DOCUMENT: AUS_95.TXT
U N I T E D N A T I O N S
Economic and Social Council ENGLISH
Distr. ONLY
GENERAL
E/CN.4/1995/WG.15/2/Add.2 GE. 95-14669 (E)
30 November 1995
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Working Group established in accordance
with Commission on Human Rights
resolution 1995/32 of 3 March 1995
20 November - 1 December 1995
CONSIDERATION OF A DRAFT CONTAINED IN THE ANNEX TO
RESOLUTION 1994/45 OF 26 AUGUST 1994 OF THE SUB-COMMISSION
ON PREVENTION OF DISCRIMINATION AND PROTECTION OF
MINORITIES, ENTITLED DRAFT "UNITED NATIONS DECLARATION ON
THE RIGHTS OF INDIGENOUS PEOPLES"
Information received from the Government of Australia
SELF-DETERMINATION - THE AUSTRALIAN POSITION
INTRODUCTION
Recent years have witnessed an evolution of the right
of self-determination. In the post Second World War context,
it was principally thought of as a way in which the
decolonisation process could be legitimised and facilitated.
The right is now beginning to be discussed in terms of the
development of democratic structures and minority and
indigenous rights within existing states.
THE INTERNATIONAL LEGAL FRAMEWORK
2. The concept of self-determination first assumed
international political significance following the First
World War, with US President Woodrow Wilson's enunciation of
his Fourteen Points The principle was invoked in Europe as a
justification for the dissolution of the Austro-Hungarian,
Turkish and (partly) Russian Empires. Subsequently, and
especially in the period following the Second World War, the
principle was converted into a legal right on which were
based colonial territories' claims for independence.
However, the expression of the right to self-determination
in international legal instruments has not been limited to
this context: rather, self-determination is a right of ALL
peoples.
3. Article 1 of the Charter of the United Nations includes
among the purposes of the UN, "[the development of] friendly
relations among nations based on respect for the principle
of equal rights and self-determination of peoples". In the
early 1950s the General Assembly acknowledged that self-
determination was a right of all peoples and nations, a
right which was eventually set out in common Article 1 of
the INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS and
the INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS:
"All peoples have the right of self-determination. By
virtue of that right they freely determine their
political status and freely pursue their economic,
social and cultural development."
4. Alongside this seemingly categorical imperative was
another imperative of international law: the principle of
territorial integrity. The principle is implicit in the
Charter (1) and is generally regarded as a fundamental norm
of international law (2). States have repeatedly denied that
the right of self-determination is a right of secession.
----------
(1) See Article 2(4)
(2) Hurst Hannum, AUTONOMY, SOVEREIGNTY AND SELF-
DETERMINATION: THE ACCOMMODATION OF EXISTING RIGHTS.
University of Pennsylvania Press. 1990, page 49.
----------
5. The international community has sought to reconcile the
two principles of self-determination and territorial
integrity in the General Assembly's DECLARATION ON THE
GRANTING OF INDEPENDENCE TO COLONIAL COUNTRIES AND PEOPLES
(1960) and the DECLARATION ON PRINCIPLES OF INTERNATIONAL
LAW ON FRIENDLY RELATIONS AND CO-OPERATION AMONG STATES IN
ACCORDANCE WITH THE CHARTER OF THE UNITED NATIONS ("the
Friendly Relations Declaration" of 1970), and, more
recently, the Declaration of the International Human Rights
Conference in Vienna (1993). The Friendly Relations
Declaration stated that the right of self-determination:
"shall not be construed as authorizing or encouraging
any action which would dismember or impair, totally or
in part, the territorial integrity of sovereign or
independent states conducting themselves in accordance
with the principle of self-determination of peoples and
thus possessed of a government representing the whole
people belonging to the territory without distinction
as to race, creed or colour." (3)
----------
(3) The recent Vienna Declaration's statement on self-
determination contained a similar caveat.
----------
This was reaffirmed in the Declaration adopted on 24 October
1995 by the United Nations on the occasion of its 50th
anniversary.
6. As stated by the Friendly Relations Declaration (supra),
the right of self-determination of peoples in non-self-
governing territories could be implemented by way of:
"The establishment of a sovereign and independent
State, the free association or integration with an
independent State or the emergence into any other
political status freely determined by [the] people...".
Once that choice is made ("external" self-determination),
the right of self-determination which remains can only be
exercised in ways which are consistent with that part of the
Friendly Relations Declaration cited in paragraph 5 - that
is, with the territorial integrity of the state, so long as
the government of that state is representative. The break up
of a state can still occur, but this should be considered as
dependent on domestic political circumstance rather than on
references to the right of self-determination in
international law (4).
