The Rights of Indigenous Peoples and The Development

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The Rights of Indigenous Peoples and the Development

Process
Article in Human Rights Quarterly · May 2005

DOI: 10.1353/hrq.2005.0024
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HUMAN RIGHTS QUARTERLY
The Rights of Indigenous Peoples

and the Development Process
Helen Quane*
ABSTRACT
The need for a human rights dimension to the development process is
recognized by a growing number of states and international organizations.
The tendency so far has been to focus on rights in a general sense, although
there is some recognition of the need to consider the rights of indigenous
peoples in a development context. The integration of these rights into
development programs can encounter difficulties partly because of the
uncertainty surrounding the scope of some of the more important rights
claimed by indigenous peoples. The article examines the scope of these
rights under international law and explores some of their potential
implications for the development process. It argues that while some of
these human rights claims are not yet recognized under international law,
the position is continually evolving. It also argues that the increasing
recognition of several rights, especially the right to effective participation,
may help to address the sense of marginalization traditionally experienced
by indigenous peoples from the development process.
I. INTRODUCTION
The need for a rights dimension to the development process is recognized

by 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 2304th
Council 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
Human Rights Quarterly 27 (2005) 652–682 © 2005 by The Johns Hopkins University Press
2005 Indigenous Peoples & the Development Process 653
in planning, implementing, and evaluating development programs. Some

have gone so far as to adopt an explicitly “rights-based approach to
development”2 in their development aid programs.3 This growing trend
represents a radical shift from the position that prevailed up until a decade
or so ago when human rights and development were generally regarded as
two separate, though parallel, processes.4 This meant that states did not tend
to integrate human rights considerations into their development programs
and were largely unaccountable for the human rights implications of these
programs.
While the current rights-focus represents a considerable advance from
this position, it is still at a relatively early stage in its development. Many
aspects of this new approach have to be worked out at both a policy and an
operational level. This may explain why the emphasis to date has been on
rights in a general sense. Nevertheless, some evidence suggests that the
rights of indigenous peoples may be given greater consideration in the
formulation and implementation of development programs that affect them.
The World Bank, for example, is undertaking a major review of its policy on
indigenous 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 Social
Development 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 of
human development that is normatively based on international human rights standards
and operationally directed to promoting and protecting human rights.” See United
Nations, Office of the United Nations High Commissioner for Human Rights, Human
Rights 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/63By
DocName/RevisedDraftOperationalPolicyonIndigenousPeoplesRevisedDraftOP410/
$FILE/Revised+Draft+OP+4.10+12-01-04.pdf; Summary of Consultations with External
Stakeholders regarding the World Bank Draft Indigenous Peoples Policy (Draft OP/BP
4.10), available at www.lnweb18.worldbank.org/ESSD/sdvext.nsf/63ByDocName/
SummaryofExternalConsultation-English/$FILE/SumExtConsult-100802.pdf. (The World
Bank Operational Model is hereinafter referred to as the Draft Indigenous Peoples
Policy.)
654 HUMAN RIGHTS QUARTERLY Vol. 27
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, including
publishing a report in January 2003 on the impact of large-scale develop-
ment projects on the rights and interests of indigenous peoples.9 This trend
could result in a more systematic integration of the rights of indigenous
peoples into development programs. Because indigenous peoples tend to
be among the poorest and most marginalized from the development
process, this could help to protect the identity and interests of these peoples
and alleviate poverty.10
Clearly, good reasons exist for integrating the rights of indigenous
peoples into development programs, but the process could encounter
several problems. These stem from the uncertainty surrounding the scope of
indigenous rights under international law, the collective nature of some of
these rights, and their potential implications not only for development
programs, but also for the territorial integrity and political unity of the state.
Take, for example, the right to self-determination. Self-determination is
central to all the claims of indigenous peoples.11 Indigenous peoples argue
that self-determination is vital to enable them to exercise real control over
their own affairs and to ensure their continued existence as distinct
peoples.12 In the present context, it is important to note that self-determina-
6. See generally Press Release, European Union Council resolution, Indigenous Peoples
within the Framework of the Development Cooperation of the Community and the
Member 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 at
www.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, Rodolpho
Stavenhagen, 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 Situation
of Human Rights and Fundamental Freedoms of Indigenous People, Rodolpho
Stavenhagen, 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 on
Human 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 Group
Report 1998/106).
12. See, e.g., Report of the Working Group Established in Accordance with Commission on
Human 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 Working
Group Report 2001/85); Report of the Working Group Established in Accordance with
tion is regarded as being intrinsically connected with the recognition of

indigenous peoples’ right to land and natural resources.13
However, there is considerable uncertainty about the scope of the right
to self-determination under international law. In particular, it is unclear
whether indigenous peoples have a right to self-determination that they can
exercise separately from the rest of the population of the state. In addition to
this, a right to self-determination for indigenous peoples could have
significant implications for the state. The collective nature of the right could
encourage secessionist claims that could have a considerable impact on the
political unity and territorial integrity of the state. The right could also have
far-reaching implications on a state’s development policy particularly where
the indigenous people occupy land rich in natural resources and invoke
their right to self-determination to prevent the state from exploiting these
resources. These concerns arise not only in relation to self-determination
but also, albeit to varying degrees, to other rights claimed by indigenous
peoples. Consequently, states and international organizations committed to
integrating the rights of indigenous peoples into development programs
need to consider the scope of these rights under international law and their
potential implications.
The present article sets out to examine some of the aforementioned
issues. Its principal objective is to clarify the scope of some of the more
important rights claimed by indigenous peoples in a development context.
It also considers the potential impact of these rights on the development
process and the obligations they impose on the states in which indigenous
peoples reside, on donor states, and on international financial institutions
like the World Bank and the International Monetary Fund (IMF).
This examination of the rights of indigenous peoples is based on several
international instruments. The emphasis is on universal instruments that are
concerned expressly with indigenous peoples. These include the Draft UN
Declaration on the Rights of Indigenous Peoples (Draft UN Declaration),
which is currently being considered by an inter-sessional working group of
the Commission on Human Rights. It is significant that indigenous peoples
as well as states participate in the work of this group. The instrument is not
intended to be legally binding but it would, if adopted, establish important
minimum standards in this area. The article also examines the International
Labour Organisation’s Indigenous and Tribal Peoples Convention No. 169
of 1989 (ILO Convention 169). This contains the most detailed, legally
binding 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) (hereinafter
Working 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 beyond
these states due to its influence on the funding policies of several
development banks. Finally, the article examines the International Covenant
on Civil and Political Rights 1966 (ICCPR)15 because it contains the only
truly universal, legally binding provision on the rights of indigenous
peoples.16
The article examines the rights set out in these instruments in accor-
dance with established international law principles. This means that, as far
as possible, these instruments are interpreted in light of their wording,
context, objective, drafting history, and subsequent state practice.17 The
emphasis throughout this article is on these original sources, rather than on
the academic literature.18 In this way, the article may help to clarify some of
the confusion surrounding these rights. This confusion is evident in the
competing interpretations of indigenous rights advanced by indigenous
peoples and states and is one reason for the current impasse on the Draft
UN Declaration and the delay in adopting the World Bank’s new Draft
Policy 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 claimed
by indigenous peoples. The emphasis is on rights of particular significance
to indigenous peoples in a development context, namely, the right to self-
determination, the right to participate in public affairs, and the right to enjoy
one’s culture. As previously noted, the right to self-determination underpins
all other claims advanced by indigenous peoples. If they are successful in
claiming this right, it could be used to exert greater control over develop-
ment projects on ancestral lands such as the construction of dams, the
extraction of mineral resources, and the use of traditional plants and
indigenous 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 enabling

