘process’ aspect of freedom is concerned with the
processes involved, that is the processes through which people’s achievements are
pursued. In other words, the ‘process aspect’ of freedom concerns the freedom
involved in the processes themselves.
Upon due consideration of these aspects and their significance, this thesis
argues that the principle of ‘free, prior and informed consent’ crucially operates at
the level of the freedom involved in the processes through which indigenous
peoples participate in the design and implementation of development policies
which impact upon their lives. It is suggested that the principle of ‘free, prior and
informed consent’ plays a key role in enhancing indigenous peoples’ freedom to
bring about their valued goals and objectives.
It is indeed maintained that the processes through which indigenous peoples,
individually or collectively, pursue their valued goals and objectives, are
fundamentally important for the fulfilment of their right to self–determination.
The ‘process’ aspect of freedom, indeed, is deemed to have a significant impact
46
UN Doc E/C.19/2005/3, para. 46.
234
on the ‘opportunity’ aspect of freedom, so that the ability to achieve self–
determination through development policies is inextricably connected to the
freedom to consent to policies which impact upon indigenous peoples’ freedom to
enjoy self–determination in its multifaceted dimensions.
In this context, it is important to highlight the instrumental value that
processes of participation and consultation have vis–à–vis ‘free, prior and
informed consent’ of the indigenous peoples concerned in specific development
initiatives.
The participation and consultation of indigenous peoples in the formulation,
implementation and evaluation of development policies is strongly recommended
as a fundamental element to be guaranteed to indigenous peoples within the whole
policy process. 47 Participation and consultation though, are to be considered as the
mechanisms through which the free, prior and informed consent of indigenous
peoples can be determined. Article 20 of the UN Draft reinforces this position, as
it clearly states that States are required to engage in a process of consultation and
cooperation in good faith with indigenous peoples ‘in order to obtain their free,
prior and informed consent’.
The far–reaching breadth of free, prior and informed consent vis–à–vis the
requirement of participation and consultation within the policy process, can be
47
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 15–26 May 2005,
UN Doc E/C.19/2005/, paras. 21, 25; UN Permanent Forum on Indigenous Issues, Report on the
Fifth Session, 15-26 May 2006, UN Doc E/C.19/2006/11, paras. 36,27. Para. 27 clearly states that
‘The United Nations is encouraged to support the full and effective participation of indigenous
peoples in efforts to achieve the Millennium Development goals at the national and local levels’;
Indigenous Participation and Good Governance, UN Doc E/C.19/2006/7, paras. 10–39; Paul L H
A Chartrand, Contribution for the Workshop on the MDGs, Indigenous Participation and Good
Governance, UN Doc PFII/2006/WS.3/4 (2006); Report of the International Workshop on
Methodologies regarding Free, Prior and Informed Consent and Indigenous Peoples, UN Doc
E/C.19/2005/3, paras. 56–60; Statement of the Forest Peoples Programme, Foundation for
Hawaii, Saami Council and Tebtebba Foundation, UN Doc E/C.19/2006/5, para. 9.
235
grasped if one considers the debate arisen from the claims to adopt the principle of
free, prior and informed consent within international financial institutions.
International financial institutions 48 play a key role in the world’s
development agenda, as they provide and allocate a significant proportion of
funding for development projects and sectoral loans, as well as affecting the
formulation of national structural adjustment programs, fiscal and macroeconomic
policies, trade and investment policies, which in turn directly or indirectly, affect
indigenous peoples. In the context of the policy revisions on indigenous peoples
that some international financial institutions are undertaking, 49 the principle of
free, prior and informed consent has sparked heated debates.
The World Bank, for instance, has been requested to consider the Report of
the International Workshop on Methodologies regarding Free, Prior and
Informed Consent and Indigenous Peoples 50 as a guide for the revision and
implementation of its policies concerning indigenous peoples.51
At the fourth session of the Permanent Forum, concerns were raised in regard
to the World Bank’s revised Policy on Indigenous Peoples endorsed by the Board
of Executive Directors on the 10th of May 2005. Operational Policy and Bank
48
International financial institutions include multilateral bodies, such as the World Bank Group
(WB), the International Monetary Fund (IMF), regional development banks, UN programs and
funds, bilateral donor agencies, private commercial banks and national export credit agencies, see
Statement of the Forest Peoples Programme, Foundation for Aboriginal and Islander Research
Action Aboriginal Corporation, Na Koa Ikaika o Ka Lahui Hawaii, Saami Council and Tebtebba
Foundation, UN Doc E/C.19/2006/5, para. 3.
49
International financial institutions which have revised or are in the process of revising their
policies comprise the World Bank, the Asian and Inter–American Development Banks, and the
International Finance Corporation (IFC). Institutions without a formal operational policy on
indigenous peoples include the International Monetary Fund, the Global Environment Facility, the
African Development Bank, many commercial banks, most bilateral donors and export credit
agencies.
50
UN Doc E/C.19/2005/3.
51
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 15–26 May 2005,
UN Doc E/C.19/2005/, para. 25.
236
Procedure 4.10 replace OD 4.20 and apply to all projects for which a Concept
Review takes place on or after July 1, 2005.
Concerns were raised by representatives of indigenous organizations and
members of the Permanent Forum 52 in regard to the requirement of a process of
‘free, prior and informed consultation’ rather than a process of ‘free, prior and
informed consent’ of the affected indigenous people. Section 1 of OP 4.10 states
that:
…For all projects that are proposed for Bank financing that affect
Indigenous Peoples, the bank requires the borrower to engage in a
process of free, prior and informed consultation. The Bank will provide
project financing only where free, prior and informed consultation
results in broad community support to the project by the affected
Indigenous Peoples. Such Bank–financed projects include measures to:
(a) avoid potentially adverse effects on the Indigenous Peoples’
communities; or (b) when avoidance is not feasible, minimize, mitigate,
or compensate for such effects…
Indigenous representatives raised two main issues in relation to this revised
policy. First, that the requirement of a ‘free, prior and informed consultation
process’ reduces indigenous peoples’ rights to a mere technical procedure. The
policy requires the World Bank to ascertain that the borrower has gained the
‘broad support from representatives of major sections of the community’ with no
guarantees as to what information will be disclosed or when and how such
verification will be conducted, or by whom and how the collective decision–
making processes and structures of the affected indigenous people will be
recognized and respected.
52
International Indian Treaty Council, International Organization of Indigenous Resource
Development, Confederacy of Treaty six First Nations of Canada, Indigenous Environmental
Network, Frente por la Democracia y el Desarollo, Coalicion Campesina Indigena del Istmo de
Oaxaca – Mexico, Fundacion para la Promocion del Conocimiento Indigena–Panama, among
others.
237
Second, it has been emphasized that the new policy shifts from a philosophy
of mitigating impact, to ‘an increased awareness of the need to proactively
promote Indigenous Peoples participation in development–related activities and to
protect Indigenous Peoples’ rights to their lands, resources, identities and
culture’. 53 However, OP 4.10 still prescribes that when avoidance of potentially
adverse effects on indigenous communities is not feasible, measures will be
adopted to ‘minimize, mitigate, or compensate for such effect…’. Indigenous
representatives call on the World Bank to ‘prohibit under any and all
circumstances the forced relocation of Indigenous Peoples and their communities
in the furtherance of World Bank projects’. 54
While the debate continues, the Permanent Forum has called on the World
Bank to ‘further explore inter–agency mechanisms to support the inclusion of
indigenous peoples in national poverty reduction strategies’ 55 and ‘to ensure the
effectiveness of their mechanisms to protect the rights of indigenous peoples’. 56
The recognition and adoption of the principle of free, prior and informed
consent in development policy processes constitutes a fundamental criterion that
needs to be considered to facilitate the fulfillment of the collective and individual
right to self–determination. The principle operates as a valid mechanism 57 to put
53
Ian Johnson, ‘Statement to the Permanent Forum’, statement delivered by the World Bank’s
vice–president for sustainable development at the 4th session of the Permanent Forum on
Indigenous Issues, New York, 16–27 May 2005.
54
International Indian Treaty Council, International Organization of Indigenous Resource
Development, Confederacy of Treaty six First Nations of Canada, Indigenous Environmental
Network, Frente por la Democracia y el Desarollo, Coalicion Campesina Indigena del Istmo de
Oaxaca – Mexico, Fundacion para la Promocion del Conocimiento Indigena–Panama, among
others.
55
Doc E/C.19/2006/11, para. 40.
56
Doc E/C.19/2006/11, para. 124.
57
The significance of the incorporation of free, prior and informed consent in the policies,
especially within international financial institutions, is reinforced by the recommendation
submitted to the Permanent Forum to organize a workshop to elaborate indicators on free, prior
238
in place freedom–centred development policies and help promote the enjoyment
of the integrated process of self–determination. The principle of ‘free prior and
informed consent’ allows us to guide the process of decision–making and
incorporate individual and collective choices within the policy process.58
It is, however, important to highlight that the exercise of ‘free, prior and
informed consent’ by indigenous peoples in decisions, matters or projects which
impact upon them, must be balanced with the respect of the rights and freedoms
of other peoples who may be differently involved in the questions at hand. It can
be argued that the principle expressed in article 45 of the UN Declaration
concerning limitations to the exercise of the indigenous rights set out in the UN
Declaration, can be extended to the application of the principle of ‘free, prior and
informed consent’:
…The exercise of the rights set forth in this Declaration shall be subject
only to such limitations as are determined by law, in accordance with
international human rights obligations. Any such limitations shall be
non–discriminatory and strictly necessary solely for the purpose of
securing due recognition and respect for the rights and freedoms of
others and for meeting the just and most compelling requirements of a
democratic society.
The limitations on indigenous peoples’ free, prior and informed consent must
indeed be determined in accordance with international human rights law.
and informed consent: see, Statement of the Forest Peoples Programme, Foundation for
Hawaii, Saami Council and Tebtebba Foundation, UN Doc E/C.19/2006/5, para. 9.
58
It is required that development projects ‘effectively uphold indigenous peoples’ rights and
strengthen the development choices of indigenous peoples’: Ibid.
239
Conclusion
Part 2 of this thesis has analysed indigenous peoples’ right to self–
determination by exploring the interface between indigenous rights and
development policy. Amartya Sen’s capability approach has been adopted as a
normative framework of thought to articulate a normative framework for
indigenous rights that functions as the fundamental underpinning of the proposed
methodological approach to development policies for indigenous peoples.
Whereas chapter 4 has provided a general overview of the capability approach
and described its foundational concepts, chapter 5 and 6 have adopted key
conceptual categories of the capability approach to construct, respectively, an
indigenous rights–based normative framework specific to indigenous peoples and
a methodological approach to development policy for indigenous peoples.
It becomes evident that this thesis promotes a value–informed pragmatism in
indigenous policy–making which is based upon an indigenous capability rights–
based approach to development. In summary, a methodological approach to
development policies for indigenous peoples may consist of the following
elements:
a) operationalization of the ‘indigenous capability rights system’ by
international, national and local institutions through the enlargement of
indigenous peoples’ substantive freedoms or real opportunities to lead
a life they have reason to value;
b) adoption of agency freedom as a reference ‘space’ for the design of
policy strategies;
240
c) adoption of agency achievement as reference ‘space’ for policy
evaluation strategies;
d) inclusion of individual and collective value–judgment processes within
the policy process;
e) analysis of the impacts that individual and collective choices have on
policy outcomes;
f) policy outcomes benchmarked against the level of well–being
achievement as well as the level of agency achievement;
g) recognition and inclusion of indigenous knowledge in the design,
implementation and evaluation of development policies to facilitate the
expansion of the ‘opportunity aspect’ of freedoms in relation to
indigenous rights;
h) adoption of the principle of ‘free, prior and informed consent’ to
enhance the ‘process aspect’ of freedoms underlying indigenous rights.
241
PART 3
The indigenous capability right to health
Always was always will be…
Jackie Huggins
242
Chapter 7
Development and the health challenge for indigenous peoples
The second part of the thesis has elaborated a normative framework to interpret
indigenous peoples’ right to self–determination and a methodological approach to
development policies aimed at fulfilling the indigenous right to self–determination.
The application of the capability approach’s theoretical framework to interpret
indigenous peoples’ right to self–determination has demonstrated that the level of
indigenous peoples’ quality of life may be assumed as the closest proxy to the level
of the enjoyment of the right to self–determination, if appropriate principles and
criteria are applied to determine the level of indigenous peoples’ quality of life.
Accordingly, a normative framework specific to indigenous rights and a
methodological approach to development policy have been constructed upon
principles and criteria whose adoption, it is argued, would enhance the capability for
indigenous individuals and communities to enjoy the right to self–determination.
This thesis argues that the proposed normative and practical frameworks have the
potential to complement the international legal domain in addressing and advancing
indigenous aspirations to self–determination. These normative and procedural
frameworks promote an agent–driven implementation process in which the individual
and collective holders of the right to self–determination are empowered and actively
engaged in the fulfilment of their aspirations to self–determination. These normative
and procedural frameworks are deemed to provide the theoretical underpinnings for
243
the elaboration of adequate development policies aimed at fulfilling indigenous
peoples’ right to self–determination.
The thesis argues that development policy processes play a fundamental role in
determining the level of enjoyment of self–determination for indigenous peoples.
Development policy can offer an effective avenue to overcome the statist–centred
imprint of the human rights implementation system and bypass states’ political
unwillingness to recognise and promote indigenous peoples’ right to self–
determination.
Moreover, the integration of the principle of indigenous self–determination into
development policies is considered as a potential vehicle to put an end to the
‘civilizing mission’ which has characterized the development of international law
through the reproduction of a differently coloured ‘dynamic of difference’.
The third part of this thesis aims at demonstrating how the adoption of the
proposed normative and practical framework would facilitate the decolonization of
development policies through the integration of the principle of indigenous self–
determination. This principle has been embedded within the normative and practical
frameworks through the adoption of foundational concepts drawn from Sen’s
capability approach.
This line of argumentation will be discussed in this part of the thesis by eliciting
one of the indigenous capability rights included in the ‘indigenous capability rights
system’: the right to health. Chapter 7 will provide a general overview of the
intersection between indigenous rights and development policies in order to underline
the current engagement of indigenous peoples with the world community’s
development agenda.
244
This analysis will focus on the health challenge of the world’s indigenous peoples
and, in particular, on the health status of Aboriginal and Torres Strait Islander peoples
of Australia. Australia’s health policy will be questioned as to its adequacy to address
Indigenous Australians’ health status and instil the principle of indigenous self–
determination. In summary, this part of the thesis will explore viable avenues to
conceptualize and implement health policy frameworks which aim to fulfil
indigenous aspirations to self–determination.
245
7.1 The world community’s development agenda and the rights of indigenous
peoples
Development policy is indicated as a potential pathway towards self–
determination for indigenous peoples. The construction of a methodological approach
to development policies has been anchored on a rights–based conceptual framework
with indigenous individual and collective rights being its foundational constituents.
This line of argument is concordant with the human rights approach to
development which has been articulated and broadly accepted within the international
community over recent years. 1 It is indeed outlined that ‘[t]he promotion of human
development and the fulfilment of human rights share, in many ways, a common
motivation, and reflect a fundamental commitment to promoting the freedom, well–
being and dignity of individuals in all societies.’ 2
The UN and its development agencies, funds and programs, as well as
international development agencies, multilateral development banks, and many
bilateral donors have been engaging with the concept of human–rights based
1
Mainstreaming human rights has become a central concept within the UN system. It aims to enhance
and integrate the human rights agenda in the wide range of UN activities and programs, including
development: see, Report of the UN Secretary–General to the General Assembly, Renewing the United
Nations: A Programme for Reform, UN Doc A/51/950, 14 July 1997. It is recognized that ‘[a] human
rights approach adds value because it provides a normative framework of obligations that has legal
power to render governments accountable’ (Mary Robinson, speech to World Summit, Johannesburg,
28 August 2002); United Nations, The Human Rights Based Approach to Development Towards a
Common Understanding Among the UN Agencies (New York: United Nations, 2003); Mahesh Patel,
Human Rights as an Emerging Development Paradigm and Some Implications for Programme
Planning, Monitoring and Evaluation (New York: UNICEF, 2001).
2
Amartya K Sen, ‘Human Rights and Human Development’ in United Nations Development Program,
Human Development Report 2000. Human Rights and Human Development (New York: Oxford
University Press, 2000) 19.
246
development and have made rights–based development programming a priority over
the last years. 3
A rights–based definition of development is set out in the Declaration on the
Right to Development. 4 It clearly identifies development as an integrated and
comprehensive economic, social, cultural and political process grounded on the
respect and implementation of international human rights standards. 5 As the UN
Secretary–General highlights,
A human rights–based approach ensures that human standards, as

established in international law, are applied as a criterion for policy
orientation and the solution of problems in specific areas. It introduces a
normative basis, which is obligatory for State Parties, and thus requires a
legislative response at the State level. A rights approach implies that
beneficiaries of policies and activities are active subjects and claim holders
3
United Nations Development Program, Human Development Report 2000. Human Rights and
Human Development (New York: Oxford University Press, 2000); Siddiq Osmani, Paul Hunt and
Manfred Nowak, Draft Guidelines: A Human Rights Approach to Poverty Reduction Strategies
(Geneva: Office of the High Commissioner for Human Rights, 2002); Office of the United Nations
High Commissioner for Human Rights, Human Rights and Poverty Reduction. A Conceptual
Framework (New York; Geneva: United Nations, 2004); Arjun Sengupta, Report of the Independent
Expert on the Question of Human Rights and Extreme Poverty, Commission on Human Rights, UN
Doc E/CN.4/2005/49, 11 February 2005; Dorothy Rozga, Applying a Human Right–Based Approach
to Programming: Experiences of UNICEF, Paper presented at the workshop on Human Rights, Assets
and Livelihood Security, and Sustainable Development, UNICEF, New York, June 2001; UNICEF,
Guidelines for Human Rights–based Programming Approach (New York: UNICEF, 1998); Savitri
Goonesekere, A Rights–based Approach to Realizing Gender Equity (New York: UN Division for the
Advancement of Women, 1998); World Health Organization, ‘25 Questions & Answers on Health and
Human Rights’ (2002) 1 Health and Human Rights Publication Series (Geneva: World Health
Organization, 2002).
4
‘The right to development is an inalienable human right by virtue of which every human person and
all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political
development, in which all human rights and fundamental freedoms can be fully realized’ Article 1(1),
UN General Assembly resolution 41/128 of 4 December 1986.
5
United Nations, The Human Rights–based Approach to Development Towards a Common
Understanding Among the UN Agencies (New York: United Nations, 2003) 2: ‘in a human rights
based approach human rights determine the relationship between individuals and groups with valid
claims (rights–holders) and State and non–state actors with correlative obligations (duty–bearers). It
identifies right–holders (and their entitlements) and corresponding duty–bearers (and their obligations)
and works towards strengthening the capacities of rights–holders to make their claims, and of duty–
bearers to meet their obligations’.
247
and stipulates duties or obligations for those against whom such claims can
be held (duty bearers). 6
The significance of a rights–based approach to development has been strongly
reinforced and voiced by indigenous representatives. As the chairperson of the UN
Permanent Forum on Indigenous Issues stated, ‘for indigenous peoples, it is not
feasible to talk of development without talking about respect for their basic collective
and individual human rights’, 7 such as their ‘basic rights to lands and resources,
culture and identity, and self–determination’. 8
The intersection between indigenous rights and development policy has indeed
become a core issue in the ongoing debate between indigenous peoples, their
organizations and representatives, and UN development agencies, intergovernmental
bodies, non–governmental organizations and multilateral development banks.
This dialogue has catalyzed discussion by the UN Permanent Forum on
Indigenous Issues, which has taken a leading role in bridging the UN and
international community’s development agenda and the development agenda of
indigenous peoples. 9 The latest engagement of the Permanent Forum on strategies to
6
Report of the UN Secretary–General to the ECOSOC, 1998.
7
Victoria Tauli Corpuz, Making the MDGs Relevant for Indigenous Peoples, statement presented at
the 2005 ECOSOC, High Segment Meeting, 16–17 March 2005.
8
Victoria Tauli Corpuz, Indigenous Peoples and the Millennium Development Goals, paper submitted
to the 4th Session of the UN Permanent Forum on Indigenous Issues, New York, 16–27 May 2005,
reproduced in (2005) 7(1) Indigenous Perspectives 8, 9.
9
Fourth Session of the United Nations Permanent Forum on Indigenous Issues, Millennium
Development Goals and Indigenous Peoples with a Focus on Goal 1 to Eradicate Poverty and
Extreme Hunger, and Goal 2 to Achieve Universal Primary Education, United Nations Headquarters,
New York 16–27 May 2005; Fifth Session on the United Nations Permanent Forum on Indigenous
Issues, The Millennium Development Goals and Indigenous Peoples: Re–defining the Millennium
Development Goals, United Nations Headquarters, New York, 15–26 May 2006.
248
achieve the Millennium Declaration Goals (MDGs), 10 signals the increasing
participation of indigenous peoples to the renewed commitment by the international
community to achieve time–bound development goals and targets. 11
In light of the denounced absence of indigenous peoples and indigenous issues in
the conceptualization of the MDGs and in their respective implementation and
evaluation strategies, 12 the UN Permanent Forum on Indigenous Issues warns against
the potential negative impacts that the achievement of those goals and targets may
have on indigenous peoples’ lives and survival. 13 Because the articulation of the
Goals, targets and indicators did not include the consultation with or participation of
10
United Nations Millennium Declaration, New York, United Nations, 2000 (A/RES/55/2). The
Millennium Declaration represents a unique global compact in which eight Millennium Development
Goals, 18 targets and 48 indicators.
11
The Millennium Declaration Goals reflect an unprecedented commitment by the world’s leaders (the
Millennium Declaration was signed by 189 countries) to tackle the most basic forms of injustice and
inequality in our world: poverty, illiteracy and ill–health.
12
Permanent Forum on Indigenous Issues, Report on the Fourth Session, 16–27 May 2005, UN Doc
E/C.19/2005/9, para. 5.
13
Permanent Forum on Indigenous Issues, Report on the Fourth Session, 16–27 May 2005, UN Doc
E/C.19/2005/9, para. 5: ‘some Millennium Development Goals processes may lead to accelerated loss
of lands and natural resources for indigenous peoples, and thus of their means of subsistence and their
displacement, as well as to accelerated assimilation and erosion of their culture’; See also, Victoria
Tauli Corpuz, Indigenous Peoples and the Millennium Development Goals, (2005) 7(1) Indigenous
Perspectives 8, at 9: ‘Indigenous peoples are invisible in the MDGs. A review of MDGs in some
countries shows that they are not even mentioned or referred to’; Joji Cariño, ‘Indigenous Peoples,
Human Rights and Poverty’ (2005) 7(1) Indigenous Perspectives 28, 29: ‘[there is] no indication at all
about how the [MDGs] relate to indigenous peoples… For example, water and energy development
through the building of large dams for water and energy, could flood our lands or result in involuntary
displacement, unless rights–based participatory approaches, including respect for our right to free,
prior and informed consent is secured as part of the development process’; Indigenous Peoples
Statement to UN CSD High Level Segment: ‘Indigenous peoples fear that culturally insensitive
implementation of the Johannesburg Plan of Implementation, Millennium Development Goals and
country–wide Poverty Reduction Strategies could lead to further impoverishment and
marginalization’.
249
indigenous peoples, 14 many criteria essential for the well–being of indigenous
peoples have not been captured. 15
In the effort to articulate a coordinated agenda between the dominant
development paradigm and indigenous perspectives on development, 16 broad
consensus has been expressed on the essential need to ground the MDGs on a rights–
based approach to development. 17 States, the United Nations system, other
intergovernmental organizations, international financial institutions are called on to
operationalise the human rights–based approach to development by framing the
MDGs, poverty reduction strategies and programs within such a human rights
focused perspective. 18
In the effort to make the MDGs relevant to indigenous peoples, the ‘indigenous
capability rights system’ – conceived of as the integrated process of indigenous rights
imbued with the principle of self-determination – may offer a valuable conceptual
14
UN Permanent Forum on Indigenous Issues, Report on its Fourth Session, UN Doc E/C.19/2005/9,
para. 15: ‘…poverty indicators based on indigenous peoples’ own perception of their situation and
experiences should be developed jointly with indigenous peoples’.
15
Report of the Meeting on Indigenous Peoples and Indicators of Well–being, Ottawa, 22–23 March
2006, presented to the Fifth Session of the UN Permanent Forum on Indigenous Issues, New York,
15–26 May 2006, UN Doc E/C.19/2006/CPR.3 (2006); Report of the International Expert Group
Meeting on the Millennium Development Goals, Indigenous Participation and Good Governance,
presented to the fifth session of the UN Permanent Forum on Indigenous Issues, New York, 15–26
May 2006, UN Doc E/C.19/2006/7 (2006).
16
See, eg, Mario Blaser, Harvey A Feit and Glenn McRae (eds), In the Way of Development;
Indigenous Peoples, Life Projects and Globalization (London; New York: Zed Books, 2004).
17
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 16–27 May 2005, UN
Doc E/C.19/2005/9; Joji Cariño, ‘Indigenous Peoples, Human Rights and Poverty’ (2005) 7(1)
Indigenous Perspectives 28; Victoria Tauli Corpuz, Indigenous Peoples and the Millennium
Development Goals, paper submitted to the Fourth Session of the UN Permanent Forum on Indigenous
Issues, New York, 16–27 May 2005; Victoria Tauli Corpuz, Making the MDGs Relevant for
Indigenous Peoples, statement presented at the 2005 ECOSOC, High–Level Segment Meeting, 16–17
March 2005, reproduced in (2005) 7(1) Indigenous Perspectives 122.
18
UN Permanent Forum on Indigenous Issues, Report on the Fourth Session, 16-27 May 2005, UN
Doc E/C.19/2005/9, para. 14.
250
framework to inform adequate policy processes free from the spectrum of a
‘development aggression’. 19
Destruction or loss of ancestral territories and resources, displacement, ecosystem
degradation, disregard for indigenous political, economic and socio–cultural systems
and institutions, denigration of indigenous worldviews and values are among the
traumatic experiences suffered from development projects, policies and
programmes. 20 ‘Development aggression’, indeed, ‘refers to the imposition of so–
called development projects and policies without the free, prior and informed consent
of those affected, under the rubric of modernization or nation–building’. 21
There is an urgent need to integrate indigenous people worldviews, perspectives
and practice in development–related issues. 22 Alternatives to the ‘development
aggression’ model are proposed: the development of more holistic strategies,
programmes and projects; establishing indigenous people–sensitive indicators;
holding dialogues or workshops/seminars on how to implement the development of
indigenous peoples with respect for their identity and culture; data disaggregation;
19
Rodolfo Stavenhagen, Report of the Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous People, UN Doc E/CN.4/2003/90/ Addendum, Mission to the
Philippines, para. 28. See also, Report of the Eighteenth Session of Working Group on Indigenous
Populations, UN Doc E/CN.4/Sub.2/2000/24, para. 31; Report of the Nineteenth Session of Working
Group on Indigenous Populations, UN Doc E/CN.4/Sub.2/2001/17, paras. 87, 106.
20
These phenomena are usually associated with large–scale commercial extraction of minerals, oil and
gas, building of highways, hydroelectric dams, jogging, industrial forest plantations, chemically
intensive agriculture. See, eg, Roger Plan, Issues in Indigenous Poverty and Development
(Washington, D.C.: Inter–American Development Bank, 1998) 4: ‘…the situation appears to have
been particularly serious in those countries where the development of cash crops for export (such as
coffee) led to demands for indigenous labour as well as to pressure on their lands. In Guatemala and
parts of Mexico, where the coffee economy grew particularly rapidly, indigenous peoples lost much of
their communal lands…’
21
UN Doc E/C.19/2005/4/Add.13, para. 4.
22
Secretariat of the Permanent Forum on Indigenous Issues, Analysis and State of Implementation of
Recommendations of the Permanent Forum on Indigenous Issues at Its First to Third Sessions, UN
Doc E/C.19/2006/9, para. 12.
251
ensuring the effective participation of indigenous peoples in various processes and
activities of states and intergovernmental bodies; operationalization of the human
rights–based approach to development; analysis and implementation of the MDGs
from the viewpoint of indigenous peoples; and setting up and replicating model
projects and good practices. 23
The respect of indigenous perspectives on development, indigenous identity and
indigenous rights 24 are essential not only for the achievement of the Millennium
Development Goals, but are also fundamental to indigenous–non indigenous peoples
relationships at the international and national level.
23
UN Doc E/C.19/2006/9, para. 12.
24
See, Report of the Meeting on Indigenous Peoples and Indicators of Well-being, Ottawa, 22–23
March 2006, presented to the Fifth Session of the UN Permanent Forum on Indigenous Issues, New
York, 15–26 May 2006, UN Doc E/C.19/2006/CPR.3, paras. 22–33, in which it is sated that
indigenous rights, identity, land, way of living, and indigenous perspective on development are
essential to formulate indicators of development able to capture indigenous view of well–being, as ‘the
general approach of states to the development of indicators and measurement is a deficit model to
indigenous socio–economic need and development’.
252
7.2 The health challenge of the world’s indigenous peoples
‘It is my aspiration that health will finally be seen not as a blessing to be wished
for, but as a human right to be fought for’
UN Secretary–General, Kofi Annan
The urgency to acknowledge indigenous concepts of development and integrate a
human rights approach to development, acquires particular significance in the area of
health. Health constitutes a major challenge within the world community’s
development agenda. Health–related MDGs, targets and indicators are indeed a high
priority issue in the worldwide development enterprise. Health is indeed at the core of
the MDGs: it is not only represented in three of the eight goals, but it also contributes
significantly to the achievement of all other goals, particularly those relating to the
eradication of extreme poverty and hunger, education, and sex equality. 25
Figure 7.1 shows the predominance of health related issues within the global
agenda agreed upon by the international community at the 2000 World Summit. It
can be seen that the shaded areas in figure 7.1 refer to health–related issues.
25
World Health Organization, Health and the Millennium Development Goals (Geneva: World Health
Organization, 2005) 6–8.
253
Figure 7.1 Health in the Millennium Development Goals.
Health Targets Health Indicators

