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  • Self-determination applied to communities
  • The over-riding principle of self-determination in this “Toolkit” is inspired by classic (customary and treaty) law criteria, as well as popular claims to the same. In both senses, the claim is legally fixed in the common Article 1 of the human rights treaties. Using the ICESCR as a basic and integrated instrument, the “ToolKit” especially applies this over-riding principle to Article 11, which guarantees the human right to housing.

     

    In making the case for ultimate self-determination at the community level, this “Toolkit” draws on a number of popular instruments (mostly written and collectively endorsed statements, but also those rooted in oral traditions) asserting the right of communities to determine their own destiny. Community also enjoys a legal definition (see below).

    Self-determination becomes as vital as any other need that grounds other human rights, including those other over-riding principles of rule of law, nondiscrimination, gender equality and international cooperation consistent with all human rights. In their collective dimension, these all become community needs and, consequently, rights insofar as their absence leads to erosion and violation of a bundle of individual, stand-alone rights and can lead to the deprivation or demise of a community as such.

    It should be noted that States and others have recognized the real problem of “ethnocide” and “cultural genocide” resulting from assimilation policies so as to compel the rewriting of the International Labour Organisation (ILO) Convention No. 107 on Indigenous and Tribal Populations in Independent Countries (1956), eventually to adopt the Indigenous and Tribal Peoples Convention No. 169 (1989). Relevant to the practice of self-determination is the question of land tenure, which ILO Convention No. 169 treats in Articles 13–19, while at the same time disclaiming that the term “people” in the Convention does not convey implications as a term of international law (i.e., conferring the right of self-determination).

    However, it is the human consequence of the deprivation, rather than the legal peoplehood, that makes self-determination vital for any putative victims. Therefore, collective self-determination becomes the right of communities as necessary, even if they are not (or not yet) internationally recognized as a people or nation. To avoid the horrendous consequences of demise and deprivation, and to ensure survival of communities as a right,” local self-determination is vital, no matter what assimilationist governments individually or jointly say. In human rights, it is the human who has the first and final subject of respect, protection, promotion and fulfillment.

    That having been said, and recognizing that self-determination can be either internal or external, the international public law term of art internal self-determination unit applies in the case of a group or community, and is subject to case-by-case interpretation. This could refer to the rightful place of a minority or an indigenous people. It could conceivable apply also to a community of urban poor, particularly if their survival and/or well-being is threatened and their self-determination then becomes a need/right and requisite to the realization of other rights (life, adequate housing, culture, health, etc.).

    In any case, the claimant of self-determination, whether an external or internal type, must meet the challenge and legal test of asserting that the claim at any level does not conflict with—or at least is balanced with—the rights of others. That may mean, of course, ensuring that self-determination claims do not negate general ecological values, others` self-determination rights, the rights of women to gender equality, security of person, regional peace and security, etc.

    What are the criteria for bona fide claimants to local self-determination in the terms of international law as developed? The criteria presented by Martinez-Cobo (Study of Discrimination against Indigenous Peoples, UN document E/CN.4/Sub.2/1986/7/Add.4) has grounded much of the self-determination thinking about indigenous peoplehood and the rights arising. Based on his criteria for indigenous people, the characteristics constituting a community with the right to claim external or internal self-determination could also be that the community (1) predate the influx of others, (2) possess distinct cultural attributes, (3) occupy an identifiable territory and (4) identify itself as a people/community having the right to self-determination.

    Self-determination applied to communities:

    The over-riding principle of self-determination is consistent with classic (customary and treaty) law criteria, as well as popular claims to the same. In both senses, the claim is legally fixed in the common Article 1 of the human rights treaties. With ICESCR as a basic treaty, integrated with other human rights instruments and enshrining the human right to adequate housing in its Article 11, that right is to be exercised together with the right to self-determination. That is particularly clear in cases of housing rights violations against a committed community that can be so severe in degree and large in scale as to violate also the right to self-determination.

    Making the case for ultimate self-determination at the community level, numerous popular instruments (mostly written and collectively endorsed statements, but also those rooted in oral traditions) assert the right of communities to determine their own destiny. (See also Community above.)

    Self-determination becomes as vital as any other need that grounds other human rights, including those other over-riding principles of rule of law, nondiscrimination, gender equality and international cooperation consistent with all human rights. In their collective dimension, these all become community needs and, consequently, rights insofar as their absence leads to erosion and violation of a bundle of individual, stand-alone rights and can lead to the deprivation or demise of a community as such.

    It should be noted that States and others have recognized the real problem of “ethnocide” and “cultural genocide” resulting from assimilation policies so as to compel the rewriting of the ILO Convention No. 107 on Indigenous and Tribal Populations in Independent Countries (1956), eventually to adopt the Indigenous and Tribal Peoples Convention No. 169 (1989). Relevant to the practice of self-determination is the question of land tenure, which ILO Convention No. 169 treats in Articles 13–19, while at the same time disclaiming that the term “people” in the Convention does not convey implications as a term of international law (i.e., conferring the right of self-determination).

    However, it is the human consequence of the deprivation, rather than the legal peoplehood, that makes self-determination vital for any putative victims. Therefore, collective self-determination becomes the right of communities as necessary, even if they are not (or not yet) internationally recognized as a people or nation. To avoid the horrendous consequences of demise and deprivation, and to ensure survival of communities as a right,” local self-determination is vital, no matter what assimilationist governments individually or jointly say. In human rights, it is the human who has the first and final subject of respect, protection, promotion and fulfillment.

    With that, and recognizing that self-determination can be either internal or external, the international public law term of art internal self-determination unit applies in the case of a group or community, and is subject to case-by-case interpretation. This could refer to the rightful place of a minority or an indigenous people. It could conceivable apply also to a community of urban poor, particularly if their survival and/or well-being is threatened and their self-determination then becomes a need/right and requisite to the realization of other rights (life, adequate housing, culture, health, etc.).

    In any case, the claimant of self-determination, whether an external or internal type, must meet the challenge and legal test of asserting that the claim at any level does not conflict with—or at least is balanced with—the rights of others. That may mean, of course, ensuring that self-determination claims do not negate general ecological values, others` self-determination rights, the rights of women to gender equality, security of person, regional peace and security, etc.

    What are the criteria for bona fide claimants to local self-determination in the terms of international law as developed? The criteria presented by Martinez-Cobo (Study of Discrimination against Indigenous Peoples, UN document E/CN.4/Sub.2/1986/7/Add.4) has grounded much of the self-determination thinking about indigenous peoplehood and the rights arising. Based on his criteria for indigenous people, the characteristics constituting a community with the right to claim external or internal self-determination could also be that the community (1) predate the influx of others, (2) possess distinct cultural attributes, (3) occupy an identifiable territory and (4) identify itself as a people/community having the right to self-determination.



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