indigenous peoples to participate effectively in the formulation of develop-
ment projects that affect them. Finally, the right to enjoy one’s own culture
could have important implications in a development context given the close
connection between lands traditionally owned or occupied by indigenous
peoples and the preservation of their cultural identity. For this reason, the
right to enjoy one’s culture could have an impact on development projects
affecting indigenous land and resources.
The article examines the scope of the above rights under international
law and considers some of their potential implications for the development
process. It then examines the obligations these rights impose on the various
actors in the development process, ranging from the states in which
indigenous peoples reside, to donor states, to international financial
institutions such as the World Bank. The article concludes with several
observations about the interplay between the rights of indigenous peoples
and the development process.
II. DEFINING “INDIGENOUS PEOPLES”
It should be noted at the outset that the term “indigenous peoples” is

controversial. This is evident from the discussions currently taking place on
the Draft UN Declaration.20 Some states are opposed to using the term in the
declaration because of its possible implications under international law.21 In
particular, they are concerned that the term implies that these groups have
a right to self-determination because the right to self-determination is one
that is exercised by a “people.” Others are concerned that it would imply
that the rights in the declaration are to be exercised collectively. The
collective nature of human rights and the potential for conflict with
20. Report of the Working Group Established in Accordance with Commission on Human
Rights Resolution 1995/32 of 3 Mar. 1995, U.N. ESCOR, Comm’n on Hum. Rts., 52d
Sess., Agenda Item 3, ¶ 4, U.N. Doc. E/CN.4/1996/84 (1996) (hereinafter Working
Group Report 1996/84); Report of the Working Group Established in Accordance with
Commission 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) (hereinafter
Working 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 Accordance
with Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm’n on
Hum. 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 some
states prefer to refer to “persons belonging to indigenous peoples” or to
“indigenous populations.” Indigenous peoples, however, are committed to
defining themselves as indigenous peoples.22 Opinion remains divided on
this issue.
Whether one refers to these groups as “indigenous peoples” or “indig-
enous populations,” no universally accepted definition exists. There are
several reasons for this. First, some states argue that the term “indigenous
peoples” applies only to certain regions, notably, former European colonies
in the Americas and Oceania and, therefore, does not apply universally.23
Second, indigenous peoples and many states argue that the “historical and
ethnic complexity involved” would make it impossible to devise a definition
that would cover all appropriate situations and, consequently, a universal
definition could be inflexible and exclusionary.24 In the absence of a
universally accepted definition, some states argue that the matter should be
decided at the national level.25 In contrast, indigenous peoples and several
states support the principle of self-identification whereby it is left to the
group itself to decide whether or not it is indigenous.26 This is opposed by
other states because of the alleged lack of objectivity inherent in such an
approach27 or because it could allow a wide range of groups to claim
certain rights and benefits on the basis of defining themselves as indig-
enous.28 The issue remains unresolved at least for the purposes of the Draft
UN 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 for
any rights that might attach to that term under international law.30 It also
applies to “tribal peoples,” which helps to ensure that the Convention
applies as widely as possible, including to those states that claim that
indigenous 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.
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 (ILO
No. 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 it

also contains definitions of “indigenous peoples” and “tribal peoples.”31
Indigenous peoples are defined as peoples in independent countries who
are regarded as indigenous because of their descent from the populations
that inhabited the country, or a geographical region to which the country
belongs at the time of conquest or colonization, or the establishment of
present state boundaries and who, irrespective of their legal status, retain
some 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 cultural
institutions, is mirrored in the definition proposed by UN Special Rappor-
teur Martinez Cobo.33 However, he referred to several additional factors
omitted from the ILO Convention, notably: (a) the important link between
ancestral territories and the identity of indigenous peoples, (b) the fact that
indigenous peoples consider themselves distinct from the rest of the
population and want to preserve their distinct identity, and (c) the non-
dominant status of these peoples. Cobo’s definition is one of the most
commonly used. It is a useful working definition, but it should be borne in
mind that there is no universally accepted definition and that in the absence
of such a definition, the preference among indigenous peoples and several
states is for self-identification.
III. THE RIGHTS OF INDIGENOUS PEOPLES