Goal 1: Eradicate extreme poverty and hunger
Target 1 Halve, between 1990 and 2010, the proportion of people whose income is less than one dollar a day
Target 2 Halve, between 1990 and 2015, the proportion of 4. Prevalence of underweight children under five years of age
people who suffer from hunger 5. Proportion of population below minimum level of dietary energy
consumption
Goal 2: Achieve universal primary education
Target 3 Ensure that, by children everywhere, boys and girls, will be able to complete a full course of primary schooling
Goal 3: Promote gender equality and empower women
Target 4 Eliminate gender disparity in primary and secondary education, preferably by 2005, and at all levels of education no later
than 2015
Goal 4: Reduce child mortality
Target 5 Reduce by two-thirds, between 1990 and 2015, the 13. Under-five mortality rate
under-five mortality rate 14. Infant mortality rate
15. Proportion of one-year-old children immunized against measles
Goal 5: Improve maternal health
Target 6 Reduce by three-quarters, between 1990 and 2015, 16. Maternal mortality ratio
the maternal mortality ratio 17. Proportion of births attended by skilled health personnel
Goal 6: Combat HIV/AIDS, malaria and other diseases
Target 7 Have halted by 2015 and begun to reverse the 18. HIV prevalence among pregnant women aged 15-24 years
spread of HIV/AIDS 19. Condom use rate of contraceptive prevalence rate
20. Ratio of school attendance of orphans to school attendance of
non-orphans aged 10-14 years
Target 8 Have halted by 2015 and begun to reverse the 21. Prevalence and death rates associated with malaria
incidence of malaria and other major diseases 22. Proportion of population in malaria-risk areas using effective
malaria prevention and treatment measures
23. Prevalence and death rates associated with tuberculosis
24. Proportion of tuberculosis cases detected and cured under
DOTS (Directly Observed Treatment Short-course)
Goal 7: Ensure environmental sustainability
Target 9 Integrate the principles of sustainable development 29. Proportion of population using solid fuels
into country policies and programmes and reverse
the loss of environmental resources
Target 10 Halve by 2015 the proportion of people without 30. Proportion of population with sustainable access to an
sustainable access to safe drinking-water and improved water source, urban and rural
sanitation
Target 11 By 2020 to have achieved a significant 31. Proportion of population with access to improved sanitation,
improvement in the lives of at least 100 million urban and rural
slum dwellers
Goal 8: Develop a global partnership for development
Target 12 Develop further an open, rule-based, predictable, non-discriminatory trading and financial system
Target 13 Address the special needs of the least developed countries
Target 14 Address the special needs of landlocked countries and small island developing states
Target 15 Deal comprehensively with the debt problems of developing countries through national and international measures in
order to make debt sustainable in the long term
Target 16 In cooperation with developing countries, develop and implement strategies for decent and productive work for youth
Target 17 In cooperation with pharmaceutical companies, 45. Proportion of population with access to affordable essential
provide access to affordable essential drugs in drugs on a sustainable basis
developing countries
Target 18 In cooperation with the private sector, make available the benefits of the new technologies, especially information and
communications
Sources: “Implementation of the United Nations Millennium Declaration”, Report of the Secretary-
General, A/57/270 (31 July 2002), first annual report based on the “Road map towards the
implementation of the United National Millennium Declaration”, Report of the Secretary-General,
A/56/326 (6 September 2001); United Nations Statistics Division, Millennium Indicators Database,
verified in July 2004; World health Organization, Department of MDGs, Health and Development Policy
(HDP). 254
Child mortality, maternal health, HIV/AIDS, malaria and other diseases 26 are
among the most arduous challenges the international community is fighting against.
The 2005 World Health Organization’s report on progress towards health–related
MDGs and targets, indicates that ‘we are slightly more than halfway towards the
MDG target date of 2015 (targets are set against 1990 baselines)’ and that ‘health
outcomes are unacceptably low across much of the developing world…the Sub–
Saharan Africa is worst affected, but there are extreme and acute pockets of ill–health
in all regions’. 27 Evidence shows that none of the poorest regions of the developing
world is on track to meet the child mortality target, whereas declines in maternal
mortality rates have been limited to countries with lower levels of mortality. In brief,
data suggests that if trends observed so far continue, the majority of poor countries
will not meet the health MDGs. 28
Progress towards the MDGs is assessed for the world as a whole and against three
different country groupings: ‘developing’ regions, transition economies of the
Commonwealth of Independent States (CIS) in Asia and Europe, and the ‘developed’
regions. 29 It is evident that serious questions arise as to the evaluation of segments of
26
Millennium Development Goal 4: Reduce child mortality. Target 5: Reduce by two thirds, between
1990 and 2015, the under–five mortality rate. Millennium Development Goal 5: Improve maternal
health. Target 6: Reduce by three–quarters, between 1990 and 2015, the maternal mortality ratio.
Millennium Development Goal 6: Combat HIV/AIDS, malaria and other diseases. Target 7: Have
halted by 2015 and begun to reverse the spread of HIV/AIDS. Target 8: Have halted by 2015 and
begun to reverse the incidence of malaria and other major diseases.
27
World Health Organization, Health and the Millennium Development Goals (Geneva: World Health
Organization, 2005) 31.
28
Ibid 13.
29
Ibid 7–30; United Nations, The Millennium Development Goals Report 2005 (New York: United
Nations Department of Public Information, 2005). The MDGs Report outlines that the regional sub–
groupings are based on United Nations geographical divisions, with some modifications necessary to
create, to the extent possible, groups of countries for which a meaningful analysis can be carried out. A
complete list of countries included in each region and sub–region is available at
<http://millenniumindicators.un.org>.
255
disadvantaged populations, such as indigenous peoples, within countries or regions,
especially in the ‘developed’ ones.
The World Health Organization recognizes that ‘[w]hile the pursuit of the
Millennium Development Goals and poverty reduction strategies carry the potential
for assessing the major health problems faced by indigenous peoples, they do not
necessarily capture the specificities of indigenous peoples and their visions of
health’. 30 The integration of indigenous concepts of health in international and
national development frameworks is essential to ensure that the Millennium
Development Goals, targets and indicators, poverty reduction strategies, international
and national policies tackle the major health problems faced by indigenous peoples.
Development frameworks need to capture the specificities of indigenous peoples and
their visions of health in order to pursue policy implementation processes that
promote and respect indigenous peoples’ health and human rights. 31
In light of the health challenge confronting the world’s indigenous peoples and
the international policy debate, I will focus my investigation on the health status of
Aboriginal and Torres Strait Islander peoples in Australia and discuss the current
Australian national government’s health policy towards Indigenous Australians. 32
30
World Health Organization, Report to the Fifth Session of the UN Permanent Forum on Indigenous
Issues, New York, 15–26 May 2006, UN Doc E/C.19/2006/6/Add.4, para. 16(d).
31
World Health Organization, Report to the Fifth Session of the UN Permanent Forum on Indigenous
Issues, New York, 15–26 May 2006, UN Doc E/C.19/2006/6/Add.4.
32
In Australia, a federal system of government was established by the Australian Constitution of 1901.
Under this system, powers are distributed between a national government (the Commonwealth) and the
six States (three Territories – the Australian Capital Territory, the Northern Territory, and Norfolk
Island have self–government arrangements). The Constitution defines the boundaries of law–making
powers between the Commonwealth and the States/Territories. The analysis of Australia’s policy in
indigenous affairs, and in particular health policy for Indigenous Australians, will focus on the Federal
government’s policy on the basis of its prominence in national affairs as well as its leadership role in
shaping States and Territories’ policy agendas.
256
7.3 The health status of Aboriginal and Torres Strait Islander peoples in
Australia
The urgency to consider Australia’s health policy for its indigenous population,
stems from the appalling health status suffered by Aboriginal and Torres Strait
Islander peoples. Ranked among the wealthiest countries in the world, Australia has
also been listed within the first five countries enjoying the highest human
development index. 33 In a country where people enjoy the second highest life–
expectancy among OECD countries, and one the highest standards of living and
well–being, Aboriginal and Torres Strait Islander peoples suffer health conditions
comparable to some of the poorest countries in the world. The gap between
indigenous and non–indigenous Australians in health status can be rapidly grasped by
considering some key data.
The life expectancy at birth for Aboriginal and Torres Strait Islander peoples is
estimated to be 59.4 years for males and 64.8 for females, compared with 76.6 years
for males in the total population and 82 years of females in the total population. 34 A
33
United Nations Development Programme, Human Development Report 2005 (New York: Oxford
University Press, 2005) 214: ‘The Human Development Index (HDI) is a composite index that
measures the average achievements in a country in three basic dimensions of human development: a
long and healthy life, as measured by life expectancy at birth; knowledge, as measured by the adult
literacy rate and the combined gross enrolment ratio for primary, secondary and tertiary schools; and a
decent standard of living, as measured by GDP per capita in purchasing power parity (PPP) US
dollars’. For more details on how the index is constructed and calculated, see Technical note 1, at 340.
Between 2000 and 2005, Australia has respectively been ranked at the fourth (2000), second (2001),
fifth (2002), fourth (2003), third (2004),and third (2005) position among all countries in the world.
34
Australian Institute of Health and Welfare (AIHW) and Australian Bureau of Statistics (ABS), The
Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2005, ABS cat. No.
4704.0 (Canberra: Commonwealth of Australia, 2005) 148. The life expectancy for indigenous
Australians is estimated for the period 1996–2001. The ABS has not produced estimates of total male
and female life expectancies for the period 1996–2001. The total population life expectancy data
presented are for the period 1998–2000, which is the approximate mid–point of the 1996–2001 period
covered by the Indigenous data.
257
significant gap of approximately 17 years for both males and females exists between
the indigenous and non–indigenous population of Australia. 35
The infant mortality rate for Aboriginal and Torres Strait Islander infants was
three times that of non–indigenous infants in the period 1999–2003. 36 Babies with an
indigenous mother were twice as likely to be low birth weight babies (weighing less
than Kg. 2,500 at birth) as babies with a non–indigenous mother. 37 In 2002–03, the
hospital separation rate (admission) for indigenous children aged less than four years
for infectious diseases (111 per 1000 people) was more than twice the rate of other
children (48 per 1000 people). 38
In 2003–04, Indigenous Australians were up to twice as likely to be hospitalised
for mental and behavioural disorders as other Australians. Hospitalisation rates for
assault or intentional self–harm for indigenous Australians were 7 times more likely,
and females 31 times as likely as for males and females in the general population;
whereas the hospitalization rate for intentional self–harm was twice as high. 39
Aboriginal and Torres Strait Islander peoples suffer disproportionately from a
range of chronic and communicable diseases, such as trachoma, rheumatic heart
disease, scabies and skin infections, and otitis media. In areas with severe trachoma,
for instance, one in five of Aboriginal and Torres Strait Islander peoples have in–
turned lashes, and about half of them are blind or are likely to become blind
35
Ibid.
36
Ibid 150.
37
Ibid 79. The estimate refers to the period 2000–02.
38
Steering Committee for the Review of Government Service Provision (SCRGSP), Overcoming
Indigenous Disadvantage: Key Indicators 2005 (Canberra: Productivity Commission, 2005) 5.3–5.5.
39
Ibid 131.
258
eventually. 40 The highest incidence rate of rheumatic heart disease in the world is
among Aboriginal people living in the Kimberly regions and the ‘Top End’ of the
Northern Territory. Hospitalisation for indigenous males was six times as high, and
among females was eight times as high, as the rates among the non–indigenous
population, whereas females die at 22 times and males at 16 times the rates in the
non–indigenous population. 41 High rates of hearing loss is striking in some remote
communities where up to 40% of children will have developed a chronic ear infection
leading to hearing loss by the age of ten. 42 Hearing loss, partial or total, is more likely
to be reported by indigenous Australians in all age groups from infancy to 55 years of
age. For instance, in children aged 0–14 years, 7% suffer hearing loss compared with
2% of the non–indigenous population. 43
This data offers only a glimpse of the devastatingly poor health conditions of
Indigenous Australians, conditions which are even more shocking if compared to the
high health status of the non–indigenous population.
Numerous questions have arisen as to the causes of the widespread indigenous
ill–health and the adequacy of Australian governmental institutions’ responses to
tackle the indigenous health crisis. International 44 and national literature 45 underline
40
H Taylor, ‘Trachoma in Australia’ (2001) 175 Medical Journal of Australia 371, 371–372.
41
Australian Institute of Health and Welfare, ‘Rheumatic Heart Disease: All but Forgotten in Australia
except among Aboriginal and Torres Strait Islander Peoples’ (2004) Australian Institute of Health and
Welfare Bulletin No. 16, 9.
42
S Couzos, ‘Practical Measures that Improve Human Rights – Towards Health Equity for Aboriginal
children’ (2002) 15(3) Health Promotion Journal of Australia 186.
43
Department of Health and Ageing, Report on Commonwealth Funded Hearing Services to
Aboriginal and Torres Strait Islander Peoples – Strategies for Future Action (Canberra:
Commonwealth of Australia, 2002) 31.
44
See, World Health Organization, Social Determinants of Health: the Solid Facts (edited by Richard
Wilkinson and Michael Marmot) (Copenhagen: WHO Regional Office for Europe, 2nd ed, 2003).
45
Australian Bureau of Statistics, Population Characteristics: Aboriginal and Torres Strait Islander
Australians 2001, ABS cat. No. 4713.0 (Canberra: Commonwealth of Australia, 2003); Steering
259
the tremendous incidence that social determinants have on people’s health status.
Poor social and economic circumstances significantly affect peoples’ health
throughout their life. 46
It is widely recognized that socio–economic factors heavily impact on the health
status of Aboriginal and Torres Strait Islander peoples: these include education,
income, employment and occupation, housing, legal exclusion, and different risk
factors. 47 For instance, according to the 2001 Census, 48 educational outcomes are
twice as likely as non–indigenous Australians to have left school before completing
year 10 (age 16 years) and as half as likely to have completed year 12 (age 18 years).
In 2002, only 30% of Indigenous households were in homes owned by or being
purchased by their occupants, compared with 71% of other Australian households. 49
Addressing the socio–economic determinants of health can have a significant
impact on addressing the health status of Aboriginal and Torres Strait Islander
peoples. According to the World Health Organization’s Report, Social Determinants
Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage,
Key Indicators 2005 (Canberra: Productivity Commission, 2005); Royal Australian College of
Physicians, For Richer, For Poorer, in Sickness and in Health: the Socio–Economic Determinants of
Health, Health and Social Policy Position Paper (Sydney, 3rd ed, 1999).
46
Ibid. WHO, Social Determinants of Health: the Solid Facts, above n 44, 10–11.
47
See, eg, Jon Altman, ‘The Economic and Social Context of Indigenous Health’ in Neil Thomson
(ed), The Health of Indigenous Australians (South Melbourne, Vic.: Oxford University Press, 2003)
25–43; Matthew Gray, Health Expenditure, Income and Health Status among Indigenous and Other
Australians (Canberra: Australian National University Press, 2004); J C Altman and B Hunter,
‘Indigenous Poverty’ in R Fincher and J Nieuwenhuysen (eds), Australian Poverty: Then and Now
(Melbourne: Melbourne University Press, 1998).
48
Australian Bureau of Statistics, Population Characteristics Aboriginal and Torres Strait Islander
Australians 2001 (Canberra: Commonwealth of Australia, 2003).
49
Australian Institute of Health and Welfare and Australian Bureau of Statistics, The Health and
Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples (Canberra: Commonwealth of
Australia, 2005); Australian Bureau of Statistics, The Health and Welfare of Australia’s Aboriginal
and Torres Strait Islander Peoples (Canberra: Commonwealth of Australia, 1999).
260
of Health: the Solid Facts, policies which approach health through its social
determinants can significantly lead to healthier individual behaviours. 50
It is not my intention in this work to review and critically analyse how and the
extent to which the socio-economic factors impinge upon the ill–health status of
Indigenous Australians. It suffices to acknowledge the impact of these factors within
the complex health crisis Aboriginal and Torres Strait Islander peoples continue to
face.
The question that this thesis intends to address is why are we still witnessing the
appalling health conditions in one of the richest countries in the world ? The
discussion in the following chapters will attempt to disentangle the problematic
policy issues involved in the current Australian governments’ approach to indigenous
health policy in light of the normative and practical frameworks developed in the
previous chapters.
It will be argued that the interpretation of indigenous peoples’ right to self–
determination through the conceptual categories of the capability approach, allows us
to address the mismatch between indigenous peoples’ claims to self–determination
and Australia’s ‘practical reconciliation’ approach to tackle the socio–economic
disadvantage of Aboriginal and Torres Strait Islander peoples.
50
WHO, Social Determinants of Health: the Solid Facts, above n 44.
261
Chapter 8
The health challenge for the indigenous people of Australia
8.1 Australia’s health policy to address Aboriginal and Torres Strait Islander
peoples’ health disadvantage
The urgency to consider the health policy for Aboriginal and Torres Strait
Islander peoples stems from the appalling health status suffered by Aboriginal and
Torres Strait Islander peoples. The health inequality of Aboriginal and Torres Strait
Islander peoples is undoubtedly perceived as a national emergency across all levels of
Australia’s governmental institutions. 1
The current inter–governmental commitments to address Aboriginal and Torres
Strait Islander peoples’ health inequality is part of the Australian governments’
overarching goal to tackle Indigenous Australians’ economic and social disadvantage.
These commitments need to be framed within the current federal government’s
approach to indigenous affairs.
Since the late 1990s, the federal government began to adopt ‘practical
reconciliation’ to identify the national indigenous policy. Labelling the pursuit of
indigenous rights as ‘symbolic reconciliation’, the current conservative Coalition
government inaugurated a politics of ‘practical reconciliation’ whose main concern is
the improvement of indigenous socio–economic disadvantage.
1
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005
(Sydney: Human Rights and Equal Opportunity Commission, 2006) 39.
262
In 2000, the Council of Australian Governments (COAG) endorsed a
‘Reconciliation Framework’ based on a ‘whole–of–government’ approach to
indigenous affairs. ‘Coordination’ between government portfolios, ‘partnership’ and
‘shared responsibilities’ with indigenous communities are the fundamental principles
guiding the ‘practical reconciliation’ process between Australian governments and
Indigenous Australians. 2 This ‘Reconciliation Framework’ identifies three priority
areas for government action: a) to invest in community leadership initiatives; b) to
review programs and services in order to ensure that practical measures are delivered
to support families, young people, and children and to address urgent issues, such as
family violence, or drug and alcohol dependency; c) to promote economic
independence by strengthening relations between indigenous communities and the
business sector. 3
Accordingly, eight whole–of–government community trials were established in
order to improve coordination among different levels of government, different
governmental agencies, and with indigenous communities. 4 The approach proposed
under the COAG initiative aims to be flexible to respond to the specific needs of local
communities and achieve better outcomes. 5 In particular, the method operates at two
levels: a) governments are required to work together better at all levels and across all
2
Council of Australian Governments, Communiqué, 3 November 2000.
3
Ibid.
4
The eight trial sites include the Murdi Paaki Region (New South Wales); Wadeye (Northern
Territory); Shepparton (Victoria); Cape York (Queensland); Anangu Pitjantjatjara Lands (South
Australia); East Kimberly Region (Western Australia); Northern Tasmania (Tasmania); and the
Australian Capital Territory. For an analysis of the government coordination mechanisms and the
performance monitoring framework for these trial sites: see, Aboriginal and Torres Strait Islander
Social Justice Commissioner, Social Justice Report 2003 (Sydney: Human Rights and Equal
Opportunity Commission, 2004) 227–250.
5
Council of Australian Governments, Communiqué, 5 April 2002.
263
departments and agencies; b) governments and indigenous communities are expected
to work in partnership and share responsibility for achieving outcomes and building
the capacity of people in communities to manage their own affairs. 6
The ‘whole–of–government’ approach which dominates policy frameworks and
official reports at the Commonwealth and State level, is presented as a response to the
main criticisms of governments’ failure to adequately address indigenous issues and
to promote effective arrangements in indigenous affairs.
The Australia’s federal system has been considered as a major source of
difficulties in formulating effective policy–making and implementing adequate
service delivery for Indigenous Australians. 7 Australia’s federalism has been indeed
considered as a two–edges sword: it operates as an effective safeguard against the
concentration of power on a single central government, because powers and
responsibilities are shared between Commonwealth, State and Local governments,
however, overlapping responsibilities can significantly undermine the soundness of
policy–making strategies and the efficacy of service delivery to Indigenous
Australians. 8
Coordination within each government, and between different levels of
government is an important element that can impinge upon the efficacy and
effectiveness of indigenous policy–making and service delivery. It has been claimed
that duplications between Federal and State departments, or the vacuum created by
6
For further details: see, Indigenous Communities Coordination Taskforce (ICCT), available online at
<www.icc.gov.au>. The ICCT has been established within the Department of Immigration,
Multicultural and Indigenous Affairs in order to support the Secretaries Group and federal government
agencies involved in the trials.
7
S Brennan, L Behrendt, L Strelein and G Williams (eds), Treaty (Annandale, NSW: Federation Press,
2005) 28–32.
8
Ibid 31.
264
blurring responsibilities among different levels of government have been among the
most problematic hindrances in meeting the needs of Aboriginal and Torres Strait
Islander individuals and communities. 9 To illustrate, the Commonwealth Department
of Health pointed out that ‘a major impediment to reform in Aboriginal health has
been a lack of coordination between Federal and State governments, with consequent
‘buck–passing’ and difficulties in the relationship between governments and
Aboriginal organisations’. 10 For instance, it has been reported that one Aboriginal
community–controlled health organisation, which provides health services to a
population of about a thousand people, could have been reporting to twenty or thirty
Federal and State government agencies. 11
The lack of coordination within governments, both at the federal and state level,
has led to a fragmentation among different portfolios and the creation of single
purpose structures – what have been called ‘bureaucratic silos’ – which operate side–
by–side, but they are not interconnected. 12 As a result, dependency, lack of
indigenous participation and inflexibility have been inserted into Australia’s
governmental nomenclature.
A ‘top–down’ approach has characterised governments’ policies to indigenous
affairs, whereby priorities, needs, resource allocations, and guidelines for expenditure
have been decided by the different Commonwealth, State and Territory government
9
Brennan et al, above n 7, 31–32.
10
Office of the Medical Advisor (Commonwealth Department of Health and Aged Care), General
Practice in Australia: 2000 (Canberra: Commonwealth Department of Health and Aged Care, 2000) 4.
11
Commonwealth Grants Commission, Report on Indigenous Funding 2001 (Canberra:
Commonwealth Grants Commission, 2001).
12
Brennan et al, above n 7, 29–30.
265
agencies. This has consequently determined an ‘in–built dependency’ 13 for
indigenous communities and organizations which are ‘dependent on annual grant
funding arrangements from one or more…government departments and
agencies…[and] dependent on changing government priorities and budget
allocations’. 14 In the area of health, for instance, governments’ short–term and
piecemeal approach to funding has severely undermined the possibility of consistent
improvements in health service delivery and social determinants of health. Changes
in government directives has led to the so–called ‘body parts funding’, whereby
governments’ emphasis has been shifting from one disease to another, causing a
related shift in resource allocations which hampers the holistic approach to health
management as voiced by many Indigenous organizations and experts. 15
The exclusion of Indigenous Australians from policy decision–making processes
has negatively impacted upon the success of governments’ policies and service
delivery initiatives. Australia’s governance framework has disempowered Aboriginal
and Torres Strait Islander peoples through a strong governmental control which has
significantly undermined indigenous institutions’ governance capacity. Participation,
decision–making capacity, and governance in indigenous communities are key
ingredients for a real empowerment of indigenous peoples to fully and responsibly
participate in the making of their lives and the betterment of their well–being. 16
Evidence has shown that there is a direct relation between community decision–
13
(Sydney: Human Rights and Equal Opportunity Commission, 2004).
14
Australian Institute, Resourcing Indigenous Development and Self–determination. A Scoping Paper
(Canberra: Australia Institute, 2000) 4.
15
Commonwealth Grants Commission, Report on Indigenous Funding 2001, above n 11.
16
Indigenous Participation and Good Governance, UN Doc E/C.19/2006/7.
266
making and the improvement of economic and human development, such as in the
area of health, housing, or justice. 17 This relation will be further discussed in this
paragraph with specific reference to the interface between Indigenous Australians’
right to self–determination and the federal government’s ‘practical reconciliation’
approach to indigenous affairs.
The lack of indigenous decision–making in policy–design has facilitated the
enduring presence of the principle of ‘one–size–fits–all’ within Federal, State and
Territories governmental agencies. The disregard of the geographical, economic, and
cultural diversity of Indigenous Australia, as well as local priorities, has further
contributed to the failure of governments’ policy to address indigenous issues. 18
As it has been admitted by the Secretary of the Department of Prime Minister and
Cabinet, ‘[o]ne of our key failings…in terms of public policy is the failure to have a
whole–of–government approach to issues’. 19
As a result, the current ‘whole–of–government’ approach aims at overcoming the
aforementioned failings. The ‘whole–of–government’ approach goes hand–in–hand
with the pursuit of ‘practical reconciliation’ which focuses on the adoption of
practical measures to better the socio–economic conditions of Indigenous Australians.
Determined to reverse the trend from the pursuit of indigenous rights to the pursuit of
better social outcomes for Indigenous people, the government has eagerly supported
17
See, Harvard Project on American Indian Economic Development, Honouring Nations: Tribal
Governance Success Stories, 1999 (Cambridge, MA: Harvard University, 1999); Harvard Project on
American Indian Economic Development, Honouring Nations: Tribal Governance Success Stories,
2000 (Cambridge, MA: Harvard University, 2000); Harvard Project on American Indian Economic
Development, Honouring Nations: Tribal Governance Success Stories, 2002 (Cambridge, MA:
Harvard University, 2003).
18
Commonwealth Grants Commission, Report on Indigenous Funding 2001, above n 11, 68–69.
19
Senate Select Committee on the Administration of Indigenous Affairs, Hansard, 8 February 2005, 8.
267
the elaboration of the Indigenous statistical archive to measure ‘practical
reconciliation’. 20
In 2002, in accordance with the commitment to ‘practical reconciliation’, the
Council of Australian Governments commissioned the Steering Committee for
Government Service Provision to develop a reporting framework on key indicators of
indigenous disadvantage. 21 As a result, the National Reporting Framework for
Overcoming Indigenous Disadvantage was articulated to serve the purpose of
measuring governmental commitments to address indigenous disadvantage. 22 The
framework reports on a wide range of indicators measuring the progress in the short,
medium and long term. The report framework is meant to ‘help to measure the
impact of changes to policy settings and service delivery and provide a concrete way
to measure the effect of the Council’s commitment to reconciliation through a jointly
agreed set of indicators’. 23
The joint commitment of Australian governments to improve indigenous
disadvantage, including health inequality, is reiterated in the formulation of the
National Framework of Principles for Government Service Delivery to Indigenous
Australians. This framework sets the fundamental principles which are to guide
government actions in indigenous affairs: sharing responsibility, harnessing the
20
Tim Rowse, The Politics of Being Practical: Howard and His Quiet Revolution in Indigenous
Affairs, <http://www.brisinst.org.au/resources/rowse_tim_indigenous.html/people/rowse> (accessed 25
April 2006).
21
22
Steering Committee for the Review of Government Service Provision (SCRGSP), Overcoming
Indigenous Disadvantage: Key Indicators 2003 (Canberra: Productivity Commission, 2003).
23
268
mainstream, streamlining service delivery, establishing transparency and
accountability, developing a learning framework and focussing on priority areas. 24
In particular, ‘partnership’, ‘shared responsibility’ and ‘mutual obligations’ are
the key principles of the current ‘whole–of–government’ approach to Australia’s
indigenous policy. They are the principles which define the relationship between
governmental institutions and indigenous communities. Under this new arrangements
and principles, ‘Shared Responsibility Agreements’ have been negotiated with
different indigenous communities across the country. These agreements intend to
coordinate government initiatives and service delivery across regions and require
Indigenous Australians to comply with agreed obligations in return for government
funding. 25
The ‘whole–of–government’ and ‘practical reconciliation’ approach to indigenous
affairs raises several issues. Questions include the capacity of governments to make
those partnership agreements really work; whether adequate funding will support
these agreements in a way that they will not be a ‘window–dressing’ experiment, but
rather legitimized and supported by the communities that are expected to comply with
them; or whether monitoring and evaluation processes put in place according to the
new arrangements are adequate. 26
24
Council of Australian Governments, National Framework of Principles for Government Service
Delivery to Indigenous Australians, Communiqué, 25 June 2004.
25
For further details see, Indigenous Communities Coordination Taskforce (ICCT), available online at
<www.icc.gov.au>. In particular, see Indigenous Communities Coordination Taskforce, Shared
Responsibility, Shared Future is Important Business for Us All, available online at <www.icc.gov.au>.
For a list of obligations agreed in Shared Responsibility Agreements as to 30 June 2005: see,
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005, above
n 1, 343–362.
26
Brennan et al, above n 7, 42–43. See also, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2005, above n 1, 193–224.
269
The most important issue, however, is the evident abandonment of both a rights–
based approach and, more importantly, the principle of self–determination claimed by
the world’s indigenous peoples. The policy of ‘practical reconciliation’ is clearly
advanced at the expense of Indigenous Australians’ rights agenda and the recognition
of indigenous self–determination. 27
The policy of ‘practical reconciliation’ clearly distinguishes itself from what has
been labelled ‘symbolic reconciliation’. This distinction poses an irreconcilable
dichotomy between a rights–based approach to indigenous policy and an indigenous
policy which focuses exclusively on practical measures to overcome the economic
and social disadvantage suffered by Aboriginal and Torres Strait Islander peoples.
The underlying proposition is that the indigenous rights’ agenda and the betterment of
the indigenous disadvantage are mutually exclusive.
The most that indigenous peoples can aspire to in their relationships with
Australian governments, is their ‘participation at all levels’ in order to build strong
partnerships. 28 Participation of Indigenous Australians’ communities and
organizations within the Federal, State, and Local administrative nomenclature
cannot be considered as the end–objective between governmental institutions and
Indigenous Australians.
It has been discussed in chapter six of the thesis that processes of participation
and consultation are instrumental in the achievement of the ‘free, prior and informed
consent’ of indigenous communities involved in specific policies, programs or
27
Ibid.
28
Council of Australian Governments, ‘National Framework of Principles for Government Service
Delivery to Indigenous Australians’, Communiqué, 25 June 2004.
270
development initiatives. In turn, the adoption of the ‘free, prior and informed consent’
in policy–making strategies, as it has been discussed in the context of the proposed
methodological approach to development policies, is conceived of as an
indispensable criteria for the realization of self–determined policies.
Procedural issues seem to dominate, overshadow and take the place of substantive
issues, such as the right to self–determination of Aboriginal and Torres Strait islander
peoples. The ‘participation and partnership’ model proposed by Australia’s federal
government is not in accordance with the internationally voiced rights–based
approach to development policy–making and the demands of self–determination.
The principle of self–determination needs to be included into the newly
‘governmental machinery’ put in place to deal with indigenous issues. Once self–
determination is adopted as the foundational pillar upon which administrative,
political and legal arrangements are formulated to deal with Indigenous Australians’
issues, then the realization of all other indigenous rights, including socio–economic
rights (right to health, housing, education, etc.) would follow as they are embedded
within the right to self–determination. The ‘integrated process of self–determination’,
which lies at the core of the ‘indigenous capability rights system’, 29 must constitute
the foundational underpinning of policy frameworks and programs to tackle
indigenous issues.
The foundational role that self–determination plays for the betterment of the
economic and social disadvantage of Indigenous Australians, is supported by the
significant findings of the Harvard Project on American Indian Economic
29
The meaning and significance of the ‘indigenous capability rights system’ and the ‘integrated
process of self–determination’ have been discussed in part 2 of this thesis.
271
Development carried out among Native Americans in the United States. 30 This
research project reveals that indigenous self–determination, decision–making, and
self-government represent essential bases to improve the socio–economic conditions
of indigenous peoples. 31 As Stephen Cornell points out, ‘ the refusal to come to grips
with indigenous demands for self–determination cripples the effort…to overcome
indigenous poverty’. 32 It is also argued that, notwithstanding substantial differences
among the US and Australia (as well Canada and New Zealand), 33 the lessons and
insights from the empirical study carried out in the United States can be of relevance
for tackling Aboriginal and Torres Strait Islander peoples’ socio–economic
disadvantage. 34
The problematic dichotomy between the pursuit of indigenous rights and the
advancement of Indigenous Australians’ poor socio–economic status, will be
analysed with specific reference to the current Commonwealth’s health policy
framework for Indigenous Australians.
The new arrangements for indigenous affairs, which have been tailored on the
‘whole–of–government’ and ‘practical reconciliation’ approach, provide the general
indigenous policy framework within which a specific Aboriginal and Torres Strait
Islander health policy framework has been advanced.
30
Harvard Project on American Indian Economic Development, above n 17.
31
Ibid.
32
Stephen Cornell, ‘Indigenous Peoples, Poverty and Self–determination in Australia, New Zealand,
Canada and the United States’ in Robyn Eversole, John–Andrew McNeish and Alberto D.
Cimadamore (eds), Indigenous Peoples and Poverty: An International Perspective (London: Zed
Books, 2005) 199, 215.
33
Ibid 200–201.
34
Ibid 210–217.
272
The National Strategic Framework for Aboriginal and Torres Strait Islander
Health 35 is the overarching Australian institutional policy document which asserts the
commitment of all Australian governments to tackle the poor health status of the
indigenous population. Governments, having acknowledged their failure to address
the health crisis of Aboriginal and Torres Strait Islander peoples in the past, 36 and
their failure in implementing the previous National Aboriginal Health Strategy
(NAHS), 37 have articulated the new 10 years national strategic plan (2003–2013).
The National Strategic Framework, constructed upon and complementing the
NAHS’s guiding principles, seeks to support the institutional commitment towards
the improvement of the health of Aboriginal Australians.
The main goal of the strategy is ‘to ensure that Aboriginal and Torres Strait
Islander peoples enjoy a healthy life equal to that of the general population that is
enriched by a strong living culture, dignity and justice.’ 38 For this purpose, four
particular objectives are established to monitor the fulfilment of the main goal:
a) increase the life expectancy to a level comparable with the non–
indigenous population;
35
National Aboriginal and Torres Strait Islander Health Council (NATSIHC), National Strategic
Framework for Aboriginal and Torres Strait Islander Health: Framework for Action by Governments
(Canberra: NATSIHC, 2003) [hereinafter the National Strategic Framework].
36
Ibid 4.
37
National Aboriginal Health Strategy Working Party, A National Aboriginal Health Strategy
(Canberra: National Aboriginal Health Strategy Working Party ,1989). See, Aboriginal and Torres
Strait Islander Commission, The National Aboriginal Health Strategy: An Evaluation (Canberra:
ATSIC, 1994). The evaluation highlights the main causes of the failed implementation: underfunding
by governments in rural and remote areas; lack of accountability for implementation; lack of political
will and commitment from all governments and ATSIC; lack of coordination between the mainstream
health system and Aboriginal and Torres Strait Islander peoples; the strategy did not include other
portfolios, such as education, housing, local governments, among others.
38
NATSIHC, National Strategic Framework, above n 35, 7.
273
b) decrease mortality rates in the first year of life and decrease infant
morbidity by reducing relative deprivation and improving the quality of
life;
c) decrease of all–causes of mortality rates across all ages;
d) strengthen the service infrastructure in order to improve the access of
indigenous population to health services and address the major health
challenges afflicting the indigenous population, such as chronic disease
(cardiovascular, renal, respiratory diseases), communicable disease,
substance misuse, trauma, suicide, mental disorder, injury and poisoning,
family violence (child abuse and sexual assault), maternal, child and male
health. 39
Due to different circumstances and priorities of the Commonwealth, States and
Territories’ jurisdictions, the National Strategic Framework does not establish
benchmarks, specific targets and timeframes. 40 It generally indicates key result areas:
a) achieve a more effective and responsive health system. This includes the
development of a health workforce, a focus on community controlled health care
services, the health system delivery framework, and a focus on emotional and social
well–being; b) influence the health impacts of the non–health sector. This concerns
wider strategies, like environmental health, that impact on health; c) provide the
infrastructure to improve the health status. This includes more appropriate data,
research, resources and finance, and accountability. 41
39
Ibid.
40
Ibid 39–40.
41
Ibid 13–38.
274
Nine fundamental principles are deemed to guide the implementation and
achievement of the national health policy’s goal and aims: cultural respect; a holistic
approach; health sector responsibility; community control of primary health care
services; working together; localised decision making; promoting good health;
building the capacity of health services and communities; accountability. 42
These principles are required to underlie the implementation and monitoring
health plans that will be putting in place. The operationalization of indigenous health
policy is indeed realized according to the ‘whole–of–government’ approach which
underpins the new arrangements for administering Aboriginal and Torres Strait
Islander’s affairs. A ‘whole–of–government’ machinery has been put in place to
achieve the National Strategic Framework’s goal and aims. Different processes have
been initiated to implement Aboriginal and Torres Strait Islander’s health policy
framework: the elaboration of a national performance monitoring frame, 43 the
negotiation of bilateral agreements between the Commonwealth, States and
Territories, the setting up of health fora at state level, and the elaboration of regional
plans defining specific needs and priorities. 44
42
Ibid 2–3.
43
A new ‘Aboriginal and Torres Strait Islander Health Performance Framework’ is being elaborated to
measure the performance of the whole health system in relation to Aboriginal and Torres Strait
Islander health. It will substitute the current ‘National Performance Indicators’ from 2006. The new
Health Performance Framework is consistent with the COAG principles for service delivery and
incorporates most of the health related performance indicators from the National Reporting Framework
on Indigenous Disadvantage. The Framework is structured in three tiers. Tier 1: Health Outcomes
(including measures of health conditions, life expectancy and mortality); Tier 2: Determinants of
Health (including measures of socio–economic factors, risk factors and environmental factors). Tier 3:
Health System Performance (including measures of the effectiveness of the health system by
measuring inputs and intermediate outcomes of the health system, such as antenatal care,
immunisation, screening, etc.). See, Aboriginal and Torres Strait Islander Social Justice
Commissioner, Social Justice Report 2005, above n 1, 38–39.
44
Social Justice Report 2005, above n 1.
275
Aboriginal and Torres Strait Islander Health Framework Agreements are
negotiated between the Commonwealth and each State and Territory with the
common objective to: a) increase the amount of resources in relation to the specific
need of the indigenous communities; b) improve access to mainstream and
indigenous specific health and health–related programs; c) set out joint planning
processes to ensure the participation of Indigenous Australians in decision–making;
d) improve evaluation methods and data collection. 45 Each jurisdiction will therefore
develop its own strategic implementation plan which will include ‘accountabilities for
progressing the action areas, timeframes and reporting mechanism’. 46
There is no doubt that a thoroughly engineered machinery seems to have been put
in place to address the Indigenous Australians’ health crisis.
Is it really so ?
45
NATSIHC, National Strategic Framework, above n 35, 23.
46
Ibid 4.
276
8.2 The Human Rights Equal Opportunity Commission’s response to
Australian governments’ health policy for Indigenous Australians
The most comprehensive appraisal of governmental health policy for Indigenous
Australians is articulated in the recent Social Justice Report 2005. 47 The Human
Rights and Equal Opportunity Commission (HREOC) represents the peak body
entrusted with the authority to promote and protect human rights in Australia. Within
it, the Aboriginal and Torres Strait Islander Social Justice Commissioner advocates
and promotes Indigenous Australians’ rights by reporting to the federal Parliament on
key human rights issues facing Aboriginal and Torres Strait Islander peoples and
making recommendations to bring about changes in government policies and
programs to ensure the enjoyment of indigenous rights.
The Aboriginal and Torres Strait Islander Social Justice Commissioner has
critically analysed Australian government’s policy response to the health crisis of
Aboriginal Australians. 48 The key aspects of the analysis are commented upon in
detail in order to detect issues in the national debate and pinpoint possible vacuums.
The human rights–based approach to health policy for Indigenous Australians and
the recommendations suggested to the federal Parliament are assessed against the
methodological approach for indigenous development policies constructed upon the
‘indigenous capability rights system’.
A ‘spectacular failure’ seems to have characterized Australian governments’
health policies over the last thirty years. Notwithstanding some improvements in
47
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2005,
above n 1.
48
Ibid.
277
specific areas since the 1970s, such as the drop of infant mortality rates, progress on
the whole continues to be inconsistent and slow. 49
Health inequality between Aboriginal and Torres Strait Islander peoples and other
Australians is identified as the major concern and challenge for Australian health
policies and programs. The health inequality gap remains substantial as the
improvements occurred over the years in some areas have not been sufficient to
reduce the gap, especially if one considers the concomitant significant advances
experienced by the non–indigenous population. 50
In light of this situation and current governments’ policy, the Aboriginal and
Torres Strait Islander Social Justice Commissioner proposes a human rights–based
approach to Aboriginal and Torres Strait Islander peoples’ health. The suggested
human rights–based framework provides a more comprehensive conceptual tool to
grasp the health inequality gap and address the main challenges confronting current
governmental policy.
The framework is instrumental to the achievement of two main overarching goals
recommended to the Australian governments in order to address the health status of
Indigenous Australia: a) ‘achieving equality of health status and life expectation
between Aboriginal and Torres Strait Islander and non–Indigenous people within 25
years’; 51 b) ‘achieving equality of access to primary health care and health
infrastructure within 10 years for Aboriginal and Torres Strait Islander people’. 52
49
Ibid 9. See, Niel Thomson, ‘Responding to Our Spectacular Failure’ in Niel Thomson (ed), The
Health of Indigenous Australians (Melbourne: Oxford University Press, 2003) 488.
50
Ibid 10.
51
Ibid. Recommendation 1.
52
Ibid. Recommendation 2.
278
The human rights approach to Aboriginal and Torres Strait Islander health is
adopted as the framework against which the current governmental health policy is
assessed. The human rights perspective informs the identification of the strengths and
failings of the current institutional framework for Aboriginal and Torres Strait
Islander health. In general terms, a human rights–based approach is advocated as it
aims to go beyond the rhetorical recognition of the health inequality gap and formal
governmental commitments to overcome that gap outside a specific timeframe. The
system of human rights standards provides the set of principles which are to guide the
whole policy process (design, delivery, implementation, monitoring and evaluation)
of health strategies and programs.
The Report clearly states the advantages of upholding a human rights–based
framework to indigenous health: the adoption of a human rights perspective allows us
to import significant principles into the understanding of health and elaboration of
health policies for Indigenous Australians.
First of all, a human rights–based approach enables a substantial shift from the
understanding of the health status of Indigenous Australians in terms of a mere
inequality gap to the conception of Indigenous health status in terms of right
entitlements. The internationally recognized right to health, and the principles
embedded within it, come to establish the standard to which the Australian
government has agreed to comply with. 53 As a result, the health inequality between
Indigenous and non–Indigenous Australians is perceived as non–compliance by the
53
Australia has ratified both the International Covenant on Economic, Social and Cultural Rights, and
the International Covenant on the Rights of the Child, which set out the right to health for all,
respectively, in art. 12 and art. 24.
279
Australian government with the obligation to ensure ‘the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health’. 54
The ‘non–discrimination principle’ set out in article 2(2) of ICESCR requires that
State parties ‘guarantee that the rights…will be exercised without discrimination of
any kind as to race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status’. States’ accountability to comply with
human rights standards – in this case the right to health – without any discrimination
is reinforced by the ‘progressive realization principle’ according to which ‘[e]ach
State Party undertakes to take steps…to the maximum of its available resources, with
a view to achieving progressively the full realization of the rights recognized…by all
appropriate means, including particularly the adoption of legislative measures’. 55
The non–discrimination and progressive realization principles establish States
parties’ obligation to redress cases of unequal enjoyment of the human right to the
highest attainable standard of health. The HREOC’s Report in fact, highlights that
under a human rights perspective, Aboriginal and Torres Strait Islander health
outcomes need to be treated as a matter of legal obligation and therefore evaluated
against international human rights norms. 56 The UN Committee on the Rights of the
Child and the UN Committee on the Elimination of Racial Discrimination have
54
International Covenant on Economic, Social and Cultural Rights, art. 12; see also, International
Covenant on the Rights of the Child, art. 24.
55
International Covenant on Economic, Social and Cultural Rights, art. 2(1).
56
Social Justice Report 2005, above n 1, 58–66.
280
recently expressed concern and recommended that the Australian government redress
the health disadvantage of Indigenous Australians. 57
More particularly, the criteria and factors drawn from the internationally defined
right to the highest attainable standard of health, 58 inform the HREOC’s assessment
of the current government health policy and strategic plans for Aboriginal and Torres
Strait Islander peoples. Positive aspects and drawbacks are identified and a strategic
campaign for achieving Aboriginal and Torres Strait Islander health equality within a
generation is proposed. It is important to consider both Social Justice Commissioner’s
critique of government health policy as well as the goals and means through which
the HREOC’s health equality campaign is meant to be pursued. Those insights will be
weighed against the alternative methodological approach discussed in the second part
of the thesis.
The positive aspects refer to the commitments undertaken by all Australian
governments to address the unacceptable health status of Aboriginal and Torres Strait
Islander peoples and achieve health equality. The National Strategic Framework is
praised for providing a national health policy framework required under international
human rights law to fulfil Australia’s obligations towards the right to health. Further,
the commitments undertaken are considered consistent with the human rights based
approach to health in different respects. First, the goal of achieving health equality is
to be pursued through equality in access to primary health care and health
57
United Nations Committee on the Rights of the Child, Concluding Observations – Australia, UN
Doc CRC/C/15/Add.268; United Nations Committee on the Elimination of Racial Discrimination,
Concluding Observations of the Committee on Australia, UN Doc CERD/C/AUS/CO/14.
58
See, United Nations Committee on Economic, Social and Cultural Rights, General Comment 14:
The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on
Economic, Social and Cultural Right), UN Doc E/C.12/2000/4, 11 August 2000.
281
infrastructures. Secondly, the holistic view of health is shared and agreed upon by all
governments, who have committed to address a wide range of sectors and issues
outside the health sector. 59 Third, the ‘whole of government machinery’ to implement
the national health policy – which includes bilateral health agreements between the
Commonwealth, States and Territories, regional plans, development of a national
performance monitoring framework with health benchmarks and targets – is deemed
to respond to States’ obligations to implement and monitor the progress of the
national health policy adopted. 60 Fourth, ‘participation’ and ‘partnership’ with
Aboriginal and Torres Strait Islander peoples in articulating regional plans and
participating in health forums, meet the requirement to ensure the participation of
indigenous peoples in decision–making processes potentially affecting their
development.
On the other side, the Report highlights the failings of current Australian
government’s health policies and proposes strategies for improvements. The failure
of Australian governments to close the health inequality gap can be summarised as
follows: a) lack of equal access to primary health care, health infrastructure, and the
inaccessibility to mainstream programs; 61 b) a lack of realistic timeframes within
which to carry out governments’ commitments and health strategies; c) insufficient
funds to meet the goals and aims of the National Strategic Framework and the
recognition that the Aboriginal and Torres Strait Islander health system continue to be
59
UNCESCR, General Comment 14, above n 58, para.11.
60
UNCESCR, General Comment 14, above n 58, para.43(f).
61
Australian Institute of Health and Welfare and Australian Bureau of Statistics, The Health and
Welfare of Aboriginal and Torres Strait Islander Peoples 2005, ABS cat. No. 4704.0 (Canberra:
Commonwealth of Australia, 2005) 179.
282
underfunded; d) the mismatch between the recognition of the indigenous health crisis
in holistic terms and the articulation of health strategies lacking an holistic approach
and ignoring the impact that other policy sectors have on the health status of
Indigenous Australians’. 62
It is argued that the lack of equal access to primary health care, health
infrastructure and mainstream programs reveals the inequality of opportunity suffered
by Aboriginal and Torres Strait Islander peoples to enjoy the highest attainable
standard of health. It poses issues of compliance with the fundamental and
interrelated factors encompassed in the right to health: availability, accessibility, and
acceptability. 63
In terms of ‘availability’, it is reported that health services, especially in rural and
remote areas, are not available for the indigenous population as much as for the non–
indigenous population. For instance in 2002, there were twice as many medical
practitioners per person in major cities than in remote areas and ten times the number
of specialists. 64
In terms of ‘accessibility’, it is reported that 174 communities lived over 100
kilometres from both a hospital and a community health centre, while over 151
communities lived over 100 kilometres from the nearest first aid clinic. 65 The lack of
access to transport exacerbates the situation with 23% of households with Aboriginal
62
Social Justice Report 2005, above n 1, 10–11, 63–66.
63
64
J Dwyer, K Silburn and G Wilson, National Strategies for Improving Indigenous Health and Health
Care; Aboriginal and Torres Strait Islander Primary Health Care Review: Consultant Report N° 1
(Canberra: Commonwealth of Australia, 2004) xi.
65
Community Infrastructure and Housing Needs Survey 2001 (CHINS), cited in Social Justice Report
2005, above n 1, 63.
283
and Torres Strait Islander persons not having access to a motor vehicle, compared to
10% of the non–indigenous population. 66
As for ‘acceptability’, there is evidence that Aboriginal and Torres Strait Islander
persons tend not to use mainstream health care even when they are available and
accessible, such as in urban areas. 67 As a result, Indigenous-specific health services
are recognized to be fundamental for improving indigenous health status. The impact
that community controlled health services have had on health outcomes is
considerable: early detection and reduced complications of chronic diseases and
mental illness; improved maternal and child health outcomes such as drop of infant
mortality rate and low birth weight babies; decrease in environmental and social
risks, such as reduced alcohol consumption; better communicable disease control
through vaccination, etc… 68 Support and expansion of Aboriginal and Torres Strait
Islander community controlled organizations is therefore strongly recommended, 69
particularly in order to improve primary health care access.
The support for indigenous–specific health services is recommended in
combination with improving the accessibility of mainstream primary health care
services so as to achieve equal access to primary health care services and health
infrastructure for Aboriginal and Torres Strait Islander peoples. In this regard,
cultural appropriateness is drawn on as a key ingredient to ensure that the mainstream
66
National Aboriginal and Torres Strait Islander Social Survey 2002, cited in Social Justice Report
2005, above n 1, 63.
67
Commonwealth Grants Commission, Report on Indigenous Funding 2001, above n 11, 116–135.
68
Dwyer et al, above n 64, 91–106.
69
Social Justice Report 2005, Recommendation 3, above n 1, 97.
284
health care system is responsive to Aboriginal and Torres Strait Islander cultural
needs and provides ‘assurances of cultural safety’.70
The improvement of mainstream health service delivery and support for
Aboriginal community controlled health organizations are related to another
important issue: the increase of resources to fund health programs and service
delivery for Aboriginal and Torres Strait Islander health. The Report on Indigenous
Funding 2001 has interestingly found that health plans for Aboriginal and Torres
Strait Islander peoples have failed because of Australian governments’ unwillingness
to fund health programs according to a need–based approach. 71 Shortfall of resources
continues to inflame the national debate on adequate measures to address the
Indigenous health crisis. 72 The Australian Medical Association (AMA) estimated a
$460 million annual shortfall in primary health care spending for Aboriginal and
Torres Strait Islander peoples. AMA urges the federal government to close the gap
between spending and need within five years, to set standards for primary health care
provisions in collaboration with the National Aboriginal Community Controlled
70
Australian Health Minister’s Advisory Committee, Cultural Respect Framework for Aboriginal and
Torres Strait Islander Health, 2004–2009 (Canberra: Commonwealth of Australia, 2004) 3.
71
Commonwealth Grant Commission, Report on Indigenous Funding 2001, above n 11. In 2004,
Access Economics reported that the shortfall between spending and actual need is very large. It
calculated a shortfall in primary care spending of $400 million or $806 per capita.
72
Australian Institute of Health and Welfare and Commonwealth Department of Health and Ageing,
Expenditures on Health for Aboriginal and Torres Strait Islander People, 2001–02, Health and
Welfare Expenditure Series No.23, July 2005. It is reported that despite the very poor health status of
Australia’s Aboriginal and Torres Strait Islander peoples, health expenditure per person was only
slightly above that for the much healthier non–Indigenous population. Overall, the fastest growing
health spending programs (such as, PBS and Medicare) are the programs to which Indigenous peoples
have too little access.
285
Health Organization (NACCHO) and other indigenous representatives, and fund
these at actual cost. 73
This recommended measure acquires particular significance if one considers
Australia’s obligations under human rights law. It is indeed established that ‘[a]
government which is unwilling to use the maximum of its available resources for the
realisation of the right to health is in violation of its obligations’. 74 With a budget
surplus of $13.6 billion as at 30 June 2005 at the Federal level, resource constraints
cannot justify a pretended ‘inability’ to take action and address the indigenous health
crisis. 75
Furthermore, the increase of resources needs to be accompanied by two other
important measures: setting time bound health targets and benchmarks 76 and
coordination among different portfolios and with the recently introduced
arrangements for indigenous affairs.
Support for Aboriginal community controlled health organizations, improvement
of mainstream health service delivery, fund increase and coordination, are all
important measures that Australian governments need to consider when engaging
with the design, implementation, monitoring and evaluation of Aboriginal and Torres
Strait Islander health policies. These measures gain considerable value as they are
framed within a human rights approach, so that they are correlated to Australia’s legal
73
Australian Medical Association, Position Statement on Aboriginal and Torres Strait Islander
Health, 2005; Australian Medical Association, Report Card Update Insert on Aboriginal and Torres
Strait Islander Health Service Funding, 2006, available at < ama.com.au >.
74
75
Social Justice Report 2005, 67–69. It is recommended that time bound targets and benchmarks
should be based on the ‘Overcoming Indigenous Disadvantage Framework’ and the ‘Aboriginal and
Torres Strait Islander Health Performance Framework’: see above.
76
Social Justice Report 2005, above n 1, 67–69.
286
obligations under international human rights law. There is no doubt that the human
rights perspective to indigenous health suggested by the Social Justice Commissioner
is of great significance for the articulation of meaningful and effective health policy
for Indigenous Australians. The international human rights system provides an
indispensable framework within which national policies towards indigenous peoples
should always be assessed.
Having recognised that, what can we add more to the criticism already provided?
It will be discussed whether and how the ‘indigenous capability rights system’ and
the methodological approach for indigenous policies articulated in the second part of
the thesis may provide valuable insights to better entangle core issues of the policy
debate.
287
8.3 The ‘indigenous capability–rights system’ and Aboriginal and Torres
Strait Islander health policy
This thesis argues that the ‘indigenous capability rights system’ and the
methodological approach to indigenous policy–making constructed upon it, 77 convey
theoretical and practical insights for the realization of a self–determined right to
health through development policies. for indigenous peoples.
It is maintained that the adoption of the methodological approach to development
policies articulated in this thesis would reconcile the fundamental dichotomy
underpinning the current Australian indigenous policy, that is the dichotomy between
‘symbolic reconciliation’ and ‘practical reconciliation’. The methodological approach
provides adequate tools to pursue Indigenous Australians’ rights agenda and the
improvement of indigenous socio–economic disadvantage in a consistent and
concurrent way.
The Australian health policy framework is indeed questioned as to its capacity to
theoretically conceive and practically implement a deep, comprehensive and self–
determined conception of Aboriginal and Torres Strait Islander peoples’ health.
This thesis argues that current Australian health policy frameworks fail to
recognise and instil the most important principle in indigenous discourse: the
principle of self–determination. As a result, foundational elements are left out, and
this omission impinges negatively on policy strategies and policy outcomes. It is
maintained here that the ‘indigenous capability rights system’ and the methodological
77
The ‘indigenous capability rights system’ and the methodological approach to indigenous policy
making have been discussed respectively in chapters 5 and 6 of Part 2.
288
approach to indigenous policy–making provides a more comprehensive conceptual
framework which can inform governmental and non–governmental policy–making
strategies concerning indigenous peoples. The ‘indigenous capability rights system’
provides a theoretical framework which encapsulates the following essential
elements:
a) a goal–included view of indigenous rights;
b) an encompassing system of indigenous rights centred on the right to self–
determination;
c) a freedom–centred conception of indigenous rights; and
d) indigenous rights understood as ‘capability rights’.
Substantial implications can be drawn from the adoption of this normative
framework.
First, a goal–included view of indigenous rights underlies the critical role that
institutions are called on to play in policy–making processes constructed upon a
human rights–based approach. In light of Sen’s conceptualization of a ‘goal rights
system’, 78 the fulfilment of Aboriginal and Torres Strait Islanders’ rights, whether
intrinsically or instrumentally worthwhile, must be conceived of as central within the
social and political structure of the Australian society, as being among the goals the
society is to pursue.
78
See, Amartya K Sen, ‘Rights and Agency’ (1982) 11(1) Philosophy and Public Affairs 15. The ‘goal
rights system’ is indeed defined as ‘[a] moral system in which fulfilment and non–realization of rights
are included among the goals, incorporated in the evaluation of states of affairs, and then applied to the
choice of actions through consequential links’.
289
Second, indigenous peoples’ right to health can be conceptualised in terms of the
collective and individual capability right to enjoy a self–determined health. The
whole and integrated system of ‘indigenous capability rights’ leads one to conceive
the indigenous capability right to health as essentially imbued with the principle of
self–determination. A freedom–centred perspective characterises the indigenous
capability right to health, which is seen primarily as the enlargement of the
substantive freedoms underlying the right to health and the related freedom to make
valuable choices.
Indigenous peoples are, individually and collectively, considered as active agents
of policy strategies. They are actively embedded in the whole policy process as self–
determining agents. The understanding of indigenous rights in terms of ‘capability
rights’ entails focusing on peoples’ ‘opportunity freedom’ to freely choose the course
of their life and achieve what they value. This inextricably leads to incorporate the
continuous process of choices peoples are engaged with in the actual implementation
of policy directives in their daily life.
It is claimed here that the principles and policy measures informing Australia’s
health policy frameworks for Aboriginal and Torres Strait Islander peoples do not
take into consideration fundamental elements which are strictly entrenched in the
concept of a self–determined health policy, such as:
a) individual and collective value–judgment processes and the related
decision–making processes that indigenous peoples undertake in the
policy process;
b) broader conceptual spaces able to encompass Aboriginal worldviews,
knowledge systems, and life principles. Those spaces should guide the
290
whole policy process, from decision–making, implementation, to the
evaluation of policy outcomes.
The methodological approach to policy–making discussed in the second part of
the thesis, allows us to encompass these fundamental elements in the design,
implementation and evaluation of health policy, which aim at the fulfilment of
indigenous peoples’ self–determined right to health.
The approach is adopted to operationalise the ‘indigenous capability rights
system’ with specific reference to the capability right to health. The enlargement of
substantive freedom or real opportunities that Aboriginal and Torres Strait Islander
peoples have to lead a self–determined, functional and healthy life is the goal that
Australia’s health policy should engage with. For this purpose, the following
elements should be taken into consideration:
a) adoption of agency freedom as reference space for policy–decision making
strategies;
b) adoption of agency achievement as reference space for policy evaluation
strategies;
c) inclusion of individual and collective value–judgment processes in the
whole policy process and evaluation of the impact that peoples’ choices
have on policy outcomes;
d) policy outcomes benchmarked against the level of well–being achievement
and agency–achievement.
To illustrate the significance of these elements, an example of health policy
concerning women’s health and childbirth will be assessed against this
methodological approach and its constituents.

