The Rights of Indigenous Peoples and the Development … Legal 397U/13 Helen Quane..pdfThe Rights of...

HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 27 (2005) 652–682 © 2005 by The Johns Hopkins University Press

The Rights of Indigenous Peoplesand the Development Process

Helen Quane*

ABSTRACT

The need for a human rights dimension to the development process isrecognized by a growing number of states and international organizations.The tendency so far has been to focus on rights in a general sense, althoughthere is some recognition of the need to consider the rights of indigenouspeoples in a development context. The integration of these rights intodevelopment programs can encounter difficulties partly because of theuncertainty surrounding the scope of some of the more important rightsclaimed by indigenous peoples. The article examines the scope of theserights under international law and explores some of their potentialimplications for the development process. It argues that while some ofthese human rights claims are not yet recognized under international law,the position is continually evolving. It also argues that the increasingrecognition of several rights, especially the right to effective participation,may help to address the sense of marginalization traditionally experiencedby indigenous peoples from the development process.

I. INTRODUCTION

The need for a rights dimension to the development process is recognizedby a growing number of states and international organizations.1 Increas-ingly, states and international organizations are using human rights criteria

* Helen Quane is Lecturer in Law, University of Wales, Swansea, United Kingdom.1. See, e.g., Press Release, European Union Council, The European Community’s Devel-

opment Policy: Statement by the Council and the Commission, adopted at the 2304thCouncil Meeting, ¶ 20, Doc. No. 12929/00 (10 Nov. 2000), available at ue.eu.int/ueDocs/cms_Data/docs/pressData/en/gena/12929.en0.html; DEPARTMENT FOR INTERNATIONAL

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in planning, implementing, and evaluating development programs. Somehave gone so far as to adopt an explicitly “rights-based approach todevelopment”2 in their development aid programs.3 This growing trendrepresents a radical shift from the position that prevailed up until a decadeor so ago when human rights and development were generally regarded astwo separate, though parallel, processes.4 This meant that states did not tendto integrate human rights considerations into their development programsand were largely unaccountable for the human rights implications of theseprograms.

While the current rights-focus represents a considerable advance fromthis position, it is still at a relatively early stage in its development. Manyaspects of this new approach have to be worked out at both a policy and anoperational level. This may explain why the emphasis to date has been onrights in a general sense. Nevertheless, some evidence suggests that therights of indigenous peoples may be given greater consideration in theformulation and implementation of development programs that affect them.The World Bank, for example, is undertaking a major review of its policy onindigenous peoples.5 Other international organizations, such as the European

DEVELOPMENT, REALISING HUMAN RIGHTS FOR POOR PEOPLE: STRATEGIES FOR ACHIEVING THE INTERNATIONAL

DEVELOPMENT TARGETS (2000), available at www.dfid.gov.uk/pubs/files/tsphuman.pdf (here-inafter Human Rights for Poor People). See also Copenhagen Declaration on SocialDevelopment and Programme of Action of the World Summit for Social Development,adopted 12 Mar. 1995, at Annex I, ¶¶ 28–29, U.N. Doc. A/CONF.166/9 (1995),available at www.un.org/esa/socdev/wssd/agreements/; UNITED NATIONS DEVELOPMENT

PROGRAMME (UNDP), HUMAN DEVELOPMENT REPORT 2000: HUMAN RIGHTS AND HUMAN DEVELOP-MENT (2000), available at www.undp.org/hdr2000/english/HDR2000.html.

2. This has been defined within the UN as “a conceptual framework for the process ofhuman development that is normatively based on international human rights standardsand operationally directed to promoting and protecting human rights.” See UnitedNations, Office of the United Nations High Commissioner for Human Rights, HumanRights in Development: Rights-based Approaches, available at www.unhchr.ch/development/approaches-04.html.

3. For example, South Africa.4. There were some notable exceptions, such as when development was recognized as a

human right by the UN General Assembly. See Declaration on the Right to Develop-ment, G. A. Res. 41/128, U.N. GAOR, 41st Sess., Supp. No. 53, Annex, U.N. Doc. A/RES/41/128 (1986), available at www.unhchr.ch/html/menu3/b/74.htm.

5. See The World Bank Operational Manual, Operational Policies, Indigenous Peoples(Draft OP 4.10), available at www.lnweb18.worldbank.org/ESSD/sdvext.nsf/63ByDocName/RevisedDraftOperationalPolicyonIndigenousPeoplesRevisedDraftOP410/$FILE/Revised+Draft+OP+4.10+12-01-04.pdf; Summary of Consultations with ExternalStakeholders regarding the World Bank Draft Indigenous Peoples Policy (Draft OP/BP4.10), available at www.lnweb18.worldbank.org/ESSD/sdvext.nsf/63ByDocName/SummaryofExternalConsultation-English/$FILE/SumExtConsult-100802.pdf. (The WorldBank Operational Model is hereinafter referred to as the Draft Indigenous PeoplesPolicy.)

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Union6 and the Asian Development Bank,7 as well as several donor states,have adopted policies on indigenous peoples and development programs.8

The UN has also undertaken a range of activities in this area, includingpublishing a report in January 2003 on the impact of large-scale develop-ment projects on the rights and interests of indigenous peoples.9 This trendcould result in a more systematic integration of the rights of indigenouspeoples into development programs. Because indigenous peoples tend tobe among the poorest and most marginalized from the developmentprocess, this could help to protect the identity and interests of these peoplesand alleviate poverty.10

Clearly, good reasons exist for integrating the rights of indigenouspeoples into development programs, but the process could encounterseveral problems. These stem from the uncertainty surrounding the scope ofindigenous rights under international law, the collective nature of some ofthese rights, and their potential implications not only for developmentprograms, but also for the territorial integrity and political unity of the state.Take, for example, the right to self-determination. Self-determination iscentral to all the claims of indigenous peoples.11 Indigenous peoples arguethat self-determination is vital to enable them to exercise real control overtheir own affairs and to ensure their continued existence as distinctpeoples.12 In the present context, it is important to note that self-determina-

6. See generally Press Release, European Union Council resolution, Indigenous Peopleswithin the Framework of the Development Cooperation of the Community and theMember States, EU Doc. No. 13461/98 (30 Nov. 1998), available at ue.eu.int/ueDocs/cms_Data/docs/pressData/en/gena/13461.EN8.htm.

7. See generally ASIAN DEVELOPMENT BANK, POLICY ON INDIGENOUS PEOPLES (1998), available atwww.adb.org/Documents/Policies/Indigenous_Peoples/IPPP.pdf.

8. For example, Canada and Finland.9. Human Rights and Indigenous Issues: Report of the Special Rapporteur on the Situation

of Human Rights and Fundamental Freedoms of Indigenous People, RodolphoStavenhagen, Submitted in Accordance with Commission Resolution 2001/57, U.N.ESCOR, Comm’n on Hum. Rts., 59th Sess., Agenda Item 15, ¶¶ 6–79, U.N. Doc. E/CN.4/2003/90 (2003).

10. Human Rights and Indigenous Issues: Report of the Special Rapporteur on the Situationof Human Rights and Fundamental Freedoms of Indigenous People, RodolphoStavenhagen, Submitted Pursuant to Commission Resolution 2001/65, U.N. ESCOR,Comm’n on Hum. Rts., 58th Sess., Agenda Item 15, ¶¶ 34–37, U.N. Doc. E/CN.4/2002/97 (2002).

11. See, e.g., Report of the Working Group Established in Accordance with Commission onHuman Rights Resolution 1995/32, U.N. ESCOR, Comm’n on Hum. Rts., 54th Sess.,Agenda Item 25, ¶ 24, U.N. Doc. E/CN.4/1998/106 (1997) (hereinafter Working GroupReport 1998/106).

12. See, e.g., Report of the Working Group Established in Accordance with Commission onHuman Rights Resolution 1995/32, U.N. ESCOR, Comm’n on Hum. Rts., 57th Sess.,Agenda Item 15, ¶¶ 56, 86, U.N. Doc. E/CN.4/2001/85 (2001) (hereinafter WorkingGroup Report 2001/85); Report of the Working Group Established in Accordance with


tion is regarded as being intrinsically connected with the recognition ofindigenous peoples’ right to land and natural resources.13

However, there is considerable uncertainty about the scope of the rightto self-determination under international law. In particular, it is unclearwhether indigenous peoples have a right to self-determination that they canexercise separately from the rest of the population of the state. In addition tothis, a right to self-determination for indigenous peoples could havesignificant implications for the state. The collective nature of the right couldencourage secessionist claims that could have a considerable impact on thepolitical unity and territorial integrity of the state. The right could also havefar-reaching implications on a state’s development policy particularly wherethe indigenous people occupy land rich in natural resources and invoketheir right to self-determination to prevent the state from exploiting theseresources. These concerns arise not only in relation to self-determinationbut also, albeit to varying degrees, to other rights claimed by indigenouspeoples. Consequently, states and international organizations committed tointegrating the rights of indigenous peoples into development programsneed to consider the scope of these rights under international law and theirpotential implications.

The present article sets out to examine some of the aforementionedissues. Its principal objective is to clarify the scope of some of the moreimportant rights claimed by indigenous peoples in a development context.It also considers the potential impact of these rights on the developmentprocess and the obligations they impose on the states in which indigenouspeoples reside, on donor states, and on international financial institutionslike the World Bank and the International Monetary Fund (IMF).