UNDER INTERNATIONAL LAW
A. The Right to Self-Determination
The right to self-determination is well established in international law.34 It

enables 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, Special
Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of
Minorities, 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 Bevans
1153 (entered into force 24 Oct. 1945); ICCPR, supra note 15, art. 1; International
Covenant 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., 22d
plen. 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 natural

wealth and resources.35 The right has both internal and external dimensions.
The right to external self-determination is largely concerned with the right to
determine a territory’s international status, while internal self-determination
is concerned with the right to determine its government and policies.
Recognition of a right to self-determination for indigenous peoples
could have a significant impact on the development process. If indigenous
peoples constitute a “people” for the purpose of self-determination, they
may have the right to freely dispose of their natural wealth and resources.
This could have far-reaching implications for the economic well-being of a
state, especially where the group concerned is territorially cohesive,
concentrated in an area rich in natural resources, and claiming the right to
self-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, a
territorially cohesive group may not want to secede from the state but may
want some form of territorial autonomy. This is often the case with
indigenous peoples. This scenario can still pose difficulties for the state,
particularly when the state wants to exploit natural resources in an
autonomous region where the indigenous people oppose such develop-
ment. Given these potential implications, it is important to determine
whether indigenous peoples have a right to self-determination under
international law. It is useful to begin with the position under general
international law before examining the recent discussions of the issue
during the negotiations on the Draft UN Declaration.
Under current international instruments, distinct ethnic, linguistic, or
religious groups within states do not appear to have a legal right to external
or internal self-determination. An examination of the wording, context,
drafting history, and subsequent practice of the relevant provisions of the
UN Charter, the ICCPR, the International Covenant on Economic, Social
and Cultural Rights (ICESCR), and General Assembly Resolution 2625 (XXV)
tends to support this view.37 This view might seem over cautious, especially
when 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 Africa
in 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 suggests
that 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 age
of globalization, because it remains the only means by which new rules of
customary international law can be created.
In recent years, some of the leading authorities in the field have argued
that groups within states can invoke the right to self-determination.38 While
they accept that self-determination does not entail independence outside
the colonial context, some admit the possibility that these groups may have
a 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 groups
encompasses a range of options within the territory of the state, such as
effective participation in public life or having one’s identity reflected in
political institutions. Arguably, this context-dependent concept of self-
determination is problematic for several reasons.
First, this concept of self-determination suggests either that all peoples
do not have an equal right to self-determination or that the right can be
subject to restrictions. The first proposition is difficult to reconcile with the
principle of “equal rights and self-determination of peoples” set out in the
UN Charter.40 The second is less controversial but also problematic. Once a
right to self-determination is recognized for groups within states, these
groups may be reluctant to accept limits on this right. In any event, one
would have to clarify the nature and basis of any limitations on the right to
self-determination given the absence of any reference to limitations on the
right in the relevant international instruments. This would be particularly
relevant in a development context in which competing self-determination
claims could be advanced, for example, to instigate or block the building of
a 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 Development
and Future, in PEOPLES’ RIGHTS 7, 57, 64–65 (Philip Alston ed., 2001); Thomas M. Franck
et 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 the
Attainment 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; Alain
Pellet, Legal Opinion on Certain Questions of International Law Raised by the
Reference, 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 state

practice. Recent events in Kosovo, for example, are cited in support of a
right to independence for oppressed minorities as a form of remedial self-
determination.41 Arguably, the emphasis in Kosovo was on maintaining the
territorial integrity of the state and ending the conflict rather than on
recognizing any right to self-determination for the Kosovo Albanians.42 If the
gross violations of the rights of the Kosovo Albanians did not give rise to a
remedial 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 to
minorities,43 are also cited to support the proposition that groups within
states have a right to internal self-determination. The difficulty with this
argument is that it tends to underplay two factors. One is the fact that when
some form of autonomy is granted to minorities, it is usually by virtue of the
wishes of the majority of the population concerned.44 Consequently, the
grant of autonomy is arguably more a reflection of the right of the entire
population of the state to exercise its right to self-determination, in this
instance, to determine its internal structures of government, than any
recognition of a right to self-determination for the minority concerned.
Second, while states are increasingly willing to adopt new forms of
constitutional 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 these
arrangements may correspond to the political principle or substance of
internal self-determination, state practice suggests that it is doubtful whether
they represent any extension of the legal principle of self-determination
This suggests that, at present, groups within states do not have a
separate 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?, 13
LEIDEN 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 at
www.osce.org/docs/english/1973-1990/other_experts/gene91e.htm; Document of the
Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,
Conference for Security and Cooperation in Europe, ¶ 35 (5–29 June 1990), available
at 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 also
Helen Quane, Rights-Based Approaches to Inter-Communal Conflict: An analysis of the
International 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 the

Draft Declaration recognizes a right to self-determination for indigenous
peoples.46 It provides that they can “freely determine their political status
and freely pursue their economic, social and cultural development.”47
Article 31 provides that one way of exercising the right is through some form
of autonomy or self-government for indigenous peoples in their internal
affairs. Notwithstanding this, the issue of self-determination is the most
contentious one between states and indigenous peoples participating in
discussions 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, for
example, originally took the position that indigenous peoples did not have
a right to self-determination under international law and opposed Arti-
cle 3.48 Now, the United States is prepared to accept a limited right to
internal self-determination for indigenous peoples.49 Most of the states are
prepared to accept a right to self-determination for indigenous peoples,
provided that it does not threaten the territorial integrity of the state.50 This
means 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 limitations
on their right to self-determination.52 They argue that they have a right to
self-determination under existing international law and that to place
restrictions on their right would be discriminatory. They also argue that state
concerns about threats to territorial integrity are unfounded because most
indigenous peoples have no desire for secession. Nevertheless, it is
important for them to retain the option of external self-determination should
46. Technical Review of the United Nations Draft Declaration on the Rights of Indigenous
Peoples, 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.
1997/102, supra note 20, ¶¶ 45, 312, 314, 317, 318, 320, 330, 332, 336; Working
Group Report 1998/106, supra note 11, ¶ 44; Working Group Report 2000/84, supra
note 12, ¶¶ 50, 53, 56, 61, 63, 64, 67, 70, 73, 74, 78, 80, 81; Working Group Report
2001/85, 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 to
represent indigenous peoples, then indigenous peoples do not have to respect the
territorial integrity of the state and can secede. In these circumstances, indigenous
peoples would have a right to external self-determination. See Working Group Report
2003/92, 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 the

