UNDRIP, State Sovereignty, & Indigenous Collective Rights to Self-Determination

• In Event: Indigenous Communities and Human Rights

Abstract

The paper I wish to present for the American Political Science Association (APSA) 2024 Annual Meeting and Exhibition is a chapter from my current dissertation project. This project potentially aligns with requests for contributions from Division 45 Human Rights and Division 26 Law and Courts that address gaps and silencing of issues within international human rights law and the historical and contemporary role of international law in facilitating democratic exclusion of certain groups: Indigenous peoples. The project itself can be considered a critical analysis of enduring issues surrounding Indigenous human rights recognition, protection, and implementation.

The primary goal of my research is to examine how international law and international human rights law fail to affirm Indigenous collective rights to self-determination (CRSD). In an earlier chapter presented at the APSA Virtual Research Meeting 2024, I examine how international law historically has accorded Indigenous peoples’ inferior status within international law, with implications for both Indigenous peoples’ exclusion from sovereignty recognition and from Indigenous peoples’ human rights realization. I show how, beginning in the late 15th century, and continuing to this day, international law and the international system continuously evolved to create legal doctrines, categories, and mechanisms that closed off viable opportunities for Indigenous CRSD recognition from nation-states and international society at large. Specifically, how these legal and rhetorical dichotomies establish and uphold sovereign exclusion and non-recognition of Indigenous peoples as legislative and diplomatic equals within nation-states and the international community.

The paper I wish to present at the APSA Annual General Meeting 2024 examines the influence of these legal and rhetorical dichotomies on the operation of the international human rights regime (HRR), the subsequent operationalization of Indigenous CRSD as human rights through the HRR framework, and the potential implications for Canada’s implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). I will show how the doctrinal and theoretical, and practical foundations of international law influence the HRR and how this international structural condition can potentially disincentivize states such as Canada from recognizing and supporting all Indigenous CRSD articulated within UNDRIP. I will explore the prospects for Indigenous CRSD realization and UNDRIP implementation within a statist human rights framework that interprets all Indigenous rights within the context of territorial integrity and political unity of the state re: section 46.1 of UNDRIP. Specifically, I will show the extent to which the doctrinal, theoretical, and practical foundations of international law, e.g., state-sovereignty, terra nullius, Discovery, non-interference, within the context of UNDRIP and the HRR, continue to reflect imperial / colonial design and intent through their lack of concrete overriding mechanisms to ensure nation-states recognize and protect Indigenous CRSD.

In this way, I will postulate the extent to which Indigenous peoples’ non-participatory minority population status coupled with the statist decision-making mechanisms inherent to the HRR, and international law and order, make the prospects for UNDRIP implementation precarious due to inherent power imbalances in the subsequent implementation of the human rights framework. My concern stems from the manner in which international law may inadequately address the placement of Indigenous peoples and Indigenous human rights within an international system, which in accordance with Westphalian principles such as state sovereignty and non-interference produce an incredible tension for liberal settler-colonial states such as Canada to demonstrate internal consistency and validity vis a vis human rights protection. In other words, I will examine the extent to which the doctrinal, theoretical, and practical foundations of not only international law but also Canadian constitutional law potentially enables and facilitates the ‘piecemeal’ or inactive implementation of UNDRIP.

I aim to show that: realizing the implementation of UNDRIP will require fundamental legal, political, and normative transformations within contemporary Canadian settler-state - Indigenous relations and international law and society. However, conversely, without these transformations, UNDRIP implementation efforts will not successfully support effective realization of the full range of Indigenous CRSD. In doing this critical analysis, I aim to make a unique scholarly contribution by offering some constructive guidance on international / global and domestic legal, political, and normative structural transformations that may be required.

Author

• Makonen E.G Bondoc, McGill University