This examination of the rights of indigenous peoples is based on severalinternational instruments. The emphasis is on universal instruments that areconcerned expressly with indigenous peoples. These include the Draft UNDeclaration on the Rights of Indigenous Peoples (Draft UN Declaration),which is currently being considered by an inter-sessional working group ofthe Commission on Human Rights. It is significant that indigenous peoplesas well as states participate in the work of this group. The instrument is notintended to be legally binding but it would, if adopted, establish importantminimum standards in this area. The article also examines the InternationalLabour Organisation’s Indigenous and Tribal Peoples Convention No. 169of 1989 (ILO Convention 169). This contains the most detailed, legallybinding instrument on the rights of indigenous peoples. Although it has

Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm’n on Hum.Rts., 56th Sess., Agenda Item 15, ¶ 55, U.N. Doc. E/CN.4/2000/84 (1999) (hereinafterWorking Group Report 2000/84).

13. See Working Group Report 2000/84, supra note 12, ¶ 72.


been ratified by only a small number of states,14 its impact extends beyondthese states due to its influence on the funding policies of severaldevelopment banks. Finally, the article examines the International Covenanton Civil and Political Rights 1966 (ICCPR)15 because it contains the onlytruly universal, legally binding provision on the rights of indigenouspeoples.16

The article examines the rights set out in these instruments in accor-dance with established international law principles. This means that, as faras possible, these instruments are interpreted in light of their wording,context, objective, drafting history, and subsequent state practice.17 Theemphasis throughout this article is on these original sources, rather than onthe academic literature.18 In this way, the article may help to clarify some ofthe confusion surrounding these rights. This confusion is evident in thecompeting interpretations of indigenous rights advanced by indigenouspeoples and states and is one reason for the current impasse on the DraftUN Declaration and the delay in adopting the World Bank’s new DraftPolicy on Indigenous Peoples.19

The article begins with a brief examination of the definition of an“indigenous people.” It then examines the scope of several rights claimedby indigenous peoples. The emphasis is on rights of particular significanceto indigenous peoples in a development context, namely, the right to self-determination, the right to participate in public affairs, and the right to enjoyone’s culture. As previously noted, the right to self-determination underpinsall other claims advanced by indigenous peoples. If they are successful inclaiming this right, it could be used to exert greater control over develop-ment projects on ancestral lands such as the construction of dams, theextraction of mineral resources, and the use of traditional plants andindigenous knowledge for pharmaceutical products. In the present context,

14. There are seventeen states.15. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res.

2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 27, U.N. Doc. A/6316 (1966),999 U.N.T.S. 171 (entered into force 23 Mar. 1976) (hereinafter ICCPR).

16. Id. The ICCPR has been ratified by at least 149 states.17. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF.39/27, arts. 31–32

(1969), 1155 U.N.T.S. 331 (entered into force 27 Jan. 1980), reprinted in 8 I.L.M. 679(1969).

18. See generally S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (1996); HUMAN RIGHTS

OF INDIGENOUS PEOPLES (Cynthia Price Cohen ed., 1998); OPERATIONALIZING THE RIGHT OF

INDIGENOUS PEOPLES TO SELF-DETERMINATION (Pekka Aikio & Martin Scheinin eds., 2000);INDIGENOUS HUMAN RIGHTS (Sam Garkawe et al. eds., 2001); PEOPLES AND MINORITIES IN

INTERNATIONAL LAW (Catherine Brölmann et al. eds., 1993); Benedict Kingsbury, “Indig-enous Peoples” in International Law: A Constructivist Approach to the Asian Contro-versy, 92 AM. J. INT’L L. 414 (1998).

19. See Indigenous Peoples and the World Bank: Permanent Forum on Indigenous Issues(May 2003), available at www.bicusa.org/bicusa/issues/misc_resources/1295.php.


the right to participate in public affairs could be significant in enablingindigenous peoples to participate effectively in the formulation of develop-ment projects that affect them. Finally, the right to enjoy one’s own culturecould have important implications in a development context given the closeconnection between lands traditionally owned or occupied by indigenouspeoples and the preservation of their cultural identity. For this reason, theright to enjoy one’s culture could have an impact on development projectsaffecting indigenous land and resources.

The article examines the scope of the above rights under internationallaw and considers some of their potential implications for the developmentprocess. It then examines the obligations these rights impose on the variousactors in the development process, ranging from the states in whichindigenous peoples reside, to donor states, to international financialinstitutions such as the World Bank. The article concludes with severalobservations about the interplay between the rights of indigenous peoplesand the development process.

II. DEFINING “INDIGENOUS PEOPLES”

It should be noted at the outset that the term “indigenous peoples” iscontroversial. This is evident from the discussions currently taking place onthe Draft UN Declaration.20 Some states are opposed to using the term in thedeclaration because of its possible implications under international law.21 Inparticular, they are concerned that the term implies that these groups havea right to self-determination because the right to self-determination is onethat is exercised by a “people.” Others are concerned that it would implythat the rights in the declaration are to be exercised collectively. Thecollective nature of human rights and the potential for conflict with

20. Report of the Working Group Established in Accordance with Commission on HumanRights Resolution 1995/32 of 3 Mar. 1995, U.N. ESCOR, Comm’n on Hum. Rts., 52dSess., Agenda Item 3, ¶ 4, U.N. Doc. E/CN.4/1996/84 (1996) (hereinafter WorkingGroup Report 1996/84); Report of the Working Group Established in Accordance withCommission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm’n on Hum.Rts., 53d Sess., Agenda Item 24, ¶ 3, U.N. Doc. E/CN.4/1997/102 (1996) (hereinafterWorking Group Report 1997/102); Working Group Report 1998/106, supra note 11,¶ 4; Working Group Report 2000/84, supra note 12, ¶ 4; Working Group Report 2001/85, supra note 12, Annex I; Report of the Working Group Established in Accordancewith Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm’n onHum. Rts., 59th Sess., Agenda Item 15, ¶ 3, 23 , U.N. Doc. E/CN.4/2003/92 (2003)(hereinafter Working Group Report 2003/92).

21. Working Group Report 1996/84, supra note 20, ¶ 38; Working Group Report 2000/84,supra note 12, Annex I; Working Group Report 2001/85, supra note 12, Annex I;Working Group Report 2003/92, supra note 20, Annex.


individual rights are unacceptable to some states. This explains why somestates prefer to refer to “persons belonging to indigenous peoples” or to“indigenous populations.” Indigenous peoples, however, are committed todefining themselves as indigenous peoples.22 Opinion remains divided onthis issue.

Whether one refers to these groups as “indigenous peoples” or “indig-enous populations,” no universally accepted definition exists. There areseveral reasons for this. First, some states argue that the term “indigenouspeoples” applies only to certain regions, notably, former European coloniesin the Americas and Oceania and, therefore, does not apply universally.23

Second, indigenous peoples and many states argue that the “historical andethnic complexity involved” would make it impossible to devise a definitionthat would cover all appropriate situations and, consequently, a universaldefinition could be inflexible and exclusionary.24 In the absence of auniversally accepted definition, some states argue that the matter should bedecided at the national level.25 In contrast, indigenous peoples and severalstates support the principle of self-identification whereby it is left to thegroup itself to decide whether or not it is indigenous.26 This is opposed byother states because of the alleged lack of objectivity inherent in such anapproach27 or because it could allow a wide range of groups to claimcertain rights and benefits on the basis of defining themselves as indig-enous.28 The issue remains unresolved at least for the purposes of the DraftUN Declaration.

The principle of self-identification has been recognized in ILO Conven-tion 169.29 The Convention applies to “indigenous peoples” although,significantly, the use of this term is said to be without any implications forany rights that might attach to that term under international law.30 It alsoapplies to “tribal peoples,” which helps to ensure that the Conventionapplies as widely as possible, including to those states that claim thatindigenous peoples exist only in former European colonies. The Convention

22. Working Group Report 2001/85, supra note 12, Annex II.23. Working Group Report 1996/84, supra note 20, ¶¶ 27–28; Working Group Report

1998/106, supra note 11, ¶ 37.24. Working Group Report 1996/84, supra note 20, ¶ 29.25. Id.26. Id. ¶¶ 29, 67; Working Group Report 1997/102, supra note 20, ¶¶ 228, 136, 138.27. Working Group Report 1996/84, supra note 20, ¶ 27.28. Draft Report: Articles 7, 8, and 11 [of the Draft Declaration on the Rights of Indigenous

Peoples} , U.N. ESCOR, Comm’n on Hum. Rts., ¶ 14, U.N. Doc. E/CN.4/2002/WG.15/CRP.8 (2002) (hereinafter Draft Declaration).

29. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILONo. 169), adopted 27 June 1989, art. 1(2), 28 I.L.M. 1077 (entered into force 5 Sept.1991), reprinted in IAN BROWNLIE, BASIC DOCUMENTS IN HUMAN RIGHTS 303 (3d ed. 1992)(hereinafter ILO Convention 169).

30. Id. art. 1(3).


does not rely exclusively on the principle of self-identification because italso contains definitions of “indigenous peoples” and “tribal peoples.”31

Indigenous peoples are defined as peoples in independent countries whoare regarded as indigenous because of their descent from the populationsthat inhabited the country, or a geographical region to which the countrybelongs at the time of conquest or colonization, or the establishment ofpresent state boundaries and who, irrespective of their legal status, retainsome or all of their own social, economic, cultural, or political institutions.32

This idea of a continuous link with a precolonial or preinvasion society,as well as the possession of distinct political, economic, social, and culturalinstitutions, is mirrored in the definition proposed by UN Special Rappor-teur Martinez Cobo.33 However, he referred to several additional factorsomitted from the ILO Convention, notably: (a) the important link betweenancestral territories and the identity of indigenous peoples, (b) the fact thatindigenous peoples consider themselves distinct from the rest of thepopulation and want to preserve their distinct identity, and (c) the non-dominant status of these peoples. Cobo’s definition is one of the mostcommonly used. It is a useful working definition, but it should be borne inmind that there is no universally accepted definition and that in the absenceof such a definition, the preference among indigenous peoples and severalstates is for self-identification.

