Indigenous right to and forms of (legally recognized) “autonomy”*

Written by: Dr. Alexandra Tomaselli**

Since the late 1980s and throughout the decade of the 1990s, forms of indigenous autonomy or self-government were introduced in the constitutions of five Latin American countries (Nicaragua, Colombia, Bolivia, Ecuador, and Venezuela), two of which (Ecuador and Bolivia) have reinforced such arrangements in their recent constitutional reforms (at least, on paper). In Mexico, boosted by the Zapatista movement, the 2001 constitutional reform also recognised the indigenous right to autonomy, albeit to be implemented at the state (and not federal) level. In Panama, five indigenous Comarcas have been created so far, the first (officially) in 1953, and the last in 2000. Nunavut and Greenland are other two cases of potential indigenous (territorial) autonomies. Since the 1990s, indigenous movements worldwide started to demand autonomy arrangements for indigenous peoples.

However, in the 21st century, called by some the ‘Age of Autonomy’ (Skurbaty 2005, xliii‐xliv), what will indigenous autonomy look like? Is there a right to it for indigenous peoples? Are there indigenous forms of (legally recognized) “autonomy”? How do indigenous peoples envisage their exercise of (the right to) autonomy?

What is “autonomy”?

The scholarly debate on autonomy has intensified since the 1980s. This issue was certainly not new as it had been the object of academic discussions already between the late 19th century and the early 20th century (Welhengama 2000, 97). Albeit originally derived from sociology, this term was adopted in the legal studies when approaching decolonisation, also thanks to its ‘motivating force’ (Harhoff 1986, 31). Indeed, the concept acquires different meanings in each branch of science in which it is used (Heintze 1998, 7).

The term autonomy derives from the Greek words auto (self) and nomos (rule of law) and, in philosophy, it may indicate the personal power to self-determine priorities based on individual rational will (Heintze 1998, 7).

In legal and political terms, autonomy has obviously other implications, especially if conceived as a right. In legal theory, autonomy may refer to self-government, self-rule, self-management, self-administration, home rule and self-legislation (Loukacheva 2005). In political science, it has been associated with independence, self-government, self-determination, self-direction, self-reliance and self-legislation (Loukacheva 2005; Wiberg 1998, 43).

This concept has thus no clear legal boundaries (Harhoff 1986, 31; Welhengama 2000, 98; Heintze 1998, 7; Wiberg 1998, 43), which is due to the lack of a clear conceptualisation of this notion in international law and contrasted with a flourishing praxis at domestic level.

The subdivision of autonomy arrangements into non-territorial autonomies (NTA) and territorial autonomies (TA) in the context of (national) minorities deserves a mention as it may of use also in the case of indigenous peoples. Broadly speaking, an NTA may constitute supra-regional/national organizations for minorities over certain issues e.g., cultural bodies in charge of bilingual education for those dispersed communities (Henrard 2005, 141-142; Hofmann 2008, 6, 9 and 11; Marko 2006, 3-5). A territorial autonomy (TA) aimed to protect a given group, generally speaking, may be found in a specific territory where the group represent the majority, provided with self-ruling bodies by the state (Heintze 1998, 18 and 21; Henrard 2005, 141-142; Hofmann 2008, 6, 9 and 11; Marko 2006, 3-5).

Díaz-Polanco has underlined the difficulty of a catch-all definition given the high degree of diversity present in the autonomy arrangements worldwide. He rather proposes that some ‘basic borders’ [contornos elementales] may be identified, but the historical and socio-political characteristics of the community or group in each single case has to be taken into account (Díaz-Polanco 1991, 151-153).

Finally, the establishment of either a TA or a NTA does not exclude the other, since, in principle, a group could enjoy a TA in a specific territory and a NTA, e.g., outside that territory but within the state borders (Lapidoth 1997, 39).

Is there a right to autonomy for indigenous peoples?

References to autonomy as part or evolution of other existing and entrenched rights under international law, or as a right per se, may be found in a number of both hard and soft law provisions, especially vis-à-vis minorities and indigenous peoples. In this sense, the interrelation between forms of autonomy or self-government and the right to self-determination is rather immediate.