potential implications of Quebec seceding from Canada for the indigenous
peoples living in Quebec.53 While indigenous peoples want to retain the
Draft Declaration in its current form, a certain willingness has arisen in
recent years to address state concerns about territorial integrity.54 Several
indigenous peoples are prepared to include a reference to General Assem-
bly Resolution 2625 (XXV), which provides that the territorial integrity of a
state 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 due
to a dispute over a matter of form rather than substance. Some states are
prepared to accept Article 3 as it stands, on the understanding that the
territorial integrity of the state will be protected by Article 45, which
prohibits any activities contrary to the UN Charter (including respect for the
principle of territorial integrity).56 Others want to include an express
reference to the need to respect the principle of territorial integrity.57 In
2003, Norway submitted a proposal to address outstanding concerns on this
issue.58 It proposed including a reference to General Assembly Resolution
2625 (XXV).59 The proposal was “welcomed” by government delegations
and some indigenous peoples,60 although a consensus has not yet been
reached on this issue.
Originally, it was intended that the Draft Declaration would be adopted
by the end of 2004, but this is questionable in view of the current impasse
and the fact that there is still some opposition to Article 3.61 Even if the Draft
Declaration is not adopted in the near future, the discussions about Article 3
are significant. They indicate that more and more states are willing to
recognize a right to internal self-determination for indigenous peoples. The
states concerned are states in which the overwhelming majority of the
world’s indigenous peoples reside.62 Consequently, the approach adopted
by these states is very significant in terms of developing a new rule of

85, supra note 12, ¶¶ 92, 96–97.
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.
62. Canada, New Zealand, United States, Argentina, Brazil, Chile, Ecuador, Finland,
Colombia, Guatemala, Peru, Norway, Philippines, Bolivia, Venezuela, Fiji, Russian
Federation, Mexico, Denmark, and Sweden. Australia has shifted from its original
customary international law. Discussions concerning Article 3 suggest that

there is an increasing acceptance that indigenous peoples have a right to
internal self-determination. Even if this has not yet crystallized into a new
rule of international law, it suggests that such a rule may be in the process
of formation.63
It is submitted that it may be only a matter of time before a legal right to
internal self-determination for indigenous peoples emerges. The question
then arises as to what internal self-determination for indigenous peoples will
mean, 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 affecting
them,64 making decisions about their own affairs, or having some form of
territorial autonomy.65 This would suggest, at the very least, that indigenous
peoples should be consulted about development projects that affect them.
The Norwegian proposal referred to earlier66 is also of interest in the
present context because it mentions state concerns about whether land and
natural resources were to be regarded as an integral part of the right of
indigenous peoples to self-determination. The proposal tries to address
these concerns by redrafting Article 31 so that it refers to the right of
indigenous peoples to autonomy without specifying the areas in which the
right could be exercised. As currently drafted, Article 31 stipulates that
autonomy applies in matters relating to internal affairs including economic
activities, land and resources management, and entry onto ancestral lands
by nonmembers. Arguably, the more general and open-ended formulation
proposed by Norway would ensure that the nature and degree of autonomy
exercised by indigenous peoples would be a matter for negotiation at the
national level, rather than being determined at the international level.
Presumably, this would preclude any automatic veto by indigenous peoples
over development projects affecting their land or natural resources.
position that it could not accept Article 3 because it implied a right to independence to
its current position that Article 3 needs to be more precise. See generally Working
Group Report 2003/92, supra note 20, ¶ 22.
1998/106, 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 too
much 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, in
OPERATIONALIZING 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 Report
2001/85, supra note 12, ¶¶ 82, 83.
65. Id. ¶ 90.
66. Supra note 58, and accompanying text.
In response to this aspect of the Norwegian proposal, indigenous

representatives stated that they preferred to maintain Article 31’s current
text. They argued that the current text “was useful to identify the different
elements that could make up an autonomy arrangement since it was often in
that area that most misunderstandings arose between indigenous peoples
and States.”67 This might suggest that indigenous peoples are prepared to
negotiate on the issue, but the matter is not free from doubt. Other
provisions of the declaration suggest that indigenous peoples must give their
free and informed consent prior to the approval of any development
projects 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 or
colony, international law has not had to deal with this type of situation
before. This means that the entire population of a state can, by virtue of its
right to self-determination, decide on how to dispose of its wealth and
natural resources. The recognition of a right to internal self-determination
for indigenous peoples implies that they also have a right to dispose of
natural 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 the
population may want to extract valuable natural resources from land owned
or traditionally occupied by indigenous peoples, while the latter may
invoke their right to self-determination to oppose such development.
Because the right of indigenous peoples to internal self-determination is not
yet recognized in international law, it is perhaps not surprising that no legal
guidelines exist on how to deal with this conflict. However, it is doubtful
whether the right of indigenous peoples to self-determination will automati-
cally trump the right of the rest of the population. This is evident from the
opposition of several states to the idea that indigenous peoples can veto
development projects on their lands, as well as from several statements that
the state needs to manage natural resources in the interests of the entire
population of the state.69 This is also the position adopted by the World
Bank.70 Arguably, where a conflict arises, the matter will have to be decided
by negotiation, which should lead to striking a balance between the
interests of all concerned.

68. See infra notes 89–94, and accompanying text.
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 involved

in development projects affecting indigenous peoples should consider
several factors of a substantive and procedural nature. Substantively, they
should consider: (1) whether the development project has a legitimate aim,
(2) the potential impact of the project on the rights and interests of
indigenous peoples, (3) whether any negative impact on indigenous peoples
is necessary, and (4) the minimum required to achieve the legitimate aim.71
Procedurally, those involved in development projects should ensure the
effective participation of indigenous peoples in the formulation and imple-
mentation of development projects affecting them. While these factors are
not legally binding, they provide some guidance on how to proceed if a
right to internal self-determination for indigenous peoples is recognized in
international law.
B. The Right to Participate in Public Affairs
The right to participate in public affairs is also relevant to determining

whether 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 are
accountable for their policies (including development policies) and for the
allocation of public funding. Participation is also a core principle in the
development aid programs of some donor states.72
The right to participate in public affairs is recognized in Article 25 of the
ICCPR. The right applies only to citizens of a state, which can be a problem
for some indigenous peoples, due to the way in which some states’
citizenship laws are drafted. However, the more problematic feature of
Article 25 is its scope. Article 25’s wording73 suggests that its primary
concern is the right to participate in elections without discrimination. While
this 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 human
rights 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 in
article 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 will
of 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 in