III. THE RIGHTS OF INDIGENOUS PEOPLESUNDER INTERNATIONAL LAW

A. The Right to Self-Determination

The right to self-determination is well established in international law.34 Itenables a people to freely determine their political status, to pursue their

31. Id. art. 1(1).32. Id. art. 1(1)(b).33. Study of the Problem of Discrimination against Indigenous Populations, Vol. 5:

Conclusions, Proposals and Recommendations by Jose R. Martinez Cobo, SpecialRapporteur of the Sub-Commission on Prevention of Discrimination and Protection ofMinorities, U.N. ESCOR, Subcomm’n on Prev. of Discrim. & Protect. of Min., ¶ 34,U.N. Doc. E/CN.4/Sub.2/1986/7. Add.4 (1987).

34. See U.N. CHARTER art. 1, ¶ 2, signed 26 June 1945, 59 Stat. 1031, T.S. No. 993, 3 Bevans1153 (entered into force 24 Oct. 1945); ICCPR, supra note 15, art. 1; InternationalCovenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res.2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 1, U.N. Doc. A/6316 (1966),993 U.N.T.S. 3 (entered into force 3 Jan. 1976) (hereinafter ICESCR); Vienna Declara-tion and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts., 48th Sess., 22dplen. mtg., part I, art 1, ¶ 2, U.N. Doc. A/CONF.157/24 (1993), reprinted in 32 I.L.M.


economic, social, and cultural development, and to dispose of their naturalwealth and resources.35 The right has both internal and external dimensions.The right to external self-determination is largely concerned with the right todetermine a territory’s international status, while internal self-determinationis concerned with the right to determine its government and policies.

Recognition of a right to self-determination for indigenous peoplescould have a significant impact on the development process. If indigenouspeoples constitute a “people” for the purpose of self-determination, theymay have the right to freely dispose of their natural wealth and resources.This could have far-reaching implications for the economic well-being of astate, especially where the group concerned is territorially cohesive,concentrated in an area rich in natural resources, and claiming the right toself-determination in order to secede from the state.36

While the above example concerns the right to external self-determina-tion, others concern the right to internal self-determination. For example, aterritorially cohesive group may not want to secede from the state but maywant some form of territorial autonomy. This is often the case withindigenous peoples. This scenario can still pose difficulties for the state,particularly when the state wants to exploit natural resources in anautonomous region where the indigenous people oppose such develop-ment. Given these potential implications, it is important to determinewhether indigenous peoples have a right to self-determination underinternational law. It is useful to begin with the position under generalinternational law before examining the recent discussions of the issueduring the negotiations on the Draft UN Declaration.

Under current international instruments, distinct ethnic, linguistic, orreligious groups within states do not appear to have a legal right to externalor internal self-determination. An examination of the wording, context,drafting history, and subsequent practice of the relevant provisions of theUN Charter, the ICCPR, the International Covenant on Economic, Socialand Cultural Rights (ICESCR), and General Assembly Resolution 2625 (XXV)tends to support this view.37 This view might seem over cautious, especiallywhen one considers recent events in Central and Eastern Europe. It is also at

1661 (1993); Legal Consequences for States of the Continued Presence of South Africain Namibia (South West Africa) notwithstanding Security Council Resolution 276(1970), Advisory Opinion, 1971 I.C.J. (June 21), ¶ 52, available at www.icj-cij.org/icjwww/idecisions/isummaries/inamsummary710621.htm.

35. ICCPR, supra note 15, art. 1.36. For example, the attempted secession of Katanga from the newly independent Congo

from 1960–1963.37. For a more detailed discussion of these instruments, see Helen Quane, The UN and the

Evolving Right to Self-Determination, 47 INT’L & COMP. L. Q. 537, 537–48, 558–62(1998).


odds with a growing body of opinion in the academic literature that suggeststhat groups within states have a right to internal, and possibly external, self-determination. Arguably, this cautious approach can be defended, espe-cially if one examines the literature in light of the relevant state practice.The importance of state practice cannot be underestimated, even in this ageof globalization, because it remains the only means by which new rules ofcustomary international law can be created.

In recent years, some of the leading authorities in the field have arguedthat groups within states can invoke the right to self-determination.38 Whilethey accept that self-determination does not entail independence outsidethe colonial context, some admit the possibility that these groups may havea right to independence if they are subject to gross oppression by the state.39

For the most part, they argue that self-determination for these groupsencompasses a range of options within the territory of the state, such aseffective participation in public life or having one’s identity reflected inpolitical institutions. Arguably, this context-dependent concept of self-determination is problematic for several reasons.

First, this concept of self-determination suggests either that all peoplesdo not have an equal right to self-determination or that the right can besubject to restrictions. The first proposition is difficult to reconcile with theprinciple of “equal rights and self-determination of peoples” set out in theUN Charter.40 The second is less controversial but also problematic. Once aright to self-determination is recognized for groups within states, thesegroups may be reluctant to accept limits on this right. In any event, onewould have to clarify the nature and basis of any limitations on the right toself-determination given the absence of any reference to limitations on theright in the relevant international instruments. This would be particularlyrelevant in a development context in which competing self-determinationclaims could be advanced, for example, to instigate or block the building ofa hydroelectric dam on lands owned or traditionally occupied by indig-enous peoples.

A second, and more fundamental, difficulty with a context-dependent

38. See, e.g., ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL REAPPRAISAL, 108–33 (1995);James Crawford, The Right of Self-Determination in International Law: Its Developmentand Future, in PEOPLES’ RIGHTS 7, 57, 64–65 (Philip Alston ed., 2001); Thomas M. Francket al., Expert Opinion prepared in 1992 by T.M. Franck, R. Higgins, A. Pellet, M.N.Shaw and C. Tomuschat, “The Territorial Integrity of Québec in the Event of theAttainment of Sovereignty,” reproduced in ANNE F. BAYEFSKY, SELF-DETERMINATION IN

INTERNATIONAL LAW: QUEBEC AND LESSONS LEARNED 241, 277–81(2000).39. See, e.g., Crawford, supra note 38, at 57; Thomas M. Franck: Opinion Directed at

Question 2 of the Reference, reproduced in BAYEFSKY, supra note 38, at 75, 79; AlainPellet, Legal Opinion on Certain Questions of International Law Raised by theReference, in BAYEFSKY, supra note 38, at 85, 120–21.

40. UN Charter, supra note 34, arts. 1(2), 55.


concept of self-determination is that it is difficult to reconcile with statepractice. Recent events in Kosovo, for example, are cited in support of aright to independence for oppressed minorities as a form of remedial self-determination.41 Arguably, the emphasis in Kosovo was on maintaining theterritorial integrity of the state and ending the conflict rather than onrecognizing any right to self-determination for the Kosovo Albanians.42 If thegross violations of the rights of the Kosovo Albanians did not give rise to aremedial right to self-determination, then it is difficult to think of circum-stances that would give rise to such a right.

Recent developments, such as granting various forms of autonomy tominorities,43 are also cited to support the proposition that groups withinstates have a right to internal self-determination. The difficulty with thisargument is that it tends to underplay two factors. One is the fact that whensome form of autonomy is granted to minorities, it is usually by virtue of thewishes of the majority of the population concerned.44 Consequently, thegrant of autonomy is arguably more a reflection of the right of the entirepopulation of the state to exercise its right to self-determination, in thisinstance, to determine its internal structures of government, than anyrecognition of a right to self-determination for the minority concerned.Second, while states are increasingly willing to adopt new forms ofconstitutional arrangements to accommodate the interests of minorities,they are unwilling to refer to these arrangements as a form of internal self-determination for these minorities.45 Consequently, even though thesearrangements may correspond to the political principle or substance ofinternal self-determination, state practice suggests that it is doubtful whetherthey represent any extension of the legal principle of self-determination

This suggests that, at present, groups within states do not have aseparate right to self-determination under international law. However,recent discussions on the Draft UN Declaration suggest that this position

41. See, e.g., YASH GHAI, PUBLIC PARTICIPATION AND MINORITIES 9 (2001).42. See Philip Alston, Peoples’ Rights: Their Rise and Fall, in PEOPLES’ RIGHTS, supra note 38,

at 272–73; Helen Quane, A Right to Self-Determination for the Kosovo Albanians?, 13LEIDEN J.INT’L L. 219 (2000).

43. See, e.g., Report of the CSCE Meeting of Experts on National Minorities, Geneva 1991,Conference for Security and Cooperation in Europe, 6–7 (1–19 July 1991), available atwww.osce.org/docs/english/1973-1990/other_experts/gene91e.htm; Document of theCopenhagen Meeting of the Conference on the Human Dimension of the CSCE,Conference for Security and Cooperation in Europe, ¶ 35 (5–29 June 1990), availableat www.osce.org/docs/english/1990-1999/hd/cope90e.htm.

44. This is evident from the state reports submitted under the ICCPR, supra note 15; see alsoHelen Quane, Rights-Based Approaches to Inter-Communal Conflict: An analysis of theInternational Community’s Approach using Northern Ireland as a Case-Study, 180–81(2002) (unpublished Ph.D. Thesis, University of London) (on file with author).