291
The case in point concerns a childbirth policy adopted in the remote communities
of Mornington Island, Cooktown, Hopevale and Wujal Wujal in North Queensland.
The Human Rights and Equal Opportunity Commission carried out two inquiries into
the provisions of health and medical services for Aboriginal communities and
investigated the impacts of the adopted childbirth policy. 79
The childbirth policy entails the removal of expectant mothers from their
communities to give birth to their children in order to provide Aboriginal women a
safe environment – hospitals – to reduce maternal mortality rate. Maternal mortality
rate is therefore the indicator against which the policy outcome of improving
women’s health – an aspect of their well–being – has been benchmarked.
Has this policy been successful?
If we assess this policy in the space of women’s well–being achievement, we can
certainly say that the policy has been successful since the maternal mortality rate
plummeted. 80 However, according to the methodological approach described in the
second part of the thesis, a realistic policy evaluation must take into consideration at
least two other issues:
1) whether Aboriginal women have been given the opportunity to choose where
and how to give birth to their children, and
79
Human Rights and Equal Opportunity Commission, Report on Provision of Health and Medical
Services for Aboriginal Communities of Cooktown, Hopevale and Wujal Wujal, (Sydney: HREOC,
1991); Human Rights and Equal Opportunity Commission, Report on Mornington Island (Sydney:
HEEOC, 1991).
80
Dr. Streatfield, Brisbane Hearing, transcript at 517, cited in HREOC, Report on Provision of Health
and Medical Services, above n 79, 28.
292
2) whether the childbirth policy has had impacts on other spheres of Aboriginal
women’s lives, which is valued as much as their personal well–being assessed in
terms of maternal mortality rate.
As for the first issue, the Human Rights and Equal Opportunity Commission
found that:
There can be no doubt that there has been, and continues to be, a disregard
for the choices of Aboriginal women in relation to childbirth 81
…the rights of Aboriginal women to choose where and how they give birth
have been disregarded 82
The question we should ask is: what would they have chosen if they had been
given the opportunity to choose?
Evidence given during the Inquiries reveals that Aboriginal women (and also
men) demand to have their babies on their land and in their communities. 83
Is this a ‘functional’ or a ‘dysfunctional’ choice?
From a non–indigenous medical perspective, choosing to give birth in their
communities would be considered as a ‘dysfunctional choice’. According to the
Regional Director of Obstetrics and Gynaecology, allowing women to remain on
Mornington Island for childbirth would have the effect to place women at significant
risk, given the high rate of complication 84 that requires specialised care – that means
81
HREOC, Report on Mornington, above n 79.
82
HREOC, Report on Provision of Health and Medical Services, above n 79.
83
Dr. Streatfield, Brisbane Hearing, transcript at 501, cited in HREOC, Report on Provision of Health
and Medical Services, above n 79.
84
Complications include, or arise from, serious infections, labours needing augmentation, post partum
haemorrhaging requiring transfusion, caesarean section and diabetes. The high rate of complications is
partly explained by antenatal problems related to high rates of diabetes and anaemia prior to pregnancy
which in turn relates to poor nutrition.
293
their transfer to hospital miles away. 85 Correspondingly, the removal and transfer of
Aboriginal women from their land and communities is perceived as the ‘functional
choice’ to secure their health when giving birth to their babies.
Why would Aboriginal women opt for a ‘dysfunctional choice’ – giving birth on
their land and in their communities – that would put at risk their own well–being and
that of their babies? Is this an ‘irrational behaviour’? Is such a negative impact on
their well–being achievement a comprehensive and realistic assessment?
Evidence from the HREOC’s inquiries highlights important issues that need to be
taken into consideration:
The problem is with having the women come down here [to Cairns]. They
have to come down about two months before the baby is due, which means
they leave children and other family members behind…That is a burden on
the family, plus it also makes the women lonely as well and she worries.
Sometimes family relationships can break up. 86
The safety aspect must be balanced against the cultural appropriateness and
the social effects it has on that family and that community…A lot of
Aboriginal people feel it takes away their birth rights and land rights
because on their birth certificate it says born in Cairns, instead of born at
Hopevale, Wujal Wujal, etc… 87
Furthermore, discussions with Aboriginal women during the HREOC’ s visits
revealed several concerns in relation to the style, environment, staffing and cultural
deficiencies associated with childbirth practices of western medicine. 88
85
HREOC, Report on Mornington, above n 79, 29. It would be difficult to predict who might need to
be transferred and such transfer may not be possible during the wet season.
86
Barbara Miller, Aboriginal Coordinating Council (ACC), Cairns Hearing, transcript at 330, quoted in
HREOC, Report on Provision of Health and Medical Services, above n 79, 27.
87
Ibid. Barbara Miller, transcript at 330.
88
HREOC, Report on Provision of Health and Medical Services, above n 79, 20.
294
Difficulties created by the orthodox approach to childbirth are also reported in
indigenous communities from the Northern Territory. A report compiled by the
Central Aboriginal Congress 89 dealing with childbirth policy, states that:
Hospital birth, for a number of reasons, is often regarded with great