government or in the formulation of development policy.74
The wording and drafting history75 of Article 25 suggest that states have
no obligation to adopt political structures that would ensure the effective
participation of indigenous peoples in public life. This is also evident from
a survey undertaken by the present author of the reports submitted by 100
states on how they comply with the ICCPR. Most states simply describe their
electoral systems and their political structures to show that they respect the
right to participate in public life.76 Occasionally, states refer to the
establishment of structures of self-government or the granting of various
forms of cultural autonomy for indigenous peoples,77 but it is evident from
the reports78 that this is due to the states’ own discretion rather than any
perceived obligation under Article 25.
The lack of a state obligation to ensure effective participation in public
life is consistent with the UN Human Rights Committee’s interpretation of
Article 25.79 This Committee monitors state compliance with the ICCPR.80 In
Mikmaq People v. Canada,81 the Mikmaq people claimed that the Canadian
government’s failure to invite them to a constitutional conference on
aboriginal matters violated their rights under Article 25. The Committee
rejected the application. It stated that Article 25 did not guarantee any
directly affected group the unconditional right to choose the means of
participation in public life. Instead, it was for the constitutional system of
each state to provide for the means of participation. In other words, it was
for the entire people of the state, in the exercise of their right to self-
determination, to decide on the constitutional system and the means of
participation.
The case of the Mikmaq people highlights the difference between the
right to self-determination and the right to participation. If a group has the
right to self-determination, it has the right to determine the structures of
participation. If it has a right to participation, it only has the right to
participate 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 simply
guarantees the right of indigenous peoples to participate in public life
without discrimination. This means the right of indigenous peoples to vote
and stand for election without discrimination; it does not guarantee the right
to participate in development projects that affect them.
On the other hand, ILO Convention 169 confers extensive rights on
indigenous peoples to participate in development projects that affect
them.82 At a general level, these rights include the right to be consulted
“through appropriate procedures and . . . through their representative
institutions” whenever consideration is being given to legislative or admin-
istrative measures that affect them directly.83 It is clear from the wording and
drafting history that this simply confers a right to be consulted rather than a
right of veto.84
The Convention recognizes the right of indigenous peoples to deter-
mine their own priorities for the development process and to exercise
control “to the extent possible” over their own economic, social, and
cultural development.85 Indigenous peoples also have the right to partici-
pate in the formulation, implementation, and evaluation of national and
regional development programs that may affect them directly.86 States are
required to ensure, “whenever appropriate,” that studies are carried out in
cooperation 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 as
fundamental criteria for the implementation of these activities.87 The
drafting of the provisions suggests that the states will retain some discretion
in their implementation. Nevertheless, these provisions can have a signifi-
cant impact on development projects at the national level. This is borne out
by a 1997 decision of the Colombian Constitutional Court that an oil
exploration license should not have been granted because the indigenous
peoples concerned had not been properly consulted “in violation of the
right to participation in . . . ILO Convention 169.”88
The Draft UN Declaration goes even further on the issue of effective
participation. 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, supra
note 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 In

addition to this, they have the right to determine and develop priorities and
strategies for exercising “their” right to development.90 This includes the
right to “determine and develop all health, housing and other economic and
social programs affecting them” and to administer these programs through
their own institutions “as far as possible.”91 Indigenous peoples also have
the 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 informed
consent” prior to the approval of any project affecting their lands and other
resources.93 Where agreement is given, “just and fair compensation” must
be paid to the indigenous people for any such activities to mitigate any
adverse impact on them.94
No consensus has been reached on these provisions. Most states seem
to accept the importance of these provisions and generally support the
underlying principles, but many have concerns about the way in which
these provisions are currently drafted.95 Most states have referred to the
need for further clarification given the complexity of the issues involved.96
Several states are concerned about granting rights to indigenous peoples
that are not granted to the rest of the population.97 Others are opposed to
separate economic, social, political, and legal systems for indigenous
peoples.98 The need to obtain the consent of indigenous peoples prior to
approving development projects on their lands is also controversial. Some
states are prepared to accept the provision as currently drafted.99 Others
argue that the provision should be redrafted so that it simply requires states
to take account of the opinion of indigenous peoples prior to giving
consent.100 Indigenous peoples, for their part, have stressed the fundamental
importance of these provisions in ensuring their own effective and meaning-
ful participation in the decision-making processes of the state and as an
element 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.
102, supra note 20, ¶¶ 196–97, 199, 202, 204–05, 208–11, 214–16, 219, 221.
97. Id. ¶ 80.
98. Id.
2003/92, supra note 20, ¶ 46, Annex.
these provisions, casting doubt on whether they will be adopted in the near
future. However, what emerges from the relevant discussions is a general
consensus among states and indigenous peoples on the need to ensure more
effective participation by indigenous peoples in the formulation of policies
and development projects that affect them.
In summary, indigenous peoples have a right to participate in public
affairs. This is the minimum requirement, which, as currently interpreted
within the framework of the ICCPR, will have very little impact on
development projects. However, there seems to be a growing consensus
that where development projects affect indigenous peoples, they should be
able to participate in the formulation of these projects. In ILO Convention
169, this is recognized as a legal right and can be used to challenge
development projects that fail to respect this right. Nevertheless, the drafting
of the right suggests that states retain some discretion regarding the nature
and extent of this participation. Arguably, once indigenous peoples have an
opportunity to participate in the formulation of development projects that
affect them, the requirements of the Convention will be met. This can be
contrasted with the Draft UN Declaration, which recognizes that indig-
enous peoples have a right not only to be consulted about development
projects that may affect them but also to veto these projects when they affect
their land and resources.
It is questionable whether these provisions will be adopted in their
current form. Instead, it seems more likely that states will want to redraft the
relevant provisions so that they continue to reflect the underlying principle
of effective participation but also ensure some flexibility in how this
principle is implemented at the national level. Nevertheless, the provisions
will still embody the need for indigenous peoples to participate, in some
form or another, in development projects that affect them. Admittedly, it is
unclear when, if ever, the Draft Declaration will be adopted, but the
Declaration is still significant in highlighting the growing international
consensus that indigenous peoples should participate in development
projects that may affect them and should no longer be marginalized from
the development process. Even though the Draft Declaration does not
impose any legal obligations on decision-makers in this area, it can be used
to render them politically accountable for any failure to ensure the
participation 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 a