45. Quane, supra note 44 at 180–81, 233–36.


may be changing, at least in respect to indigenous peoples. Article 3 of theDraft Declaration recognizes a right to self-determination for indigenouspeoples.46 It provides that they can “freely determine their political statusand freely pursue their economic, social and cultural development.”47

Article 31 provides that one way of exercising the right is through some formof autonomy or self-government for indigenous peoples in their internalaffairs. Notwithstanding this, the issue of self-determination is the mostcontentious one between states and indigenous peoples participating indiscussions of the Draft.

States have adopted different positions on Article 3. In addition to this,some have changed their positions over time. The United States, forexample, originally took the position that indigenous peoples did not havea right to self-determination under international law and opposed Arti-cle 3.48 Now, the United States is prepared to accept a limited right tointernal self-determination for indigenous peoples.49 Most of the states areprepared to accept a right to self-determination for indigenous peoples,provided that it does not threaten the territorial integrity of the state.50 Thismeans that indigenous peoples will only have a right to internal self-determination in normal circumstances.51

Indigenous peoples, for their part, are reluctant to accept any limitationson their right to self-determination.52 They argue that they have a right toself-determination under existing international law and that to placerestrictions on their right would be discriminatory. They also argue that stateconcerns about threats to territorial integrity are unfounded because mostindigenous peoples have no desire for secession. Nevertheless, it isimportant for them to retain the option of external self-determination should

46. Technical Review of the United Nations Draft Declaration on the Rights of IndigenousPeoples, U.N. ESCOR, Comm’n on Hum. Rts., Subcomm’n on Prev. of Discrim. & Prot.of Min., 46th Sess., Agenda Item 15, 2, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994).

47. Id.48. Working Group Report 2000/84, supra note 12, ¶ 49.49. Working Group Report 2003/92, supra note 20, ¶ 22.50. Working Group Report 1996/84, supra note 20, ¶¶ 45–46; Working Group Report

1997/102, supra note 20, ¶¶ 45, 312, 314, 317, 318, 320, 330, 332, 336; WorkingGroup Report 1998/106, supra note 11, ¶ 44; Working Group Report 2000/84, supranote 12, ¶¶ 50, 53, 56, 61, 63, 64, 67, 70, 73, 74, 78, 80, 81; Working Group Report2001/85, supra note 12, ¶¶ 62, 64, 69, 70, 76, 82, 83, 85, 90, 92, 109.

51. Some states accept that if they commit gross violations of human rights or fail torepresent indigenous peoples, then indigenous peoples do not have to respect theterritorial integrity of the state and can secede. In these circumstances, indigenouspeoples would have a right to external self-determination. See Working Group Report2003/92, supra note 20, Annex.

52. Working Group Report 1996/84, supra note 20, ¶ 47; Working Group Report 1998/106, supra note 11, ¶ 44; Working Group Report 2000/84, supra note 12, ¶ 43;Working Group Report 2001/85, supra note 12, ¶ 71; Working Group Report 2003/92,supra note 20, ¶ 24.


circumstances change. Some, for example, are concerned about thepotential implications of Quebec seceding from Canada for the indigenouspeoples living in Quebec.53 While indigenous peoples want to retain theDraft Declaration in its current form, a certain willingness has arisen inrecent years to address state concerns about territorial integrity.54 Severalindigenous peoples are prepared to include a reference to General Assem-bly Resolution 2625 (XXV), which provides that the territorial integrity of astate will be upheld if the state complies with the principle of self-determination and is thus representative of all peoples without distinction.55

An impasse on Article 3 still exists. To a certain extent, this may be dueto a dispute over a matter of form rather than substance. Some states areprepared to accept Article 3 as it stands, on the understanding that theterritorial integrity of the state will be protected by Article 45, whichprohibits any activities contrary to the UN Charter (including respect for theprinciple of territorial integrity).56 Others want to include an expressreference to the need to respect the principle of territorial integrity.57 In2003, Norway submitted a proposal to address outstanding concerns on thisissue.58 It proposed including a reference to General Assembly Resolution2625 (XXV).59 The proposal was “welcomed” by government delegationsand some indigenous peoples,60 although a consensus has not yet beenreached on this issue.

Originally, it was intended that the Draft Declaration would be adoptedby the end of 2004, but this is questionable in view of the current impasseand the fact that there is still some opposition to Article 3.61 Even if the DraftDeclaration is not adopted in the near future, the discussions about Article 3are significant. They indicate that more and more states are willing torecognize a right to internal self-determination for indigenous peoples. Thestates concerned are states in which the overwhelming majority of theworld’s indigenous peoples reside.62 Consequently, the approach adoptedby these states is very significant in terms of developing a new rule of

53. Working Group Report 1997/102, supra note 20, ¶ 53.54. Working Group Report 1998/106, supra note 11, ¶ 44; Working Group Report 2001/

85, supra note 12, ¶¶ 92, 96–97.55. Working Group Report 2003/92, supra note 20, ¶ 20.56. Working Group Report 1997/102, supra note 20, ¶ 330; Working Group Report 2001/

85, supra note 12, ¶ 70; Working Group Report 2003/92, supra note 20, ¶ 20.57. Id. ¶ 22, Annex.58. Id. ¶ 19.59. Id.60. Id. ¶ 20.61. Working Group Report 1997/102, supra note 20, ¶ 338.62. Canada, New Zealand, United States, Argentina, Brazil, Chile, Ecuador, Finland,

Colombia, Guatemala, Peru, Norway, Philippines, Bolivia, Venezuela, Fiji, RussianFederation, Mexico, Denmark, and Sweden. Australia has shifted from its original


customary international law. Discussions concerning Article 3 suggest thatthere is an increasing acceptance that indigenous peoples have a right tointernal self-determination. Even if this has not yet crystallized into a newrule of international law, it suggests that such a rule may be in the processof formation.63

It is submitted that it may be only a matter of time before a legal right tointernal self-determination for indigenous peoples emerges. The questionthen arises as to what internal self-determination for indigenous peoples willmean, particularly in a development context. Several states have com-mented on this issue during the discussions of the Draft UN Declaration.They referred to indigenous peoples participating fully in decisions affectingthem,64 making decisions about their own affairs, or having some form ofterritorial autonomy.65 This would suggest, at the very least, that indigenouspeoples should be consulted about development projects that affect them.

The Norwegian proposal referred to earlier66 is also of interest in thepresent context because it mentions state concerns about whether land andnatural resources were to be regarded as an integral part of the right ofindigenous peoples to self-determination. The proposal tries to addressthese concerns by redrafting Article 31 so that it refers to the right ofindigenous peoples to autonomy without specifying the areas in which theright could be exercised. As currently drafted, Article 31 stipulates thatautonomy applies in matters relating to internal affairs including economicactivities, land and resources management, and entry onto ancestral landsby nonmembers. Arguably, the more general and open-ended formulationproposed by Norway would ensure that the nature and degree of autonomyexercised by indigenous peoples would be a matter for negotiation at thenational level, rather than being determined at the international level.Presumably, this would preclude any automatic veto by indigenous peoplesover development projects affecting their land or natural resources.

position that it could not accept Article 3 because it implied a right to independence toits current position that Article 3 needs to be more precise. See generally WorkingGroup Report 2003/92, supra note 20, ¶ 22.

63. Working Group Report 1996/84, supra note 20, ¶¶ 43–44; Working Group Report1998/106, supra note 11, ¶ 44; Working Group Report 2000/84, supra note 12, ¶¶ 49,53, 81. See also recent references by the UN Human Rights Committee to self-determination of indigenous peoples although one has to be cautious in attaching toomuch legal significance to these comments. Elizabeth Evatt, Realising Human Rights:Utilising UN Mechanisms, in INDIGENOUS HUMAN RIGHTS, supra note 18, at 181, 191–93;Benedict Kingsbury, Reconstructing Self-Determination: A Relational Approach, inOPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION, supra note 18, at 19,31–33.

64. Working Group Report 2000/84, supra note 12, ¶¶ 53, 81; Working Group Report2001/85, supra note 12, ¶¶ 82, 83.

65. Id. ¶ 90.66. Supra note 58, and accompanying text.


In response to this aspect of the Norwegian proposal, indigenousrepresentatives stated that they preferred to maintain Article 31’s currenttext. They argued that the current text “was useful to identify the differentelements that could make up an autonomy arrangement since it was often inthat area that most misunderstandings arose between indigenous peoplesand States.”67 This might suggest that indigenous peoples are prepared tonegotiate on the issue, but the matter is not free from doubt. Otherprovisions of the declaration suggest that indigenous peoples must give theirfree and informed consent prior to the approval of any developmentprojects affecting their lands or other resources.68

Clearly, this is an area in which the law is still evolving. Because self-determination traditionally applies only to the entire population of a state orcolony, international law has not had to deal with this type of situationbefore. This means that the entire population of a state can, by virtue of itsright to self-determination, decide on how to dispose of its wealth andnatural resources. The recognition of a right to internal self-determinationfor indigenous peoples implies that they also have a right to dispose ofnatural resources and wealth, albeit, only within their lands and territories.This opens up the possibility of a conflict between the two forms of self-determination coexisting within the same state. The majority of thepopulation may want to extract valuable natural resources from land ownedor traditionally occupied by indigenous peoples, while the latter mayinvoke their right to self-determination to oppose such development.Because the right of indigenous peoples to internal self-determination is notyet recognized in international law, it is perhaps not surprising that no legalguidelines exist on how to deal with this conflict. However, it is doubtfulwhether the right of indigenous peoples to self-determination will automati-cally trump the right of the rest of the population. This is evident from theopposition of several states to the idea that indigenous peoples can vetodevelopment projects on their lands, as well as from several statements thatthe state needs to manage natural resources in the interests of the entirepopulation of the state.69 This is also the position adopted by the WorldBank.70 Arguably, where a conflict arises, the matter will have to be decidedby negotiation, which should lead to striking a balance between theinterests of all concerned.