trepidation, and is usually a highly traumatic one. Hospital deliveries are
alien to Aboriginal women and constitute a great injustice. Aboriginal
women not only hold radically different beliefs on births from whites, but
must also deliver their babies in a silent, fearful and unknown world. The
loneliness of Aboriginal women is exacerbated by the absence of warm,
supportive women, the use of English during labour and by unknown and
terrifying technology. 90
In particular, the report signalled several cultural differences in:
a) assisting at child birth:
Only the women participate and help in childbirth, and for the
Aboriginal women to be attended by white male doctors in
compromising positions is a cultural shame. 91
b) the threatening nature of the hospital environment
Their isolation is intensified by the absence of medical staff who can

communicate in their language and by the absence of interpreters…
Not surprisingly, fear frequently compels the Aboriginal women to

abscond… 92
c) on procedures, medicines and communication
Aboriginal women are condemned to idiocy in the absence of knowledge

and understanding of the various procedures, operations and medications
used in western obstetrics. 93
89
The Central Aboriginal Congress is an Aboriginal community controlled health care service based in
Alice Springs, Northern Territory. Information about its health services and programs are available at
<www.caac.org.au>.
90
Central Australian Aboriginal Congress, ‘Borning: Pmere Lattyeke Anwerna Ampe Mpwaretyeke’
cited in S Huston ‘Community Participation in the Delivery of Health Services’, unpublished paper,
1991, 6.
91
Ibid.
92
Ibid 7.
295
d) and other cultural issues, like
According to Grandmother’s law, the placenta is buried where the