development context, especially in terms of its potential impact on the
ownership and exploitation of land and other natural resources. The right is
recognized in the ICCPR Article 27. Although this Article refers to persons
belonging to ethnic, religious, and linguistic minorities, it also applies to
persons belonging to indigenous peoples. The Article provides that these
persons “shall not be denied” the right, in community with other members
of their group, to enjoy their own culture.
The negative formulation of the right and the drafting history102 suggest
that the Article originally emphasized the freedom of individuals to enjoy
their own culture, rather than the adoption of positive measures by the state
to facilitate the effective enjoyment of this right. However, a survey of state
reports on how they comply with this Article suggests some movement in
this area. At least a third of all states refer to adopting positive measures to
protect minority identity.103 Some reports tend to distinguish between
minorities and indigenous peoples.104 With regards to the latter, the
tendency is to adopt more extensive measures to protect cultural identity,
such as granting land rights to indigenous peoples,105 protecting indigenous
land and sacred sites,106 and granting self-government or cultural autonomy
to 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. (Notes
referring to these documents, taken from the London School of Economics Library in
London, 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 United
States, 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 land

and water108 and the planning of their own development models.109 It is
unclear whether states adopted these measures because of a perceived legal
obligation to do so or whether they simply reflect the exercise of state
discretion in this area.110 This ambiguity may undermine the legal signifi-
cance of the state practice. Consequently, it is difficult to say that indigenous
peoples 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 the
right to enjoy a particular culture may consist of a way of life associated
with territory and the use of its resources, which “may” include such
traditional activities as fishing and hunting and the right to live in reserves.111
The Committee stated that the enjoyment of these rights may require
positive legal measures of protection as well as measures to ensure the
effective participation of members of minority communities in decisions
which affect them.112 However, the right to such measures is not automatic.
It will depend on the circumstances of each case and whether the measures
are necessary to protect the cultural rights of persons belonging to
indigenous peoples. The Committee also pointed out that any positive
measures that are adopted must respect the principle of nondiscrimination
regarding treatment between different indigenous peoples and between
members of indigenous peoples and the rest of the population. Thus, any
difference in treatment must be based on reasonable and objective criteria.113
The Committee has also considered the nature and scope of the right in
a series of cases concerning land rights and the use of natural resources. The
Committee has adopted the position that while the regulation of economic
activity is normally a matter for the state, where that activity is an essential
element in a minority’s culture, its application to an individual may raise an
issue under Article 27.114 In Lubican Lake Band v. Canada, an indigenous
people claimed that natural gas and oil exploration on traditional lands
violated 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, supra
note 103.
111. General Comment Under Article 40, paragraph 4, of the International Covenant of Civil
and 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 more

recent developments threaten the way of life and culture of [the indigenous
people] and constitute a violation of Article 27 so long as they continue.”115
While the decision represents a considerable victory for the indigenous
people concerned, its implications for other indigenous peoples are unclear
because the Committee did not elaborate on the grounds for its decision.
Thus, it is unclear whether natural gas and oil exploration on traditional
lands would in and of itself give rise to a violation of Article 27. At most, one
can say that such development may raise an issue under Article 27, but
whether it will violate this Article will depend on all of the circumstances of
the case. Presumably, it will depend on the development project’s nature
and the extent of its impact on the cultural life of the indigenous people
concerned.
In terms of its general impact on the development process, Article 27
may require states to adopt positive measures, such as protecting land
associated with a traditional way of life or ensuring the effective participa-
tion of indigenous peoples in decisions affecting them. But this will not be
required in all cases. Ultimately, the nature and extent of the state’s
obligations under Article 27 will vary depending on the circumstances of
each case. At a minimum, those involved in development projects affecting
indigenous peoples should consider the potential impact of these projects
on the cultural life of the peoples concerned, in order to avoid a possible
breach of this Article.
A final issue that arises is whether restrictions are permitted on the right
to enjoy one’s culture under Article 27. This is significant given the
tendency of some states to restrict cultural rights on ecological or economic
grounds.116 Article 27 does not refer to the possibility of restrictions;
however, the Human Rights Committee has stated that the rights set out in
Article 27 can be restricted, if the restriction has a reasonable and objective
justification 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 to
enjoy 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 the
effect that the right to enjoy one’s culture should not be understood to imply that a
traditional way of life must be preserved at all costs.
commercial activity has a reasonable and objective justification. This

highlights the fact that states do not have to attach overriding importance to
the right of indigenous peoples to enjoy their own culture when they are
formulating and implementing development policy. Other considerations
can outweigh that right.
ILO Convention 169 also recognizes the cultural rights of indigenous
peoples. The Convention recognizes the right of indigenous peoples to
retain their own customs and institutions, provided that they are compatible
with fundamental rights.118 The Convention also requires states to adopt
positive measures to protect indigenous culture.119 This is evident in relation
to land occupied or used by indigenous peoples. In applying the land
provisions set out in Convention 169, states must recognize the special
importance of the cultural and spiritual values of indigenous peoples to the
lands they occupy or use.120 These provisions confer substantive and
procedural rights on indigenous peoples concerning the land that they
traditionally occupy or use and the natural resources pertaining to this land.
These include the rights of indigenous peoples to own and possess the lands
they traditionally occupy,121 to participate in the use, management, and
conservation of natural resources pertaining to their land,122 and to remain
on the lands that they occupy, subject to certain exceptions.123 States are
required to adopt a series of measures to render these rights effective, such
as identifying the lands which indigenous peoples occupy124 and establish-
ing procedures to consult indigenous peoples before sanctioning any
programs for the exploration or exploitation of natural resources on
indigenous 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 consult
indigenous peoples prior to exploiting any natural resources on lands
owned or traditionally occupied by them.
The Draft UN Declaration also confers extensive rights on indigenous
peoples to enable them to maintain and develop their own culture. For
example, it recognizes indigenous peoples’ right to be free from cultural
genocide,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 Declaration
recognizes the relationship between indigenous identity and land,128 which
undoubtedly influences its provisions on land and natural resources. These
provisions recognize the right of indigenous peoples to own, develop,
control, and use lands and territories they traditionally owned, occupied, or
used.129 Where their lands, territories, and natural resources have been
confiscated, occupied, used, or damaged without their free and informed
consent, indigenous peoples have the right to restitution. Where this is not
possible, 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. Some
states broadly support the provisions’ objectives.131 However, most have
expressed reservations about the way in which these provisions are
currently drafted.132 Several states have argued that ultimate control over
land must lie with the government and that land rights have to be
considered within the framework of national laws133 and policies on
strategic resources, nature conservation, and state security.134 Some are
concerned about the scope of certain provisions, notably, the right of
indigenous peoples to own lands “which they have traditionally owned or
otherwise occupied or used.”135 Indigenous peoples have explained that this
term is used to avoid the technical objection put forth by some states that
indigenous peoples do not have proper title to their lands and, therefore,
have no land rights.136 Nevertheless, some states are unwilling to accept the
provision in its current form,137 while others argue for greater flexibility to
allow for national solutions to land ownership. There are also concerns
about the rights of third parties, particularly the right to access certain sites
and to own land and cultural, intellectual, religious, and spiritual prop-
128. Id. art. 5.