67. Working Group Report 2003/92, supra note 20, ¶ 25.68. See infra notes 89–94, and accompanying text.69. Working Group Report 1996/84, supra note 20, ¶¶ 83, 85; Working Group Report

2000/84, supra note 12, ¶ 93.70. See WORLD BANK, SUMMARY OF CONSULTATIONS (2002), available at lnweb18.worldbank.org/

ESSD/sdvext.nsf/63ByDocName/SummaryofExternalConsultation-English/$FILE/SumExtConsult-100802.pdf.


In striking a balance between these competing interests, those involvedin development projects affecting indigenous peoples should considerseveral factors of a substantive and procedural nature. Substantively, theyshould consider: (1) whether the development project has a legitimate aim,(2) the potential impact of the project on the rights and interests ofindigenous peoples, (3) whether any negative impact on indigenous peoplesis necessary, and (4) the minimum required to achieve the legitimate aim.71

Procedurally, those involved in development projects should ensure theeffective participation of indigenous peoples in the formulation and imple-mentation of development projects affecting them. While these factors arenot legally binding, they provide some guidance on how to proceed if aright to internal self-determination for indigenous peoples is recognized ininternational law.

B. The Right to Participate in Public Affairs

The right to participate in public affairs is also relevant to determiningwhether indigenous peoples can participate in the formulation and imple-mentation of development policies that affect them. At a more general level,the right to participate is relevant to ensuring that governments areaccountable for their policies (including development policies) and for theallocation of public funding. Participation is also a core principle in thedevelopment aid programs of some donor states.72

The right to participate in public affairs is recognized in Article 25 of theICCPR. The right applies only to citizens of a state, which can be a problemfor some indigenous peoples, due to the way in which some states’citizenship laws are drafted. However, the more problematic feature ofArticle 25 is its scope. Article 25’s wording73 suggests that its primaryconcern is the right to participate in elections without discrimination. Whilethis may result in the election of representatives of indigenous peoples,there is no guarantee that it will do so. This means that Article 25 will not

71. These factors are based on the approach commonly adopted in international humanrights instruments when faced with a conflict between competing rights and interests.

72. See, e.g., Human Rights for Poor People, supra note 1.73. See ICCPR, supra note 15. Article 25 provides that

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned inarticle 2 and without unreasonable restrictions:

a. To take part in the conduct of public affairs, directly or through freely chosen representatives;b. To vote and to be elected at genuine periodic elections which shall be by universal and

equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the willof the electors;

c. To have access, on general terms of equality, to public service in his country.


guarantee that the interests of indigenous peoples are represented ingovernment or in the formulation of development policy.74

The wording and drafting history75 of Article 25 suggest that states haveno obligation to adopt political structures that would ensure the effectiveparticipation of indigenous peoples in public life. This is also evident froma survey undertaken by the present author of the reports submitted by 100states on how they comply with the ICCPR. Most states simply describe theirelectoral systems and their political structures to show that they respect theright to participate in public life.76 Occasionally, states refer to theestablishment of structures of self-government or the granting of variousforms of cultural autonomy for indigenous peoples,77 but it is evident fromthe reports78 that this is due to the states’ own discretion rather than anyperceived obligation under Article 25.

The lack of a state obligation to ensure effective participation in publiclife is consistent with the UN Human Rights Committee’s interpretation ofArticle 25.79 This Committee monitors state compliance with the ICCPR.80 InMikmaq People v. Canada,81 the Mikmaq people claimed that the Canadiangovernment’s failure to invite them to a constitutional conference onaboriginal matters violated their rights under Article 25. The Committeerejected the application. It stated that Article 25 did not guarantee anydirectly affected group the unconditional right to choose the means ofparticipation in public life. Instead, it was for the constitutional system ofeach state to provide for the means of participation. In other words, it wasfor the entire people of the state, in the exercise of their right to self-determination, to decide on the constitutional system and the means ofparticipation.

The case of the Mikmaq people highlights the difference between theright to self-determination and the right to participation. If a group has theright to self-determination, it has the right to determine the structures ofparticipation. If it has a right to participation, it only has the right toparticipate in existing structures without discrimination. This helps to

74. See also GHAI, supra note 41, at 5.75. See MARC J. BOSSUYT, GUIDE TO THE “TRAVAUX PREPARATOIRES” OF THE INTERNATIONAL COVENANT ON

CIVIL AND POLITICAL RIGHTS 470 (1987).76. See Quane, supra note 44, at 433–34.77. Id.78. Id.79. See General Comment Adopted by the Human Rights Committee Under Article 40,

Paragraph 4, of the International Covenant on Civil and Political Rights, U.N. ESCOR,Hum. Rts. Comm., U.N. Doc. CCPR/C/21/Rev.1/Add.7 (1996).

80. ICCPR, supra note 15, arts. 40, 41.81. Report of the Human Rights Committee, U.N. GAOR, Hum. Rts. Comm., 47th sess.,

Suppl. no. 40, at 205, U.N. Doc. A/47/40 (1992).


explain why indigenous peoples place so much emphasis on self-determination. What emerges from this brief review is that Article 25 simplyguarantees the right of indigenous peoples to participate in public lifewithout discrimination. This means the right of indigenous peoples to voteand stand for election without discrimination; it does not guarantee the rightto participate in development projects that affect them.

On the other hand, ILO Convention 169 confers extensive rights onindigenous peoples to participate in development projects that affectthem.82 At a general level, these rights include the right to be consulted“through appropriate procedures and . . . through their representativeinstitutions” whenever consideration is being given to legislative or admin-istrative measures that affect them directly.83 It is clear from the wording anddrafting history that this simply confers a right to be consulted rather than aright of veto.84

The Convention recognizes the right of indigenous peoples to deter-mine their own priorities for the development process and to exercisecontrol “to the extent possible” over their own economic, social, andcultural development.85 Indigenous peoples also have the right to partici-pate in the formulation, implementation, and evaluation of national andregional development programs that may affect them directly.86 States arerequired to ensure, “whenever appropriate,” that studies are carried out incooperation with indigenous people to assess the social, spiritual, cultural,and environmental impact of the planned development activities on them.States must also ensure that the results of these studies be regarded asfundamental criteria for the implementation of these activities.87 Thedrafting of the provisions suggests that the states will retain some discretionin their implementation. Nevertheless, these provisions can have a signifi-cant impact on development projects at the national level. This is borne outby a 1997 decision of the Colombian Constitutional Court that an oilexploration license should not have been granted because the indigenouspeoples concerned had not been properly consulted “in violation of theright to participation in . . . ILO Convention 169.”88

The Draft UN Declaration goes even further on the issue of effectiveparticipation. It recognizes the right of indigenous peoples to participate

82. See ILO Convention 169, supra note 29, arts. 2, 6, 7, 15, 16, 17.83. Id. art. 6(1).84. See Kristen Myntti, The Rights of Indigenous Peoples to Self-Determination and Effective

Participation, in OPERATIONALIZING THE RIGHT OF INDIGENOUS PEOPLES TO SELF-DETERMINATION, supranote 18, at 85, 120.

85. ILO Convention 169, supra note 29, art. 7(1).86. Id.87. Id. art. 7(3).88. Discussed in Kingsbury, supra note 18, at 439.


fully at all levels of decision-making in matters that “may affect” them.89 Inaddition to this, they have the right to determine and develop priorities andstrategies for exercising “their” right to development.90 This includes theright to “determine and develop all health, housing and other economic andsocial programs affecting them” and to administer these programs throughtheir own institutions “as far as possible.”91 Indigenous peoples also havethe right to determine and develop priorities and strategies for the develop-ment or use of their lands, territories, and other resources.92 Significantly,this includes the right to require the state to obtain their “free and informedconsent” prior to the approval of any project affecting their lands and otherresources.93 Where agreement is given, “just and fair compensation” mustbe paid to the indigenous people for any such activities to mitigate anyadverse impact on them.94

No consensus has been reached on these provisions. Most states seemto accept the importance of these provisions and generally support theunderlying principles, but many have concerns about the way in whichthese provisions are currently drafted.95 Most states have referred to theneed for further clarification given the complexity of the issues involved.96

Several states are concerned about granting rights to indigenous peoplesthat are not granted to the rest of the population.97 Others are opposed toseparate economic, social, political, and legal systems for indigenouspeoples.98 The need to obtain the consent of indigenous peoples prior toapproving development projects on their lands is also controversial. Somestates are prepared to accept the provision as currently drafted.99 Othersargue that the provision should be redrafted so that it simply requires statesto take account of the opinion of indigenous peoples prior to givingconsent.100 Indigenous peoples, for their part, have stressed the fundamentalimportance of these provisions in ensuring their own effective and meaning-ful participation in the decision-making processes of the state and as anelement of their right to self-determination.101 Opinion remains divided on

89. Draft Declaration, supra note 28, art. 19.90. Id. art. 23.91. Id.92. Id. art. 30. See also art. 31.93. Id.94. Id.95. Working Group Report 1996/84, supra note 20, ¶ 79; Working Group Report 1997/

102, supra note 20, ¶¶ 196–97, 199, 202, 204–05, 208–11, 214–16, 219, 221.96. Working Group Report 1996/84, supra note 20, ¶ 79.97. Id. ¶ 80.98. Id.99. Working Group Report 2003/92, supra note 20, ¶ 45.