baby is born on the ground, linking the spirit child, woman and
country. The hospital staffs [generally] dispose of the baby bag. To
Aboriginal women this is sacrilege. 94
The HREOC’ s Report on Mornington Island expressed concern about the lack of
understanding of the broad and complex issues surrounding the desire by Aboriginal
women to have their children on their land. The Report notes that ‘[t]he prioritising of
technical solutions to the neglect of cultural issues may in fact be promoting ill health
in other spheres through cultural distress’. It further stressed that ‘…the
categorization of birth as simply a medical problem underplays the cultural
significance of the event for Aboriginal people.’ 95
The significance of the cultural dimension of childbirth and maternal health has
been broadly emphasized in literature. 96 In particular, the UN Permanent Forum on
Indigenous Issues has called on relevant United Nations agencies and funds, such as
93
Ibid.
94
Ibid 7–8.
95
HREOC, Report on Mornington, above n 79, 63.
96
United Nations Population Fund (UNFPA), Culturally Sensitive Approach in UNFPA Programming
(New York: United Nations Population Fund, 2004); United Nations Population Fund (UNFPA),
Culture Matters: Working with Communities and Faith–based Organizations ((New York: United
Nations Population Fund, 2004). These reports provide useful insights into integrating cultural analysis
in development programmes, especially in the critical areas of reproductive health and rights. In the
context of childbirth and maternal health policy it is important to mention ‘The Partnership for
Maternal, Newborn and Child Health’ initiative. The initiative aims at scaling up action to achieve
MDGs 4 and 5 to dramatically reduce child and maternal mortality by 2015. The United Nations
partners include: UNFPA; the Joint United Nations Program on HIV/AIDS (UNAIDS); United
Nations Children’s Fund (UNICEF); the World Health Organization (WHO); and the World Bank;
United Nations Population Fund (UNFPA), Delivering into Good Hands (New York: United Nations
Population Fund, 2004). See also, Department of Health and Ageing, Aboriginal and Torres Strait
Islander Primary Health Care Review (Canberra: Department of Health and Ageing, 2004); Angela
Plunkett, Indigenous Mothers and Their Babies; Australia 1991–1993 (Sydney: AIHW National
Perinatal Statistics Unit, 1996); Peter Day, Elizabeth Sullivan and Paul Lancaster, Indigenous Mothers
and Their Babies; Australia 1991–1993 (Sydney: AIHW National Perinatal Statistics Unit, 1999);
Fiona Speechley, All You Need to Know about a Healthy Pregnancy for a Healthy Baby: an
Aboriginal Personal Pregnancy (Unanderra, NSW: Illawarra Area Health Service, 2002).
296
the World Health Organization (WHO), the United Nations Children’s Fund
(UNICEF), the United Nations Population Fund (UNFPA), as well as regional health
organizations and governments to ‘fully incorporate a cultural perspective on health
services aimed at providing indigenous women with quality health care, including
emergency obstetric care, voluntary family planning and skilled attendance at
birth’. 97 In particular, the UN Permanent Forum has stressed the importance of the
roles of traditional midwives and the need to re–evaluate and expand their roles ‘so
that they may assist indigenous women during their reproductive health processes and
act as cultural brokers between health systems and the indigenous communities’
values and worldviews’. 98
The childbirth and maternal health policy reported has shown the socio–cultural
ramifications of childbirth and maternal health policies insensitive to Aboriginal and
Torres Strait Islander’s cultural perspective. Indigenous Australians’ worldview on
health and communities’ values are essential elements that need to be acknowledged
and imbedded within the whole health policy process. The childbirth and maternal
health policy discussed gives the opportunity to demonstrate how the methodological
approach described in the second part of the thesis may contribute to a more
comprehensive analysis of policy–making processes and to the identification of
hidden failings in policy assessments. It is argued that the adoption of this
methodological approach would support the design, implementation and evaluation of
97
UN Permanent Forum on Indigenous Issues, Report on the Fifth Session, 15–26 May 2006, UN Doc
E/C.19/2006/11, para 48; See also, Official Records of the Economic and Social Council, 2004,
Supplement No. 23, UN Doc E/2004/43, para. 89.
98
Ibid.
297
freedom–centred policies imbued with the fundamental principle of indigenous self–
determination.
It has been claimed that agency achievement provides a more adequate space for
the evaluation of policy outcomes. In fact, agency achievement entails a broader
evaluative exercise since it allows us to include non personal well–being–related
objectives in the evaluation of policy outcomes. It also requires an assessment of
different movements in well–being achievement vis–à–vis agency achievement.
The removal of Aboriginal women to give birth to their babies has led to an
increase in personal well–being achievement, since the maternal mortality rate
dropped, but it has also caused a decrease in their agency achievement. Fulfilment of
social practices, obligations towards land, families, and communities have been
disregarded, causing not only a decrease in agency achievement but also a decrease in
other aspects of women’s well–being achievement, such as distress, shame, loss of
self–esteem and other aspects related to having babies in a unknown environment.
If ‘the true test of self–determination is…whether indigenous peoples themselves
actually feel that they have choices about their way of life’, 99 indigenous
development policies should aim at enlarging the overall and actual freedom to make
valuable choices, the overall capability to achieve whatever indigenous peoples
decide, individually or collectively, to pursue as responsible agents. 100
99
Martin Scheinin (eds), Operationalizing the Right of Indigenous Peoples to Self–Determination (Åbo,
Finland: Institute for Human Rights Åbo Akademi University, 2000) 80–83.
100
Amartya K Sen, ‘Well–Being, Agency and Freedom: the Dewey Lecture 1984’ (1985) 82(4) The
Journal of Philosophy 169, 203–205.
298
Accordingly, because individual and collective agents may value goals other than
personal well–being, policy decision–making strategies need to refer to a space which
is conceptually able to encompass those diverse factors. Because well–being freedom
cannot reflect the person’s overall freedom as an agent – since it is freedom to
achieve a specific aim: personal well–being – agency freedom provides such a space.
It is indeed a conceptually broader space within which it is possible to include the
overall set of valuable capabilities related to personal well–being as well as the set of
non–personal well–being factors (obligations, duties, or social practices).
As such, the adoption of agency freedom as the reference space for policy design
enables a better understanding of value–judgment and decision–making processes
underlying the individual and collective act of choice. It can help understanding, and
to a certain extent explain, the motivations behind ‘functional’ and ‘dysfunctional’
choices or, in other words, to make sense of the so–called ‘deviational behaviours’.
Agency freedom is conceptually able to encompass what Nakata calls the ‘cultural
interface’, that is ‘the intersection of the Western and Indigenous domains’, the place
where different systems of thought coexist, the place where ‘knowledge systems as
they operate in people’s daily lives will interact, develop, change and transform’. 101
This ‘cultural interface’ can be thought of as a ‘negotiation area’, a place of ‘constant
tension and negotiation of different interests and systems of knowledge…’, ‘the place
where we live and learn, the place that conditions our lives, the place that shapes out
101
Martin Nakata, ‘Indigenous Knowledge and the Cultural Interface: Underlying Issues at the
Intersection of Knowledge and Information System’ in Anne Hickling–Hudson, Julie Matthews and
Annette Woods (eds), Disrupting Preconceptions: Postcolonialism and Education (Flaxton, Qld: Post
Pressed, 2004) 19, 27–28.
299
futures and…the place where we are active agents in our own lives – where we make
decisions – our lifeworld’. 102
The adoption of agency freedom in policy design, and its conceptualization as a
negotiation area in which different knowledge systems coexist, allows us to embed
within the policy process one of the fundamental criteria analysed in the second part
of the thesis: the acknowledgment and integration of ‘indigenous knowledge systems’
in indigenous policy strategies. 103 The acknowledgment and integration of indigenous
knowledge systems within the design, implementation and evaluation of development
policies is considered a fundamental criterion for the fulfillment of indigenous
peoples’ right to self–determination through development policies.
The proposal to incorporate this criterion in the Australian policy context triggers
two important questions: what does it mean to integrate an ‘indigenous knowledge
system’ in Australia’s health policy frameworks and plans for Aboriginal and Torres
Strait Islander peoples? How can Indigenous Australians’ capability right to health be
configured ?
The next chapter investigates the implications of acknowledging and including
Indigenous Australians’ ‘indigenous knowledge system’ into governmental health
policy strategies. The integration of Aboriginal and Torres Strait Islanders’ traditional
medical system will enable to gain a deeper understanding of Aboriginal and Torres
102
Ibid.
103
In the United Nations Educational, Scientific and Cultural Organization’s Declaration of Science
and the Use of Scientific Knowledge it is stated that ‘traditional and local knowledge systems as
dynamic expressions of perceiving and understanding the world, can make and historically have made,
a valuable contribution to science and technology, and that there is a need to preserve, protect, research
and promote this cultural heritage and empirical knowledge’. UNESCO, Declaration of Science and
the Use of Scientific Knowledge. Science for the Twenty–First Century, available at
<http://www.unesco.org/general/eng/programmes/science/wcs/eng/declaration_e.htm>
300
Strait Islander peoples’ health and to identify the foundational elements which
constitute the ‘indigenous capability right to health’.
301
Chapter 9
The indigenous capability right to health: towards the

acknowledgment of Aboriginal traditional medicine
9.1 The sinking into oblivion of Aboriginal traditional knowledge and

traditional healers
Australian governments’ health policy frameworks and the Human Rights
Equal Opportunity Commission’s appraisal of government policy present a
fundamental vacuum: the omission of Aboriginal traditional medicine and
traditional healers.
In my view, the recognition of the value and significance of traditional
medicine and traditional healers is crucially important for the improvement of the
health status and survival of Aboriginal and Torres Strait Islander peoples. As
such, traditional healing practices and traditional healers are indispensable and
urgently needed in the elaboration of adequate health policy frameworks and
strategies to address the appalling health status of Aboriginal Australians.
It has been argued that the capability perspective leads one to see indigenous
rights primarily in terms of ‘capability to function’, that is in terms of the
substantive freedoms that indigenous peoples enjoy to lead the kind of life they
value. Accordingly, a person’s freedom can be assessed by the extent to which he
or she is able to choose valuable alternative combinations of functionings.
The argument discussed here is that if we apply this approach in the analysis
of Indigenous Australians’ health, Aboriginal and Torres Strait Islanders’
302
expansion of substantive freedom to make valuable choices and to choose valued
alternative combinations of functionings, cannot be thought of without the
recognition and inclusion of traditional medicine and traditional healers in health
policy–making.
It is desolately interesting to note that predominant debates on health policy
strategies to tackle the Aboriginal and Torres Strait Islander health crisis, fail to
even consider the existence of Aboriginal traditional medicine. The sinking into
oblivion of Aboriginal traditional healers and their healing practices is starkly
obvious in health policy debates, policy frameworks, plans and programs.
The National Strategic Framework does not mention traditional medicine and
traditional healers, nor are the value of traditional Aboriginal healing systems and
healing practices acknowledged or incorporated into policy health plans and
programs. Scattered references to traditional healing practices appear in the
context of ‘cultural appropriateness’ requirements. The Human Rights Equal
Opportunity Commission’s Report, for instance, mentions traditional Aboriginal
and Torres Strait Islander peoples’ healing practices only once, when referring to
the Cultural Respect Framework for Aboriginal and Torres Strait Islander
Health. 1 This report is referred to as it proposes to enhance mainstream health
system accessibility by delivering ‘cultural safety’ to Indigenous Australians.2
The Cultural Respect Framework embeds the legitimization of traditional healing
practices within the concept of ‘cultural respect’ and ‘cultural safety’.3 As a
result, examples of culturally respectful health strategies include the possibility
1
Australian Health Minister’s Advisory Committee, Cultural Respect Framework for Aboriginal
and Torres Strait Islander Health, 2004–2009 (Canberra: Commonwealth of Australia, 2004).
2
(Sydney: Human Rights and Equal Opportunity Commission, 2006) 76.
3
Ibid 11.
303
for Aboriginal and Torres Strait Islander patients to access, when requested,
traditional healers in public hospitals. 4
The superficial reference in the HREOC’s Report indicates that no due
attention is paid to the value and significance of Aboriginal traditional medicine
and traditional healers. The acknowledgment, promotion and support of
Aboriginal traditional healing systems and traditional healers is not included in
the Report’s recommendations, neither as a goal nor as a means for policy strategy
through which the campaign to achieve health equality within a generation is to be
realised.
It is interesting to note that the Report supports a campaign to increase the size
of Aboriginal and Torres Strait Islander health workforce. Recruitment and
retention of Aboriginal and Torres Strait Islander health professionals 5 is set as a
key step to address the indigenous workforce representation shortfall and to
achieve an equitable distribution of primary health care.6 There is no doubt that an
increase of indigenous medical personnel would impact positively on the whole
health care system, particularly in terms of ‘cultural safety’. It is imperative
though, to notice that while there are recruitment campaigns to encourage
4
Ibid.
5
In 2001 there were 90 Indigenous Australian doctors compared to 48,119 registered doctors in
Australia. While Aboriginal and Torres Strait Islander people held 67% of positions in Aboriginal
Community Controlled Health Services, 98% of the doctors and 87% of the nurses were non–
Indigenous: see, Australian Institute of Health and Welfare and Australian Bureau of Statistics,
The Health and Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples 2005, ABS
cat. No. 4704.0 (Canberra: Commonwealth of Australia, 2005) 63. See also, Aboriginal Health
Ministers’ Advisory Committee (AHMAC), Aboriginal and Torres Strait Islander Health
Workforce National Strategic Framework (Canberra: Commonwealth of Australia, 2002).
6
HREOC, Social Justice Report 2005, above n 2, 77–80. It is estimated that to rectify the
imbalance between the workforce needs shortfall relating to Indigenous Australians with the
Aboriginal and Torres Strait Islander under–representation in the health workforce would require
928 Aboriginal and Torres Strait Islander general practitioners and specialists, 161 dentists, 275
pharmacists and 2570 nurses: see, Access Economics, Indigenous Health Workforce Needs
(Canberra: Australian Medical Association, 2004) 3.
304
Aboriginal youth to enter the medical profession, 7 there is no campaign to
encourage Indigenous Australians to value, discover – or rediscover – their own
traditional healing practices and the role traditional healers play within Aboriginal
and Torres Strait Islander communities across Australia. In my view, there should
be a campaign to acknowledge and make people aware of the value of Aboriginal
traditional medicine as well as the role that Aboriginal traditional healers play in
maintaining, protecting and restoring the well–being of indigenous individuals
and communities.
The absence of Aboriginal traditional medicine is unacceptable. Traditional
medicine is a pulsing reality. As Mrs Curtis, one of the most experienced
ngangkari – traditional healers – of the Anangu people of Central Australia,
indicated:
I have spent a great deal of my life healing people…I give healing

treatments to everybody: to men, women, children, old women, old men,
young women and young men. They all come and ask me for help….I
travel a lot giving treatments, especially where there are infections going
around and people have fevers and high temperatures… people who
can’t visit ngangkari for healing treatments can run into serious trouble
health–wise. 8
Traditional healing practices are of great significance and have the potential to
play a key role in health policy frameworks, strategies and programs for the
7
See, eg, Australian Indigenous Doctors Association (AIDA), Healthy Feature; Defining Best
Practice in the Recruitment and Retention of Indigenous Medical Students (Sydney: AIDA, 2005);
G Phillips, Indigenous Health Curriculum Framework, (Melbourne: VicHealth Koori Health
Research and Community Development Unit 2004); AHMAC, The Aboriginal and Torres Strait
Islander Health Workforce National Strategic Framework, above n 5: it identifies two objectives
concerning Aboriginal and Torres Strait Islander medical workforce: 1) ‘to increase the numbers
of Aboriginal and Torres Strait Islander people working across all the health professions; 2) to
improve the effectiveness of training, recruitment and retention measures targeting both non–
Indigenous Australian and Indigenous Australian health staff working within Aboriginal primary
health care’.
8
Mrs Curtis in Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council (NPYWC),
Ngangkari Work – Anangu Way: Traditional Healers of Central Australia (Alice Springs, NT:
Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council Aboriginal Corporation, 2003) 28–
29.
305
betterment of Aboriginal and Torres Strait Islander health status. The total
disregard for traditional medicine, particularly by Aboriginal and Torres Strait
Islander youth, would not only worsen the health crisis, but also undermine the
existence of Aboriginal and Torres Strait Islander culture and identity:
We want to see the valuable skills of ngangkari remain of value into the
future. We want to see the valuable skills of ngangkari still working
right into the next century. We don’t want to lose our own healers or see
their skills disappear. They are precious to us. 9
Dickie Minyintiri, an Anangu traditional healer stresses that:
I am trying to tell as many of the young people about ngangkari work

before I get too old. It is important that they know about bush doctors.
I’d really like them to all know how important it is. 10
The promotion of traditional medicine, in particular a possible ‘recruitment
campaign’, must be guided by and constantly carried out according to the
principle of self–determination. Medicine, perhaps more than any other area of
indigenous knowledge, is a sacred domain which needs to be respected and
acknowledged according to Aboriginal and Torres Strait Islander self–determined
modes of being.
There are no universities or medicine schools providing courses to become a
traditional healers or to learn about traditional healing practices. Training,
‘selection requirements’ and skills respond to a system of knowledge
ontologically different from the mainstream Western–based medical paradigm. As
the ngangkari Dickie Minyintiri reveals ‘I learnt my ngangkari skills from my
grandfather and my older brother when I was a small child. They taught me how
to touch in the healing way…Grandfather was the man who gave me so much.
9
Elsie Wanatjura: NPYWC, Ngangkari Work, above n 8, 14.
10
Dickie Minyintiri: NPYWC, Ngangkari Work, above n 8, 26.
306
He’d teach me and give me knowledge and power’. 11 Further, Elsie Wanatjura
points out how ‘whitefella doctors learn from paper; Ngangkaris learn from the
spirits. Years and years and years of learning’. 12 And more, ‘Ngangkaris work the
same as doctors. We are equal in our work. The only difference is that doctors and
nurses learn their jobs at university. This is the way white people get most of their
learning, regardless of what they do. 13
The recognition and introduction of the role and work of Aboriginal and
Torres Strait Islander traditional healers in health policy thinking would impact
significantly on policy decision–making strategies and policy outcomes.
An example may be considering how unequal access to health care would be
differently addressed: it is naïve to set as a policy outcome the achievement of
equality in the provision of health infrastructures, equal access to health care, or
same number of medical professionals in rural and remote communities as
compared to urban areas.
It is argued here that it would be more appropriate to design policies which
recognize and enhance the freedom and opportunities for traditional healers to
practice their medicine according to their own worldview in a self–determined
way. The unequal access to health care, thus, would not be addressed by providing
the same level, qualitatively and quantitively, of mainstream health service in
indigenous communities. The goal of increasing accessibility would be addressed
by supporting the delivery of traditional medical practices and traditional healers.
11
Dickie Minyintiri: NPYWC, Ngangkari Work, above n 8, 20.
12
Elsie Wanatjura, Emotional and Social Well Being Project Worker, Ngaanyatjarra Pitjantjatjara
Yankunytjatjara Women's Council, <http://waru.org/organisations/npywc/npy_wellbeing.php>
(accessed 3 April 2006).
13
Andy Tjilari and Rupert Peter: NPYWC, Ngangkari Work, above n 8, 20.
307
An initiative worth mentioning for promoting and supporting traditional
healing practices and the role of traditional healers is the ‘Emotional and Social
Well–Being Project’ carried out by the Ngaanyatjarra Pitjantjatjara
Yankunytjatjara Women's Council in Alice Springs. 14 The NPY Women’s
Council welcomed the proposal in 1997 by the Office of Aboriginal and Torres
Strait Islander Health, to create a regional centre in order to offer Aboriginal
health workers education and training about mental health. The NPY Women’s
Council, while expressing interest in learning about mainstream concepts and
strategies about emotional and social well–being, also insisted on employing
ngangkari – traditional healers – as consultants in traditional healing practices.
The Council stressed that it ‘was more important to promote and support
traditional Anangu 15 healing practices and cultural values’.16 Eventually in 2000,
the NPY Women’s Council could employ two traditional healers to work full time
in the tri–state cross border areas of Western Australia, Northern Territory and
South Australia. 17
This initiative is significant as it provides an alternative policy strategy which
basically constructs a bridge between non–Anangu health workers and Anangu
traditional healers. The project aims to develop training in mental health issues for
Anangu workers that is relevant, effective and culturally appropriate, while also
ensuring that non–indigenous mental health staff working with Anangu are well
14
The Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women's Council Corporation covers a
350,000 square kilometres area of the cross border region of Western Australia, South Australia,
and the Northern Territory.
15
Western Desert language–speaking persons. Aboriginal people in Central Australia speak
numerous dialects, such as Ngaanyatjarra, Pitjantjatjara and Yankunytjatjara.
16
NPYWC, Ngangkari Work, above n 8, 12.
17
The funding for the employment of the two ngangkari is provided by the Mental Health Unit,
South Australian Department of Human Services.
308
informed about the role of traditional healing. Many traditional healers 18 are
indeed eager to practise in the health clinics in front of non–Aboriginal doctors
and nurses, and when interest and respect is shown ngangkari elucidate their
treatments to non–Aboriginal health personnel. 19
The lack of knowledge about ngangkari’s role and work among non–
Aboriginal people in states and federal government departments, as well as among
non–Aboriginal health workers and medical practitioners, is deemed to be the root
cause of the difficulty in getting funds to health programs supporting and
promoting traditional healers. 20 Dickie Minyintiri, for instance, explains that
doctors and nurses in the clinic know about his work but they do not understand,
as most people, this kind of work. 21 It is explained that other Aboriginal
traditional healers would like to be part of similar programs, and it is deplorable
that no funding is available and that ‘the most highly skilled ngangkari out here in
the bush don’t even have enough money to buy food’. 22
The NPY Women’s Council project should be taken into consideration as a
model for more adequate health policy frameworks at federal, state and local
level. The point is that there is no nationwide framework which encompasses the
acknowledgment of traditional medicine as a priority issue, which recognizes the
value of traditional healing practices, and which promotes and supports
Aboriginal and Torres traditional healers.
The question we should engage with is what lies behind this vacuum? Why is
there no mention in national policy debates and frameworks of the value of
18
The NPY Women's Council only employ two ngangkari.
19
Elsie Wanatjura: NPYWC, Ngangkari Work, above n 8, 15.
20
Ngangkari Work, above n 8, 14–15.
21
Ibid 25.
22
309
Aboriginal traditional medicine and the role and daily work carried out by
traditional healers ?
An answer to this question may be found in the fact that the delivery of health
care ignores the ‘health interface’ in which Aboriginal Australians live daily. The
encounter with the mainstream medical system is complex, confusing and at times
disrupting for Aboriginal and Torres Strait Islander peoples. 23
Ralph Folds, for instance, observes that Pintupi adopt western medicine not
because they accept its foundational principles, but because it occasionally cures
illnesses that white people brought to them. 24 Some aspects of western medicine
have been incorporated into Pintupi life and belief systems without abandoning
their own understanding and explanation of illness, its causes and proper
treatments. 25 For example, even though women give birth in hospitals, their new–
born babies are ‘smoked’ in order to be protected from diseases. Technology may
also give rise to serious problems, as in the case of a life–support system, where it
is unthinkable for Pintupi people that doctors may discuss with relatives turning
off a life–support system. Since relatives cannot take part in the death of their
own, casualties may occur as relatives literally worry themselves to death.
A widespread illness is often considered to be caused by the absence of a
ngangkari in the settlement, and it is common for Pintupi to consult with a
ngangkari before going to the clinics or to a doctor and nurses. In some cases,
23
It is difficult to estimate the extent to which Indigenous Australians are actually exposed to both
the western mainstream medical system and traditional one. The degree to which Indigenous
Australians make use of these two systems vary enormously depending on geographical locations
(living in urban, rural or remote areas) and individual and communities’ circumstances.
24
Ralph Folds, Crossed Purposes; The Pintupi and Australia’s Indigenous Policy (Sydney:
University of New South Wales Press, 2001).
25
Ibid 135.
310
people remain sick for weeks without going to hospitals because they can not find
the ‘right’ ngangkari. 26
In Northern Territory, 27 specifically at Yirrkala, evidence shows that
Aboriginal people choose western medicine to cure the majority of their illnesses,
but the causes of such illnesses are explained according to their traditional belief
system. 28
A framework outlining traditional Aboriginal health beliefs has been
elaborated 29 by bringing together different health–related beliefs which have been
identified in different indigenous communities across Australia. 30 Considering
26
Ibid 135–136.
27
The Northern Territory occupies one sixth of the Australian land mass. It has a population of
just under 200,000 of which 28% are Aboriginal. The vast majority of the Aborigines live in small
remote communities scattered across the Territory.
28
Dayalan Devanesen, ‘Traditional Aboriginal Medicine Practice in the Northern Territory of
Australia’, paper presented at the International Symposium on Traditional Medicine; Better
Science, Policy and Services for Health Development, Awaji Island, Japan, 11–13 September
2000. See, also, Janice Reid (ed), Body, Land & Spirit: Health and Healing in Aboriginal Society
(St. Lucia, Qld: University of Queensland Press, 1982).
29
Patrick Maher, ‘A Review of Traditional Aboriginal Health Beliefs’ (1999) 7 Australian Journal
of Rural Health 229, 230–231. This framework is proposed as a representative sample which
summarizes health–related beliefs held by Aboriginal people throughout Australia. It does not
describe the beliefs of any particular community because there are variations between and within
communities. It is also pointed out that specific health beliefs can have been overlooked and that
there is no material about health beliefs of Indigenous Australians living in urban areas.
30
J C Taylor, ‘Murri Doctor or Nursing Sister?’ (1977) 1 Aboriginal and Islander Health Worker
Journal 27; N Scarlett, N White and J Reid, ‘Bush Medicine’: the Pharmacopoeia of the Yolngu of
Arnhem Land’ in J Reid (ed), Body Land and Spirit: Health and Healing in Aboriginal Society (St
Lucia, Qld: University of Queensland Press, 1982) 154; M Tonkinson, ‘The Mabarn and the
Hospital: the Selection of Treatment in a Remote Aboriginal Community’ in J Reid (ed), Body
Land and Spirit: Health and Healing in Aboriginal Society; P Nathan and Leichleitner D
Japanangka, Health Business (Richmond, Vic: Heinemann Educational Australia, 1983); J Reid,
Sorcerers and Healing Spirits (Canberra: Australian National University Press, 1983); D M Elliot,
Aboriginal Perceptions of Disability and the Formulation of an Appropriate Method of Providing
Rehabilitation Services to Clients in Remote Communities (Darwin: Commonwealth Rehabilitation
Service, 1984); S Toussaint, ‘Aboriginal and non–Aboriginal Healing, Health and Knowledge:
Socio–cultural and Environmental Issues in the West Kimberly’ (1989) Aboriginal Health
Information Bulletin 12; R Mobbs, ‘In Sickness and Health: the Socio–cultural Context of
Aboriginal Well–being, Illness and Healing in J Reid and P Trompf (1991), The Health of
Aboriginal Australia (Sydney: Harcourt Brace Jovanovich Publishers, 1991); A P Elkin,
Aboriginal Men of High Degree: Initiation and Sorcery in the World’s Oldest Tradition (St.
Lucia, Qld: University of Queensland Press, 1994); P T Honeyman and E A Jacobs, ‘Effects of
Culture on Back Pain in Australian Aboriginals’ (1996) 21 Spine 841; A R Peile, Body and Soul.
An Aboriginal View (Carlisle, WA: Hesperian Press, 1997); D Scrimgeour, T Rowse and A Lucas,
311
this framework is useful to appreciate the singularity of Aboriginal health beliefs
and to gain a better understanding of the significant cultural differences between
western medicine and traditional Aboriginal medicine.
The first characteristic that needs to be taken into account is that traditional
health beliefs are connected with several aspects of Indigenous Australians’ life,
such as kinship obligations and land. Social and spiritual dysfunctions have a
central role in causing diseases so that ‘individual well–being is always contingent
upon the effective discharge of obligations to society and the land itself’. 31 The
priority given to social relationships suggests that social obligations or
responsibilities may take precedence over one’s own health. 32
The Aboriginal model of illness causation sees ailments classified into five
main categories: natural, environmental, direct supernatural, indirect supernatural
and western or emergent causes. 33 These categories are not mutually exclusive as
possible multiple causes can be identified in relation to a specific case. 34
It is important to note that supernatural intervention and sorcery are
considered the main causes of serious illnesses and they are considered of
fundamental importance because they provide meaningful explications about the
death or illness of a specific person, and why it happened at a certain time. In
Too Much Sweet, the Social Relations of Diabetes in Central Australia, (Darwin: Menzies School
of Health Research, 1997).
31
D L Morgan, M D Slade and C M Morgan, ‘Aboriginal Philosophy and Its Impact on Health
Care Outcomes’ (1997) 21 Australian and New Zealand Journal of Public Health 597, 598.
32
Maher, above n 29, 230.
33
See figure 9.1.
34
Maher, above n 29; J Cawte, ‘Epic Accounts of a Mystery Illness: the Grote Eylandt Syndrome’
(1984) Australian and New Zealand Journal of Psychiatry 179.
312
other words, they provide the ‘ultimate’ reason why a person became ill’,35
answers that the western medical system is not able to provide. 36
Figure 9.1 Framework outlining ‘traditional’ Aboriginal health beliefs