As widely known, the right to self-determination has been highly debated, especially in the sphere of minorities’ and indigenous peoples’ rights. The uneasiness of states regarding the recognition of the right to self-determination for indigenous peoples by the use of the term ‘peoples’ is also well-known and clearly visible, e.g., in the travaux préparatoire of the ILO Convention No.169 Concerning Indigenous and Tribal Peoples in Independent Countries and the wording of its art.1, and the lengthy process of adoption of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

Both the Draft Declaration and the UNDRIP contain a right to autonomy, but their wording is different. The Draft Declaration recognises in art.31 the right to autonomy as (possibly, one of) the form to exercise the right to self-determination (‘[i]ndigenous peoples, as a specific form of exercising their right to self-determination […] ’). Art.4 of the UNDRIP may suggest that the right to autonomy is the primary way for indigenous peoples to exercise their right to self-determination (‘[i]ndigenous 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’). In other words, indigenous peoples shall have the right to self-determination ‘operationalised’ by the right to autonomy, or vice versa. However, to a closer look, art.4 may also suggest that the right to autonomy exists for indigenous peoples as an expression of their (wider) right to self-determination. Hence, indigenous peoples may have the right to autonomy, which derives from their right to self-determination but without limiting the scope of the latter. Hence, the UNDRIP may be the pioneering, necessary and decisive step to recognise that the right to autonomy is emerging in international law, at least for indigenous peoples.

Indigenous forms of (legally recognized) “autonomy”

There are many forms of indigenous autonomy or self-governments experiences or associated (political) structures that do exist de facto despite the lack of legally recognised formal recognition. They are principally governed by indigenous customary law(s) and—to some extent—tolerated by public authorities (Rodríguez Piñero-Royo 2010, 329 and 334).

A number of (legally recognized) territorial indigenous autonomy arrangements may be found (among others) in the following countries: Bangladesh, Bolivia, Canada, Colombia, Ecuador, Greenland (Denmark), India, Indonesia, Mexico, Nicaragua, Nunavut, Panama, Venezuela, Taiwan and USA. Many of them have to be further developed and empowered, and the majority suffer from serious limitations.

These TA experiences may be indicatively grouped in three macro-categories, as follows. First, indigenous autonomy arrangements that have been legally established as a result of conflict resolutions (Chittagong Hill Tracts in Bangladesh; Papua and Aceh in Indonesia; the Atlantic Coast in Nicaragua; and the system of the comarcas in Panama). Second, the self-government arrangements derived from high-level debates which were followed by incisive constitutional or domestic law reforms (the Indigenous Peasant Native Autonomies in Bolivia; the circunscripciones in Ecuador; the indigenous municipalities in Venezuela; the indigenous autonomies of Mexico; the mainly aboriginal territory of Nunavut in Canada; the reformed autonomy of Greenland from Denmark; the Panchayat system in India; and the Toroko Nation in Taiwan). Finally, a third category may include past arrangements developed into new legal autonomy arrangements by constitutional or other amendments of domestic laws (the resguardos system in Colombia and the Native Americans’ reservations in USA, respectively). This categorisation, however, is most probably not exhaustive and there may be substantial overlapping. For instance, one may argue that also in Panama, Bolivia and Ecuador there were past arrangements, e.g., during or after Spanish colonisation. Despite some limitations, this suggested subdivision tries to classify these experiences looking at how forms of indigenous autonomies have been framed and regulated by each domestic legislation actually in force.

Concluding remarks

The notion of both ‘autonomy’ and a potential ‘right to autonomy’ are blurred and undetermined. No international (binding) treaty recognises a right to autonomy (Heintze 1998, 13; Skurbaty 2005, xxxvii) neither for regions nor for specific groups. Art.4 of the UNDRIP may be considered as a pioneering recognition of the right to autonomy of indigenous peoples. Moreover, the states’ practice is particularly advanced with regard to the recognition of forms of (territorial) indigenous autonomies.

Regrettably, these forms of (legally recognized) indigenous (terrestrial) autonomies face huge implementation difficulties irrespective of their legal or, in some cases, even constitutional guarantees. The implementations problems may be due both to a lack of political will, and to the competing economic interests over the natural resources found on these territories.

The analysis of whether the past colonial systems may have had an influence on the current autonomy systems would be instructive. However, the current debate and the present-day autonomy arrangements enjoyed by some indigenous groups can hardly be traced back in history or equated with the colonial legal systems. The historical conditions are not comparable or easily analysable, nor are the concepts of autonomy and of the right to autonomy conceived in the same manner.

Even more enlightening and welcomed would be a thorough study of indigenous perceptions and thoughts on the right to autonomy.

In this regard, one of the latest and among the most concrete proposals coming from indigenous organizations regarding what should be their form of (territorial) autonomy has emerged out of Bolivia.  A proposal on how the (mainly, territorial) indigenous autonomies should be constituted was elaborated by a number of large Bolivian indigenous organizations in 2006 and focused on a territorial form of autonomy (Confederación Sindical Única de Trabajadores Campesinos de Bolivia et al. 2006). These Bolivian organizations see ‘indigenous autonomy’ as the (pre)condition for indigenous peoples’ freedom, decolonisation and self-determination (Confederación Sindical Única de Trabajadores Campesinos de Bolivia et al. 2006, 11). The main characteristics of (territorial) forms of autonomy for indigenous peoples in their opinion should be the following: a territory; culturally diverse population; indigenous customary self-government; customary rules; customary law and justice; control and collective management over the territory, the land and the natural resources (Confederación Sindical Única de Trabajadores Campesinos de Bolivia et al. 2006, 12). In particular, this form of autonomy shall have also powers for natural resources management and exploitation, e.g., via consultation, the possibility of indigenous peoples’ veto on legislative or administrative measures, or a share of the benefits (Confederación Sindical Única de Trabajadores Campesinos de Bolivia et al. 2006, 12-13).