100. Working Group Report 1997/102, supra note 20, ¶¶ 280, 181; Working Group Report2003/92, supra note 20, ¶ 46, Annex.

101. Working Group Report 1996/84, supra note 20, ¶ 82.


these provisions, casting doubt on whether they will be adopted in the nearfuture. However, what emerges from the relevant discussions is a generalconsensus among states and indigenous peoples on the need to ensure moreeffective participation by indigenous peoples in the formulation of policiesand development projects that affect them.

In summary, indigenous peoples have a right to participate in publicaffairs. This is the minimum requirement, which, as currently interpretedwithin the framework of the ICCPR, will have very little impact ondevelopment projects. However, there seems to be a growing consensusthat where development projects affect indigenous peoples, they should beable to participate in the formulation of these projects. In ILO Convention169, this is recognized as a legal right and can be used to challengedevelopment projects that fail to respect this right. Nevertheless, the draftingof the right suggests that states retain some discretion regarding the natureand extent of this participation. Arguably, once indigenous peoples have anopportunity to participate in the formulation of development projects thataffect them, the requirements of the Convention will be met. This can becontrasted with the Draft UN Declaration, which recognizes that indig-enous peoples have a right not only to be consulted about developmentprojects that may affect them but also to veto these projects when they affecttheir land and resources.

It is questionable whether these provisions will be adopted in theircurrent form. Instead, it seems more likely that states will want to redraft therelevant provisions so that they continue to reflect the underlying principleof effective participation but also ensure some flexibility in how thisprinciple is implemented at the national level. Nevertheless, the provisionswill still embody the need for indigenous peoples to participate, in someform or another, in development projects that affect them. Admittedly, it isunclear when, if ever, the Draft Declaration will be adopted, but theDeclaration is still significant in highlighting the growing internationalconsensus that indigenous peoples should participate in developmentprojects that may affect them and should no longer be marginalized fromthe development process. Even though the Draft Declaration does notimpose any legal obligations on decision-makers in this area, it can be usedto render them politically accountable for any failure to ensure theparticipation of indigenous peoples in relevant development projects.

C. The Right of Indigenous Peoples to Enjoy their Own Culture

The right of indigenous peoples to enjoy their own culture is important in adevelopment context, especially in terms of its potential impact on theownership and exploitation of land and other natural resources. The right is


recognized in the ICCPR Article 27. Although this Article refers to personsbelonging to ethnic, religious, and linguistic minorities, it also applies topersons belonging to indigenous peoples. The Article provides that thesepersons “shall not be denied” the right, in community with other membersof their group, to enjoy their own culture.

The negative formulation of the right and the drafting history102 suggestthat the Article originally emphasized the freedom of individuals to enjoytheir own culture, rather than the adoption of positive measures by the stateto facilitate the effective enjoyment of this right. However, a survey of statereports on how they comply with this Article suggests some movement inthis area. At least a third of all states refer to adopting positive measures toprotect minority identity.103 Some reports tend to distinguish betweenminorities and indigenous peoples.104 With regards to the latter, thetendency is to adopt more extensive measures to protect cultural identity,such as granting land rights to indigenous peoples,105 protecting indigenousland and sacred sites,106 and granting self-government or cultural autonomyto indigenous peoples.107 Some states have also recognized indigenous

102. U.N. Docs. E/CN.4/SR.133, at 6, E/CN.4/SR.257, at 3, E/CN.4/SR.368, at 4, 7, 9–10, E/CN.4/SR.369, at 4, 5–6, E/CN.4/SR.370, at 6, 9, 10–11, E/CN.4/SR.371, at 5–7. (Notesreferring to these documents, taken from the London School of Economics Library inLondon, are on file with author.)

103. See infra notes 104–10, the state reports submitted by Australia, Austria, Azerbaijan,Belgium, Bolivia, Canada, Chile, Colombia, Ecuador, El Salvador, Estonia, Georgia,Hungary, Iraq, Israel, Italy, Latvia, Lithuania, Former Yugoslav Republic of Macedonia,Mauritius, Mexico, New Zealand, Nicaragua, Paraquay, Peru, Poland, Romania,Russian Federation, Senegal, Slovakia, Slovenia, Sweden, Ukraine, United States,Venezuela, and Zimbabwe. The full references for these reports are listed in Quane,supra note 44, Bibliography.

104. See the reports submitted by Australia (UN Doc. CCPR/C/14/Add.1); Bolivia (U.N. Doc.CCPR/C/63/Add. 4), available at www.bayefsky.com/reports/bolivia_ccpr_c_63_add.4_1996.php; Chile (U.N. Doc. CCPR/C/58/Add.2); Colombia (U.N. Doc. CCPR/C/1/Add.50); Ecuador (U.N. Doc. CCPR/C/58/Add.9); El Salvador (U.N. Doc. CCPR/C/51/Add.8), available at www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.51.Add.8.Sp?Opendocument; Mexico (U.N. Doc. CCPR/C/22/Add.1); New Zealand (U.N. Doc.CCPR/C/10/Add.13); Nicaragua (U.N. Doc. CCPR/C/14/Add.2); Paraguay (U.N. Doc.CCPR/C/84/Add.3); Peru (U.N. Doc. CCPR/C/83/Add.1); Sweden (U.N. Doc. CCPR/C/58/Add.7); United States (U.N. Doc. CCPR/C/81/Add.4), available at www.unhchr.ch/tbs/doc.nsf/(Symbol)/da936c49ed8a9a8f8025655c005281cf?Opendocument; and Ven-ezuela (U.N. Doc. CCPR/C/37/Add.14).

105. See the reports submitted by Bolivia, Chile, Paraguay, and Peru, supra note 104; Canada(U.N. Doc. CCPR/C/64/Add.1); and Colombia (U.N. Doc. CCPR/C/37/Add.6).

106. See the reports submitted by Australia (U.N. Doc. CCPR/C/42/Add. 2); Guatemala (U.N.Doc. CCPR/C/81/Add.7), available at www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.81.Add.7.En?Opendocument; and Venezuela supra note 104.

107. See the reports submitted by Colombia, supra note 105; Paraguay, Peru and the UnitedStates, supra note 104; New Zealand (U.N. Doc. CCPR/C/37/Add.8); Nicaragua (U.N.Doc. CCPR/C/42/Add.8); Norway (U.N. Doc. CCPR/C/70/Add. 2); and Sweden (U.N.Doc. CCPR/C/95/Add.4), available at www.bayefsky.com/reports/sweden_ccpr_c_95_add.4_1994.php.


peoples’ right to be involved in public planning concerning the use of landand water108 and the planning of their own development models.109 It isunclear whether states adopted these measures because of a perceived legalobligation to do so or whether they simply reflect the exercise of statediscretion in this area.110 This ambiguity may undermine the legal signifi-cance of the state practice. Consequently, it is difficult to say that indigenouspeoples have a legal right to these measures under Article 27.

The UN Human Rights Committee also has adopted a broad interpreta-tion of the right. In its General Comment on Article 27, it accepted that theright to enjoy a particular culture may consist of a way of life associatedwith territory and the use of its resources, which “may” include suchtraditional activities as fishing and hunting and the right to live in reserves.111

The Committee stated that the enjoyment of these rights may requirepositive legal measures of protection as well as measures to ensure theeffective participation of members of minority communities in decisionswhich affect them.112 However, the right to such measures is not automatic.It will depend on the circumstances of each case and whether the measuresare necessary to protect the cultural rights of persons belonging toindigenous peoples. The Committee also pointed out that any positivemeasures that are adopted must respect the principle of nondiscriminationregarding treatment between different indigenous peoples and betweenmembers of indigenous peoples and the rest of the population. Thus, anydifference in treatment must be based on reasonable and objective criteria.113

The Committee has also considered the nature and scope of the right ina series of cases concerning land rights and the use of natural resources. TheCommittee has adopted the position that while the regulation of economicactivity is normally a matter for the state, where that activity is an essentialelement in a minority’s culture, its application to an individual may raise anissue under Article 27.114 In Lubican Lake Band v. Canada, an indigenouspeople claimed that natural gas and oil exploration on traditional landsviolated its right to enjoy its own culture under Article 27. The Committee,

108. See the report submitted by Sweden, supra note 107.109. See the report submitted by Colombia (U.N. Doc. CCPR/C/64/Add.3).110. The discretionary character of the measures is evident in the reports submitted by

Bolivia, Canada, Chile, Colombia, Estonia, Finland, Iraq, Latvia, and Senegal, supranote 103.

111. General Comment Under Article 40, paragraph 4, of the International Covenant of Civiland Political Rights, U.N. GAOR, Hum. Rts. Comm., 50th Sess., 1314th mtg.,addendum, at 2, 4, U.N. Doc. CCPR/C/21/Rev.1/Add.5 (1994).

112. Id. at 4.113. Id. at 3–4.114. Report of the Human Rights Committee: Communication No. 197/1985, adopted 27 Jul.

1988, U.N. GAOR, 43rd Sess., Annex VII, at 221, U.N. Doc. A/43/40 (1988)(hereinafter Communication No. 197/1985).


in a terse decision, stated that “[h]istorical inequities . . . and certain morerecent developments threaten the way of life and culture of [the indigenouspeople] and constitute a violation of Article 27 so long as they continue.”115

While the decision represents a considerable victory for the indigenouspeople concerned, its implications for other indigenous peoples are unclearbecause the Committee did not elaborate on the grounds for its decision.Thus, it is unclear whether natural gas and oil exploration on traditionallands would in and of itself give rise to a violation of Article 27. At most, onecan say that such development may raise an issue under Article 27, butwhether it will violate this Article will depend on all of the circumstances ofthe case. Presumably, it will depend on the development project’s natureand the extent of its impact on the cultural life of the indigenous peopleconcerned.