Categories of illness Categories of illness Examples of resultant conditions
causation
Natural Emotions (resentment, Loss of appetite, weight loss, listlessness, pain,

(part of everyday life, sulking, shame, worry, suicide or attempted suicide
generally result in homesickness, grief, Diarrhoea, coughs and lung complains,
temporary jealousy, anger, anxiety) headaches
states of weakness) Dietary factors Physical injuries
Physical assault and injury
Environmental Winds Pain, stomach ache, diarrhoea, chills

The moon Epilepsy or fitting in children
Climate: excessive heat and Colds, aches, headache, respiratory complaints,
cold diarrhoea
Direct supernatural Breach of taboos: Multiple possible effects including: swellings,

(transgression of the Law) taboos of place-sacred sites; vomiting, diarrhoea, drowsiness, madness,
taboos of ritual/ceremonies; death, nausea, lethargy, difficult pregnancy,
taboos of pregnancy injured foetus, deformed child, skin sores,
taboos of relationship epilepsy, neck pain with headache, leprosy,
(parenthood, childhood, pneumonia, broken bones
avoidance, incest, mortuary); Weakness, vomit a lot and lose interest in living,
taboos of menstruation influenza, sickness or death, madness
Spirits of the dead
Indirect supernatural Boning, singing, painting Multiple possible effects including: death,
Intervention (all illness serious injury and illness, sterility, congenital
attributed to sorcery is defects, physical malformation
understood ultimately to be
the result of social or
religious offences,
intergroup or intragroup
conflict)
Emergent/Western Social and epidemiological Alcohol-related illness, substance abuse, spina

(conditions only known by changes which have bifida, cerebral palsy, diabetes, heart disease,
Aboriginal society since occurred post colonisation of cancer, sexually transmitted disease, smallpox,
colonisation) Australia measles, bronchitis, influenza, diarrhoea
Source: Maher, A Review of Traditional Aboriginal Health Beliefs, 1999, 231.
35
36
Ibid 230.
313
Traditional health beliefs operate as a form of social control: ‘good health is
associated with strict adherence to approved patterns of behaviour and avoidance
of dangerous people, places and objects’. 37 Preventive care is therefore directly
connected to the causes of illness according to the Aboriginal modalities of illness
causation, so that preventive measures are founded on norms governing
behaviours. These may include, looking after the land and not abuse one’s land or
trespass on others’ territories; avoiding prohibited sacred sites or certain food in
determined ceremonies or life crises; complying with obligations to others, and
so on. 38
It is evident that when there is a strong persistence of these health–related
beliefs, the ‘health interface’ cannot be ignored in normative policy frameworks,
neither in the delivery of health care to Indigenous Australians.
The ‘health interface’ is a living reality, a negotiating domain where
indigenous people interpret and constantly make choices. It is noted, for instance
that ‘Pintupi are – inconveniently for policy – not a passive, dispirited people but
vigorous participants busily interpreting and refashioning earnest western
endeavours to simultaneously change and fossilize their culture’. 39
The ‘health interface’ involves the coexistence and tension between two
different systems of medicine – western medicine and traditional Aboriginal
medicine –, and different medical practitioners – indigenous traditional healers
and western medical professionals. It is suggested that the poor compatibility
between the belief systems underlying these two systems of medicine, has led to a
37
D Biernoff, ‘Psychiatric and Anthropological Interpretations of ‘Aberrant’ Behaviour in an
Aboriginal Community’ in J Reid (ed), Body Land and Spirit: Health and Healing in Aboriginal
Society, 1982.
38
Maher, above n 29.
39
Folds, above n 24, 137.
314
‘strategy of domain separation’ to distinguish illness between western and
Aboriginal causes. 40 The perception of separated cultural domains brings about
different behavioural patterns to deal with health–related issues, such as illness.
An interesting attempt to clarify how Aboriginal and Torres Strait Islander
peoples navigate between those different domains is identified in figure 9.2.
Figure 9.2: Model of Aboriginal behavioral patterns of seeking medical assistance
Illness event Mode of interaction Treatment options Treatment

outcomes
of treatment options
Traditional healer Cure
Sequential Healing songs or Management

ceremonies by the
elders or women
Compartmental practitioners
Health clinic
Sick person
Concurrent Herbal medicine
Hospital
Western medicine
Death
Source: Patrick Maher, A Review of Traditional Aboriginal Health Beliefs, 1999, 234.
40
315
This model tries to capture the different behavioural patterns of seeking
medical assistance in case of illness. The ‘sequential’ behaviour indicates the use
of one practitioner and then another one (for instance, consulting with the western
doctor and then the traditional one, or vice versa); the ‘compartmental’ behaviour
indicates the adoption of traditional medicine, for instance, when the ill–health
conditions have a clear traditional explications; the ‘concurrent’ behaviour
identifies the concomitant use of western and traditional forms of health care.
The fundamental assumption which lies beneath those patterns is that western
medicine focuses principally on the identification and treatment of diseases.
Western medicine can reduce the symptoms and explain the modalities and
mechanisms of how ailments have arisen. Traditional medicine, instead, provides
not only the ‘how’ but also the ‘why’ of sicknesses: traditional explanations
provide meaningful reasons about the illnesses suffered. Traditional medicine is
deemed to address the ultimate cause of sicknesses as well as personal, family and
community issues surrounding illnesses. 41
It is suggested that a combination of traditional and western medicine is
usually adopted. 42 However, in case of wounds caused by payback punishments,
or acts of retributions, western medicine may not be considered, 43 whereas when
the root causes of illnesses are explained by supernatural interventions, western
medicine is adopted to treat the symptoms and speed up the healing process, but it
41
Ibid. See also, D Devanesen, ‘Traditional Aboriginal Medicine and the Bicultural Approach to
Health Care in Australia’s Northern Territory’ in Larkins K McDonald and C Watson (eds),
Alcohol and Drug Use in a Changing Society (Canberra: Alcohol and Drug Foundation, 1985) 33;
M J Armstrong and M H Fitzgerald, ‘Culture and Disability Studies: an Anthropological
Perspective’ (1996) 10 Rehabilitation Education 247.
42
Maher, above n 40; Elkin, above n 30.
43
D J Waldock, ‘A Review of Aboriginal Health Beliefs and Their Incorporation into Modern
Aboriginal Health Delivery Systems’ (1984) 16 Australian Health Surveyor 3; Scrimgeour et al,
Too Much Sweet, the Social Relations of Diabetes in Central Australia, above n 30.
316
cannot explain and remove the cause of those illnesses. 44 It is also asserted that
only western medicine can deal with diseases emerged after the contact with
Europeans. 45
The attempt to understand the dynamics underlying the ‘health interface’
requires taking into consideration how the predominance of the western medical
system has caused the devaluation and disregard of Aboriginal medicine and
Aboriginal healers. The predominant western medicine paradigm has
marginalised Aboriginal healing practices with serious consequences for the
health status of Indigenous Australians. 46
In the case of the Yolngu people of Arnhem Land (Northern Territory), for
instance, the new thinking and practices brought by Balanda – white people – has
caused a great deal of confusion about health and healing practices. The contact
with the predominant western culture over years has instilled uncertainty as to
what body of knowledge is ‘real knowledge’, whether traditional healing practices
are valid and whether Yolngu traditional healers are ‘real doctors’ or ‘witch
doctors’. 47
It is noteworthy to report the reaction of a nurse at the Ramingining
community clinic when a Yolngu traditional doctor cured and saved a baby girl
after all attempts by the medical personnel failed to cure her: ‘it is a bad day when
their evil work shows up the limitations of Western medicine. It’s one of our jobs
here to get the people to have faith in Western medicine rather than the
44
Waldock, above n 43.
45
Ibid.
46
Richard Trudgen, Why Warriors Lie Down and Die: Towards an Understanding of Why the
Aboriginal People of Arnhem Land Face the Greatest Crisis in Health and Education Since
European contact: Djambatj Mala (Darwin: Aboriginal Resource & Development Services Inc,
2000).
47
Ibid 142.
317
superstitious dealings of the ‘witch doctors’. Otherwise people always live in
fear’. 48
It is clear that the lack of a reciprocal understanding of two different systems
of medicine continues to be the main cause of the devaluation of traditional
healers and the rejection, crystallized over time, of their practices. Highly revered
within Yolngu society in pre–contact time for mastering all health related matters,
traditional Yolngu healers have been marginalized and ‘usurped’ in today’s
Arnhem Land. 49 According to Trudgen, there are no Yolngu traditional healers
employed in a health clinic in Arnhem Land. There is one herbalist employed as a
cleaner and one Aboriginal health worker who has been trained in the western
medical system and traditional healing profession. 50
The denigration of traditional healing practices and rejection by dominant
culture has impacted on many Yolngu people, especially the youth, who dismiss
traditional medicine and its practitioners as ‘“old hat”, unsophisticated, or
irrelevant in the modern world’. 51
The dismissal of traditional knowledge passed down from generation to
generation for thousands of years and the labelling of the ‘Chief Medical Officers’
as ‘witch doctors’ is having serious implications. On one side, the loss of status
has led many Yolngu people, especially the western–educated, to distrust their
traditional doctors and completely rely on the dominant medical system with its
‘strange’ ways and a foreign language. 52 On the other side, the disappearance of
such precious knowledge appears more imminent. The growing number of young
48
Ibid 144.
49
Ibid 145.
50
Ibid 149.
51
Ibid 143.
52
Ibid 146.
318
Yolngu who accept the dominant cultural perspective and dismiss traditional
practices as ‘rubbish’ or even ‘evil’, make it very difficult for Yolngu healers to
pass down the knowledge, considering that one of the fundamental rules is that
‘knowledge of high value is not taught to those who do not appreciate its value’. 53
Despite the fact that western non–indigenous medical health services have
been superimposed on traditional Aboriginal health care systems, Aboriginal and
Torres Strait Islander medicine has survived and is still extensively practised. 54
The 1987 Review of Rehabilitation Services in the Northern Territory, for
instance, has found that Aboriginal traditional healing practices are widely
performed 55 and the Territory Health Services have recognised the role of
traditional healers. 56
Doctors and nurses might wonder why do Anangu keep asking for
ngangkari help when they can access good health clinics these days and
they can easily get a quick needle or a tablet? It is because ngangkari get
straight to the problem and give immediate healing. Tablets can’t heal
the spirit. Ngangkari can. Ngangkari can see right into the spirit and the
53
Ibid 149.
54
Barbara Joan Tynan, Medical Systems in Conflict. A Study of Power (Darwin: Government
Printer of the Northern Territory, 1979); Nathan and Japanangka, above n 30; Reid, Sorcerers and
Healing Spirits, above n 30; Foong San Soong, ‘Role of the Margidbu (traditional healer) in
Western Arnhem Land’ (1983) 1 Medical Journal of Australia 474; Dayalan Devanesen,
‘Traditional Aboriginal Medicine and Bicultural Approach to Health Care In Australia’s Northern
Territory’, proceedings of the 2nd National Drug Institute, Alcohol and Drug Foundation,
Canberra, 1985; Toussaint S, ‘Aboriginal and Non–Aboriginal Healing, Health and Knowledge:
Socio–cultural and environmental issues in the West Kimberley’ (1989) 12 Aboriginal Health
Information Bulletin 30; Scrimgeour et al, above n 30; A R Peile, Body and Soul. An Aboriginal
View (Carlisle, WA: Hesperian Press, 1997); R Glynn, ‘Some Perspectives on Cross–cultural
Rehabilitation with Remote Area Aboriginal people’ (1993) 40 Australian Occupational Therapy
Journal 159; Memmott P, Improving Aboriginal People’s Access to Alice Springs Hospital
Services (Alice Springs: Territory Health Services, 1997); Maher, above n 29.
55
Taylor M et al, Review of Rehabilitation Services in the Northern Territory (Canberra:
Commonwealth Department of Community Services and Health, and Northern Territory
Department of Health and Community Services, 1987).
56
Territory Health Services, Annual Report 1996/97 (Darwin: Territory Health Services, Northern
Territory Government, 1997).
319
mind. Ngangkari see right inside the kurunpa – the spirit – and get
straight to the heart of the matter. 57
Traditional Aboriginal medicine is part of Aboriginal culture and identity. It is
maintained, in the case of Yolngu people, that the complex Yolngu health crisis
could be overcome only when ‘Yolngu find a way to combine their traditional
medical systems with the contemporary. Only when the two are working together,
complementing each other, will we see advancement in the people’s health’. 58
The acknowledgment and inclusion of traditional Aboriginal medicine into
Australia’s health policy frameworks and health service delivery can have
important ramifications. First of all, it would promote a broad understanding of
Aboriginal conceptions of health and illness; facilitate the understanding of the
health–related beliefs which underline western medicine and traditional
Aboriginal medicine; contribute to a shared understanding between non-
indigenous western health professionals and indigenous traditional practitioners;
help comprehend the different behavioural patterns stemming from the
coexistence and tension between two different systems of medicine. This
understanding would then clarify the dynamics within the negotiation area which I
have been referring to as the ‘health interface’, and help appreciate what, from a
non–indigenous medical perspective, can be considered ‘irrational behaviours’.
The thesis argues that these elements should be seriously taken into
consideration in the design, implementation and evaluation of health policies
affecting Aboriginal and Torres Strait Islander peoples. The recognition and
inclusion of traditional Aboriginal medicine has the potential to truly empower
57
Elsie Wanatjura (NPY Women’s Council Emotional and Social Well–being Project Officer):
NPYWC, Ngangkari Work, above n 8, 14.
58
Trudgen, above n 46, 149.
320
Aboriginal and Torres Strait Islander peoples, strengthen their self–esteem
through the revaluation of their own identity and culture.
Support for this argument can be found in the increasing worldwide popularity
and use of traditional medicine and complementary or alternative medicine, 59 as
well as in good practices carried out in other countries. 60 These evidence may
assist in the promotion and support of Aboriginal traditional medicine and
traditional healers in Australia.
59
World Health Organization, Legal Status of Traditional Medicine and
Complementary/Alternative Medicine: A Worldwide Review (Geneva: World Health Organization,
2001); World Health Organization, WHO Traditional Medicine Strategy 2002–2005 (Geneva:
World Health Organization, 2002); World Health Organization, Traditional Practitioners as
Primary Health Care Workers (World Health Organization, 1995); World Health Organization,
General Guidelines for Methodologies on Research and Evaluation of Traditional Medicine
(Geneva: World Health Organization, 2000).
60
World Health Organization, Report to the Fifth Session of the UN Permanent Forum on
Indigenous Issues, New York, 15–26 May 2006, UN Doc E/C.19/2006/6/Add.4, para. 2. The
WHO Regional Office for the Americas participated in a study on maternity in Quechua women in
Bolivia, that revealed the failure of health service to appreciate traditional maternal care practices
of community midwives as an important factor in maternal and child mortality. An alternative
strategy was proposed in order to eliminate the causes behind the poor rates of service usage for
pregnant women: ignorance of traditional cultural practices, lack of communication, conflicts
regarding objectives and allocation of resources for the maternal health programme. Central to the
strategy was the rapprochement between public health services and traditional services,
particularly the role of traditional midwives; L Germosen–Robineau and S Lagos–Witte, The
TRAMIL Program: Traditional Knowledge of the Use of Medicinal Plants in Central America and
the Caribbean (supported by UN Environment Programme & Global Environment Facility)
(Ottawa: International Development Research Centre, 1997).
321
9.2 The indigenous capability right to health
How can the indigenous capability right to health be conceptualized?
The second part of the thesis has shown how a freedom–based approach
characterizes the ‘indigenous capability rights system’. Accordingly, a freedom–
centred perspective distinguishes the indigenous capability right to health, which
is seen primarily as the enlargement of the substantive freedoms underlying the
right. As a result, it is imperative to consider all freedoms embodied within the
concept of Aboriginal and Torres Strait Islanders’ right to health and, by
extension, indigenous peoples’ health worldwide. Consequently, the design and
evaluation of indigenous health policy is called on to implement the capability
right to health according to indigenous peoples’ understanding and worldviews of
the freedoms embedded within it.
Certainly, it would be an oversimplification to assume that over 370 million
indigenous peoples around the globe share the same health worldview. However,
bearing in mind the distinctiveness of each and every indigenous community, it is
possible to identify some remarkably common elements.
The UN Declaration on the Rights of Indigenous Peoples underlies the close
association between individuals, communities, the natural environment and
territories. 61 Indigenous peoples’ ‘…distinctive spiritual relationship with their
traditionally owned or otherwise occupied and used lands, territories, waters,
coastal seas and other resources,’ 62 leads to view ‘illnesses’ not only related to
61
UN Declaration, arts. 25, 27, 28.
62
322
individuals, but also to communities and the environment as a whole. The Inter–
American Development Bank, in discussing indigenous health, notes that:
The individual's well being is linked to that of the community and the
environment through practices that pursue spiritual equilibrium – an
equilibrium between individuals, communities, and their environment. 63
Within the indigenous systems of knowledge, the multidimensional concept of
individual well–being – physical, emotional, intellectual, psychological, and
spiritual – must be complemented with community health and environmental
balance. It becomes evident thus, that the diversified set of social practices – such
as community and family obligations, land use, or resource management through
which individual, community, and environmental health is pursued – must be
included as core components of indigenous peoples’ health.
Accordingly, the indigenous capability right to health must be configured as
the total set of capabilities relating to personal well–being as well as the total set
of those components that directly relate to the health of family units, communities
and the wider eco–systems.
Furthermore, the fulfilment of the indigenous right to health, conceived of as
expansion of the substantive freedom to make valuable choices, cannot be thought
of without the recognition of indigenous peoples’ traditional healing systems.
Accordingly, Aboriginal and Torres Strait Islander peoples’ capability right to
health must include Aboriginal traditional medicine and the role of traditional
Aboriginal healers. The acknowledgment of two systems of medicine – the
Aboriginal traditional medicine and the western medical system – as equally
valuable, as well as their inclusion in health policy strategies, are both essential
63
Inter–American Development Bank (IADB), Indigenous Peoples and Health: Issues for
Discussion and Debate, (Washington, D.C.: Inter–American Development Bank, 2001) 5.
323
for the enlargement of Indigenous Australians’ individual and collective freedom
and the realization of a self–determined right to health.
The indigenous capability right to health must include the freedom to choose
to benefit from traditional healing practices, traditional medicine and plants. The
Committee on Economic, Social and Cultural Rights has also highlighted:
…indigenous peoples have the right to specific measures to improve