129. Id. art. 13(1).
130. Id. arts. 14, 15
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.
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.
135. Draft Declaration, supra note 28, art. 25–27.
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 profound
spiritual, cultural, and economic relationship indigenous peoples have with
their land.140 Indigenous peoples have referenced land taken away “through
development initiatives, such as resettlement schemes, the creation of
national parks, and the reallocation of land to developers.”141 They argue
that without explicit recognition of their land rights, indigenous peoples will
remain vulnerable to more powerful economic forces.142 Several proposals
have been made to redraft the relevant provisions,143 but no agreement has
yet been reached.
Discussions to date suggest that states and indigenous peoples agree on
the need to recognize the special relationship indigenous peoples have with
their land. They also agree on the need to recognize the rights of indigenous
peoples over their land and resources. Where indigenous peoples and states
differ is on the extent of that recognition. Indigenous peoples want fairly
unqualified, international recognition for their rights to their land and
resources. States are reluctant to grant this recognition as they want to retain
some flexibility in the implementation of these provisions. This would
enable the state to retain some control over these lands and resources and
allow it to utilize them in the national interest. Given the position of states
on these provisions and the financial interests at stake, it is questionable
whether these provisions will be adopted in their current form. Instead, one
would expect them to be redrafted in a similar fashion to the relevant
provisions of ILO Convention 169, which allow some discretion to be left to
the state. If this happens, indigenous peoples will not be able to use the
provisions to veto development projects affecting their land and resources.
Notwithstanding this, discussions so far suggest that indigenous peoples will
have to be involved in any development projects affecting their lands and
resources. This should ensure that indigenous peoples are not marginalized
from these projects to the same extent as they have been in the past.
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.
2003/92, supra note 20, ¶ 29.
102, supra note 20, ¶¶ 255, 260–61, 269; Working Group Report 2000/84, supra note
12, ¶¶ 89, 91.
143. Working Group Report 2003/92, supra note 20, at Annex.
D. The Rights of Indigenous Peoples and the Obligations

They Impose on States and International Organizations
The discussion so far has focused on the scope of several rights claimed by
indigenous peoples and how these rights could affect the development
process in general terms. It is clear from this discussion that these rights
impose certain obligations concerning a state’s treatment of indigenous
peoples within its own territory. The question arises whether these rights
impose 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 which
indigenous peoples reside.144 ILO Convention 169 adopts a similar ap-
proach. Even though these instruments are not legally binding on donor
states or international financial institutions, they may still influence their
development programs and policies. ILO Convention 169 provides a good
illustration of this. The Asian Development Bank (ADB), in its 1991
guidelines for social analysis of development projects, recognized its
responsibility for ensuring that its activities did not violate human rights and
accepted 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 development
policies of international financial institutions. It has also been suggested that
the Convention may have an influence beyond the ratifying states to other
states, by becoming incorporated into the official policies of these
institutions.147
The Draft UN Declaration seems to impose some obligations on donor
states. It provides that indigenous peoples have the right to have access to
adequate financial and technical assistance “from States and through
international cooperation” to enjoy the rights set out in the declaration.148
This provision is controversial because some states say that: (1) international
law does not impose any obligation on states to provide financial support
for indigenous development, and (2) indigenous peoples cannot bypass the
relevant 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.
102, supra note 20, ¶¶ 300–01, 303–05.
resource transfers, provided that it allowed them to retain discretion about

whether or not to provide such resources.150
The Draft UN Declaration also imposes some obligations on the UN
specialized agencies. These agencies include the International Bank for
Reconstruction 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 establish
ways and means of ensuring the participation of indigenous peoples in
issues affecting them.
The Draft Declaration is not intended to be legally binding, and it
remains to be seen whether it will be adopted in the near future. In any
event, several factors could undermine its potential impact on the activities
of the World Bank and the IMF. One is the fact that these bodies retain
considerable autonomy from the UN, even though they are UN specialized
agencies.151 Arguably, the Draft Declaration could not compel them to
promote the rights of indigenous peoples simply by virtue of their status as
UN specialized agencies. Another factor is the political neutrality clause in
the agencies’ instruments.152 This clause has been interpreted by the IMF as
excluding human rights from its terms of reference.153 The World Bank has
adopted a different approach, seemingly on the basis that human rights
violations undermine a country’s stability and creditworthiness, thereby
bringing 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 with
indigenous peoples affected by its projects and are guided by ILO Conven-
tion 169. While this shows some willingness to take on the potential
implications of its projects for indigenous peoples, there have been
problems,156 and the Bank is currently undertaking a major review of its
policy in this area.