In terms of its general impact on the development process, Article 27may require states to adopt positive measures, such as protecting landassociated with a traditional way of life or ensuring the effective participa-tion of indigenous peoples in decisions affecting them. But this will not berequired in all cases. Ultimately, the nature and extent of the state’sobligations under Article 27 will vary depending on the circumstances ofeach case. At a minimum, those involved in development projects affectingindigenous peoples should consider the potential impact of these projectson the cultural life of the peoples concerned, in order to avoid a possiblebreach of this Article.

A final issue that arises is whether restrictions are permitted on the rightto enjoy one’s culture under Article 27. This is significant given thetendency of some states to restrict cultural rights on ecological or economicgrounds.116 Article 27 does not refer to the possibility of restrictions;however, the Human Rights Committee has stated that the rights set out inArticle 27 can be restricted, if the restriction has a reasonable and objectivejustification and is compatible with the other provisions in the Covenant.117

For example, even if commercial activity, such as logging or road construc-tion, on lands associated with a traditional way of life restricts the right toenjoy one’s culture, it may be permitted if the state can show that the

115. Report of the Human Rights Committee to the General Assembly: Communication No.167/1984, adopted 26 Mar. 1990, U.N. GAOR, 45th Sess., Annex IX, at 1, 27, U.N.Doc. A/45/40, Vol. II (1989) (hereinafter Communication No. 167/1984).

116. See, for example, the position of the Maasi in Tanzania, described in ROGER PLANT, LAND

RIGHTS AND MINORITIES 27 (1994).117. See Communication No. 197/1985, supra note 114, at 11, 12. See also the individual

opinion of Nisuke Ando in Communication No. 167/1984, supra note 115, at 28, to theeffect that the right to enjoy one’s culture should not be understood to imply that atraditional way of life must be preserved at all costs.


commercial activity has a reasonable and objective justification. Thishighlights the fact that states do not have to attach overriding importance tothe right of indigenous peoples to enjoy their own culture when they areformulating and implementing development policy. Other considerationscan outweigh that right.

ILO Convention 169 also recognizes the cultural rights of indigenouspeoples. The Convention recognizes the right of indigenous peoples toretain their own customs and institutions, provided that they are compatiblewith fundamental rights.118 The Convention also requires states to adoptpositive measures to protect indigenous culture.119 This is evident in relationto land occupied or used by indigenous peoples. In applying the landprovisions set out in Convention 169, states must recognize the specialimportance of the cultural and spiritual values of indigenous peoples to thelands they occupy or use.120 These provisions confer substantive andprocedural rights on indigenous peoples concerning the land that theytraditionally occupy or use and the natural resources pertaining to this land.These include the rights of indigenous peoples to own and possess the landsthey traditionally occupy,121 to participate in the use, management, andconservation of natural resources pertaining to their land,122 and to remainon the lands that they occupy, subject to certain exceptions.123 States arerequired to adopt a series of measures to render these rights effective, suchas identifying the lands which indigenous peoples occupy124 and establish-ing procedures to consult indigenous peoples before sanctioning anyprograms for the exploration or exploitation of natural resources onindigenous land.125 The Convention goes much further than other instru-ments in protecting the cultural rights of indigenous peoples. In a develop-ment context, its significance lies primarily in the need to formally consultindigenous peoples prior to exploiting any natural resources on landsowned or traditionally occupied by them.

The Draft UN Declaration also confers extensive rights on indigenouspeoples to enable them to maintain and develop their own culture. Forexample, it recognizes indigenous peoples’ right to be free from culturalgenocide,126 to maintain and preserve their distinct identities,127 and to

118. ILO Convention 169, supra note 29, art. 8(2).119. See, e.g., id. arts. 4(1), 8(1).120. Id. art. 13(1).121. Id. art. 14(1).122. Id. art. 15(1).123. Id. art. 16.124. Id. art. 14(2)(3).125. Id. art. 15(2). See also id. at arts. 16(2), 17(2) concerning consultation rights.126. Id. art. 7.127. Id. art. 8.


practice their cultural, spiritual, and religious traditions. The Draft Declarationrecognizes the relationship between indigenous identity and land,128 whichundoubtedly influences its provisions on land and natural resources. Theseprovisions recognize the right of indigenous peoples to own, develop,control, and use lands and territories they traditionally owned, occupied, orused.129 Where their lands, territories, and natural resources have beenconfiscated, occupied, used, or damaged without their free and informedconsent, indigenous peoples have the right to restitution. Where this is notpossible, they have the right to compensation in the form of lands,territories, and resources equal in size, quality, and legal status.130

To date, no agreement has been reached on these provisions. Somestates broadly support the provisions’ objectives.131 However, most haveexpressed reservations about the way in which these provisions arecurrently drafted.132 Several states have argued that ultimate control overland must lie with the government and that land rights have to beconsidered within the framework of national laws133 and policies onstrategic resources, nature conservation, and state security.134 Some areconcerned about the scope of certain provisions, notably, the right ofindigenous peoples to own lands “which they have traditionally owned orotherwise occupied or used.”135 Indigenous peoples have explained that thisterm is used to avoid the technical objection put forth by some states thatindigenous peoples do not have proper title to their lands and, therefore,have no land rights.136 Nevertheless, some states are unwilling to accept theprovision in its current form,137 while others argue for greater flexibility toallow for national solutions to land ownership. There are also concernsabout the rights of third parties, particularly the right to access certain sitesand to own land and cultural, intellectual, religious, and spiritual prop-

128. Id. art. 5.129. Id. art. 13(1).130. Id. arts. 14, 15131. Working Group Report 2003/92, supra note 20, ¶¶ 18, 57; Working Group Report

1997/102, supra note 20, ¶¶ 249, 264; Working Group Report 2000/84, supra note 12,¶¶ 96, 99.

132. Working Group Report 1996/84, supra note 20, ¶ 83; Working Group Report 2001/85,supra note 12, ¶ 107; Working Group Report 2003/92, supra note 20, ¶ 29, 32, 34.

133. Working Group Report 1996/84, supra note 20, ¶ 83; Working Group Report 1997/102, supra note 20, ¶¶ 254, 271; Working Group Report 2000/84, supra note 12,¶¶ 92, 93; Working Group Report 2001/85, supra note 12, ¶¶ 107, 109.

134. Working Group Report 1996/84, supra note 20, ¶ 85.135. Draft Declaration, supra note 28, art. 25–27.136. Working Group Report 1997/102, supra note 20, ¶ 247.137. Id. ¶ 252.


erty.138 Several states are also concerned about the references to “compen-sation” and “restitution,” especially whether they apply retrospectively.139

Indigenous peoples, for their part, have stressed the “critical impor-tance” of the land provisions for their survival because of the profoundspiritual, cultural, and economic relationship indigenous peoples have withtheir land.140 Indigenous peoples have referenced land taken away “throughdevelopment initiatives, such as resettlement schemes, the creation ofnational parks, and the reallocation of land to developers.”141 They arguethat without explicit recognition of their land rights, indigenous peoples willremain vulnerable to more powerful economic forces.142 Several proposalshave been made to redraft the relevant provisions,143 but no agreement hasyet been reached.

Discussions to date suggest that states and indigenous peoples agree onthe need to recognize the special relationship indigenous peoples have withtheir land. They also agree on the need to recognize the rights of indigenouspeoples over their land and resources. Where indigenous peoples and statesdiffer is on the extent of that recognition. Indigenous peoples want fairlyunqualified, international recognition for their rights to their land andresources. States are reluctant to grant this recognition as they want to retainsome flexibility in the implementation of these provisions. This wouldenable the state to retain some control over these lands and resources andallow it to utilize them in the national interest. Given the position of stateson these provisions and the financial interests at stake, it is questionablewhether these provisions will be adopted in their current form. Instead, onewould expect them to be redrafted in a similar fashion to the relevantprovisions of ILO Convention 169, which allow some discretion to be left tothe state. If this happens, indigenous peoples will not be able to use theprovisions to veto development projects affecting their land and resources.Notwithstanding this, discussions so far suggest that indigenous peoples willhave to be involved in any development projects affecting their lands andresources. This should ensure that indigenous peoples are not marginalizedfrom these projects to the same extent as they have been in the past.

138. Working Group Report 1996/84, supra note 20, ¶ 72; Working Group Report 1997/102, supra note 20, ¶¶ 68, 75; Working Group Report 2001/85, supra note 12, ¶ 145;Working Group Report 2003/92, supra note 20, ¶¶ 29, 31.

139. Working Group Report 2001/85, supra note 12, ¶¶ 145, 147; Working Group Report2003/92, supra note 20, ¶ 29.

140. Working Group Report 1996/84, supra note 20, ¶ 84; Working Group Report 1997/102, supra note 20, ¶¶ 255, 260–61, 269; Working Group Report 2000/84, supra note12, ¶¶ 89, 91.

141. Working Group Report 2001/85, supra note 12, ¶ 111.142. Working Group Report 1996/84, supra note 20, ¶ 84.143. Working Group Report 2003/92, supra note 20, at Annex.


D. The Rights of Indigenous Peoples and the ObligationsThey Impose on States and International Organizations

The discussion so far has focused on the scope of several rights claimed byindigenous peoples and how these rights could affect the developmentprocess in general terms. It is clear from this discussion that these rightsimpose certain obligations concerning a state’s treatment of indigenouspeoples within its own territory. The question arises whether these rightsimpose any obligations on donor states or international financial institutions.