References

Confederación Sindical Única de Trabajadores Campesinos de Bolivia (CSUTCB); Confederación de Pueblos Indígenas de Bolivia (CIDOB); Confederación Sindical de Colonizadores de Bolivia (CSCB); Federación Nacional de Mujeres Campesinas de Bolivia – “Bartolina Sisa” (FNMCB-BS); Consejo Nacional de Ayllus y Markas del Qullasuyu (CONAMAQ); Coordinadora de Pueblos Étnicos de Santa Cruz (CPESC); Movimiento Sin Tierra de Bolivia (MST); Asamblea del Pueblo Guaraní (APG); Confederación de Pueblos Étnicos Moxeños de Beni (CPEMB), Asamblea Nacional de Organizaciones Indígenas, Originarias, Campesinas y de Colonizadores de Bolivia, 2006. ‘Propuesta para la Nueva Constitución Política del Estado. Por un Estado plurinacional y la autodeterminación de los pueblos y naciones indígenas, originarias y campesinas’, 5 August 2006, at http://www.bivica.org/upload/constitucion-politica-propuesta.pdf (Last accessed 16 January 2017).

Díaz-Polanco, H., 1991. Autonomía regional. La autodeterminación de los pueblos indios, Mexico City: Siglo Veintiuno Editores.

Harhoff , F., 1986. ‘Institutions of Autonomy’, Nordic Journal of International Law 55: 31-40.

Heintze, H. J., 1998. ‘On the Legal Understanding of Autonomy’, in Suksi, M. (ed), Autonomy: Applications and Implications, The Hague, Cambridge, Dordrecht: Martinus Nijhoff Publishers, 7-32.

Henrard, K., 2005. ‘”Participation”, “Representation” and “Autonomy” in the Lund Recommendations and their Reflections in the Supervision of the FCNM and Several Human Rights Conventions’, International Journal on Minority and Group Rights 12: 133-168.

Hofmann, R., 2008. ‘Political Participation of Minorities’, European Yearbook of Minority Issues 2006/7, Vol. 6, Leiden: Martinus Nijhoff Publishers, 5-17.

Lapidoth, R., 1997. Autonomy: Flexible solutions to ethnic conflicts, Washington D.C.: United States Institute of Peace Press.

Loukacheva, N., 2005. ‘On Autonomy and Law’, Globalization and Autonomy Online Compendium Research Articles, No. 19, July 2005.

Marko, J., 2006. ‘Effective Participation of National Minorities: A Comment on Conceptual, Legal and Empirical Problems’, Council of Europe Document DH-MIN(2006)014.

Rodríguez Piñero-Royo, L., 2010. ‘Political Participation Systems Applicable to Indigenous Peoples’, in M. Weller and K. Nobbs (eds.), Political Participation of Minorities. A Commentary on International Standards and Practice, Oxford: Oxford University Press.

Sanders, D., 1986. ‘Is Autonomy a Principle of International Law?’, Nordic Journal of International Law 55: 17-21.

Skurbaty, Z.A., 2005. ‘Introduction’, in Z.A. Skurbaty (ed), Beyond a One-Dimensional State: An Emerging Right to Autonomy?, Leiden, Boston: Martinus Nijhoff Publishers.

Welhengama, G., 2000. Minorities’ Claims: From Autonomy to Secession. International Law and State Practice, Aldershot, Burlington: Ashgate.

Wiberg, M., 1998. “Political Autonomy: Ambiguities and Clarifications”, in Suksi, M. (ed), 1998. Autonomy: Applications and Implications, The Hague, Cambridge, Dordrecht: Martinus Nijhoff Publishers, 43-57.

*This short text is based on her article titled “Exploring Indigenous Self‐governments and Forms of Autonomies”, in Corinne Lennox and Damien Short (eds.), Handbook of Indigenous Peoples’ Rights, Routledge, London, New York, 2016, pp.83-100, https://www.routledge.com/products/9781857436419.

**Dr. Alexandra Tomaselli is a Senior Researcher at the European Academy Bolzano/Bozen – Eurac Research (Italy) and a Teaching fellow/Contract Lecturer at the Faculty of Law of the University of Graz (Austria). Since 2006, she has engaged in research and international cooperation projects in Europe, South Asia and Latin America.

 

 

 

 

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