their access to health services and care. These health services should be
culturally appropriate, taking into account traditional preventive care,
healing practices and medicines. States should provide resources for
indigenous peoples to design, deliver and control such services so that
they may enjoy the highest attainable standard of physical and mental
health. The vital medical plants, animals and minerals necessary to the
full enjoyment of health of indigenous peoples should also be protected.
The Committee notes that, in indigenous communities, the health of the
individual is often linked to the health of the society as a whole and has
a collective dimension. In this respect, the Committee considers that
development–related activities that lead to the displacement of
indigenous peoples against their will from their traditional territories and
environment, denying them their sources of nutrition and breaking their
symbiotic relationship with their lands, has a deleterious effect on their
health. 64
The thesis argues that the foundational flaw in addressing Aboriginal
Australians’ health status is the recognition of the western medicine paradigm as
the only system of medical knowledge to be accepted and applied in the delivery
of health care. It is the model against which every aspect of health policy for
Aboriginal Australians is being framed.
To illustrate, a thorough analysis of the concept of ‘cultural appropriateness’,
for instance, may help clarifying this proposition. The concept of ‘cultural
appropriateness’ in health care delivery tends to align the mainstream health care
system to the ‘cultural needs’ of Aboriginal Australians. It is not my intention to
64
United Nations Committee on Economic, Social and Cultural Rights, General Comment
14(2000): The Right to the highest attainable standard of health (article 12 of the International
Covenant on Economic, Social and Cultural Right), UN Doc E/C.12/2000/4, 11 August 2000.
para. 27.
324
deny the importance of providing health infrastructures and services which are
respectful and appropriate for Indigenous Australians in all different respects.
However, the concept of ‘culturally appropriate’ should not be uncritically
embraced, but rather carefully scrutinized as to what knowledge system is taken
as a reference model. Trudgen, for instance, questions whether the so-called
‘culturally appropriate measures’ respond to the dominant culture, traditional
worldviews, or western–educated Aboriginal people’s worldview. 65
The thesis suggests that the application of the concept of ‘culturally
appropriate’ to mainstream health care services delivered to Indigenous
Australians tends to sanction a one-way medical conceptual framework and
medical response to illnesses. The inadequacy of the concept of ‘cultural
appropriateness’ to fully address the ‘cultural needs’ or cultural diversity in the
delivery of health care to Aboriginal Australians, can be better grasped if we
consider the issue of ‘compliance’.
The issue of ‘compliance/non compliance’ in indigenous contexts is indeed
illustrative of the predominance of the western medicine paradigm. It is argued
that treatment failure as a result of ‘poor compliance’, has significantly weighed
down Aboriginal Australian health care. 66 Evidence shows that compliance, that
is, adherence to western medical advice and services, is a key cause of the
continuing dreadful state of health among Aboriginal and Torres Strait Islander
65
Trudgen, above n 46.
66
Frederic McConnel, ‘Compliance, Culture, and the Health of Indigenous People’ (2003) 3 Rural
and Remote Health 190; K Hamrosi, S J Taylor and P Aslani, ‘Issues with Prescribed Medications
in Aboriginal Communities: Aboriginal Health Workers’ Perspectives’ (2006) 6 Rural and Remote
Health 557.
325
peoples, especially in remote Indigenous health practice. 67 The failure to use
prescribed medication is reported to be a reality of daily life, a problem leading to
continued or worsening Indigenous health outcomes. 68
Alternatively, it is suggested that Indigenous non–compliance is not the
problem but rather a measure of the real issue: the dissonance between two
different belief systems, those of Aboriginal patients and western medicine. 69
‘Strong compliance’, or healthy behaviour, occurs when there is a strong
cultural affinity between patients and western medical advice and treatments, in
particular, when the scientific concepts of cause and effect, as well as statistical
relationships such as predictability, are shared. ‘Poor compliance’, or unhealthy
behaviour, occurs when there is not a common understanding of those
fundamental concepts underlying the western medical system. 70 Difficulties arise
when perceptions about the causes of ill health are different, when health
practitioners offer an account of reality which is different from patients’
understanding and experience: the greater the dissonance between the western
medical explanatory model and patients’ belief systems, the higher the impact on
compliance. 71
The introduction of ‘culturally appropriate measures’ as a device to improve
the accessibility of the mainstream health delivery system, can be considered as a
67
Ibid. K Kemp, T Nienhuys, J Boswell et al, ‘Strategies for Problems Associated with
Maximising and Monitoring Compliance with Antibiotic Treatment for Otitis Media with Effusion
in a Remote Aboriginal community’ (1994) 2 Australian Journal of Rural Health 25; Maher,
above n 29, 234–235.
68
Lucas R., ‘Compliance issues in Central Australia’ (1997) 25 Central Australian Rural
Practitioners Association Newsletter 14.
69
McConnel, above n 66. See also, Maher, above n 29, 235: ‘[t]he lack of a common conceptual
framework within which patient and practitioner can interact may result in decreased compliance
and satisfaction’.
70
McConnel, above n 66.
71
Ibid; Maher, above n 29, 235.
326
means to increase compliance among Aboriginal and Torres Strait Islander
peoples. The point I would like to make is that those measures operate only at one
specific level of the ‘health interface’.
To clarify, we can consider ‘compliance’ as a rate or a fraction with a
numerator and denominator. In the context of Aboriginal and Torres Strait
Islander health, the numerator indicates adherence to medical advice, whereas the
denominator is the medical advice given according to the western medical system.
It follows that progress towards compliance can be achieved either by
manipulating the numerator or the denominator. 72
Efforts to improve compliance have focused on the numerator, that is
increasing indigenous peoples’ adherence, by encouraging patients to take
responsibility for their health, increasing personal and community autonomy, and
changing ‘institutional attitudes and behaviour’ to ensure ‘cultural safety’ through
more ‘cultural appropriate’ measures aiming at accommodating Indigenous
Australians’ ‘cultural needs’. 73
In all these ‘culturally appropriate measures’ the fundamental assumption is
that the denominator, that is the western medical system, remains unchanged and
unchallenged. In this way, western medicine is conceived of as a neutral
construct, free from any ‘cultural traits’. In contrast, it is maintained here that
cultural awareness should be applied not only to Aboriginal and Torres Strait
Islander peoples, but also to the western system of medicine.
72
McConnel, above n 66.
73
K Humphery and T Weeramanthri, Forgetting Compliance: Aboriginal Health and Medical
Culture (Darwin, NT: Northern Territory University Press, 2001).
327
Western medicine is deemed to have a culture, a set of attitudes, actions and a
belief system. 74 The most significant feature is that western medical culture is
science–based: scientific and evidence based knowledge underpins the whole
conceptual fabric of western medicine.
Accordingly, a scientific view of health, illness and disease not only informs
the whole cognitive apparatus of the medical system, but also affects health
professionals’ practices, attitudes, and advice given to patients. It is precisely the
distance between Indigenous Australians’ health belief system and western
medicine’s belief system, the root cause of the problematic issues in the cross-
cultural health service delivery setting. 75
The immobility of the denominator indicates the foundational flaw of
Australia’s policy framework to address Aboriginal Australians health status: the
recognition and maintenance of the western medicine paradigm as the only system
of medical knowledge accepted and applied in the delivery of health care.
It is proposed that the manipulation of the denominator, through the elevation
of Aboriginal traditional medicine to the same level as western mainstream
medicine, would have far–reaching significance and implications. It would
represent a valuable alternative option not only to improve ‘compliance’, but to
fulfil a self–determined right to health for Aboriginal Australians. There is an
urgent need to integrate Aboriginal traditional medicine within Australia’s
national health policy frameworks and strategies. As the traditional healers, Andy
74
Maher, above n 29; McConnel, above n 66.
75
328
Tjilari and Rupert Peter, declare ‘we want to work together to improve the health
and well–being of Anangu’. 76
The integration of Aboriginal traditional medicine into Australia’s health
policy frameworks would not be exceptional from a worldwide perspective. 77
Rather, it would harmonize Australian health policy with the growing
international interest 78 and recognition of traditional medicine and
complementary/alternative medicine. 79 The acknowledgment of Aboriginal
76
77
Amazon Conservation Team, Shamans and Apprentices Programme: Promotion and Integration
of Traditional Medicine, available at <http://www.amazonteam.org/northeast.html> (accessed 4
May 2006). This program promotes and supports the integration of traditional medicine in
Suriname (South America) in which tribal healers operate and direct traditional medicine clinics
built alongside primary care health outposts. Since the program’s inception in 2000, traditional
healers have been practising on equal footing with western–trained health workers and have been
restored to full honour in their communities. Operating at the interface of western medicine,
shamanistic healing, public health, and conservation, the Programme has been recognized by
UNESCO/Nuffic as a Best Practice for Indigenous knowledge, as well as a 2003 World Bank
Development Marketplace Global Competition winner; Germosen–Robineau and Lagos–Witte,
The TRAMIL Program: Traditional Knowledge of the Use of Medicinal Plants in Central America
and the Caribbean, above n 60. This applied research programme about traditional popular
medicine of the Caribbean basin aims to support health practices based on the use of medicinal
plants. It contributes to the development of national health and education policies, and primary
healthcare delivery that integrates safe and effective traditional remedies; In Ghana, president
Kwame Nkrumah, has recognized traditional medicine of the Akan, the Yoruba and other native
African peoples the medicine of the land. In Ghana there is one traditional healer for every group
of 200 Ghana citizens while there is one orthodox medical practitioner for every 20,000 Ghana
citizens: see, Rudolph Ryser, ‘Traditional Healers, HIV/AIDS and the Accra Declaration’ (2006)
2(2) Center for World Indigenous Studies and Center for Traditional Medicine Quarterly
Newsletter 5.
78
The WHO outlines the widespread and increasing adoption of traditional and
complementary/alternative medicine worldwide, especially over the last 20 years. It is reported
that one–third of the world’s population and over half of the populations of the poorest parts of
Asia and Africa do not have regular access to essential drugs. Being more accessible, traditional
medicine is also more affordable, closer to patients’ ideology, and less paternalistic than
conventional medicine. In Africa up to 80% of the population uses traditional medicine whereas in
China traditional medicine accounts for around 40% of all health care delivered. Traditional and
complementary/alternative medicine provides an important health care service to persons both
with and without geographic or financial access to allopathic medicine’: see, WHO, Legal Status
of Traditional Medicine and Complementary/Alternative Medicine: A Worldwide Review, above n
59, 3–4; WHO, WHO Traditional Medicine Strategy 2002-2005, above n 59.
79
World Health Organization, WHO Traditional Medicine Strategy 2002–2005, above n 59;
World Health Organization, Traditional Practitioners as Primary Health Care Workers, above n
59; WHO, General Guidelines for Methodologies on Research and Evaluation of Traditional
Medicine, above n 59; World Health Organization/Pan American Health Organization, Strategic
Framework and 1999–2002 Action Plan: Health of the Indigenous Peoples (Washington, D.C.:
WHO/PAHO, 2000).
329
traditional medicine would therefore contribute to the implementation of one of
the fundamental rights which is set out in the UN Declaration:
Indigenous peoples have the right to their traditional medicines and to

maintain their health practices, including the conservation of their vital
medical plants, animals and minerals… 80
The 2006 Global Summit on HIV/AIDS, Traditional Medicine and Indigenous
Knowledge (the Accra Summit) held in Ghana, 81 offers an exceptional case where
traditional healers, scholars, and conventional medical practitioners gathered to
find a new policy framework for cooperation and collaboration between
traditional healers and mainstream medical professionals to prevent and treat
HIV/AIDS. The Accra Declaration firmly calls on the WHO, UN Joint
Programmes on HIV/AIDS, associated organizations and all governments and
world organizations to support traditional medical practices through:
(1) promotion of traditional medical practice through collaboration with

and recognition by existing healthcare systems and introduction of
traditional medicine into research and educational curricula at all levels
with particular emphasis on the youth;
(2) institutionalization of Traditional Medical Practice within

governments, with implementation of standardization and a code of
ethics for Traditional Medical Practitioners;
(3) training and certification of Traditional Medical practitioners in safe

practices, addressing both indigenous and academic areas, in accordance
with customary laws;
(4) promotion of collaboration and three–way referrals between

traditional and orthodox medical practitioners, i.e. Traditional Medical
Practitioners–to–Traditional Medical Practitioners, Traditional Medical
Practitioners–to–Conventional Medical Practitioner, Doctors–to–
Traditional Medical Practitioners;
80
UN Declaration on the Rights of Indigenous Peoples, art. 24(1).
81
In March 2006, the World Health Organization, UN AIDS, the Center for World Indigenous
Studies, Africa first were joined by African indigenous health organizations in Accra (Republic of
Ghana) for a five–days summit of traditional healers, orthodox heal service providers and
organizational representatives.
330
(5) States parties, governments and multilateral organizations are urged
to respect the customary laws and practices that define access and
availability of indigenous cultural knowledge, and to ensure adequate
and mutually acceptable exchanges. Governments and funding agencies
are requested to commit resources and funding to achieve the states
goals. 82
Furthermore, the acknowledgment of Aboriginal traditional medicine at the
national level would prompt international institutions to revise those studies that
ignore the existence of Aboriginal traditional medicine in Australia, one of the
oldest medical systems in the world. It is unacceptable, for instance, that a
worldwide review on traditional medicine undertaken by the World Health
Organization takes absolutely no notice of Aboriginal traditional medicine and
traditional healers in Australia. 83
The implementation of health plans by international organizations should
carefully assess the existence of local healing practices and medical remedies and
obtain the ‘free, prior and informed consent’ of peoples involved in policy
initiatives. The implementation of plans which ignore traditional medical systems,
healing practices and the role of traditional healers within the communities have
the potential to create dependency instead of empowerment.
82
Accra Declaration, Global Summit on HIV/AIDS, Traditional Medicine and Traditional
Knowledge, held at the Ghana Institute of Management and Public Administration, Accra,
Republic of Ghana, 15–18 March 2006.
83
Complementary/Alternative Medicine: A Worldwide Review, above n 59,145–147. Traditional
Chinese medicine is described in details as the primary alternative/complementary medicine in
Australia. Emphasis on other traditional therapies includes traditional ayurvedic medicine,
traditional European herbal medicine, traditional homeopathic medicine, and aromatherapy. There
is no mention whatsoever of Aboriginal traditional medicine.
331
9.3 Spirituality and rationality: understanding the ‘cultural divide’
The discussion of Aboriginal traditional medicine within the Australia’s health
policy debate has exemplified the ramifications that the inclusion of a specific
‘indigenous knowledge system’ can have on the formulation, implementation and
evaluation of policy frameworks in the area of indigenous health.
This example offers the opportunity to gain a deeper understanding of the
broader implications that the incorporation of ‘indigenous knowledge systems’
into development policies can have in relation to indigenous/non–indigenous
peoples’ relationships. It is indeed argued that the core of the ‘cultural divide’
which is often perceived as the major obstacle in indigenous/non–indigenous
relationships lies at the ontological level.
The coexistence and tension between two different systems of medicine –
Aboriginal traditional medicine and western medicine – have highlighted the
complexity of the ‘health interface’ in which Aboriginal and Torres Strait Islander
peoples live. This complexity has been found to be mainly grounded in the
different belief systems which underlie the two systems of medicine. As Ralph
Fold has pointed out in the case of the Pintupi people,
When the dominant society sees two discrete systems of medicine, one
spiritual and the other scientific, it assumes that the obvious advantages
of a scientific approach must vanquish the other. However, Pintupi are
open to exploring the advantages of both, adopting aspects of western
medicine for their own reasons and on their own terms, without ever
relinquishing the spiritual basis of their own health understandings. 84
84
Folds, above n 24, 134.
332
In fact, scientific and evidence–based knowledge is the foundation on which
the mainstream western medical system has been developed and validated,
whereas the Aboriginal traditional medical system is imbued with the
metaphysical and spiritual dimensions of reality.
Difficulties in acknowledging Aboriginal traditional medicine by the dominant
society, resemble the difficulties in reconciling an ontology based on the scientific
rational paradigm with an all–embracing spiritually imbued ontology. The case of
western modern science 85 vis–à–vis native science helps us to understand this
tension.
It has been outlined that modern science can be seen as ‘…a collective rational
perceiving of reality, which is shared and authorized by the scientific
community’. 86 However, if we take the view that science is culturally relative,
that which is regarded as science will be determined by the
culture/worldview/paradigm of the definer, 87 it follows that other sciences exist
besides the ‘Western science of measurement.’ 88 Native science and its paradigm
exemplify the ontological essence of indigenous peoples’ worldviews:
The Native paradigm is comprised of and includes ideas of constant

motion and flux, existence consisting of energy waves,
85
In this work, Western science is not conceived of as ‘an immaculate Western conception’. The
contribution of non–Western societies, such as Chinese, Arab, and others, is acknowledged. See,
Amartya Sen, Identity and Violence. The Illusion of Destiny (New York: W.W. Norton &
Company, 2006). The adjective “Western” generally refers to non–indigenous peoples.
86
M Ogawa, ‘Science Education in a Multiscience Perspective’ (1995) 79 Science Education 583,
589.
87
Leroy Little Bear, JD, foreword in Gregory Cajete, Native Science. Natural Laws of
Interdependence (Santa Fe, New Mexico: Clear Light Publisher, 2000).
88
Ibid.
333
interrelationships, all thing being animate, space/place, renewal, and all
things being imbued with spirit. 89
Native or Indigenous science refers to ‘the entire edifice of Indigenous
knowledge’ since there is no word in native languages for ‘science’. Native
science encompasses ‘a wide range of tribal processes of perceiving, thinking,
acting, and ‘coming to know’. The foundational role that concept, logic, and
rational empiricism play in western science, need to be integrated with the role of
‘sensation, perception, imagination, emotion, symbols, and spirit’. Indigenous
science, as it has been discussed, 90 seems to fill the gaps that Hayward identified
in western science: ‘the sacredness, the livingness, and the soul of the world’. 91
It becomes evident therefore how spirituality is deeply inserted in indigenous
ontology as ‘[a]ll things have spiritual energy’: 92
…“spirit” and energy waves are the same thing. All of creation is a
spirit. Everything in creation consists of a unique combination of energy
waves…what appears as material objects is simply the manifestation of
a unique combination of energy waves. Conversely, all energy wave
combinations do not necessarily manifest themselves in terms of
material objects’.
The centrality of spirituality in indigenous peoples’ worldviews can be grasped if
one considers what Deloria argued:
It is foolish to pretend on the basis of a wholly materialistic science

(which can only measure quantities) that there is nothing spiritual and
nonmaterial in our universe…It is this attitude, as much as anything, that
89
Ibid.
90
Ibid.
91
Jeremy Hayward, Letters to Vanessa: on Love, Science, and Awareness in an Enchanted World
(Boston: Shambhala Publications, 1997).
92
Donald L Fixico, The American Indian Mind in a Linear World; American Indian Studies and
Traditional Knowledge (New York: Routledge, 2003) 58.
334
distinguishes [Indigenous knowledge system] from the scientific
endeavor. 93
The tension between western science and native science is also perceived as a
tension between ‘the white men’s linear philosophy’ and a ‘circular philosophy’. 94
‘In circular philosophy’, Fixico explains, ‘all things are related and involved in the
broad scope of Indian life…The Circle of Life is inclusive of all things, including
the physical, metaphysical and spiritual world. All things consist of spiritual
energy’. 95 On the contrary, white man’s linear way of thinking and perceiving the
world is based on empirical evidence. 96
Scientific empiricism dominates the linear way of thinking. Indeed, whereas
the linear mind is deemed to be based on a ‘human–to–human relationship’, the
circular way of thinking entails an holistic perception of reality which involves
human beings, animals, plants, the natural environment and the metaphysical
world. 97 Whereas the ‘linear mind looks for cause and effect…the Indian mind
seeks to comprehend relationships’. 98 More specifically,
Linear thought is rationalizing how something originates at point A, is

affected by some force or influence and transforms into point B, to point
C, and so forth. Intuitiveness is less relevant to the linear mind of
problem solving and philosophy. The problem for the linear mind is
dealing with the abstract.
The circular method is a circular philosophy focusing on a single point