----------
(4) As in the cases of the dissolution of the former Soviet
Union and Czechoslovakia and the secession of Eritrea
from Ethiopia.
----------
7. Some states have argued that the right of self-
determination is a limited right which is extinguished on
the attainment of independence by an ex-colonial territory -
in other words, the right only applies to people in colonial
territories. However, this qualification is not found in the
Covenants, the General Assembly Declarations referred to
above, the Vienna Declaration or any other instrument of the
United Nations. On the contrary, the statements of the right
consistently refer to it as a right belonging to "all
peoples". The right must therefore be more general and
continuing. Following on from this, the question to be
addressed is the content of the right of self-determination.
It is clear that, in accordance with the foregoing analysis,
it does not give rise to a right of secession from an
independent state with a representative government. While
the international community accepts this principle, its
practical application is not without difficulty. States have
been reluctant to pass judgement on the representativeness
of government. Nevertheless, the assessment as to whether a
particular government is representative of its people must
be capable of some objective assessment, and it would be
difficult to say that a government elected by free and
universal suffrage could be described as unrepresentative of
its people or peoples (5). State practice since the Second
World War in fact demonstrates that a right to secession
will only arise where a government is guilty of gross and
systematic abuses of the human rights of a group which could
be categorised as a people.
----------
(5) Obvious instances of this would be claims by the
Quebecois in Canada or the Scots or Welsh in the United
Kingdom that their governments were unrepresentative
and that therefore they have a right to secession.
----------
AUSTRALIA'S POSITION
8. In Australia's view, self-determination is not a static
concept, but rather an evolving right which includes equal
rights, the continuing right of peoples to decide how they
should be governed, the right of people as individuals to
participate fully in the political process (particularly by
way of periodic free and fair elections) and the right of
distinct peoples within a state to make decisions on and
administer their own affairs (relevant both to indigenous
peoples and to national minorities). This proposition finds
support in the words of the Article 1 of the Covenants
(infra), together with Article 21 of the Universal
Declaration on Human Rights (6) and Article 25 of the
International Covenant on Civil and Political Rights (7).
Australia has also repeatedly stressed the point made above
that the right of self-determination does not, except in the
most exceptional circumstances, equate to a right of
secession.
----------
(6) "1. Everyone has the right to take part in the
government of his country, directly or through freely
chosen representatives.
2. Everyone has the equal right of access to public
service in his country.
3. The will of the people shall be the basis of the
authority of government: this will shall be expressed
in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by
secret ballot or by equivalent free voting procedures."
(7) This Article is in similar terms to the above.
----------
9. We have also argued strongly that self-determination,
although a central human right, cannot be used to justify
abuse of other rights, foremost among which is the right to
life. The application of the principle of self-determination
to distinct peoples living within independent states cannot
be used to absolve those peoples or national governments
from their responsibilities to protect the rights set out in
existing international human rights law, both civil and
political and economic, social and cultural.
10. The Australian Government is not a lone voice on this
issue. This position is accepted by a number of, although
not yet a majority of, governments (8) and by writers in
international law (9). In an explanatory note concerning the
draft declaration on the rights of indigenous
----------
(8) See for example a statement by Belgian Foreign Minister
Willy Claes to a conference on "The Right to Self-
Determination of Indigenous Peoples", held on 14-15
January 1994 at the University of Antwerp. Denmark is
also a strong advocate of self-determination for
indigenous peoples. At WGIP 12, the United States
delegate endorsed the application of self-determination
"within the United States" to native Americans.
(9) See, for example, Lea Brilmayer. "Secession and Self-
Determination: A Territorial Interpretation", THE YALE
JOURNAL OF INTERNATIONAL LAW, Vol 16 (1991), at pages
177 ff; Ralph G Steinhardt, book reviews, THE AMERICAN
JOURNAL INTERNATIONAL LAW, Vol 88 (1994) at pages 831-
837; Robert McCorquodale. "Self-Determination: A Human
Rights Approach". INTERNATIONAL AND COMPARATIVE LAW
QUARTERLY, Vol 43. pages 857 ff; Colin Warbrick, book
reviews, INTERNATIONAL AND COMPARATIVE LAW QUARTERLY,
Vol 43, pages 965-66. Frederic L Kirgis, Jr. Editorial
Comment: The Degrees of Self-Determination in the
United Nations Era. THE AMERICAN JOURNAL OF
INTERNATIONAL LAW, Vol 88 (1994) at pages 304-310.
----------
peoples (10), the Chairperson of the Working Group on
Indigenous Populations, Professor Daes, has expressed the
view that:
"The concept of "self-determination" has accordingly
taken on a new meaning in the post-colonial era.