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 and
Development: 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 has
met with some opposition from indigenous peoples due to (1) the way in
which consultations on the Draft Policy have been carried out and (2) the
belief that it does not adequately reflect indigenous rights under interna-
tional law, especially indigenous peoples’ collective rights to their lands and
territories, to prior, free, and informed consent to development projects on
their lands, and the right to self-identification.157 Some of the difficulties in
this area stem from conflicting interpretations of indigenous rights under
international law and highlight the need for all concerned to clarify the
scope of these rights. Notwithstanding these concerns, indigenous peoples
have welcomed the dialogue with the World Bank on its Draft Policy and it
is interesting to note that, since 2000, the Bank has collaborated with the
working party on the Draft UN Declaration. In contrast, the IMF resolutely
refuses to address human rights issues.158 Consequently, it is doubtful
whether the Draft UN Declaration will have much of an impact on the IMF’s
activities in the development sphere.
V. CONCLUSION
At present, there is a certain degree of confusion about the rights of

indigenous peoples under international law and, consequently, about the
impact of these rights on the development process. Indigenous peoples
claim fairly extensive rights, such as the right to self-determination, to
ownership of lands and territories traditionally owned or occupied by them,
the right to prior, informed consent to any development projects affecting
their lands and resources, and the right to self-identification. They argue that
these rights are recognized under international law and must be respected
by states and international organizations such as the World Bank.
However, many of these claims are based on the Draft UN Declaration
on Indigenous Peoples, which has not yet been adopted and which, in any
event, is not intended to be legally binding. Given the approach adopted by
states to some of the more important provisions of this Declaration, it is
questionable whether it will be adopted entirely in its current form. Other
claims, such as the claim to self-determination, are based on general
international law but find limited support in state practice. This might seem
to 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 rights
are 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 a
growing international consensus about the need for more extensive rights
for indigenous peoples. While this consensus might not yet reach the level
required for the formation of new rules of international law, it can be used
to render states politically accountable for failing to comply with it. At
present, there is a real need for all concerned to clarify the scope of the
rights of indigenous peoples under international law. Adhering to overbroad
or overrestrictive interpretations of these rights can only inhibit progress,
particularly in terms of discussions about the potential impact of these rights
on the development process. This much is evident from the current impasse
on the Draft UN Declaration and on the World Bank’s Draft Policy on
Indigenous Peoples.
On the basis of the present examination of key international instru-
ments, it is possible to make some general observations about the potential
impact of the rights of indigenous peoples on the development process. The
first relates to the extent to which states must formulate and implement
development policy in order to protect and promote the rights of indigenous
peoples. The present review reveals that there are some legal constraints on
states’ freedom of action in this respect. For example, under ILO Convention
169 and, in certain circumstances, ICCPR Article 27, the state must adopt
some positive measures to protect the land and resources of indigenous
peoples. The second observation relates to the extent to which states must
refrain from adopting development policies that have a negative impact on
the rights of indigenous peoples. There are considerably more legal
constraints on the states’ freedom of action in this area. Depending on the
circumstances of the particular case, the rights of indigenous peoples may
be used to block certain development policies such as logging or mineral
extraction on lands associated with a traditional way of life. Ultimately, the
outcome seems to depend on the rights in question, the extent to which the
development policy interferes with those rights, and whether the state can
provide objective and reasonable justification for the policy.
A third observation relates to the manner in which states formulate and
implement development policy. Arguably, it is in this area that the rights of
indigenous peoples will have the greatest impact on the development
process. It is clear from the current review that there is a growing
international consensus on the need for indigenous peoples to participate in
the formulation and implementation of development projects that may
affect them. At present, a legal right to participate in these projects applies
only in some cases, notably, in which the state is party to ILO Convention
169 or in which the circumstances of the case require it under Article 27
ICCPR. If a legal right to internal self-determination for indigenous peoples

evolves under customary international law, then this right will apply in all
cases. Even in the absence of a legal right to participate, the existence of
these instruments and the Draft UN Declaration can be used to render states
politically accountable for any failure to ensure the participation of
indigenous peoples in development projects that affect them.
At present, the nature and extent of the participation required is far from
clear and may vary depending on the circumstances of the case and the
international instrument in question. However, the general duty on states to
carry out their international obligations in good faith suggests that participa-
tion must be effective and not simply a token exercise. This should go some
way towards addressing the marginalization of indigenous peoples from the
development process and ensure that they receive an equitable share of the
benefits of development.
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The Rights of Indigenous Peoples and the Development

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The Rights of Indigenous Peoples

The need for a rights dimension to the development process is recognized

* Helen Quane is Lecturer in Law, University of Wales, Swansea, United Kingdom.

in planning, implementing, and evaluating development programs. Some

tion is regarded as being intrinsically connected with the recognition of

Commission on Human Rights Resolution 1995/32, U.N. ESCOR, Comm’n on Hum.

14. There are seventeen states.

the right to participate in public affairs could be significant in enabling

II. DEFINING “INDIGENOUS PEOPLES”

It should be noted at the outset that the term “indigenous peoples” is

does not rely exclusively on the principle of self-identification because it

III. THE RIGHTS OF INDIGENOUS PEOPLES

A. The Right to Self-Determination

The right to self-determination is well established in international law.34 It

31. Id. art. 1(1).

economic, social, and cultural development, and to dispose of their natural

concept of self-determination is that it is difficult to reconcile with state

may be changing, at least in respect to indigenous peoples. Article 3 of the

circumstances change. Some, for example, are concerned about the

53. Working Group Report 1997/102, supra note 20, ¶ 53.

customary international law. Discussions concerning Article 3 suggest that

In response to this aspect of the Norwegian proposal, indigenous

67. Working Group Report 2003/92, supra note 20, ¶ 25.

In striking a balance between these competing interests, those involved

B. The Right to Participate in Public Affairs

The right to participate in public affairs is also relevant to determining

guarantee that the interests of indigenous peoples are represented in

74. See also GHAI, supra note 41, at 5.

explain why indigenous peoples place so much emphasis on self-

fully at all levels of decision-making in matters that “may affect” them.89 In

89. Draft Declaration, supra note 28, art. 19.

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

The right of indigenous peoples to enjoy their own culture is important in a

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/

peoples’ right to be involved in public planning concerning the use of land

108. See the report submitted by Sweden, supra note 107.

in a terse decision, stated that “[h]istorical inequities . . . and certain more

commercial activity has a reasonable and objective justification. This

118. ILO Convention 169, supra note 29, art. 8(2).

128. Id. art. 5.

D. The Rights of Indigenous Peoples and the Obligations

144. ICCPR, supra note 15, art. 2(1).

resource transfers, provided that it allowed them to retain discretion about

150. Working Group Report 1997/102, supra note 20, ¶ 304.

At present, there is a certain degree of confusion about the rights of

ICCPR. If a legal right to internal self-determination for indigenous peoples

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