The international instruments vary in their approach to this question.The ICCPR, for example, only imposes obligations on the states in whichindigenous peoples reside.144 ILO Convention 169 adopts a similar ap-proach. Even though these instruments are not legally binding on donorstates or international financial institutions, they may still influence theirdevelopment programs and policies. ILO Convention 169 provides a goodillustration of this. The Asian Development Bank (ADB), in its 1991guidelines for social analysis of development projects, recognized itsresponsibility for ensuring that its activities did not violate human rights andaccepted the standards established by the appropriate international bodies,“with particular reference to the ILO Convention No. 169.”145 The Inter-American Development Bank and the World Bank adopt a similar ap-proach.146 This suggests that the Convention may influence the developmentpolicies of international financial institutions. It has also been suggested thatthe Convention may have an influence beyond the ratifying states to otherstates, by becoming incorporated into the official policies of theseinstitutions.147

The Draft UN Declaration seems to impose some obligations on donorstates. It provides that indigenous peoples have the right to have access toadequate financial and technical assistance “from States and throughinternational cooperation” to enjoy the rights set out in the declaration.148

This provision is controversial because some states say that: (1) internationallaw does not impose any obligation on states to provide financial supportfor indigenous development, and (2) indigenous peoples cannot bypass therelevant national bodies in obtaining international assistance.149 At most,states seem to be willing to accept a provision that would “encourage”

144. ICCPR, supra note 15, art. 2(1).145. See PLANT, supra note 116, at 12.146. Id. See also Kingsbury, supra note 18, at 443–45.147. PLANT, supra note 116, at 12.148. Draft Declaration, supra note 28, art. 38.149. Working Group Report 1996/84, supra note 20, ¶ 97; Working Group Report 1997/

102, supra note 20, ¶¶ 300–01, 303–05.


resource transfers, provided that it allowed them to retain discretion aboutwhether or not to provide such resources.150

The Draft UN Declaration also imposes some obligations on the UNspecialized agencies. These agencies include the International Bank forReconstruction and Development (part of the World Bank) and the IMF.Article 40 provides that these bodies “shall contribute to the full realization”of the Declaration through the mobilization, inter alia, of financial co-operation and technical assistance. It also provides that they shall establishways and means of ensuring the participation of indigenous peoples inissues affecting them.

The Draft Declaration is not intended to be legally binding, and itremains to be seen whether it will be adopted in the near future. In anyevent, several factors could undermine its potential impact on the activitiesof the World Bank and the IMF. One is the fact that these bodies retainconsiderable autonomy from the UN, even though they are UN specializedagencies.151 Arguably, the Draft Declaration could not compel them topromote the rights of indigenous peoples simply by virtue of their status asUN specialized agencies. Another factor is the political neutrality clause inthe agencies’ instruments.152 This clause has been interpreted by the IMF asexcluding human rights from its terms of reference.153 The World Bank hasadopted a different approach, seemingly on the basis that human rightsviolations undermine a country’s stability and creditworthiness, therebybringing human rights within its remit.154

To date, the Bank has adopted two Operational Directives on Indig-enous Peoples.155 Both Directives require the World Bank to consult withindigenous peoples affected by its projects and are guided by ILO Conven-tion 169. While this shows some willingness to take on the potentialimplications of its projects for indigenous peoples, there have beenproblems,156 and the Bank is currently undertaking a major review of itspolicy in this area.

150. Working Group Report 1997/102, supra note 20, ¶ 304.151. See D.W. BOWETT, THE LAW OF INTERNATIONAL INSTITUTIONS 60–61 (3d ed. 1975).152. See the IRBD’s Articles of Agreement, art. IV, sec. 10. See also the IMF’s Articles of

Agreement, art. IV, § 3(b), available at web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,contentMDK:20049603~pagePK:43912~menuPK:58863~piPK:36602,00.html.

153. See Katarina Tomas=evski, Minority Rights in Development Aid Policies: An Issues Paper(2000), at 3, available at www.minorityrights.org/Dev/Mr_dev_2.pdf.

154. See id. at 4, 5 for the 1988 finding by the Bank’s General Counsel.155. Operational Directive on Indigenous Peoples (No. 4.20), WORLD BANK OPERATIONS MANUAL

(1991); Operational Directive on Involuntary Resettlement (No. 4.30), WORLD BANK

OPERATIONS MANUAL (1990). See, further, PLANT, supra note 116, at 11–12; Minorities andDevelopment: Report of a Minority Rights Group Seminar (Minority Rights Group,1995), at 10 (on file with author).

156. Id. at 10; Kingsbury, supra note 18, at 443–44.


However, the World Bank’s new Draft Policy on Indigenous Peoples hasmet with some opposition from indigenous peoples due to (1) the way inwhich consultations on the Draft Policy have been carried out and (2) thebelief that it does not adequately reflect indigenous rights under interna-tional law, especially indigenous peoples’ collective rights to their lands andterritories, to prior, free, and informed consent to development projects ontheir lands, and the right to self-identification.157 Some of the difficulties inthis area stem from conflicting interpretations of indigenous rights underinternational law and highlight the need for all concerned to clarify thescope of these rights. Notwithstanding these concerns, indigenous peopleshave welcomed the dialogue with the World Bank on its Draft Policy and itis interesting to note that, since 2000, the Bank has collaborated with theworking party on the Draft UN Declaration. In contrast, the IMF resolutelyrefuses to address human rights issues.158 Consequently, it is doubtfulwhether the Draft UN Declaration will have much of an impact on the IMF’sactivities in the development sphere.

V. CONCLUSION

At present, there is a certain degree of confusion about the rights ofindigenous peoples under international law and, consequently, about theimpact of these rights on the development process. Indigenous peoplesclaim fairly extensive rights, such as the right to self-determination, toownership of lands and territories traditionally owned or occupied by them,the right to prior, informed consent to any development projects affectingtheir lands and resources, and the right to self-identification. They argue thatthese rights are recognized under international law and must be respectedby states and international organizations such as the World Bank.

However, many of these claims are based on the Draft UN Declarationon Indigenous Peoples, which has not yet been adopted and which, in anyevent, is not intended to be legally binding. Given the approach adopted bystates to some of the more important provisions of this Declaration, it isquestionable whether it will be adopted entirely in its current form. Otherclaims, such as the claim to self-determination, are based on generalinternational law but find limited support in state practice. This might seemto be a very statist approach, but it must be borne in mind that international

157. See Indigenous Peoples and the World Bank, supra note 19, at ¶ 4.158. See Sérgio Pereira Leite, The International Monetary Fund and Human Rights, LE MONDE,

4 Sept. 2001, available at www.imf.org/external/np/vc/2001/090401.htm; Anne Orford,“Globalization” and the Right to Development, in PEOPLES’ RIGHTS, supra note 38, at 127,157.


law is created by states, and their consent is required before any new rightsare recognized under international law.

These realities, however, should not detract from important develop-ments currently taking place in this area of law. It is clear that there is agrowing international consensus about the need for more extensive rightsfor indigenous peoples. While this consensus might not yet reach the levelrequired for the formation of new rules of international law, it can be usedto render states politically accountable for failing to comply with it. Atpresent, there is a real need for all concerned to clarify the scope of therights of indigenous peoples under international law. Adhering to overbroador overrestrictive interpretations of these rights can only inhibit progress,particularly in terms of discussions about the potential impact of these rightson the development process. This much is evident from the current impasseon the Draft UN Declaration and on the World Bank’s Draft Policy onIndigenous Peoples.

On the basis of the present examination of key international instru-ments, it is possible to make some general observations about the potentialimpact of the rights of indigenous peoples on the development process. Thefirst relates to the extent to which states must formulate and implementdevelopment policy in order to protect and promote the rights of indigenouspeoples. The present review reveals that there are some legal constraints onstates’ freedom of action in this respect. For example, under ILO Convention169 and, in certain circumstances, ICCPR Article 27, the state must adoptsome positive measures to protect the land and resources of indigenouspeoples. The second observation relates to the extent to which states mustrefrain from adopting development policies that have a negative impact onthe rights of indigenous peoples. There are considerably more legalconstraints on the states’ freedom of action in this area. Depending on thecircumstances of the particular case, the rights of indigenous peoples maybe used to block certain development policies such as logging or mineralextraction on lands associated with a traditional way of life. Ultimately, theoutcome seems to depend on the rights in question, the extent to which thedevelopment policy interferes with those rights, and whether the state canprovide objective and reasonable justification for the policy.

A third observation relates to the manner in which states formulate andimplement development policy. Arguably, it is in this area that the rights ofindigenous peoples will have the greatest impact on the developmentprocess. It is clear from the current review that there is a growinginternational consensus on the need for indigenous peoples to participate inthe formulation and implementation of development projects that mayaffect them. At present, a legal right to participate in these projects appliesonly in some cases, notably, in which the state is party to ILO Convention169 or in which the circumstances of the case require it under Article 27


ICCPR. If a legal right to internal self-determination for indigenous peoplesevolves under customary international law, then this right will apply in allcases. Even in the absence of a legal right to participate, the existence ofthese instruments and the Draft UN Declaration can be used to render statespolitically accountable for any failure to ensure the participation ofindigenous peoples in development projects that affect them.

At present, the nature and extent of the participation required is far fromclear and may vary depending on the circumstances of the case and theinternational instrument in question. However, the general duty on states tocarry out their international obligations in good faith suggests that participa-tion must be effective and not simply a token exercise. This should go someway towards addressing the marginalization of indigenous peoples from thedevelopment process and ensure that they receive an equitable share of thebenefits of development.

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