Ordinarily, it is the right of the citizens of an
existing, independent State to share power
democratically. However, a State may sometimes abuse
this right of its citizens so grievously and
irreparably that the situation is tantamount to classic
colonialism, and may have the same legal consequences"
(para. 23).
11. This concept of self-determination sits well with the
present emphasis on peace building and preventive diplomacy.
Australia's statement to the 51st Session of the Commission
on Human Rights contained a strong affirmation of the
message that violent intrastate conflict, which is a major
problem for international and human security, needs to be
addressed by the international community. A comprehensive
and constructive interpretation of the concept of "self-
determination" for peoples within existing states is needed.
Sovereign independence for every self-defined "group" is not
feasible. Rather, the demands by peoples for internal self-
determination, generally expressed as the maintenance of
their cultural identity, including their language and
spiritual beliefs, should be capable of accommodation by
national governments (11). Finally, it needs to be said that
there is no single "model" of self-determination which is
suitable for all states. The application of the principle
will, depending upon the internal situation of each state,
result in different outcomes and structures. The important
element is that the principle should contribute to and
inform the domestic political debate.
----------
(10) UN Document E/CN.4/Sub.2/1993/26/Add.1 of 19 July 1993.
(11) "A distressing feature of recent times has been the
emergence of intrastate conflict as a major problem for
international and human security. The available
evidence strongly suggests that violent intra-state
conflict is unlikely to decrease of its own accord in
the near or mid-term future. Among the conceptual
rethinking on the part of the international community
that is needed in order to grapple with these serious
security problems is a comprehensive and constructive
interpretation of the concept of "self-determination".
Sovereign independence for every self-defined "group"
is not feasible. The great majority of the world's
states are ethnically diverse: indeed, only 20 percent
are relatively ethnically homogeneous. A large number
of states have at least five sizeable ethnic
populations. The ideal of ethnically pure states is
therefore, in Australia's view, clearly unrealistic....
Australia believes that attempts to actively pursue
such exclusive political arrangements lead only to the
bloodshed and ethnic cleansing we have seen recently in
the former Yugoslavia, the Caucasus and parts of
Africa. Rather, the demands by peoples for internal
self-determination, generally expressed as the
maintenance of their cultural identity, including their
language and spiritual beliefs, should be capable of
accommodation by national governments." Australian
Statement to the 51st session of the Commission on
Human Rights, Geneva, January 1995. This passage was in
turn partly derived from a paper delivered by the
Minister for Foreign Affairs, Senator Gareth Evans, to
the Konrad Adeneur Stiftung in Bonn on 6 July 1994 and
an article by Senator Evans entitled "Cooperative
Security and Intrastate Conflict", in Foreign Policy,
Number 96 (Fall 1994), pages 3-20.
----------
SELF-DETERMINATION FOR INDIGENOUS PEOPLES
12. The content of the right of self-determination for
indigenous peoples is consistent with the approach outlined
in paragraph 14. It is not simply a right to participate in
national affairs on an equal basis with other citizens of
the state. To indigenous peoples, such an approach smacks of
assimilation. Indigenous peoples' advocacy of self-
determination has principally been in terms of preservation
of culture, distinct identity and language, together with a
power to take decisions over their own affairs. In
Australia, governments have in recent times clearly applied
self-determination to our indigenous peoples in a far wider
sense than simple participation in national affairs.
WHERE TO FROM HERE?
13. It is clear that a number of governments are uneasy with
any view that self-determination is a principle of any
application to their people (the issue is a problem for
governments of states with indigenous peoples and
minorities). This stems from their concern that a right of
self-determination may equate to a right of secession. In an
attempt to deal with the concerns of those governments, the
1993 draft of the Declaration included the following
formulation for Article 3:
"Indigenous peoples have the right of self-
determination, in accordance with international law,
subject to the same criteria and limitations as apply
to other peoples in accordance with the Charter of the
United Nations. By virtue of this, they have the right,
inter alia, to negotiate and agree upon their role in
the conduct of public affairs, their distinct
responsibilities and the means by which they manage
their own interests. An integral part of this is the
right to autonomy and self-government."
However, that formulation was replaced with the present
formulation as a result of strong statements by indigenous
peoples' organisations.
14. It is equally clear that "self-determination" for
indigenous peoples is widely accepted within the Australian
community. The extent of that right rightly remains a matter
of political debate, particularly where autonomy or self-
government for our indigenous peoples may be seen to
conflict with the rights of others within the Australian
community or with overall governmental responsibility to
achieve particular outcomes. Our advocacy of a broad view of
self-determination advances wider foreign policy interests
in the promotion of democratisation and the reduction of
intrastate conflicts which can threaten international peace
and security.