and using familiar examples to illustrate or explain the point of
discussion…As each person or being relates to the focal point, and if
lines were drawn to indicate this relatedness, the results would be the
spokes of a wheel, and all the participants are encircled by the unity of
this experience. This might be called an “Internal Model”.
93
Vine Deloria Jr, ‘Indians, Archeologists, and the Future’ in Barbara Deloria, Kristen Foehner
and Sam Scinta (eds), Spirit and Reason: the Vine Deloria, Jr, Reader (Golden, Colorado:
Fulcrum Publishing, 1999) 74.
94
Fixico, above n 92.
95
Ibid 42, 53.
96
Ibid 2.
97
Ibid.
98
Ibid 8.
335
In other words, the ‘Western linear mind must pursue empirical evidence to
prove something is true so that it can become factual in the scientific sense’; 99
while, in contrast, the Indigenous ‘circular mind’ or ‘native mind–set is a
combination of physical and metaphysical dimensions’. 100
The pursuit of empirical evidence and reasoned scrutiny highlights the
centrality of rationality. Rationality, and the demands of rationality, have been
central to a wide range of disciplines, including social choice theory, 101
economics, 102 philosophy and social sciences.
Rationality, understood as ‘the use of reasoned scrutiny’, is considered to be
‘central to the idea and assessment of freedom’. 103 It is indeed sustained that
‘insofar as rationality can be seen as systematic use of reason, it is possible to
argue that rationality is central to the understanding and assessment of
freedom’. 104
99
Ibid 9.
100
Ibid 92.
101
See, eg, Kenneth J Arrow, Individual Values and Social Choice (New York: Wiley, 1951; 2nd
ed, 1963); James M Buchanan, ‘Social Choice, Democracy and Free Markets’ (1954) 62(2)
Journal of Political Economy 114; James M Buchanan, ‘Individual Choice in Voting and the
Market’ (1954) 62(3) Journal of Political Economy 334; Amartya K Sen, ‘Social Choice Theory’
in Kenneth J Arrow and Michael Intriligator (eds), Handbook of Mathematical economics, vol III
(Amsterdam: North–Holland, 1986); Amartya K Sen, ‘Choice Functions and Revealed
Preferences’ (1971) 38(3) Review of Economic Studies 307; Amartya K Sen, Collective Choice
and Social Welfare (San Francisco: Holden–Day, 1970), among many other contributions.
102
In mainstream economics the nature and demands of rationality have been widely discussed.
Rationality of choices has been used according to different approaches. ‘Self–interest
maximization’, for instance, sees rational choice as selecting those alternatives that promote the
person’s own interest most; ‘internal consistency of choice’ evaluate the relation between choices
in different situation, so that demands are seen in terms of choices themselves: see, Amartya K
Sen, Rationality and Freedom (Cambridge, MA: Harvard University Press, 2002). Discussions
about identification and discriminations requirements can be found in Amartya K Sen, ‘Choice
Functions and Revealed Preferences’ (1971) 38 Review of Economic Studies; Kenneth J Arrow,
‘Rational Choice Functions and Orderings’ (1959) 26 Economica; H G Herzberger, ‘Ordinal
Preference and Rational Choice’ (1973) 41 Economica 187; Thomas Schwartz, The Logic of
Collective Choice (New York: Columbia University Press, 1976); Kaushik Basu, Revealed
Preference of Government (Cambridge: Cambridge University Press, 1980); Isaac Levi, Hard
Choices (Cambridge: Cambridge University Press, 1986), among other contributions.
103
Sen, Rationality and Freedom, above n 102, 5.
104
Ibid 19.
336
Without denying the foundational significance of rationality, that is the
‘disciplined use of reasoning and reasoned scrutiny’ 105 or, in broader terms, ‘the
discipline of subjecting one’s choices – of actions as well as of objectives, values
and priorities – to reasoned scrutiny’, 106 it is also important to consider and
acknowledge the centrality that spirituality has in the whole encompassing
indigenous ontology.
It is argued here that spirituality plays as fundamental a role as rationality in
individual and collective decision–making processes.
As rationality can be conceived as ‘the use of reasoning to understand and
assess goals and values…and the use of these goals and values to make systematic
choices’, 107 spirituality can be conceived of as the use of the spiritual perception
of reality which is intrinsically embedded in indigenous peoples’ goals, values,
and choices. In other words, the rational and spiritual aspects of human life cannot
be considered as two separate domains. The spiritual and metaphysical
dimensions are intertwined with the empirical and rational dimensions of life, and
they all impact on indigenous peoples’ behaviours, decision–making processes,
and choices.
This thesis argues that the formulation of development policies for indigenous
peoples must include indigenous knowledge systems and indigenous perspectives
at the deepest ontological level. The integration of the indigenous right to self–
determination into development policies requires policy makers to acknowledge
and respect the different perceptions that people have about reality, options and
105
Ibid 19.
106
Ibid 4.
107
Ibid.
337
choices; it requires policy makers to acknowledge those fundamental differences
which are deemed to lie at the ontological level.
The spiritual dimension of reality is a core element of indigenous peoples’
worldviews. 108 As such, the role that spirituality plays in indigenous peoples’
ontology is one of the most important distinctive factors in the ‘cultural divide’
that seems to prevail at the indigenous non–indigenous interface.
This can be seen, for example, in traditional native political thought. It has
been argued that spirituality was the primary foundation of the Indian
governmental order and the link of traditional social and political organization:
Through spirituality the natural order of things was revealed and man’s
proper relationship to nature was established – a relationship of respect
and preservation, not exploitation. Spirituality underlies the argument
that Indian government has an obligation to maintain the faith for future
generations. 109
This line of argument is also maintained by Oren Lyons who states that ‘ [t]he
primary law of Indian government is the spiritual law. Spirituality is the highest
form of politics, and our spirituality is directly involved in government’. 110
Freedom–centred and valued choice-focused development policies need to
reconcile an ontology based on the scientific rational paradigm with an all–
embracing spiritually imbued ontology, in a spirit of mutual respect and
understanding. The lack of this mutual understanding would undermine the
108
This can be seen not only in the area of indigenous health. See, for instance, the recognition of
‘indigenous peoples’ right to maintain and strengthen their distinctive spiritual relationship with
their traditionally owned or otherwise occupied and used lands, territories, waters and costal seas
and other resources…’, UN Declaration on the Rights of Indigenous Peoples, art. 25.
109
Leroy Little Bear, Menno Boldt and J Anthony Long (eds), Pathways to Self–Determination;
Canadian Indians and the Canadian State (Toronto: University of Toronto Press, 1984) 4.
110
Oren Lyons, ‘Spirituality, Equality, and Natural Law’ in Leroy Little Bear, Menno Boldt and J
Anthony Long (eds), Pathways to Self–Determination; Canadian Indians and the Canadian State
(Toronto: University of Toronto Press, 1984) 5.
338
possibility to theoretically, politically and practically conceived development
policies imbued with the principle of indigenous self–determination.
It has been argued that ‘no one can know as much as Indians themselves about
what policies are valid for them and that any analysis of Indian issues that ignores
or neglects a systematic exploration of Indian viewpoints inspires suspicion. The
Indian perspective must be heard and acknowledged for a meaningful dialogue to
occur between Indians and non–Indians’. 111
The question that should be answered in relation to the future of indigenous–
non–indigenous relations is: ‘cultural divide’ or ‘cultural interface’? The answer
will depend on the capacity of the ‘linear mind’ and ‘circular mind’ to come to a
reciprocal understanding and be able to respectfully coexist in different, yet
interconnected ontological domains.
111
Leroy Little Bear et al, above n 109, ix.
339
9.4 Conclusion
The third part of the thesis has demonstrated how appropriate development
policies can constitute an important vehicle for the fulfilment of indigenous
peoples’ right to self–determination. The normative framework represented in the
‘indigenous capability rights system’ and the methodological approach developed
in the second part of the thesis, have been applied in relation to indigenous
peoples’ right to health.
Chapter 7 has discussed the interface between indigenous rights and
development policy in the context of the growing participation of indigenous
peoples in the world’s development agenda. The intense dialogue that the UN
Permanent Forum on Indigenous Issues has established with a wide range of
international and intergovernmental institutions, international financial institutions
and development agencies, in relation to the formulation, implementation and
evaluation of the MDGs, shows the significance impact that development
processes are deemed to have on indigenous peoples worldwide.
In particular, the importance of health–related MDGs and the health challenge
that indigenous peoples are facing at the global level have been emphasised. In
this context, the analysis has focussed on the health status of Aboriginal and
Torres Strait Islander peoples of Australia.
Chapter 8 has illustrated the health crisis which is affecting Indigenous
Australians and it has analysed the current Australian governments’ policy
framework to tackle the appalling health conditions suffered by the Australian
indigenous population.
340
It has been argued that the adoption of the ‘indigenous capability rights
system’ normative frame and the methodological approach to developing policies
articulated in the second part of the thesis, would address the mismatch between
indigenous peoples’ claims to self–determination and Australia’s ‘practical
reconciliation’ approach to tackle the socio–economic disadvantage of Aboriginal
and Torres Strait Islander peoples.
The thesis argues that the adoption of this methodological approach to
development policies would reconcile the fundamental dichotomy underpinning
the current Australia’s indigenous policy, that is, the dichotomy between
‘symbolic reconciliation’ and ‘practical reconciliation’. In other words, it is
maintained that the indigenous rights’ agenda and the betterment of the
indigenous socio–economic disadvantage are inextricably connected.
The adoption of agency freedom as the reference space for policy design, the
adoption of agency achievement as the reference space for policy evaluation, the
inclusion of individual and collective value–judgment processes in the whole
policy process and evaluation of the impact that peoples’ choices have on policy
outcomes, provide the fundamental nomenclature of such methodological
approach to indigenous policy that would fulfil indigenous peoples aspirations to
Chapter 9 has therefore explored the implications of applying one of the
criteria deemed to be essential for the formulation and realization of self–
determined development policies, that is the acknowledgment and inclusion of
‘indigenous knowledge systems’. As a result, a foundational flaw in addressing
Aboriginal Australians’ health status has been identified, that is the lack of
341
support for, and devaluing of Aboriginal traditional medicine and traditional
healers by state–sponsored indigenous health policies and practices.
The indigenous capability right to health has therefore been configured as the
total set of capabilities relating to a) personal well–being; b) the total set of those
aspects that directly relate to the health of family units, communities and the
wider eco-systems; c) the freedom to maintain and access Aboriginal traditional
medicines and health practices.
Finally, the analysis of the tension between the Aboriginal traditional medical
system and the western medical system, has provided the ground to identify at the
ontological level the fundamental tension which seems to underpin
indigenous/non–indigenous peoples relations. It has been argued that the future of
indigenous/non–indigenous relations will depend on the capacity of the ‘linear
mind’ and ‘circular mind’ to come to a reciprocal understanding and be able to
respectfully coexist in different, yet interconnected ontological domains.
342
Conclusions
‘What is self–determination?’ asks the young Arakmbut man. 1 ‘Self–determination is
the river in which all other rights swim’, 2 replies the Australian aboriginal man. From the
Amazon forest to the Australian continent, the quest for self–determination lies at the
heart of indigenous peoples’ aspirations.
In light of the centrality of self–determination for indigenous peoples, this thesis has
tried to present an in–depth understanding of the content of indigenous self–
determination, to disentangle the main problematic issues related to the admissibility and
legitimacy of the right of indigenous peoples to self–determination, and to originally
contribute to the promotion of this right by proposing a normative framework specific to
indigenous rights and a methodological approach to development policies aimed at the
fulfilment of indigenous self–determination.
This study has navigated and constructively connected two key domains relevant to
indigenous peoples’ right to self–determination: the indigenous rights discourse and
development policy processes. The analysis of these two areas of scholarship has served
to support the central argument proposed in this thesis: that development policy plays a
crucial role in determining the level of enjoyment of self–determination for indigenous
peoples. In fact, it has been argued that development policy can offer a viable pathway
for the advancement of indigenous self–determination. Adequate development policies
have the potential to overcome the limitations of the international human rights
1
Andrew Gray, Indigenous Rights and Development: Self–determination in an Amazonian Community
(Providence and Oxford: Berghahn Books, 1997) 1.
2
Michael Dodson, quoted in C Scott, ‘Indigenous Self–Determination and Decolonization of the
International Imagination: A Plea’ (1996) 18 Human Rights Quarterly 814, 814.
343
implementation machinery in relation to the effective realization of indigenous claims to
self–determination, and to bypass states’ political unwillingness to recognise and promote
indigenous peoples’ right to self–determination, when adequate principles and criteria are
embedded in the whole policy process.
The argument has been consistently developed throughout the three parts of the
thesis. Each part has discussed and elaborated a specific aspect of this line of argument,
which has situated the indigenous right to self–determination at the intersection between
the international human rights system and development policy processes.
Part 1 explored the right of indigenous peoples to self–determination within the
international legal system. The analysis focused on three related issues: the historical
dimension of indigenous peoples within the international system; the emergence of legal
precepts specific to indigenous peoples – in particular the right to self–determination –
within the international human rights framework; and the adaptation of international
human rights implementation procedures to address indigenous claims to self–
determination.
Chapter 1 traced the main phases through which the status and rights of indigenous
peoples have developed within the international system. The historical account provided
an essential background to comprehend the contemporary regime of international law as
it relates to indigenous peoples. Some key points have been identified, which are of
fundamental importance in the context of this study.
It has been argued that colonialism has significantly influenced the legal thought and
practice concerning indigenous peoples. Colonial processes played a fundamental role
not only in the development of international legal norms concerning indigenous peoples,
344
but also in the development of the fundamental structures and legal doctrines of the
international system. It has been demonstrated that the colonial encounter between
European and non–European peoples has been critical for the emergence of international
law and the international system. Peoples, and not states, have been the fundamental
concern of international law, which arose primarily to regulate relations between different
civilizations, not relations between states. In this context, colonialism has not been
justified by a fully developed legal doctrine, but by the ‘civilizing mission’ that European
polities embarked on in order to rescue the uncivilized, backward, undeveloped
indigenous populations of the newly discovered lands.
The historical overview has revealed that at the core of the development of many
international doctrines is a ‘dynamic of difference’, which has been defined as ‘the
endless process of creating a gap between two cultures, demarcating one as ‘universal’
and civilised and the other as ‘particular’ and uncivilised, and seeking to bridge the gap
by developing techniques to normalize the aberrant society’. 3
Different techniques have indeed been engineered to characterize and address the
‘dynamic of difference’ founded on the cultural divide which has been differently
articulated throughout the historical development from Victoria’s naturalist framework,
the positivist construct of international law, the early twentieth–century pragmatism, to
contemporary discipline of development economics.
The ‘dynamic of difference’ is indeed at the heart of the ‘civilizing mission’ which
has underlined the historical development of international law. The creation and
consistent replication of the ‘dynamic of difference’ throughout the history of
3
Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge, UK; New
York: Cambridge University Press, 2004) 15–31.
345
international law has provided a sound justification for the analysis and the argument
proposed in this thesis.
It is maintained that the ‘dynamic of difference’ and the related ‘cultural divide’
continues to operate in the contemporary international system. The universalizing spin of
the international human rights system coexists with the engineering of development
processes which seek to bridge the gap between developed and under–developed or
developing peoples, which include most of the world’s indigenous peoples.
It is therefore clear why this thesis argues that indigenous peoples’ claims of self–
determination straddle the realm of international human rights law and development
processes. The analysis and fulfillment of indigenous peoples’ right to self–determination
need to be situated at the intersection between the international human rights system and
development policy processes. The analysis of the indigenous right of self–determination,
in its substantive and procedural aspects, within the international human rights system
has demonstrated the need to go beyond the legal domain. The legal domain has been
complemented with the analysis of development processes since development policies
significantly impact upon indigenous peoples’ lives.
The thesis has demonstrated the fundamental importance of theoretically and
practically applying the principle of indigenous self–determination in development
policies for indigenous peoples. The line of argumentation has demonstrated that the
integration of the principle of indigenous self–determination into development policies
would potentially serve as a vehicle to put an end to the ‘civilizing mission’ which has
characterized the historical development of international law, and to minimize the
‘dynamic of difference’ reproduced in today’s international system.
346
In particular, chapters 2 and 3 have demonstrated the peculiarity of indigenous self–
determination and, more importantly, the inability of the international human rights
implementation system to comprehensively address the indigenous right to self–
determination in its multidimensionality.
Part 2 explored the possibility to extend the understanding of indigenous self–
determination from the international legal arena to development processes. For this
purpose, Amartya Sen’s capability approach has been adopted as a normative framework
of thought to explore the interface between indigenous rights and development policy.
It has been discussed how the capability approach represents a revolutionary
approach to the understanding of a broad range of issues, including individual well–
being, poverty, justice, and development policy. The focus on the lives that people are
able to live (rather than on the wealth, income, primary goods, or desire fulfillment), on
the enlargement of peoples’ freedoms and valued choices, as well as on persons’
capabilities to do and be what they value, makes the capability approach an exceptional
conceptual framework which this thesis has adopted to combine the indigenous rights
discourse and development policy.
The adoption of Sen’s capability approach provided the opportunity to re–think
development policies in a way that is philosophically, politically and practically more
cognisant with indigenous demands for self–determination. It has been demonstrated how
the capability approach offers foundational conceptual categories which respond to
indigenous aspirations to self–determination in a way that traditional development
theories have not been able to.
347
Chapter 4 provided a general overview of the capability approach, described its
foundational concepts and situated this study within the current debate on the capability
approach. Chapters 5 and 6 adopted key conceptual categories of the capability approach
to construct, respectively, an indigenous rights–based normative framework specific to
indigenous peoples and a methodological approach to development policy for indigenous
peoples.
The construction of the normative framework and methodological approach has been
carried out by amalgamating foundational concepts of the indigenous rights discourse and
the capability approach. Part 1 has provided the essential background needed to
understand the status and rights of indigenous peoples within the international human
rights system necessary to construct the normative framework and methodological
approach. The normative framework and methodological approach are, indeed, deeply
imbued with the essence of the indigenous right to self–determination as it has been
developed within the indigenous rights discourse.
The normative framework has been identified as the ‘indigenous capability rights
system’. This system has been constructed upon the understanding of the indigenous right
to self–determination as the substantive and overall freedom to choose the life indigenous
peoples, individually or collectively, have reason to value. Being also a prerequisite for
the fulfillment of all other indigenous rights, the enjoyment of self–determination is
perceived as an integrated process in which all indigenous rights, considered as
interconnected freedoms, interconnect and impact on each other. As a result, the
indigenous capability rights system is conceived as a whole integrated system in which
348
the right to self–determination lies at the centre of a coherent system of reciprocal
interrelations among all indigenous rights.
The indigenous capability rights system establishes a fundamental cornerstone to
interpret the theoretical dimension of the indigenous right to self–determination and its
practical fulfillment through development policies. The understanding of indigenous
rights in terms of ‘capability rights’ allows us to move from a ‘passive recipient-based
approach’ to an ‘agent–driven approach’ to indigenous rights and development policies
aimed at the implementation of indigenous self–determination.
The indigenous capability rights normative system provides the fundamental
underpinning for the proposed methodological approach to development policies for
indigenous peoples. Considering that development policy is primarily understood as the
‘process of expanding the real freedoms that people enjoy’, 4 development policies for
indigenous peoples should aim at expanding the real freedoms underlying all indigenous
rights encompassed into the indigenous capability rights system.
The methodological approach discussed in chapter 6, articulates a freedom–infused
policy process which aims at fulfilling indigenous aspirations to self–determination. The
endorsement of a freedom–based approach to developing policies for indigenous peoples
has been realized through the construction of a methodological approach which
encompasses the following principles and criteria: adoption of agency freedom and
agency achievement as the most adequate reference spaces respectively for the design and
evaluation of development policies; inclusion of individual and collective value–
judgment processes within the policy process; focus on individual and collective choices
4
349
and the analysis of their impacts on policy outcomes; benchmarking of policy outcomes
against the level of well–being achievement and agency achievement; acknowledgment
and integration of indigenous knowledge systems; and recognition and inclusion of the
principle of ‘free, prior and informed consent’. It has been argued that the adoption of
these principles and criteria in the design, implementation and evaluation of development
policies would facilitate the implementation of the indigenous right to self–determination.
Part 3 of the thesis has demonstrated that appropriate development policies can
constitute a powerful vehicle for the fulfillment of indigenous peoples’ right to self–
determination. It can be argued that the proposed methodological approach can be useful
in the context of the world’s development agenda in relation to indigenous peoples. The
UN Permanent Forum on Indigenous Issues has recognised that the MDGs cannot be
redefined or formally amended. 5 As a result, emphasis is put on the need to interpret and
apply development policies in a way that indigenous peoples can be included and benefit
from these development processes. 6
Accordingly, this thesis maintains that the ‘indigenous capability rights system’ and
the methodological approach constructed upon it, can function as a normative and
practical frame within which development policies can be properly interpret for the
betterment of indigenous peoples’ lives and well–being.
This line of reasoning has been carried out by benchmarking Australia’s health policy
frameworks for Aboriginal and Torres Strait Islander peoples against the methodological
approach suggested in the thesis. This application has produced fruitful insights that
5
E/C.19/2006/11, para. 4.
6
E/C.19/2006/11, para. 40.
350
Australian policy makers may take into consideration to further Indigenous Australians’
quest for self–determination and improve the appalling health conditions suffered by
Aboriginal and Torres Strait Islander peoples.
In particular, this thesis has stressed the crucial significance of considering and
including indigenous peoples’ collective and individual choices within the whole policy
process. The acknowledgement and integration of Indigenous Australians’ health–related
indigenous knowledge system, one of the criteria suggested in the methodological
approach, has been indicated as a fundamental criterion to be applied in order to enhance
Indigenous Australians’ substantive freedom to choose valued health–related options.
This thesis has strongly denounced the lack of support for and devaluing of
Aboriginal traditional medicine and traditional healers and urges Australia’s
governmental institutions and policy makers to initiate actions for the acknowledgment
and consistent inclusion of Aboriginal traditional medicine and traditional healers within
Australia’s health policy frameworks.
In this regard, the thesis also urges international and regional specialized agencies,
dealing with traditional medicine and complementary or alternative medicine (such as the
World Health Organization), to reconsider those studies which have ignored the existence
of Aboriginal traditional medicine and traditional healers in Australia. It is argued that
this omission in international studies, such as the WHO’s worldwide review of
traditional medicine – Legal Status of Traditional Medicine and
Complementary/Alternative Medicine: A Worldwide Review 7 – contributes to the sinking
7
World Health Organization, Legal Status of Traditional Medicine and Complementary/Alternative
Medicine: A Worldwide Review (Geneva: World Health Organization, 2001).
351
into oblivion of the a precious body of knowledge with the related devaluation and
disappearance of an important feature of Indigenous Australians’ cultural identity.
The analysis of the ill–health and related socio–economic disadvantage of Australia’s
indigenous population, highlights two interesting issues. First, there is the absence and
disengagement of international development agencies in addressing the third–world–like
conditions experienced by most Indigenous Australians. International initiatives in
development policies tend to focus primarily on the needs of developing countries; and
while not denying the significance of and need for urgency in addressing the poverty and
disadvantage of developing countries, the world’s development agenda should pay more
attention to the situation of indigenous peoples living in developed countries. Second,
there is a tendency of developed countries, such as Australia, to articulate their policies
for their indigenous populations in terms of public policies and not as development
policies, even though their policies address ‘developing issues’ and problems of third–
world countries.
Accordingly, this thesis calls on international institutions and development agencies
to urgently consider the situation of chronically disadvantaged indigenous peoples in
developed countries and for national governments to address indigenous peoples’ issues
in terms of ‘development issues’.
To conclude, it can be argued that the originality of this thesis is its synthesis of two
bodies of knowledge which have never been brought together before in scholarly
literature. It is argued that the application of the capability approach to indigenous
peoples’ right to self–determination has contributed to further the reach of application of
352
the capability approach and advance the fulfillment of indigenous peoples’ right to self–
determination.
This thesis has demonstrated the exceptional nature of the capability approach as a
conceptual tool to analyse a complex principle such as indigenous peoples’ self–
determination. The analysis carried out in this study has proved that the capability
approach can be adopted to promote and support collective rights, and in this particular
case, to address the collective aspirations of indigenous peoples to self–determination.
The thesis can also be considered as a contribution to the debates over whether the
capability approach is excessively individualistic in its focus and the poor attention paid
by the capability approach to groups and collective claims. 8
In the specific context of Australia’s policy approach to indigenous affairs, it can be
argued that the application of the capability approach to indigenous self–determination –
particularly the construction of a methodological approach to development policies based
on the indigenous capability rights framework – allows us to address the mismatch
between ‘symbolic’ and ‘practical’ reconciliation, and to reconcile the mismatch between
a rights–based approach and a practical approach to indigenous affairs. The application of
the methodological approach to Australia’s health policy for Indigenous Australians has
demonstrated that the concern for indigenous rights is not antonymic to the socio–
8
For a detailed discussion of these debates among capability theorists: see, Ingrid Robeyns, ‘The
Capability Approach – A Theoretical Survey’ (2005) 6(1) Journal of Human Development 93, 107–111.
See also, C Gore, ‘Irreducible Social Goods and the Informational Basis of Amartya Sen’s Capability
Approach’ (1997) 9(2) Journal of International Development 235; Ingrid Robeyns, ‘An Unworkable Idea
or a Promising Alternative? Sen’s Capability Approach Re–examined’, Center for Economic Studies
Discussion Paper 00.30, Katholleke Universiteit, Leuven, 2000); S Deneulin and F Stewart, ‘Amartya
Sen’s Contribution to Development Thinking’ (2002) 37(2) Studies in Comparative International
Development 61; Amartya K Sen, ‘Response to Commentaries’ (2002) Studies in Comparative
International Development 78; Francis Stewart, ‘Groups and Capabilities’, paper presented at the 4th
International Conference on the Capability Approach, Pavia, 5–7 September.
353
economic disadvantage and deprivation of Australia’s native peoples. The two domains
are not mutually exclusive, but rather mutually reinforcing.
It can be affirmed that one of the major contributions of this thesis is to have
demonstrated that a sound application of the capability approach in development policies
for indigenous peoples can enhance indigenous peoples’ aspirations to self–determination
and advance its practical fulfillment. Furthermore, the analysis of the individual and
collective right of indigenous peoples to self–determination has contributed to an
expansion of the concept of the capability approach and the scope of its potential
application.
Indigenous peoples’ quest for self–determination is among the most urgent issues that
the international community is called on to address in a spirit of mutual respect and
reconciliation for the survival of the world’s indigenous peoples.
…our right of self–determination contains the essentials for life
Ted Moses
354
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INDIGENOUS PEOPLES’ RIGHT TO SELF–DETERMINATION

Thesis submitted to fulfil the requirements for the award of

Indigenous peoples’ quest for self–determination

Chapter 1: Indigenous peoples in international law: a historical overview……………..11

1.1 The natural law framework……………………………………………………………….15

Chapter 2: Indigenous peoples’ right to self–determination...…………………………...48

2.1 Indigenous rights and the international human rights system…………………………….48

3.1 The United Nations system…………………………………………………………...…104

The capability approach and indigenous peoples’ right to self–determination

Chapter 4: The capability approach……………………………………………………...160

4.1 General overview………………………………………………………………………..160

Chapter 6: The practical level. A methodological approach to development policies

6.1 The space of evaluation: agency freedom and agency achievement…………………….211

The indigenous capability right to health

Chapter 7: Development and the health challenge for indigenous peoples…………….243

Chapter 8: The health challenge for indigenous people of Australia…………………...262

Chapter 9: The indigenous capability right to health: towards the acknowledgment

To my family, with all my love.

Indigenous Peoples’ Right to Self–Determination and Development Policy

indigenous claims to self–determination through the design, implementation and evaluation of

enjoyment of self–determination for indigenous peoples. Development policy can offer an

the whole policy process.

indigenous self–determination, whereas development economics is the field within which

Amartya Sen’s capability approach is adopted as a theoretical framework of thought to

practical methodological approach to interpret and implement indigenous peoples’ right to

theoretical underpinnings of both to construct a normative and practical framework. At the

principle of indigenous self–determination. At the practical level, the normative framework

enables a methodological approach to indigenous development policies that serves as a

vehicle for the fulfilment of indigenous aspirations for self–determination.

proposed normative framework and methodological approach to development policy, allows

us to identify a significant vacuum: the omission of Aboriginal traditional medicine in

Aboriginal traditional healing practices and traditional healers.

ABS Australian Bureau of Statistics

‘What is self–determination?’ asked the young Arakmbut man.

The question posed by the young Arakmbut man continues to be of primary

significance. Indigenous peoples, 2 currently estimated at over 370 million living in 70

self–determination and its application under international law.

The principle of self–determination and the right of indigenous peoples to self–

discussed, interpreted and implemented.

This thesis analyses the concept of indigenous peoples’ right to self–determination

from an alternative perspective. This study situates indigenous self–determination at the

capability approach is adopted as a theoretical framework of thought to construct a

normative system and a practical methodological approach to interpret and implement

indigenous peoples’ right to self–determination.

the foundational theoretical underpinnings of both to construct a normative and practical

determination in the contemporary system.

determining the level of enjoyment of self–determination for indigenous peoples. It is

unwillingness to recognize and promote indigenous peoples’ right to self–determination,

This argument is articulated through an original approach with a twofold line of

investigation: a study of the concept of indigenous self–determination within the

of indigenous claims to self–determination through the design, implementation and

evaluation of development policies.

the concept of indigenous self–determination within the international human rights

system; the articulation of an adequate normative framework which encapsulates the

essence of the principle of indigenous self–determination; and the elaboration of a

methodological approach to development policies which adopts the normative framework

as its fundamental underpinning.

explore the concept of indigenous self–determination within the international human