15. Australia therefore sees value in viewing self-
determination as an evolving right which is the wellspring
of concepts of democracy and other human rights within the
international community.
THE AUSTRALIAN DOMESTIC CONTEXT
16. Self-determination for Australia's indigenous peoples
has been Government policy since 1972 (12). The present
emphasis on the term dates from 1987, when then Minister for
Aboriginal Affairs, Mr Hand, stated that he saw self-
determination as a "vital issue", which must ensure "that
Aboriginal and Islander people are properly involved in all
levels of the decision-making process in order that the
right decisions are taken about their lives" (13). The
principle has since been endorsed by Governments, both State
and Federal, and of varying political persuasions, in their
response to the Royal Commission into Aboriginal Deaths in
Custody (14). The Minister for Aboriginal and Torres Strait
Islander Affairs, Mr Robert Tickner, has repeatedly endorsed
the principle of self-determination for Australia's
indigenous peoples in his statements to the UN's Working
Group on Indigenous Populations. Mr Tickner has stated that
he sees the Aboriginal and Torres Strait Islander
Commission (ATSIC) and the Torres Strait Regional Authority
as significant steps towards self-determination (15), a view
shared by the Prime Minister. This articulation of self-
determination is therefore a reflection of the endorsement
of its broad application in the domestic context.
----------
(12) Royal Commission into Aboriginal Deaths in Custody.
NATIONAL REPORT. AGPS. Canberra. 1991, page 526.
(13) Ibid.
(14) Aboriginal Deaths in Custody: Response by Governments
to the Royal Commission. AGPS. Canberra. 1992, pages
718-721.
(15) Statement to WGIP 12, 1994, pages 12-13.
----------
17. In 1990 the House of Representatives Standing Committee
on Aboriginal Affairs defined self-determination as:
"... Aboriginal control over the decision-making
process as well as control over the ultimate decision
about a wide range of matters including political
status, and economic, social and cultural development.
It means Aboriginal people having the resources and
capacity to control the future of their own communities
WITHIN THE LEGAL STRUCTURE COMMON TO ALL AUSTRALIANS"
(16) (italics added).
----------
(16) Australia. House of Representatives Standing Committee
on Aboriginal Affairs, OUR FUTURE, OUR SELVES:
ABORIGINAL AND TORRES STRAIT ISLANDER COMMUNITY
CONTROL, MANAGEMENT AND RESOURCES, AGPS, Canberra,
1990, page 12.
----------
The Committee distinguished the concept from that of self-
management, which it felt was a narrower term, meaning the
implementation of decisions which may have been made by
others.
18. While not wishing to pre-empt the right of indigenous
people in Australia to speak for themselves on this subject,
it is important to note that Australia's indigenous leaders
are strong supporters of the right of self-determination for
their peoples. They have also made it clear that they do not
see acceptance of the right as having implications for
Australia's territorial integrity, although that view is
often expressed in political rather than legal terms. The
Chairperson of the Aboriginal and Torres Strait Islander
Commission, Miss Lois O'Donoghue, has stated:
"The recognition of the right of self-determination for
indigenous peoples does not lend additional weight to
claims for recognition of independent sovereignty.
Certainly for all peoples living within established and
recognised nation-states such as Australia, the right
is constrained by other considerations, including
provisions of the United Nations Friendly Relations
Declaration. For Aboriginal and Torres Strait Islander
peoples, most would acknowledge that independent
sovereignty, in any internationally recognisable sense,
really is not a practical option." (17)
----------
(17) Council for Aboriginal Reconciliation. CONTROLLING
DESTINIES: GREATER OPPORTUNITIES FOR INDIGENOUS
AUSTRALIANS TO CONTROL THEIR DESTINIES, AGPS, Canberra,
1994, page 24.
----------
That statement reflects both a legal and a political
viewpoint (18).
----------
(18) Other statements are political rather than legal.
Getano Lui Jnr, a member of the ATSIC board from the
Torres Strait, has stated:
"Let me make one thing clear. Torres Strait Islanders
are not trying to abandon Australia. We are looking at
a range of options [for self-determination]. None of
those options call into question our continued
association with Australia in culture, spirit or law.
We need reforms and improvements, not a separation, and
certainly not a divorce." (Council for Aboriginal
Reconciliation, op cit. pages 30-31).
----------
19. Indeed, some indigenous leaders in Australia expressly
argue that their peoples' right of self-determination is the
same as that of colonised peoples - that is, it includes a
right of secession, even if in practical terms that is not
presently a viable option. The Australian Government does
not agree with this position - indigenous peoples, like all
other peoples in independent states with representative
governments, do not have a right of secession, although they
do have a right of self-determination.
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